Consumer policy in Australia
A companion to the
OECD Consumer Policy Toolkit

March 2011

© Commonwealth of Australia 2011
ISBN 978-0-642-74680-1
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Contents
About this companion	iv
Glossary of terms	v
Introduction	1
Australia’s consumer policy framework	3
What is ‘consumer policy’?	3
The Australian consumer policy‑making framework	3
Effective engagement with the consumer policy making process in Australia	6
Using the OECD Consumer Policy Toolkit in an Australian context	7
The OECD Consumer Policy Toolkit	7
The changing consumer and market landscape	8
The economics of consumer policy	10
Other policy influences	11
Step 1: Define the consumer problem and its source	13
How are consumer problems identified in an Australian context?	13
Is it a consumer policy issue or something else?	14
Step 2: Measure consumer detriment	19
How can consumer detriment be identified and measured?	19
Step 3: Determine whether consumer detriment warrants policy action	23
Step 4: Set policy objective and identify the range of policy actions	25
Using existing tools	25
What are the circumstances in which a new approach is required?	26
Regulatory impact assessment	27
Step 5: Evaluate options and select a policy action	31
Different types of decisions are required for different policy outcomes	31
Amending the ACL	32
Step 6: Develop a policy review process to evaluate the effectiveness of policy	33
Review of the ACL and its enforcement	33

About this companion
This companion to the OECD’s Consumer Policy Toolkit is intended to provide practical information and advice to government officials and those interested in consumer policy when considering consumer policy issues in an Australian context. It has been prepared by the Policy and Research Advisory Committee of the Standing Committee of Officials of Consumer Affairs.
Comments and questions about this companion can be provided in writing to:
The Chair
SCOCA Policy and Research Advisory Committee
c/‑ The Manager
Consumer Policy Framework Unit
Department of the Treasury
Langton Crescent
PARKES  ACT  2600
Telephone: 	02 6263 2111

Glossary of terms
ACL	Australian Consumer Law	
ASIC	Australian Securities and Investments Commission	
ASIC Act	Australian Securities and Investments Commission Act 2001	
COAG	Council of Australian Governments	
IGA	Intergovernmental Agreement for the Australian Consumer Law, signed by members of the Council of Australian Governments on 2 July 2009.	
MCCA	Ministerial Council on Consumer Affairs	
PC	Productivity Commission	
SCOCA	Standing Committee of Officials of Consumer Affairs	
TPA	Trade Practices Act 1974	

Introduction
2011 marks the start of a new consumer policy framework in Australia. The Australian Consumer Law (ACL) is a single national law which applies in all jurisdictions, to all businesses and to all industry sectors. 
The ACL also represents a new approach to considering consumer policy issues, with the Australian Government and the States and Territories working closely together to consider, develop and implement changes. This will occur through the Policy and Research Advisory Committee (PRAC) of the Standing Committee of Officials of Consumer Affairs (SCOCA). 
Australia’s governments work closely with New Zealand on consumer policy issues. New Zealand is engaged in a wide‑ranging reform of its consumer laws, one of the objectives of which is to achieve greater alignment with the ACL. 
In July 2010, the Organisation for Economic Cooperation and Development (OECD) published a Consumer Policy Toolkit, which provides an invaluable resource for policy officials and those interested in consumer policy issues to understand the issues informing and affecting consumer policy.   
This companion to the OECD’s Consumer Policy Toolkit has a number of purposes:
•	to put the advice set out in the Consumer Policy Toolkit in an Australian context;
•	to provide information and advice to policy makers about consumer policy decision‑making in Australia; and
•	to point out resources and information that are relevant to consumer policy in Australia. 
PRAC is grateful to the OECD, and particularly its Committee on Consumer Policy, for its permission to reproduce elements of the Consumer Policy Toolkit in this companion.
Who is PRAC?
PRAC advises SCOCA on policy issues relating to consumer laws and conducts research on these issues. It is made up of policy officers from the Australian Treasury, NSW Fair Trading, Consumer Affairs Victoria, Queensland Fair Trading, WA Department of Commerce, SA Office of Consumer and Business Affairs, Tasmanian Office of Consumer Affairs and Fair Trading, the ACT Office of Regulatory Services, NT Consumer Affairs and the New Zealand Ministry of Consumer Affairs, along with the Australian Competition and Consumer Commission and the Australian Securities and Investments Commission. The Chair of PRAC is currently the Australian Treasury. 	

