11.15 Australia has federal and State and Territory consumer protection regimes. Parts IV and V of the Trade Practices Act 1974 (Cth) (Trade Practices Act) provides protections for consumers who conduct transactions with corporations or the Commonwealth. All States and Territories have mirrored many of the consumer protection provisions in the Trade Practices Act in their fair trading legislation.
11.16 A person who suffers loss or damage as a result of a breach of the consumer protection provisions of the Trade Practices Act may recover damages for that loss. In certain circumstances where a breach of the legislation is established, the ACCC may negotiate with a corporation on behalf of a consumer to resolve a dispute. If the ACCC declines to pursue a complaint on behalf of a child consumer, he or she has the option of pursuing a private action under the Trade Practices Act by way of a guardian ad litem in the Federal Court.
11.17 Several submissions considered that the consumer remedies available under the Trade Practices Act need to be better publicised so that children and parents understand their rights under the Act. The significance of this lack of awareness of consumer rights was noted by the ALRC in its 1994 inquiry into compliance with the Trade Practices Act.
A fundamental obstacle to private enforcement of the [Trade Practices Act] is the lack of knowledge and understanding by consumers…of their rights under Pts IVA and V of the TPA and how they may be enforced.
Many older teenagers are aware of their rights to return faulty goods but would be unlikely to know how to take the matter further if the vendor was unwilling to replace the item or refund the purchase price. Basic information about Trade Practices Act remedies should be included in the national child consumer education strategies proposed at recommendation 51.
11.18 Each State and Territory has an office that administers its consumer legislation and provides advice and other services to consumers. Consumers can take action under this legislation in specialist tribunals or small claims divisions of local courts. There are some differences in the remedies available in each jurisdiction. Again, these remedies must be publicised to young consumers.
11.19 The variety of consumer protection systems may itself constitute a barrier to young people accessing complaints mechanisms. The Consumer Affairs Division of the Department of Industry, Science and Tourism is auditing Australian consumer protection laws as part of a commitment by the Ministerial Council on Consumer Affairs to seek consistent legislation wherever useful and practicable. The Inquiry leaves recommendations in this area to the audit.
Recommendation 53 Information about remedies available under the Trade Practices Act and fair trading legislation should be included in the national child consumer education strategies proposed at recommendation 51.
Time limits on actions under the Trade Practices Act
11.20 At common law and by statute there are time limits for the commencement of civil actions. These limitations generally do not apply to those under a legal disability, including children, for the period of the disability. However, the Federal Court has held that State limitations statutes have no application to actions for damages under s 82 of the Trade Practices Act which sets a three year time limit on commencing proceedings. This means, for instance, that a child who is injured by a defective product must commence any action for damages within three years of the date on which the cause of action accrued. The Inquiry considers that child litigants under the Trade Practices Act should be in the same position as other child civil litigants.
Recommendation 54 The same exception to time limitations should apply to child litigants under the Trade Practices Act as to other child civil litigants.
Implementation. Section 82(2) of the Trade Practices Act should be amended to enable a person who suffers damage or loss as a child to commence an action at any time within the three years following his or her eighteenth birthday.
Product liability and safety standards
11.21 The Trade Practices Act has provisions designed to ensure that certain goods meet particular standards and that dangerous goods are not sold. The Act requires that minimum conditions and warranties are met in transactions. A person who is injured or whose property is damaged by a defective product has a right to claim compensation against the manufacturer of the product. Legislation in each State and Territory prescribes product information and safety standards that complement the product liability provisions in the Trade Practices Act.
11.22 Subject to their inability to litigate directly, children have access to the same remedies under the Trade Practices Act for defective goods as adult consumers. Safety standards that are effective in protecting child consumers from harm are equally as important as this statutory remedy for loss. The Consumer Affairs Division of the Department of Industry, Science and Tourism oversees the enforcement of safety standards declared under the Trade Practices Act. Mandatory safety standards can only be introduced when a product has been shown to be dangerous. Currently, there are mandatory safety standards for toys for children aged under 3 years, flotation toys, swimming aids and children’s nightclothes. This regime has been criticised for being reactive rather than proactive.
11.23 The European Union product safety model is cited as appropriate to adopt because it requires manufacturers to ensure that all children’s toys meet essential safety requirements before being placed on the market. The European Union system is one of presumed compliance. It involves manufacturers certifying that their product complies with the law by placing a ‘Communaut Europene’ (CE) label on the toy. The European Union Directive establishes safety standards for all toys designed for use by children under 14 years of age. It stipulates general principles and particular risks as criteria against which a toy’s safety is measured. For example, toys and their parts and the packaging in which they are contained for retail sale must not present a risk of strangulation or suffocation.
11.24 The European Union model has been in force since 1990 and is reportedly working well. It should be evaluated to determine whether it would provide more effective protection for children from injury from defective or dangerous products than the current Australian regime.
Recommendation 55 The European Union product safety model for children’s toys should be examined to determine whether it would provide more effective protection for children from injury from defective or dangerous products than the current Australian regime.
Implementation. The Minister for Customs and Consumer Affairs should commission this investigation.
 The limited scope of federal consumer protection law is a result of constitutional restrictions on the legislative power of the Cth. Only in limited circumstances are individual business people directly subject to the Trade Practices Act. While a claim for damages under Pt V of the Trade Practices Act will generally be against a corporation, s 6(4) allows consumers to bring actions against individual professionals who engage in misleading or deceptive conduct in the course of promotional activities in any of the Australian territories.
