Question

A. Define ‘acceptable quality’ according to s 54 (2) of the Australian Consumer Law (ACL). B. What arguments can a seller put forward for limiting the scope of section 54 on acceptable quality found in the Australian Consumer Law (ACL)? (7 marks

Answer 1

1. As per Section 54 (2) of the Australian Consumer Law (ACL) Goods are of acceptable quality if they are as:

(a) fit for all the purposes for which goods of that kind are commonly supplied; and

(b) acceptable in appearance and finish; and

(c) free from defects; and

(d) safe; and

(e) durable;

As a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matters in subsection (3).

The matters for the purposes of subsection (2) are:

(a) the nature of the goods; and

(b) the price of the goods (if relevant); and

(c) any statements made about the goods on any packaging or label on the goods; and

(d) any representation made about the goods by the supplier or manufacturer of the goods; and

(e) any other relevant circumstances relating to the supply of the goods.

2. Below are the list of arguments a seller can put forward for limiting the scope of section 54 on acceptable quality found in the Australian Consumer Law (ACL)

The good’s normal use(s)

To meet the acceptable quality consumer guarantee, a good must be safe when used for its normal use(s) and in normal circumstances. A good that is safe when used normally may still be considered of acceptable quality even if abnormal use damages a good causing it to become unsafe. The use of a good will be considered abnormal if it does not conform with or deviates from the goods normal use.

·Inherently higher risk goods

Some goods have underlying risks that are unavoidable for goods of that kind. These goods may be targeted at users that are aware of these risks and can manage them, but may also be goods that are used in inherently risky activities. Some goods, such as tobacco and alcohol, are inherently harmful when used as intended. These goods will still comply with the consumer guarantee of acceptable quality provided they are only harmful in the way that a reasonable consumer would expect them to be.

·Goods with consumable components

·Some goods include consumable components that, if not replaced at appropriate times, could lead to the good becoming unsafe. Where a good includes consumable components, a reasonable consumer replaces the consumable components at around the time recommended by the manufacturer and assesses the safety of the good in that light. Consumable goods must also meet the guarantee of acceptable quality.

Price and features of the goods

Sometimes expensive products may have safety features that cheaper versions do not. While all goods must be safe to meet the consumer guarantee of acceptable quality, the fact that more expensive goods of the same kind have extra safety features does not in itself mean cheaper products are unsafe. Goods need to be as safe as a reasonable consumer would find acceptable and a reasonable consumer will take into account the price of goods that are sold at a higher price.

However, a higher price is not determinative of how safe good can be expected to be for the purposes of the consumer guarantees. Many other factors affect the price of a good. Often good are more expensive for reasons unrelated to their safety. Even if a good is very cheap, is a basic model, or is bought from a discount shop, the good must still be acceptably safe.

Instructions and warnings

Some goods, particularly complex goods, will come with documentation such as instruction manuals and warnings that advise consumers on the product’s safe usage. If a user can use a product safely by following instructions and observing warnings, then as a general rule, the product will be considered safe.

The age and maintenance of the good

Where a good becomes less safe over time, it may still meet the consumer guarantee of acceptable quality. A good will fail the consumer guarantee if it is unsafe when supplied or becomes unsafe within an unreasonably short period of time.

Some goods will require ongoing maintenance in order to remain safe. If it is reasonable that a consumer provide ongoing maintenance to a good and if a consumer does not do so, the good may still meet the consumer guarantee of acceptable quality if it becomes unsafe due to that lack of maintenance.