Australia’s consumer policy framework
What is ‘consumer policy’?
The OECD said that ‘one of the principal functions of governments of market‑based economies is to establish and maintain economic frameworks that promote innovation, productivity and growth’.  Consumer policy is a means of achieving this through setting up regulatory frameworks to protect and inform consumers and prevent anti‑competitive practices.
In 2008, the Productivity Commission (PC) conducted a comprehensive review of Australia’s consumer policy framework. It defined ‘consumer policy’ as ‘a suite of government policies that deal with purchase of and use of consumer goods and services.’  The PC acknowledged that ‘consumer policy’ is only one element of the government policies that can promote the welfare of consumers.  There are also a number of different definitions of a ‘consumer’.
The PC’s approach was to focus on consumers who acquire goods or services for private use, while acknowledging that consumer laws also often apply to businesses as consumers. This definition excludes, for example, privacy legislation that may impact on how the personal information of a consumer may be used by businesses and government.
Further information
The PC’s Review of Australia’s Consumer Policy Framework (2008) can be accessed at www.pc.gov.au or ordered from the PC. 	

The Australian consumer policy‑making framework
The National Consumer Policy Objective
The Ministerial Council on Consumer Affairs (MCCA) has a National Consumer Policy Objective, which is:
[t]o improve consumer wellbeing through consumer empowerment and protection, fostering effective competition and enabling confident participation of consumers in markets in which both consumers and suppliers trade fairly.
The objective is supported by six operational objectives:
•	to ensure that consumers are sufficiently well‑informed to benefit from and stimulate effective competition;
•	to ensure that goods and services are safe and fit for the purposes for which they were sold;
•	to prevent practices that are unfair;
•	to meet the needs of those consumers who are most vulnerable or are at the greatest disadvantage;
•	to provide accessible and timely redress where consumer detriment has occurred; and
•	to promote proportionate, risk‑based enforcement.
This objective informs the collective development of consumer policy by Australia’s governments. 
Further information
MCCA’s Strategic Agenda 2010‑2012 can be accessed in the MCCA section of www.consumerlaw.gov.au. 	

Institutional arrangements
The Ministerial Council on Consumer Affairs (MCCA) is the principal consumer policy forum in Australia. MCCA consists of the responsible ministers from the Australian Government, each state and territory government and the New Zealand Government. COAG is currently transitioning to a new ministerial council structure, and from 1 July 2011 a new institutional framework will commence. This companion will be revised to take account of the changes when that occurs.
In some cases, the States and Territories work together on projects which do not involve the Australian Government. On these projects, they engage with the Council for the Australian Federation (CAF), which consists of the State and Territory Premiers and Chief Ministers. 
Further information
Information about MCCA can be found on the MCCA pages of www.consumerlaw.gov.au. 
Information about COAG and the new COAG structure can be found at www.coag.gov.au. 
Information about CAF can be found at www.caf.gov.au.	

Generic and specific consumer laws
Australia now has a single national generic consumer law: the Australian Consumer Law (ACL). The ACL provides for standard consumer protection and fair trading rules across all sectors of the Australian economy. 
There are also a range of national, state and territory sector‑specific laws. The use of sector‑specific consumer laws may be necessary when specific or additional consumer protections or fair trading rules are justified to address specific issues in a particular industry sector. 
The Australian Consumer Law
The ACL commenced on 1 January 2011. The ACL is found in Schedule 2 of the Competition and Consumer Act 2010 (CCA), which is the new name of the Trade Practices Act 1974 (TPA). 
The ACL simplifies and consolidate existing consumer protection and fair trading laws, both nationally and in each State and Territory. It replaces at least 900 substantive provisions in 20 national, state and territory Acts, as well as other provisions contained in a wide range of other State and Territory Acts.
The ACL is an application law scheme, with the Australian Parliament as the lead legislator. Each State and Territory has enacted legislation to apply the law as enacted and amended by the Australian Parliament. National, state and territory consumer protection agencies across Australia will jointly be responsible for administering and enforcing the ACL. 
Further information
The ACL, the legislation applying it in each Australian jurisdiction and information about it, can be accessed through www.consumerlaw.gov.au. 
The Treasurer has overarching policy responsibility for the CCA and ACL within the Australian Government. The Parliamentary Secretary to the Treasurer has day‑to‑day responsibility for the CCA and ACL. For more information about the Treasurer and the Parliamentary Secretary and how to contact them, please visit www.treasury.gov.au.
Each State and Territory has a minister responsible for fair trading and consumer affairs. For more information about the relevant minister in each jurisdiction and how to contact them, please visit the MCCA pages of www.consumerlaw.gov.au. 	

