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Grip : GRIP December 2011
LEGAL GRIP legal complexity - the next 12 months Tony Grasso Legal Counsel 2011 has seen significant changes to the laws relating to product liability and consumer protection. The primary change has been the introduction of the Australian Consumer Law (ACL) (which now forms part of the Competition and Consumer Act previously known as the Trade Practices Act). The ACL replaces the old implied warranties regime with a new consumer guarantees regime, the most important of which is the consumer guarantee as to “acceptable quality”. In essence, the law now requires that (amongst other things) anyone who manufactures, distributes or sells goods to “guarantee” that those goods are fit for purpose, are acceptable in appearance and finish, are free from defects and are safe and durable. Failure to comply with the guarantees gives rise to significant consumer rights. warranty, the ACL requires that the person make certain disclosures including providing the detail of who is actually offering the warranty, stating what the consumer must do for the warranty to be honoured, set out the procedure that a consumer must follow to obtain a remedy under the warranty, and state who will bear the costs associated with making a warranty claim. In addition, the warranty must also include certain prescribed text relating to the consumer’s rights under the ACL. A further obligation imposed on retailers of goods under the ACL relates to the mandatory reporting of serious injuries, illness or death allegedly caused by a product. Retailers have two days after becoming aware of such an issue to report the matter to the ACCC. There are several exemptions relating to when a matter is reportable and it is important for retailers to clearly understand these. The policy behind the new laws is to allow the government to detect trends in serious injuries being caused by products, and if it is necessary to mandate a compulsory recall. To assist retailers in understanding their obligations the ACCC has prepared a publication titled “A guide to the mandatory reporting law in relation to consumer goods” which can be found on the ACCC’s website. A final change for retailers to be aware of is the upcoming introduction of the Personal Property Securities Register (PPSR). In short, the PPSR will replace and consolidate into one single register, a myriad of security registers including REVS and other state and territory encumbrance registers. The PPSR is being introduced pursuant to the Personal Property Securities Act (PPSA). The PPSA significantly re- writes the law as it relates to security interests and creditor priority, and it is therefore important retailers reassess their business credit risks and how they interact with the provisions of the PPSA to ensure they protect their credit position when it comes to selling on credit terms. In particular, retailers should consider investigating the impact of the new PPSA on their sales to fleet companies, as well as in respect of their wholesaling of cars to other retailers. In conclusion, there have been considerable changes in laws affecting retailers over the past year. These changes are complex and this ar ticle is intended to simply point out the key issues. It is recommended that retailers consider speaking with their own lawyers to obtain specific advice pertaining to their circumstances. This will help ensure your business has the right processes and documents in place to protect it from legal risk, and the potentially substantial fines that may be imposed for failure to comply. The good news is that by selling a high quality product, distributed by a company which truly is All 4 the Driver and proudly stands behind its product, you are already half way there! “THE ACL HAS ALSO BROUGHT ABOUT NEW OBLIGATIONS CONCERNING THE REPAIR OF GOODS.” In particular, where a service provider is repairing goods using refurbished components or is repairing goods capable of storing data, the service provider must now provide cer tain specific written notices relating to the repair prior to accepting the goods for repair. In addition, from January 1, 2012, where a person makes a representation that goods come with an express let’s meet: tony Favourite Subaru? I’d have to say the Subaru Liber ty GT sedan. It’s got the right balance between being sporty and elegant. Tell us about your job? As the company’s legal Counsel I get involved in a broad range of legal issues affecting the company. What excites you about 2012? To me the most exciting thing about 2012 will be the introduction of the new range of product and technologies that Subaru is bringing to market which will revitalise our brand. INSIDE GRIP HOME PAGE MARKETING AFTERSALES PRODUCT PLANNING PARTS & ACCESSORIES LEGAL FINANCE & FLEET SUBARU ASSURED BRAND COMPARISON DEALER RANKINGS SPORT
GRIP January 2012