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Chapter 7 Section H: Consumer Law

This chapter of the Manual provides information about consumer law and how it relates to people with mental health conditions.

You will find information in this section of the Manual about:

  • Australian Consumer Law
  • Resolving consumer disputes; and
  • Discrimination in the provision of goods and services.

7.H.1: Australian Consumer Law

The Australian Consumer Law applies in every state and territory. The Australian Consumer Law protects you as a consumer every time you buy a good or service that costs less than $40 000, or for personal use.

7.H.1.1: Consumer guarantees for goods and services

Examples of consumer goods are food, furniture, clothing, electrical goods and other items, and items that help with your mental health condition.

Examples of services are internet plans, removalists, hairdressing, and services that help with your mental health condition such as counselling.

Your consumer rights apply when you buy something from a physical store, online, over the telephone or from a salesperson who comes to your door.

Remember, no matter what the circumstances are, you do not have to agree to buy anything you do not want. If you feel pressured to agree to something on the spot, you can tell the seller you’re not interested or that you will take some time to think about it.

For more information for consumers with disability, see this link for helpful factsheets.

When you buy a good or service, you have a number of rights. You have the right to:

  • take your time making a decision
  • ask for what you want
  • ask for a better price
  • say no if you do not want the goods or services offered
  • be treated fairly; and
  • be provided with the important and correct information before you buy the good or service.

If you feel pressured by a particular salesperson, remember that you can always say no, or that you need more time to think about your decision. Do not sign a contract that you do not understand or feel pressured to buy something you do not want.

When you buy goods or services, they come with automatic protections called ‘consumer guarantees’ set out under the consumer law. Consumer guarantees include that:

  • goods are of acceptable quality
  • goods will match their description or any sample or demonstration model you were shown
  • services will be provided with due care and skill and within a reasonable time; and
  • goods and services will be fit for any purpose you made known to the seller.

When you are making a big purchase, it is always a good idea to keep receipts and other paperwork in case something goes wrong with your purchase or you want to complain later.

If something goes wrong and the consumer guarantee is not met, you have a right to a repair, replacement or refund for goods or to have a service fixed. In some cases, you may also be able to claim your money back for damages and loss.

If the failure to meet the guarantee for goods was big, you have the right to choose how the failure is to be fixed. For example, if you buy a mobile phone or computer but the screen is cracked or it does not turn on, this is a big failure.

If the failure is small, the supplier chooses how to fix it. For example, if you pay a cleaner to clean your whole house but they do not clean your kitchen, this would be a small failure. If a seller fails to fix a problem with a service within a reasonable time, you can pay someone else to complete the service (and claim the cost from the supplier) or terminate the contract and seek a refund.

There are some situations consumer guarantees do not apply, including if you:

  • did receive what you asked for but simply changed your mind, found it cheaper somewhere else, decided you did not like the purchase or had no use for it
  • misused a product that caused the problem
  • knew of, or were made aware of, the faults before you bought the product; or
  • asked for a service to be done in a certain way against the advice of the business or were unclear about what you wanted.

For more information about consumer guarantees, click here.

The seller or the person who made the good may also make a warranty. A warranty can include a promise to fix or replace what you bought or provide a refund if things go wrong. Warranties often have a time limit.

When you buy something, the seller might ask you if you want to extend that time limit or buy an extended warranty. An extended warranty might not protect you more than you are already protected under the Australian Consumer Law (for free).

Only pay for an extended warranty if:

  • the business or salesperson can clearly explain the extra protection you will get
  • the extra protection is something you need; and
  • you think the protection offered is worth the extra money.

7.H.1.2: Consumer Contracts

The Australian Consumer Law protects you if you sign a contract as a consumer.

A contract is an agreement two parties make to do something for each other. A ‘party’ can be a person or an organisation. For example, if you agree to pay someone if they agree to paint your house, this can be a contract. You may also enter into a contract for, for example a gym membership, or a mobile phone plan.