The Intergovernmental Agreement for the Australian Consumer Law
COAG signed the Inter‑Governmental Agreement for the Australian Consumer Law (IGA) on 2 July 2009. The IGA provides for the operation of the ACL through:
•	arrangements for the implementation and future amendment of the ACL; and 
•	arrangements for the administration and enforcement of the ACL. 
Further information
The IGA can be accessed through www.consumerlaw.gov.au. 	

Other consumer laws
The ACL is a generic consumer law which applies in all sectors of the economy. The intention of COAG in agreeing this reform was to ensure that other consumer regulation at the national, state and territory levels complements, rather than duplicates or contradicts, the ACL. 
Sector‑specific consumer laws apply nationally and within each State and Territory. These cover a wide range of subjects, and are intended to provide specific or additional consumer protection and fair trading rules in addition to the generic protections in the ACL. 
Further information
For advice on the application of the ACL and general consumer policy within the Australian Government, contact: 
The Manager, 
Consumer Policy Framework Unit, 
Infrastructure, Competition and Consumer Division, 
The Treasury
02 6263 2111
For advice on the application of the ACL and general consumer policy in each State and Territory, contact your jurisdiction’s consumer policy agency. Information about each agency can be found in the MCCA pages of www.consumerlaw.gov.au.
Links to information about other consumer laws can be accessed through www.consumerlaw.gov.au. 	

Effective engagement with the consumer policy making process in Australia
A purpose of this companion is to better inform those interested in consumer policy issues about the consumer policy development and decision making processes in Australia and the various tools that can be used to better inform their input into those processes. It is not intended to be prescriptive or comprehensive in its approach and those using this companion should take into account the different approaches and processes used by various Australian governments and agencies. 
Using the OECD Consumer Policy Toolkit in an Australian context
The OECD Consumer Policy Toolkit
The OECD’s Committee on Consumer Policy (CCP) developed the Consumer Policy Toolkit to:
[examine] how markets have evolved and [to provide] insights for improved consumer policy making. It explores, for the first time, how what we have learned through the study of behavioural economics is changing the way policy makers are addressing problems.
It is the result of a series of discussions and roundtables hosted by the OECD CCP on consumer policy making and the economics of consumer policy. 
The Toolkit is a general resource for consumer policy officials and the stakeholders they deal with. The information in this companion is intended to place the advice set out in the Toolkit in an Australian context and, as such, should be used in conjunction with it. 
Further information
Information about the OECD’s CCP, the Toolkit and related resources can be accessed at www.oecd.org/sti/consumer‑policy/toolkit. 	

Using a policy framework to inform consumer policy development
A common understanding of policy frameworks ensures that policy advisors across Australia bring a consistent approach to consumer policy problems and issues.
The Toolkit suggests a six‑step approach to consumer policy issues: 
•	Step 1: Define the consumer problem and its source.
•	Step 2: Measure consumer detriment.
•	Step 3: Determine whether consumer detriment warrants consumer policy action.
•	Step 4:  Set policy objective and identify the range of policy actions.
•	Step 5: Evaluate options and select a policy action.
•	Step 6: Develop a policy review process to evaluate the effectiveness of the policy.
These steps are not prescriptive, but are designed to provide a guide for considering and responding to consumer policy issues. Advice on how these steps can be followed in a practical way in Australia is set out below.

Figure 1: Six‑Step process for consumer policy making

Source: OECD Consumer Policy Toolkit.

