Wednesday, 4 December 2019

Georgina Molloy highlights some of the shortcomings of the WA consumer protection system, and puts forward practical suggestions around law reform and community education to fix them.

Western Australian consumers often face barriers that prevent them from enforcing their consumer rights. People across Australia have rights under the Australian Consumer Law, but we often see in Western Australia that consumers face impediments when it comes to enforcing these rights.

What are these barriers in Western Australia?

First, access to consumer law advice and free legal representation is limited in Western Australia.

Second, where people are unsuccessful in negotiating with the business that sold them the faulty goods or unfit services, the only way to enforce their consumer rights in Western Australia, is to go to court. However, for many Western Australians, the prospect of going to court may be daunting, and a risk they cannot afford. In addition, there may be significant geographical and technological impediments to people enforcing their consumer rights in Western Australia.

At the Consumer Credit Legal Service WA (CCLSWA) based in Perth, we hear the frustrations that Western Australian consumers experience after attempting and then failing to resolve their complaints directly with businesses. Certainly, some consumers successfully negotiate an outcome with a business, and many people conciliate their disputes with the help of Consumer Protection. If negotiations to resolve a consumer complaint directly do not work, then Western Australians are often left feeling quite stuck – the only option left is to take that business to court, or give up on enforcing their rights.

Consumers can bring minor case claims (for amounts under $10,000) by themselves, and without a lawyer, to the Magistrates Court of Western Australia. But for some people, and particularly for vulnerable consumers, the prospect of bringing legal action to court by themselves is too frightening, difficult and potentially costly.

Often, where a dispute is about a smaller sum of money, people may be reluctant to enforce their rights. For some, the cost of taking a day off to attend court may be too high, particularly for casual workers without leave entitlements or those in unpaid caring roles. Consumers may perceive that given the costs taking a day off to go to court, it isn’t worth their while to enforce their rights.

In situations where consumers have claims about goods or services concerning larger sums of money, there are other issues with accessing justice in Western Australia. We see this particularly where people have bought faulty ’lemon’ cars from car dealerships. Many people with a claim about a faulty vehicle may not be able to bring a general procedure claim to the Magistrates Court by themselves. Lawyers can be expensive, and we see that many people who buy cars that end up being dodgy and call our service for help, are the ones who can least afford legal representation, and are least able to self-advocate.

Community legal centres and many other organisations do vital work to assist vulnerable people in many areas of law. Community legal centres are, however, thin on the ground in Western Australia, and many centres may not be able to assist people with consumer law claims when they are stretched by other urgent matters.

How can we fix this?

Our service has spent the past 12 months working on a law reform project, and has drafted a report to the Department of Mines, Industry, Regulation and Safety’s Consumer Protection division. CCLSWA’s report makes many recommendations to improve outcomes for consumers in Western Australia.

The report makes detailed recommendations in key areas of law and policy that affect Western Australian consumers. For example, for consumers who have bought faulty ’lemon’ cars, we suggest that an alternative tribunal be introduced to allow people to easily bring claims without needing a lawyer or going to court.

Separate to these law reforms, it is vital in the meantime, that Western Australians understand that they have consumer rights, and have access to support services to assist them to enforce their rights.

Community education is the first step – consumers must understand what their legal rights are. For example, we see that many people are unaware that the statutory consumer guarantees under the Australian Consumer Law exist separately to any contract that they may have signed with a business.

Second, access to services is vital – vulnerable people must to be able to access free legal advice and support services when they need them, when things go wrong.

We are a front line service that sees consumers in terrible situations which are not their fault or in their control, and we cannot meet the demand in the community for our services in Western Australia. It would be wonderful if Western Australians had not only better access to services to help enforce their consumer rights, but also if the law allowed people to easily enforce these rights.

Georgina Molloy is a solicitor at the Consumer Credit Legal Service (WA) Inc., a not for profit specialist community legal centre based in Perth. Prior to taking on this role in 2015, Georgina worked as a corporate lawyer in Melbourne and Singapore. Georgina is a committed advocate for vulnerable people in their disputes with banks and other credit providers. She also enjoys supervising the centre’s law student volunteers and paralegals, to assist Western Australians to understand and enforce their consumer and financial rights.


Business and Industry
UWA Public Policy Institute