Important points about contracts:

  • A contract can also be called a service agreement.
  • Contracts can be in writing, or they can be verbal.
  • Contracts are legally binding, which means that they can be enforced by law if one party does not do what they agreed to do.

Before you sign a written contract, you should:

  • read the contract carefully
  • make sure you understand what you have to do
  • make sure you understand what the other party has to do
  • understand how long the contract will last; and
  • understand what you can do if your circumstances change (for example, you can no longer make payments).

If you do not understand the contract, it is important that you do not sign the contract without seeking further advice. You can ask a support worker or lawyer for more information about the contract.

Under contract law, you may be able to get out of a consumer contract in certain circumstances:

  • if you did not have ‘legal capacity’ to enter that contract because you could not understand the general nature and effect of the contract; or
  • if the other party used ‘undue influence’, or pressured you from making a free and independent decision to enter the contract; or
  • if there was ‘unconscionable dealings’, or if the other person knew of a ‘special disability’ and took advantage of it; or
  • if the contract was unjust or unfair (for example, there was overly complicated language in the contract or unequal bargaining power between you and the business).

For more information about contracts, click here.

7.H.1.3: Australian Consumer Law and National Disability Insurance Scheme

If you are a participant in the National Disability Insurance Scheme (NDIS), you are protected by the Australian Consumer Law when you buy a good or service under your NDIS plan.

For example, your NDIS plan might include these services:

  • personal care to support you living in your home or the community
  • support to enable you to enjoy social and community activities
  • assistance with completing tasks of daily living
  • supported employment services or employment programs that prepare you for work; or
  • training to support family members to provide reasonable care for you.

When you buy services from a NDIS service provider, you are entering into a service agreement or contract.

If there is an issue with a service agreement under your NDIS plan, you will have three (3) years from when the cause of action (or legal issue) arose, and the goods or services had to have been supplied no more than ten (10) years before you make your application.

For more information about NDIS, click here, and for more information about NDIS service agreements, click here.

7.H.2: Resolving consumer law disputes

You will find information in this section of the Manual about resolving a dispute when there is a problem with the good or service you bought.

If your problem if covered by a consumer guarantee, the seller should help you fix the problem. Their solution will depend on whether the problem is small or big.

If there is a problem with a good you bought and it’s a small failure and can be easily fixed, the business can repair the product for free. If it’s a big failure or can’t be fixed, you can choose a replacement or get your money back.

If there is a problem with a service you paid for and it’s a small failure, you can ask the business to fix the problem for free. If they do not fix it or do not fix it in a reasonable time you can get someone else to fix it and claim the cost from the business. If it’s a big failure, you can cancel the service contract or get some or all of your money back, depending on the circumstances.

You have the right to be told what is happening and be told approximately how long it might take to fix the failure. If you are unsure or have been waiting a while, you can contact the business again. If the business does not agree to help you or you feel unsure about talking to them, seek advice from NSW Fair Trading.

For more information about repairs, replacements and refunds for goods and services, click here.

7.H.2.1: Approaching the seller

If you have a problem with a good or service, you should talk to the person or company who sold it to you. If you call them, make sure you make a note of the person you spoke to, when you spoke to them, and what was said.

If speaking to the seller does not help fix the problem, you should write to them. You can do this in a letter, email or through an online form.

When you write to the seller, you should provide details of when you bought the goods or service, the problem, the solution you would like and a date for them to respond by. You should include evidence of the good or service you bought, such a receipt, a bank statement or credit card statement. It is better to approach the seller in writing so that there is a record.

For examples of letters to the seller, click here.

If the seller does not respond by the date that you provided, you can write to them again asking if they are willing to go to mediation with a community justice centre or NSW Fair Trading.

Mediation is an informal way of solving disputes which involves an impartial person (a mediator) helping you to talk to the other party. The mediators do not choose a side or come to a decision about the dispute. Their role is to make sure each person has a chance to have their say, that the discussion stays on track, and help you come to an agreement wherever possible. It is considered a simpler and cheaper process than legal proceedings.