The changing consumer and market landscape
Chapter 1 of the Toolkit explores some of the key market and consumer trends that have influenced consumers and markets in developed economies in recent years. Many of these trends apply in Australia. These trends were explored by the PC in its Review of Australia’s consumer policy framework, which noted that Australian consumers faced:
•	a more competitive market environment, which reflects lower trade barriers, the effects of microeconomic reform, the growth of the internet as a mechanism for consumer transactions and the greater internationalisation of supply;
•	a greater variety of goods and services, which reflect a more competitive market environment and the acceleration of ‘dynamic’ goods and services whose characteristics change frequently (such as mobile phones, toys and information technology);
•	growing product complexity, which has led to increased use of intermediaries, the increased use of standard form contracts and an emphasis on information disclosure;
•	changes in spending patterns, including the much greater proportion of consumer spending on services;
•	the influence of technological change, which has contributed to greater product choice and changes in spending patterns, but also presented new risks for consumers;
•	the introduction of competition into markets for the provision of essential services like telecommunications, energy and water, which has benefited consumers but has also presented challenges in terms of switching and complexity; and
•	greater consumer heterogeneity, in terms of increased numbers of sophisticated consumers but also a wider range of vulnerable consumers, and higher expectations of goods and services.
Information about these trends is available from both international and Australian sources. 
Resources
•	General statistical information about consumer behaviour can be obtained from the Statistics page of the OECD’s website (www.oecd.org) or from the Australian Bureau of Statistics (www.abs.gov.au). Reports about consumer issues and trends in an international context can be obtained from the Countries and Topics pages on the OECD’s website (www.oecd.org).
•	Specific research about consumer behaviour is also available from a range of domestic and international sources. This research is often commissioned for a specific purpose, and may be specialised as to its scope and purpose. A selection of recent reports published by Australian government agencies is set out on the Consumer Policy Resources page of www.consumerlaw.gov.au along with links to other sources of information. Useful comparative information may be found on the websites of other countries’ consumer agencies. 	

Qualitative and quantitative data
Data about consumer behaviour can be either qualitative or quantitative in nature. 
Qualitative information relates to the quality or characterisation of something, generally by ascribing some value or description to that thing. It might concern the level of satisfaction that consumers may have about a good, service or experience. 
Quantitative information is measured or identified on a numerical basis. It might describe the number of people who do or do not do something, or how much they spend on goods and services.	

The economics of consumer policy
Consumer policy concerns the way in which consumers interact with and in markets, and economics provides a way in which to observe and consider these issues. Chapter 2 of the Toolkit provides an introduction to the ways in which economics can assist in identifying and analysing consumer issues and problems, and how best to respond to them.
The economics of consumer behaviour is a developing field and Chapter 2 of the Toolkit sets out an overview of the economic issues which relate to consumer policy questions and provides references to a wide range of resources for those who wish to explore it more fully in terms of available literature internationally. The following resources provide further background on the way in which consumer policy has been considered in an Australian context both generally and as an economic issue.
Resources
Australian Treasury (2004), Policy advice and Treasury’s wellbeing framework, Winter Economic Roundup 1, Australian Government, Canberra.
Hally‑Burton S, Shirodkar S, Winckler S, Writer S (2008), Harnessing the demand side: Australian Consumer Policy, 4 Economic Roundup 91, Australian Government, Canberra.
Henry K (2007), ‘Connecting consumers and the economy: the big picture’, Closing address to the National Consumer Congress, Melbourne, 15 March 2007.
King S and Smith R (2010), The shaky economic foundations of consumer protection policy and law, 18 Competition and Consumer Law Journal 71.
OECD (2010), Consumer Policy Toolkit, Chapter 2.
OECD (2007), Roundtable on Demand‑side Economics for Consumer Policy Summary Report,  OECD Paris.
New Zealand Ministry of Economic Development (2006), Behavioural analysis for policy: New lessons from economics, philosophy, psychology, cognitive science, and sociology, New Zealand Government, Wellington.
Productivity Commission (2008), Review of Australia’s Consumer Policy Framework, Australian Government, Canberra. Chapters 2 and 14 and Appendix B.
Productivity Commission (2007), Behavioural Economics and Public Policy: Roundtable Proceedings, Australian Government, Canberra.	

In considering consumer policy issues, it is important to place them within a broader economic context. A consideration of broader economic issues, such as the size and nature of markets, the impact on consumers generally as well as specifically, and general economic issues and trends will have a bearing on consumer policy analysis in terms of both contextualising it and in informing potential responses.
Resources
General information about the Australian economy can be found in:
•	speeches by economic ministers and senior economic policy officials, available from www.treasurer.gov.au, www.treasury.gov.au and www.rba.gov.au;
•	the Treasury’s Economic Roundup, which is published quarterly and is available at www.treasury.gov.au; and
•	the OECD’s biannual Economic Survey of Australia (available from the Australia page of www.oecd.org). 	

