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REINSW submission on consumer law reforms

23 June 2016

REINSW has made a submission on the Australian Consumer Law (ACL) Review to help protect property consumers and increase transparency.

The ACL review began in March 2016 and an interim report will be released for public consultation in the second half of the year. A final report will then be provided to consumer affairs ministers by March 2017.

REINSW’s submission addresses the relationship between the ACL and the Property, Stock and Business Agents Act 2002 (NSW) (PSBA Act). 

It focused on three areas.

Underquoting

There is currently a discrepancy between the federal and state laws. Section 30 of the ACL prohibits a person making a misleading representation in connection with the sale of land, including the price.

However under sections 73 and 73A of the PSBA Act, agents must not advertise a property less than their estimated selling price, which may be less than what the vendor will accept.

This exposes the agent to prosecution under the ACL. REINSW proposes that the state law should be revised to eliminate the discrepancy and reflect the position of the ACL

Material fact

REINSW believes the current legislative provisions relating to misrepresentation by concealment of a ‘material fact’ lacks ‘consistency, certainty and clarity’.

The current provision is only applicable to real estate agents and harmonising the obligations with vendors and vendors’ solicitors will provide better consumer outcomes.

REINSW also suggests that a ‘material fact’ should be a mandatory disclosure in the form of a prescribed document attached with the contract of sale under Schedule 1 of the Conveyancing (Sale of Land) Regulation 2010 (NSW).

There is no statutory meaning or court’s interpretation given to the term ‘material fact’. REINSW recommends that the ACL legislation include a statutory definition and the PSBA Regulation set out a list of ‘material facts’ to increase the practicality of this provision.

Listing sites 

REINSW is concerned with the proliferation of agent listing sites which promote themselves as providing researched recommendations of the best agent. However they do little to no work and simply pass a lead to an agent that subscribes to their ‘services’.

REINSW believes these providers mislead consumers and add no value, and to protect consumers, specific legislation should be introduced to address these activities.

For more information, read REINSW’s submission here.

     
 
What does the ACL do?


The ACL commenced on 1 January 2011 and replaced 20 different Acts across different jurisdictions to provide one single, comprehensive law covering: 

  • unfair contract terms in standard form consumer and small business contracts
  • consumer guarantees when buying goods and services
  • product safety standards
  • unsolicited consumer agreements including door-to-door sales and telephone sales
  • penalties, enforcement powers and consumer redress options.

For more information on the ACL, click here.