The place of prosecution in consumer protection

Criminology Research Council grant ; (3/83)

Dr John Braithwaite, while he was Director of the Australian Federation of Consumer Organizations, completed with Criminology Research Council funding a report entitled The Role of Prosecution in Consumer Protection (Canberra: Australian Federation of Consumer Organizations, 1984) with Ms Susan Vale and Professor Brent Fisse as co-authors. Dr Braithwaite and Ms Vale have produced another publication supported by the grant entitled 'Law Enforcement by Australian Consumer Affairs Agencies' which will soon be appearing in the Australian and New Zealand Journal of Criminology.

The research looks at prosecution as a consumer protection device and its use by consumer affairs agencies in Australia. It was found that for every consumer affairs conviction in Australia, there are more than 200 written complaints which do not lead to a conviction and conservatively over 2,000 unwritten complaints.

South Australia was found to be the leading State in both per capita and absolute numbers of convictions.

New South Wales was the only jurisdiction which showed a consistent drop in consumer affairs convictions during most of the past decade. However, in Queensland, Tasmania and the Northern Territory, prosecutions for substantive consumer affairs offences are, and always have been, virtually non-existent.

Western Australia was the only jurisdiction with a significant prosecution program for product safety offences. New South Wales, and to a lesser extent South Australia and Western Australia, were found to be the only jurisdictions with any sort of record of prosecuting hire purchase, door-to-door sales and pyramid selling offences. Federal enforcement under the Trade Practices Act led in the area of false advertising. Price control convictions were a significant area of enforcement in New South Wales only. New South Wales and Western Australia had the most aggressive prosecution programs with respect to offences related to motor vehicle dealers, and most of South Australia's comparatively heavy prosecution activity related to residential tenancies enforcement.

The report laments the infrequent and unsophisticated use of prosecution in Australian consumer affairs. Criminal investigation training for consumer affairs officers is advocated as well as administrative reorganisation of consumer affairs agencies. Fundamentally, the report suggests that consumer affairs agencies need an enforcement strategy which is less reactive and more proactive. The requirement that prosecutions by the Trade Practices Commission be approved by the Minister was criticised. Since the publication of the report, this practice has been placed under review by the Attorney-General.

The report criticises the exceptionally low penalties available under consumer affairs statutes in all jurisdictions and the almost exclusive reliance on the cash fine as a sanction. Equity fines, corporate probation, community service orders and adverse publicity orders are advocated as alternative sanctions. The report was also critical of most consumer affairs agencies for not having a prosecution policy. Since the report was written, some jurisdictions have written consumer protection enforcement policies for the first time and others have introduced, or are in the process of introducing, bills to increase penalties under consumer affairs statutes.