Other policy influences
Consumers operating within an economy are also citizens in a society. Consideration of consumer policy issues through an economic framework does not mean that other issues are irrelevant or should be ignored. Consumer decisions are informed by a wide range of factors, which are not always economic. Consumer policy issues also involve important questions of political, social, legal and moral significance, which are relevant to the way in which consumer policy issues are identified, considered and addressed. 
While this is so, an economic framework provides a useful way in which to analyse consumer policy questions and to take these factors into account. For this reason a framework for policy consideration can be a useful tool in considering the relative merits of issues. For example, the Australian Treasury uses a Wellbeing Framework as a way of looking at issues. It is drawn from widely recognised economic principles, but also allows for a consideration of non‑economic concerns and issues in the policy development process.
Treasury’s Wellbeing Framework
The Wellbeing Framework comprises five elements against which public policy issues can be assessed:
•	the opportunity and freedom that allows individuals to lead lives of real value to them;
•	the level of consumption possibilities available to the community over time. This includes both market and non‑market goods and services such as voluntary and community work,  the quality of the physical environment, health and leisure;
•	the distribution of these consumption possibilities, including among different groups within society, across geographical regions and across generations;
•	the overall level and allocation of risk borne by individuals and, in aggregate, by the community; and
•	the level of complexity confronting Australians in making decision about their lives.
Source: Treasury, Strategic Framework 2010‑2011 (2010).	

Step 1: Define the consumer problem and its source
Summary
The first step in the process of consumer policy making is to define the consumer problem (from the consumer’s perspective), and its source. Defining the problem and its source will help identify the institutions and stakeholders that could be involved in any potential policy development process. Sources of problems commonly addressed by consumer policy makers include business behaviour (such as misleading advertising), information issues, consumer behavioural biases and market and/or regulatory failures.
At this first stage, decision makers need to determine: 
•	whether the problem is a consumer problem or would it be better addressed by a non‑consumer policy action (for instance, competition policy);
•	whether the consumer authority is the most appropriate entity to address the source of the consumer problem as a whole, or certain aspects of the problem;
•	whether the problem would be better handled by another entity. This would occur if the problem, or likely policy tools for correcting the problem, fell outside the consumer authority’s mandate;
•	whether there is reasonable scope for correcting the problem at its source; and
•	whether correcting the problem would conflict with other public policy objectives.
If the consumer authority decides to examine a problem further, it should examine how consumers are being harmed (Step 2).
Source: OECD Consumer Policy Toolkit.	

How are consumer problems identified in an Australian context?
In considering consumer problems and designing policy responses to them, consumer policy agencies need to identify and evaluate consumer problems and determine the level of consumer detriment arising from those problems. 
In Australia, information about consumer problems can be found in:
•	consumer complaints and feedback to businesses, consumer agencies, ombudsman and other dispute resolution services and advice providers;
•	satisfaction surveys and focus groups;
•	accidents and injuries data available from consumer agencies and public health agencies;
•	business notifications and reports to consumer agencies;
•	reports by committees of the Australian, state and territory parliaments on consumer and market issues;
•	reports and research commissioned by consumer policy agencies or undertaken by national statutory and other bodies such as the Productivity Commission, the ACCC  and the Commonwealth Consumer Affairs Advisory Council and by equivalent state and territory government bodies; 
•	reports and research by consumer representative and advocacy bodies, business and industry representative and advocacy bodies, research centres and think‑tanks and academics; 
•	reports of overseas consumer and competition policy agencies and international bodies, such as the OECD, APEC, the United Nations, the International Monetary Fund and others; and 
•	the media, including television current affairs programs, news bulletins, radio broadcasts, print media, blogs, rating websites and social media.
Is it a consumer policy issue or something else?
In considering whether an issue is a consumer problem, the Toolkit suggests a series of questions which may inform a decision as to whether a consumer policy agency should categorise something as a consumer issue or something else. 
These questions are equally applicable to those with an interest in consumer issues when identifying potential consumer problems and in explaining them to consumer policy and enforcement agencies. 
1.	What is the nature of the consumer problem (from the consumer’s perspective)?
•	Does the problem relate to quality or safety (for instance, where a product is unsafe or does not work properly), price (inflated prices or hidden charges) and/or availability (insufficient choices or unavailable product or service)?
•	Are consumers commonly failing to have their problems resolved in a satisfactory manner (for instance, unreasonably high costs for, or lack of access to, appropriate redress)?
•	Is there evidence that consumers are making decisions that are inconsistent with their preferences and self interests (such as making unnecessary purchases)?
Source: OECD Consumer Policy Toolkit.	