7.H.2.2: Mediation with community justice centre

Community Justice Centres (CJC) can help with disputes between consumers and businesses through mediation. CJC usually deals with small businesses. Disputes involving small businesses and consumers can include supply of goods or services.

CJC mediation is free, confidential and held in multiple locations.

To contact your nearest CJC, click here.

7.H.2.3: NSW Fair Trading

NSW Fair Trading is a government agency that protects consumer rights by regulating certain industries (such as building and construction), organisations and consumer transactions. For example, NSW Fair Trading provides information to help consumers, businesses and organisations understand their rights and obligations.

If you have a consumer law dispute, for example you are having a dispute with a seller about a good or service you bought and you cannot reach a solution, you can make a complaint to NSW Fair Trading.

After you make a complaint, NSW Fair Trading will consider:

  • what you say the problem is, and the options to resolve your complaint
  • whether the seller has broken the law; and
  • whether there is another organisation who can help you in the dispute (and if there is, NSW Fair Trading will refer you to them).

If NSW Fair Trading decide that they can help you with your complaint, they will contact the seller to try to resolve the complaint. They try to resolve most complaints within thirty (30) days, but if the problem is complicated or the parties cannot agree, the process may be longer.

If the two parties cannot reach an agreement, NSW Fair Trading will refer you to the NSW Civil and Administrative Tribunal, other government departments or for legal advice.

NSW Fair Trading cannot order the seller to refund or fix the good or service that you have an issue with.

You can make a complaint online, download a complaint form for mailing or contact Fair Trading on 13 32 20.

For a complaint form, click here.

For more information about NSW Fair Trading, click here.

7.H.2.4: NSW Civil and Administrative Tribunal or Local Court

If you cannot resolve your consumer law dispute by going to NSW Fair Trading, you need to go to the NSW Civil and Administrative Tribunal (NCAT) or a Local Court. Here is a table to help you to decide which option to choose:

NCAT Local Court
How long has it been since the dispute NCAT has a time limit of three (3) years from the time the cause of action (or when the legal issue arose), or from ten (10) years from the last supply of the goods and services.  The limit is six (6) years from the date of the cause of action (or when the legal issue arose).

 

How much is your dispute? NCAT can hear disputes up to $40,000.  The Local Court can hear disputes up to $100,000. If your dispute is   between $100,000 and $750,000, you will need to go to the District Court.

 

It may be simpler to take your consumer law dispute to NCAT, rather than the Local Court, for the following reasons:

  • the filing fee at NCAT is less than a court
  • proceedings are much less formal than a court and the rules of evidence do not apply (but you will still need to bring evidence such as photos, receipts and statements to prove your claim)
  • legal representation is not normally allowed at NCAT, unless the parties satisfy specific tests and NCAT makes an order allowing legal representation; and
  • if a party is unsuccessful, they will not normally be ordered to pay the costs of the other party, unless there are special circumstances.

7.H.2.4.1: NSW Civil and Administrative Tribunal

You can ask NCAT to make the following orders for your consumer law dispute:

  • an order for money to be paid
  • an order that money owed does not have to be paid
  • an order for goods or services to be provided
  • an order to fix or replace faulty goods
  • an order for a refund and the goods to be returned
  • a combination of the above orders; or
  • the application is dismissed.

If you are making an application against a business or company, please attach a recent Australian Securities and Investment Commission company or business name extract with your application. For information on how to do this, click here.

To make an application online, click here.

7.H.3: Discrimination in the provision of goods and services

You have a right not to be discriminated against, including in the provision of goods and services on the basis that you have one or a number of other personal characteristics, including your:

  • gender identity
  • marital or relationship status
  • sexual preference
  • racial or religious background
  • age; and/or
  • responsibility for the care of others.

The provision of goods and services includes banking and insurance services; services provided by government departments; transport or telecommunication services; professional services, such as those provided by lawyers, doctors or tradespeople; and services provided by restaurants, shops or entertainment venues.

