Consumer claims in Queensland are governed by the Australian Consumer Law (ACL) which is set out in Schedule 2 of the Competition and Consumer Act 2010.
This law applies to all consumer transactions that have been entered into in Queensland and all of Australia since 1 January 2011. All consumer transactions in Queensland before then are covered by the Queensland Fair Trading Act 1989 and the national Trade Practices Act 1974 (no longer used).
Consumer claims in Queensland are administered by the Office of Fair Trading (OFT). The OFT:
- has the responsibility for providing a fair and safe marketplace for consumers and businesses
- can advise consumers about their legal rights when it comes to warranties, guarantees, and refunds and assist them to negotiate a resolution to a complaint
- investigates and takes enforcement action against any trader who has broken any consumer law
- offers advice regarding consumer claims in Queensland arising from buying or selling a home
- investigates and informs the community about ‘scams’
- is responsible for enforcing safety standards for household goods, electrical goods and appliances, and toys, and for overseeing product safety
- issues licences to people who work in a range of industries to help ensure high professional standards.
There are certain basic implied warranties for consumers. These warranties mean that all goods and services must:
- be of a reasonable quality
- be fit for the job that the trader said they would do or that they were advertised to do
- match any sample or description given
- have no defects, and
- have spare parts and repairs available unless the consumer is otherwise advised.
The trader is able to provide extra warranties to the consumer, but these implied warranties are already included. Note that many second hand goods may not have to meet these standards, nor will they have the same warranties as those for new goods.
If there is a complaint, then the trader who sold the product or provided the service must do what they can to try to resolve it. If the dispute can’t be resolved then the OFT can investigate the complaint and try to conciliate by acting as an intermediary between the consumer and the trader. The conciliation is free and it may mean that there is no need for legal action.
If conciliation does not resolve the problem, the OFT can give advice regarding taking the complaint to a court or tribunal. Some traders have a complaints process that the consumer can use to have their complaint assessed by someone in the company, and many are part of industry schemes that provide a system for the resolution of disputes.
For consumer claims in Queensland, there is a range of civil, criminal, and administrative enforcement remedies available to the OFT to stop unlawful behaviour by a trader, to fix any harm caused by their conduct and to make sure that they comply with the laws in future. The OFT can:
- declare that a term or clause in a standard-form consumer contract is unfair and therefore will be unenforceable against the consumer
- issue a public warning notice in respect of a trader
- apply to the court for orders to make good any harm suffered in the community that results from a breach of the law
- apply to the court for an adverse publicity order or for an injunction to stop a business from breaching the Act
- apply to the court for an order disqualifying a person from managing any corporation
- if the trader’s actions have caused loss or damage to a consumer, either the consumer or the regulators can apply to recover damages, refunds or compensation.
For minor breaches of the Act, a trader can offer an undertaking that they will put a set of procedures in place to make sure that the breach does not occur again. If this undertaking is accepted by the OFT, it will be enforceable by a court if the trader does not comply with it.
The ACL creates a number of criminal offences for breaches of particular provisions of the Act for which the trader might be subject to criminal conviction, substantial fines, and orders for compensation.