2.	What is the source of the consumer problem?
•	Business behaviour — is the problem related to fraudulent, false, deceptive or misleading sales practices?  Are consumers being harmed due to unfair contract terms, price discrimination or unconscionable conduct?  Does the problem relate to harmful business practices (such as cartel‑like behaviour) or insufficient competition?
•	Information issues — does the problem arise from inadequate information being available to consumers, or is there evidence of information overload?  Is information too complex to be understood by a sizeable proportion of consumers?  Is the cost of accessing the information too high?  Are there obstacles to businesses conveying information about their product or service (such as product quality and attributes)?
•	Consumer behaviour biases — is there evidence that consumer behaviour is responsible for or contributing to the problem?  Are consumers making quick buying decisions or eliminating options as a result of too many product offerings or due to the complexity in comparing options? Are consumers making decisions based on inertia (selecting the default choice and failing to choose) or are their decisions heavily influenced by the manner in which the options are presented to them (for instance, claims made on packaging or in advertising)?  
•	Regulatory or market failures — does the problem reflect inadequate industry knowledge of existing regulations, inadequate regulatory enforcement, inadequate consumer knowledge about redress mechanisms, and/or real or perceived failures of redress mechanisms? Does the problem represent a market externality that negative impacts on consumers (for instance, firms may not fully consider the negatively impacts experienced by consumers from telemarketing or spam)?
Source: OECD Consumer Policy Toolkit 	

In some cases, a consumer policy issue will require specialised consideration and response. In these circumstances, the issue may need to be referred to a specialist regulatory agency for consideration. In some cases, due to the division of responsibility between the Australian Government and the States and Territories, issues may need to be referred between agencies at different levels of government. 
Issues that are perceived to be consumer problems may have their roots in other issues, which may affect consumers, but which do not require a consumer policy response. For example, market failures may arise from structural or competition issues, which mean that a market does not operate effectively to service consumers. In this situation, a supply‑side response may be needed, either through:
•	reforms to improve or alter the structure of the market to make it more efficient by removing barriers to entry or reducing or removing unnecessary transaction costs; or
•	changing or enforcing competition laws to  ensure that market participants are not acting in an anti‑competitive way.
Does the policy issue need to be referred?
•	Issues relating to the ACL or to consumer policy in general are referred to the Policy and Research Advisory Committee (PRAC) of the Standing Committee of Officials of Consumer Affairs (SCOCA). 
–	Within the Australian Government policy responsibility for general consumer policy issues rests with the Infrastructure, Competition and Consumer Division in the Australian Treasury (www.treasury.gov.au). Each State and Territory also has its own consumer policy agency. The ACL is enforced by the ACCC, ASIC or the relevant State or Territory agency. More information about these agencies is available on www.consumerlaw.gov.au.
•	Where sector‑specific consumer issues are referred to depends on the type of issue:
–	Financial Services: policy responsibility rests with the Australian Treasury (www.treasury.gov.au) and enforcement responsibility with the Australian Securities and Investment Commission (www.asic.gov.au).
–	Telecommunications and media: policy responsibility rests with the Department of Broadband, Communications and the Digital Economy (www.dbcde.gov.au) and enforcement responsibility with the Australian Communication and Media Authority (www.acma.gov.au).
–	Food labelling: policy responsibility lies with the Department of Health and Ageing (www.health.gov.au) and Food Standards Australia and New Zealand (www.foodstandards.gov.au), while enforcement responsibility rests with the various State and Territory health departments. 
–	Therapeutic goods: policy responsibility rests with the Department of Health and Ageing and enforcement responsibility with the Therapeutic Goods Administration (www.tga.gov.au).
–	Chemicals: policy responsibility rests with the Department of Health and Ageing and administrative responsibility is shared between the National Industrial Chemicals Notification and Assessment Scheme (www.nicnas.gov.au) and the Office of Chemical Safety and Environmental Health (www.health.gov.au). 
–	Trade measurement: policy responsibility rests with the Department of Innovation, Industry, Science and Research (www.innovation.gov.au) and the National Measurement Institute (www.measurement.gov.au).
–	Agriculture and veterinary: policy responsibility rests with the Department of Agriculture, Fisheries and Forestry (www.daff.gov.au) and enforcement responsibility with the Australian Pesticides and Veterinary Medicines Authority (www.apvma.gov.au).
•	Infrastructure or competition policy issues are referred to the Infrastructure, Competition and Consumer Division in the Australian Treasury (www.treasury.gov.au). Infrastructure regulation and competition enforcement issues are referred to the ACCC (www.accc.gov.au).	
Resources
•	OECD (2010), Consumer Policy Toolkit, Chapter 3.
•	PC (2008), Review of Australia’s Consumer Policy Framework, Chapters 3 and 4.	