Fair Trading Act 1987 (NSW); Fair Trading Act 1989 (Qld); Fair Trading Act 1987 (SA); Fair Trading Act 1990 (Tas); Fair Trading Act 1985 (Vic); Fair Trading Act 1987 (WA); Consumer Affairs and Fair Trading Act 1990 (NT); Fair Trading Act 1992 (ACT).
 s 82. This provision is mirrored in State and Territory fair trading legislation, eg, Fair Trading Act 1987 (NSW) s 68. There are other remedies available under the Trade Practices Act, such as injunctions (s 80) and orders to disclose information or publish advertisements (s 80A), but an action for damages is the most likely avenue for any complainant acting in a personal capacity to pursue.
 In consumer protection matters the ACCC gives priority to matters of national significance that adversely affect large numbers of people.
 See para 13.6.
 Australian Association of National Advertisers IP Submission 132; Townsville Community Legal Service IP Submission 181.
 ALRC Report 68 Compliance with the Trade Practices Act 1974 ALRC Sydney 1994, 39.
 Wagga Wagga Focus Group 9 May 1996.
 Consumer affairs agencies in States and Territories assist to resolve complaints about breaches of fair trading legislation. Often they will conduct mediation sessions to resolve the problem or assist the consumer in small claims before the appropriate court or tribunal.
Consumer Claims Tribunal Act 1987 (NSW); Small Claims Tribunals Act 1973 (Vic); Small Claims Tribunals Act 1973 (Qld); Magistrates Court Act 1991 (SA); Small Claims Tribunals Act 1974 (WA); Magistrates Court (Small Claims Division) Act 1989 (Tas); Small Claims Act 1974 (NT); Small Claims Act 1974 (ACT).
 Federal Bureau of Consumer Affairs Audit of Consumer Protection Laws: First Report Identifying Inconsistencies, Gaps and Overlaps on Australian Consumer Protection Legislation Federal Bureau of Consumer Affairs Canberra 1997. The Federal Bureau of Consumer Affairs has been re-structured as the Consumer Affairs Division of the Dept of Industry, Science and Tourism.
 eg Limitations of Actions Act 1936 (SA) s 45; Limitation Act 1985 (ACT) s 30; Limitation of Actions Act 1974 (Qld) s 29; Limitation of Actions Act 1958 (Vic) s 23; Limitation Act 1974 (Tas) s 26. See Halsbury’s Laws of Australia Butterworths Sydney 1992 vol 3 ¶65–2245.
Vink v Schering Pty Ltd & Ors (No 1) (1991) ATPR ¶41–064.
 Generally a cause of action accrues as soon as loss is first suffered: Calmao Pty Ltd v Stradbroke Waters Co-owners Co-operative Society Ltd & Ors (1989) ATPR ¶40–984. See recs 68-69 regarding child civil litigants’ capacity in general.
 This proposal is supported by Women’s Advisory Council DRP Submission 26; NT Government DRP Submission 71; Consumer Affairs Qld DRP Submission 81.
 These conditions include that goods and services be of merchantable quality and fit for their purpose: Pt V Div 1A.
 Trade Practices Act s 75AD.
 eg Fair Trading Act 1987 (NSW) Pt 4; Fair Trading Act 1989 (Qld) Pt 4; Sale of Hazardous Goods Act 1977 (Tas); Goods (Trade Descriptions) Act 1971 (Tas); Consumer Affairs Act 1972 (Vic) Pt IV; Fair Trading Act 1987 (WA) Pts V, VI; Consumer Affairs and Fair Trading Act 1990 (NT) Pt IV; Consumer Affairs Act 1973 (ACT) Pt IIIA; Manufacturers’ Warranties Act 1974 (SA).
 This standard has been in place since 1989: Federal Bureau of Consumer Affairs Safety Standard for Children’s Toys AGPS Canberra 1994.
 A standard has been in place since 1986: Federal Bureau of Consumer Affairs Safety Standard for Children’s Floatation Toys and Swimming Aids AGPS Canberra 1992.
 A standard has been in place since 1978: Federal Bureau of Consumer Affairs Safety Standards for Children’s Nightclothes AGPS Canberra 1994.
 eg Dept of Fair Trading IP Submission 157. The Toys and Children’s Products Safety Ordinance 1993 (Hong Kong) is similarly proactive.
 M Vranken Fundamentals of European Civil Law The Federation Press Sydney 1997, 144–146. On 19 July 1996 the European Union/Australia Mutual Recognition Agreement on Conformity Assessment was initialled. Once in operation the Agreement will reduce technical barriers to trade by allowing certain types of products manufactured in Australia to be assessed within Australia for conformity with EU regulatory standards and vice versa. Toys involving low voltage electrical equipment will be covered by the Agreement.
 Council Directive 88/378/EEC (OJ 1988 L187/1) arts 1, 3.
 Annexure II, art II(1)(e).
 X Lewis ‘The protection of consumers in European Community law’ (1992) 12 Yearbook of European Law 139.
 This proposal is supported by Taxi Employees’ League DRP Submission 21; Women’s Advisory Council DRP Submission 26; SA Independent Schools Board DRP Submission 31; Consumer Affairs Qld DRP Submission 81. The NT Government DRP Submission 71 is in support provided there are no additional bureaucratic burdens for small business.