Law enforcement by Australian consumer affairs agencies†

Date01 September 1985
DOI10.1177/000486588501800303
Published date01 September 1985
Subject MatterOriginal Article
AUST
& NZ
JOURNAL
OF
CRIMINOLOGY
(September
1985) 18 (147-163)
LAW ENFORCEMENT BY AUSTRALIAN
CONSUMER AFFAIRS AGENCIESt
John Braithwaite* and Susan Vale**
147
Abstract
Consumer affairs agencies in Australia generally rely on conciliation
rather
than
law enforcement. Prosecutions are rare, and when they do occur, penalties are
derisory. South Australia is the only jurisdiction with a substantial record of
prosecuting consumer affairs offenders.
The
Commonwealth
Trade
Practices Act is
the
only statute
under
which courts impose significant fines against corporate
consumer affairs offenders.
Introduction
Consumer affairs enforcement is a relatively recent
phenomenon
in Australian
history, at least insofar as it is conducted by specialized consumer affairs
departments or bureaux. These specialized agencies were created in response to an
organized consumer movement which itself only began to become a force to be
reckoned with in the 1960sand emerged as a well-organized lobbying presence only
in the 1970s.
Consumer
affairs bureaux or departments were established in every
State and Territory between 1969 and 1974, immediately followed by
the
Whitlam
government's establishment of
the
Trade
Practices Commission at a
Commonwealth level. Prior to this,
there
had been for many decades rudimentary
weights and measures enforcement in Australia, enforcement of purity standards
for food by inspectors located in health and primary industry
departments
as weIl
as fragmented enforcement of various
other
consumer rights by disparate agencies.
The
present study is not concerned with those types of consumer protection
enforcement such as
meat
inspection, therapeutic goods regulation,
and
pure food
control conducted by agencies
other
than consumer affairs bureaux and
departments.
Complaints
The
National Consumer Complaint Statistics System reveals
that
in 1982-83
65,378 written complaints were made to government consumer affairs agencies in
Australia. These statistics, of course, understate the problem because there is an
unwillingness or inability of many to put their complaints in writing. In 1981-82, the
Trade
Practices Commission had 932 written complaints,
but
22,000consumer
affairs complaints and enquiries overall. While the New South Wales
Department
of Consumer Affairs had 26,362 written complaints in 1981-82,
there
were 283,775
telephone calls from concerned consumers and 39,197 personal interviews with
consumers.
The
data
to come will show that for every consumer affairs conviction
there
are more
than
200 written complaints which do not lead to a conviction and
conservatively
over
2000 unwritten complaints. Of course,
there
is no way of
knowing how many of these complaints involve actual violations of the law - a
large
number
of
them
undoubtedly involve no illegality by
the
trader.
tThis
project
was
funded
by a
grant
from the Criminology
Research
Council.
*
Senior
Research
Fellow,
Dept
of Sociology,
Research
School of Social Sciences,
A.N.
U.
** Assistant
Director,
Australian
Federation
of
Consumer
Organizations.
148 J
BRAITHW
AlTE
&S V
ALE
(1985) 18
ANZJ
Crim
The National Consumer Complaint Statistics System reveals the breakdown of
written complaints by reasons for the complaint in Table 1. A further breakdown
of these statistics, according to whether they were directed to State and Territory
agencies or
the
Trade
Practices Commission (TPC), reveals that 55% of
TPC
complaints fell in the categories, "Misleading Advertising" or "Misleading
Representations". Most complaints to State agencies fell in the first category,
"Unsatisfactory Quality of Product or Service".
TABLE
1
Written Complaints to Australian Consumer Protection Agencies
by Reason, 1982-83
Reason
Unsatisfactory quality of product or service
Unfair or unfulfilled contracts
Guarantees
and
warranties not
honoured
Misleading advertising
Midleading representations
Excessive prices/charges
Unfair credit practices
Unfair sales methods
Offers of redress
Unsatisfactory packaging, labelling
Total*
No
29,484
19,344
4,908
2,523
1,561
3,996
3,387
2,624
2,447
540
70,814
%
41.6
27.3
6.9
3.7
2.1
5.6
4.8
3.7
3.5
0.8
*Each complaint may be given two reason categories
and
totals may exceed
product/service totals
These statistics do not include complaints to weights and measures inspectorates
which are
not
within consumer affairs agencies. In Tasmania, for example,
the
Weights
and
Measures Inspectorate investigated 3200 complaints or enquiries in
1982, checked and verified/adjusted some 15,000 weighing or measuring
instruments,
and
checked or test weighed some 25,000 pre-packed articles. While
about 700 of the latter were found to be underweight,
there
were only
three
convictions for all
typesof
weights
and
measures offences in the 1981-82 year.
Methods
The basic source of data for this study was consumer affairs departmental or
bureau annual reports.
Data
on all consumer affairs convictions were sought for all
States
and
Territories and for federal prosecutions under the
Trade
Practices Act.
The
starting year for data collection in each jurisdiction was the year of the first
consumer affairs department or
bureau
annual report. This excluded considerable
conviction
data
which pre-dated
the
establishment of a specialized consumer affairs
agency. In New South Wales,
data
were only available from the 1976-77 financial
year despite determined efforts by the Commissioner for Consumer Affairs to
extract information on
our
behalf from the Industrial Registrar of the New South
Wales Industrial Commission and the Industrial Magistrate for earlier years. This
is a case of a jurisdiction where significant numbers of consumer affairs prosecutions
were being
undertaken
prior to the starting point of
our
statistics. We doubt in
other

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