Step 2: Measure consumer detriment
Summary
Consumer detriment arises when market outcomes fall short of their potential, resulting in welfare losses for consumers. Identifying and measuring the nature and magnitude of consumer detriment (how consumers are being harmed and the number of, and extent to which, consumers are being harmed) is a crucial component of evidence‑based policy making.
Elements of detriment include both financial and non‑financial impacts, such as direct financial losses, time loss, stress and physical injury. Although quantification is oftentimes difficult, it is essential that detriment be assessed, even when it is only possible to do so in a qualitative manner. Possible sources of information for assessments include focus groups, complaints data, consumer surveys, market screening and econometric analysis. 
A good appreciation of consumer detriment provides a policy maker with the evidence to build a case, if warranted, for a market intervention (Step 3), and is also helpful in establishing an effective policy objective (Step 4).
Source: OECD Consumer Policy Toolkit.	

How can consumer detriment be identified and measured?
In understanding a consumer policy issue and in considering an appropriate response, it is important to understand the nature and scope of the problem, and its effects on consumers and impacts on business. Without information about the level and extent of consumer detriment, there is a risk that the response may:
•	be inappropriate or ineffective in addressing the particular issue; or
•	unnecessary, as the problem is either misunderstood or exaggerated. 
Information about the nature and effects of a consumer problem may be either quantitative or qualitative (see page 14 above). Both kinds of information are useful and each can serve to reinforce or illustrate the other. 
Information to support analysis of consumer problems can be obtained from a wide range of sources, including:
•	specific interest groups, such as consumer or business representative or advocacy bodies, which can provide information to support advocacy for a particular policy outcome. This information should be considered in context, and with regard to:
–	the perspective of the group seeking the change; and
–	the nature of the information provided. For example, it may rely on a limited sample or commissioned research, or be anecdotal information based on cases or incidents addressed by the group. In such cases, consideration should be given to the wider relevance or applicability for the information to the wider community.
•	publicly available statistics, such as consumer spending information, consumer behavioural trends, complaints data, enforcement data and comparative information from other markets. This information is available from the Australian Bureau of Statistics (www.abs.gov.au), consumer policy and enforcement agencies (see www.consumerlaw.gov.au), overseas and international statistical bodies, including the OECD (www.oecd.org), and enforcement agencies. 
–	Some caution may be appropriate in situations where there are increased complaints, as this may reflect increased consumer awareness or knowledge as a result of media attention or successful education initiatives. 
•	concluded enforcement actions and court judgments, which may point to potential problems with the operation of the law, persistent market problems  or a market failures. In Australia, court judgments and (in some cases) transcripts) are freely available through the Australian Legal Information Institute (www.austlii.edu.au) and reports of other enforcement actions are reported through media releases, public registers, and public warnings and notices posted on the websites of Australia’s consumer agencies. 
•	commissioned research, which is sought by consumer policy agencies to better identify or understand a consumer policy issue through both qualitative views and quantitative data. Recent examples of this sort of research are available on the Consumer Policy Resources page of www.consumerlaw.gov.au, along with links to published research available from other agencies.
The challenge of effectively measuring consumer detriment
Consumer detriment is potentially difficult to measure as the range of factors to be considered is often difficult to quantify in a straightforward way. However, there are some useful high‑level ways to think about consumer detriment, which can inform the way in which information can be identified, presented and analysed.
Tangible economic detriment measures inconvenience, time, and monetary costs. This could include the cost of repairing and replacing an item, and following up and resolving problems, including the costs of travel, postage and telephone calls, as well as personal time. 
Consumer detriment may have significant flow‑on economic effects. For example, a failed white good may have a component that is easy and inexpensive to fix, but the cost of the detriment is significant due to food spoilage or transport costs. Economic costs also necessarily include outlays required by businesses, which frequently translate into consumer prices; and outlays required by governments, which may have implications for taxation. 
Economic detriment can also take the form of limited choice and opportunity for consumers. This can also be categorised as an intangible cost. 
Intangible costs are largely focused on emotional detriment, and are not normally measured. Emotional detriment attempts to place a value on the frustration, stress, annoyance, disappointment and lack of choice experienced by consumers. Ultimately, it can have very high costs in terms of ‘peace of mind’ or health effects, if the issue is significant and insidious. In its 2008 Review of the Australian Consumer Policy Framework report, the Productivity Commission added 25 per cent of economic costs to the standard measure of detriment, as a way of estimating the intangible costs of detriment.
Innocent detriment refers to the cost of preventing all detriment. However, the cost of completely faultless products, all the time, would be much higher than tolerating an acceptable margin of error. Where people are involved, factoring in ‘human error’ means production is unlikely to achieve 100 per cent precision at all times. Productivity and innovation are likely to be stymied if the only acceptable standard is absolute perfection. 
Resources
•	OECD (2010), Consumer Policy Toolkit, Chapter 3.
•	Productivity Commission (2008), Review of Australia’s Consumer Policy Framework, Chapter 14.
•	UK Office of Fair Trading (2008), Consumer detriment: Assessing the frequency and impact of consumer problems with goods and services ,(OFT992) HM Government, London.
•	Consumer Affairs Victoria (2006), Consumer detriment in Victoria: a survey of its nature, costs and implications, (Research Paper No. 10 October 2006), Government of Victoria, Melbourne.	