You can find out more about these other types of discrimination from the Australian Human Rights Commission and, in NSW, from the Anti-Discrimination Board of NSW.

7.H.3.1: Unlawful discrimination in the provision of goods and services

There are several things that might happen to you in relation to the provision of goods and services that may be unlawful discrimination. There are also things that might happen that may be discrimination, but not unlawful discrimination. For example, it would not be unlawful discrimination for a specialised health centre to only provides health and counselling services to women.

For an action to be unlawful discrimination, it needs to be more than simply unfair. It must relate somehow to the fact that you have a disability and that the person discriminating against you by an action doesn’t have a lawful excuse or ‘defence’.

In general terms, you have been discriminated against if you are treated less favourably in the provision of goods and services compared to a person who does not have the same disability as would have been treated. An example of discrimination in the provision of a service would be a cleaner who refuses to visit a client’s home because they have a mental health condition and this makes them feel a bit scared or uncomfortable.

This Chapter focusses on consumer goods and services. However, anti-discrimination law defines goods and services very broadly and it also applies to goods or services that the person does not pay for, for example the standard of food in a prison.

7.H.3.2: Complaining about discrimination in the provision of goods and services

If you think you have been discriminated in the provision of goods and services because of a disability (which includes mental health conditions), you should raise this with the seller if you can. You should provide details of when you experienced discrimination. It can help to put these concerns in writing.

If approaching the seller does not help resolve the issue and you think you have been discriminated against in the provision of goods and services because of a disability (which includes a mental health condition) you can complain to one of the following organisations:

These bodies both investigate and try to resolve complaints of discrimination including education discrimination. Both have complaints forms available online.

Complaints to both Anti-Discrimination Board of NSW and the Australian Human Rights Commission should be made within six (6) months of the actions that you believe were unlawful discrimination.

The Australian Human Rights Commission can be contacted by:

Phone: 1300 656 419 (local call cost*)
(02) 9284 9888
E-mail: complaintsinfo@humanrights.gov.au
Teletypewriter (TTY): 1800 620 241 (freecall*)
Fax: (02) 9284 9611

Click here for the Commission’s Online complaint form.

For more about the Australian Human Rights Commission’s processes and what happens with discrimination complaints made to the Commission, click here .

The Anti-Discrimination NSW can be contacted by:

Sydney office
Postal address: PO Box A2122
SYDNEY SOUTH NSW 1235
Street address: Level 4, 175 Castlereagh Street
SYDNEY NSW 2000
Telephone: (02) 9268 5544
Freecall: 1800 670 812* (for rural and regional NSW only)
Teletypewriter (TTY): (02) 9268 5522
Fax: (02) 9268 5500
E-mail: adbcontact@agd.nsw.gov.au
Website: www.lawlink.nsw.gov.au/adb

Wollongong office
Postal address: PO Box 67
WOLLONGONG NSW 2520
Street address: 84 Crown Street
WOLLONGONG NSW 2500
Telephone: (02) 4267 6200
Freecall: 1800 670 812* (for rural and regional NSW only)
Teletypewriter (TTY): (02) 4267 6267
Fax: (02) 4267 6261

Parramatta office
Street address: Street address: Level 7, 10 Valentine Avenue,
Parramatta, NSW, 2150
Telephone: (02) 9268 5555
Freecall: 1800 670 812* (only within NSW)
Fax: (02) 9268 5500

Click here to go to the page where you can download the Board’s complaint form.

For more about the Anti-Discrimination Board’s processes and what happens with discrimination complaints made to the Board, click here.

If you think you have been discriminated against, you should get legal advice. You can get free legal advice about discrimination from several places. To find out more, click here.

*Mobile phone calls to freecall numbers (numbers starting with 1800) and to local call numbers (numbers starting with 1300) are charged to the caller at the usual mobile rate.

Updated May 25, 2020