- The final version of the ACL regulations has been published.
- No significant amendments have been made to the original draft regulations.
- Following submissions from industry, the date from which suppliers of goods and services must include standard wording in warranties against defects has been delayed to 1 January 2012. The date for inclusion of standard wording in contracts for repair has also been extended to 1 July 2011.
On 16 November 2010, the final Australian Consumer Law (ACL) regulations were published.
The ACL regulations were initially released for comment in September 2010. The deadline for submissions was 13 October 2010. Freehills was one of 33 interested parties to make a submission.
The regulations deal with the following areas of the ACL:
- warnings statements on documents and invoices relating to unsolicited goods or services (to make it clear that the statement or invoice is not a bill and that the consumer is not required to pay any money)
- the scope of application of the new unsolicited consumer agreement provisions of the ACL
- requirements for wording and information to be contained in documents which contain warranties against defects in contracts for the supply of goods or services
- requirements for wording and information to be provided to consumers when consumer goods are repaired, and
- reporting requirements for goods or product related services associated with death, serious injury or illness.
The final regulations contain only minor amendments to the original draft regulations. The most significant differences are:
- the requirements for wording and information to be contained in documents which contain warranties against defects in contracts for the supply of goods or services will not come into effect until 1 January 2012. This will give suppliers an additional 12 months to ensure that their warranties are compliant.
- the new notice requirements which relate to contracts for the repair of consumer goods will not come into effect until 1 July 2011.
- the introduction of certain of the provisions relating to ‘unsolicited consumer agreements’ has also been delayed to give businesses time to adjust.
What are the content requirements for documents containing warranties against defects in contracts for the supply of goods or services?
The ACL regulations state that if a person supplies goods or services to a consumer and offers the consumer a document which is a warranty against defects, the document must contain the following information:
- what the person who gives the warranty must do so that the warranty may be honoured—for example, the supplier will repair the goods or replace the goods within a certain time period
- what the consumer must do to entitle the consumer to claim the warranty—for example, contact the supplier or manufacturer and point to the defect
- the following details in relation to the person giving the warranty: the person’s name, business address, telephone number and email address if any
- the period within which a defect in the goods or services to which the warranty relates must appear if the consumer is entitled to claim the warranty
- the procedure for the consumer to claim the warranty including the address to which a claim may be sent
- who will bear the expense of claiming the warranty and if the expense is to be borne by the person who gives the warranty—how the consumer can claim expenses incurred in making the claim
- a warranty against defects must state that the benefits to the consumer given by the warranty are in addition to other rights and remedies of the consumer under a law in relation to the goods or services to which the warranty relates, and
- the document must contain the following text: our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
The legislation describes a warranty against defects as a representation that a person will:
- repair or replace goods or part of them, or
- provide again or rectify the services or part of them, or
- wholly or partly recompense the consumer,
if the goods or services or part of them are defective.
What are the notice requirements for repair contracts?
These notice requirements relate to the repair of goods that are capable of retaining user-generated data (such as files on a computer hard drive, telephone numbers stored on a mobile phone, songs stored on a portable media player, games saved on a games console etc). The notice must contain the following information:
- the repair of the goods may result in the loss of data, and
- the notice must contain the following text if it is the practice of the repairer to supply refurbished goods as an alternative to repairing defective goods: goods presented for repair may be replaced by refurbished goods of the same type rather than being repaired. Refurbished parts may be used to repair the goods.