Step 3: Determine whether consumer detriment warrants policy action
Summary
The decision whether to intervene should consider a number of questions:
•	What is the scale of consumer detriment? An intervention may be warranted if the detriment is small, but felt by a large number of consumers, or alternatively, if the detriment experienced even by a small group of consumers is very large.
•	Who is experiencing the consumer detriment? For example, disproportionate impacts on certain groups, such as children, the elderly or the socially disadvantaged, should be considered.
•	What is the anticipated duration of the consumer detriment? How detriment is likely to change over time should be evaluated. If it is expected to worsen, it may strengthen the case for intervention.
•	What are the likely consequences of taking no policy action? The political, social and economic consequences of taking no policy action should be considered.
•	Are there other substantial costs to the economy? Is the consumer problem creating detriment for other stakeholders? Is it, for example, distorting competition among firms?
Considering these factors, a consumer authority should decide whether i) a policy action should be considered (proceed to Step 4), ii) more evidence is required before proceeding to policy development (return to Step 2), iii) a better understanding of the nature and/or source of the consumer problem is necessary (return to Step 1) or iv) no action is required, in which case the investigation would be terminated.
Source: OECD Consumer Policy Toolkit.	

Step 3 of the OECD Consumer Policy Toolkit provides a useful checklist of questions to be considered by consumer policy agencies when assessing the merits of a policy response to a consumer problem and making recommendations to their respective governments. In making these decisions, Australian governments take into account a wide range of factors, including wider social, economic and political concerns, stakeholder views and, in the case of issues with a Commonwealth‑State dimension, the practicalities associated with achieving policy outcomes acceptable to nine governments. 
Resources
•	OECD (2010), Consumer Policy Toolkit, Chapter 5.
•	Productivity Commission (2008), Review of Australia’s Consumer Policy Framework, Chapter 3.	

Step 4: Set policy objective and identify the range of policy actions
Summary
Setting the policy objective
A clear policy objective should be specified, in terms of what the policy intends to achieve for consumers and the market more generally. Appropriate success indicators, targets or metrics should be determined to aid future reviews of the effectiveness of the policy (Step 6) and should be focused on market outcomes for consumers (not intermediate results). If metrics are employed, efforts should be made to establish a baseline prior to implementing a policy.
Identifying the range of practical policy actions
Efforts should be made to identify the full range of practical policy options (those that can be realistically implemented). These would include those that focus on consumer empowerment and those that focus on modifying firm behaviour, as well as those that have elements of both (Figure 2). Both new policy actions, as well as better enforcement of existing policies, should be considered. At this stage it is also appropriate to identify who would be responsible for implementation and enforcement, the cost of maintaining the policy and how it would be communicated to stakeholders and the public.
Figure 2: Consumer policy tools to target 
the demand and supply side of markets

Source: OECD Consumer Policy Toolkit.	

Using existing tools
In many cases, the appropriate response to a consumer problem is not a policy change, but the application of existing regulatory tools. 
Under the ACL, there is a wide range of enforcement tools available to regulators to tackle consumer issues, which may be applied in a wide range of circumstances. Indeed, the ACL recognises this through its distinction between generic protections in Chapter 2 of the ACL, which apply in a wide range of circumstances, and specific protections in Chapter 3 of the ACL, which apply to specifically identified forms of business conduct. 
The ACL is administered and enforced jointly by the ACCC and the state and territory consumer protection agencies, with the involvement of ASIC on relevant matters. ACL regulators have a range of civil, administrative and criminal enforcement remedies at their disposal under the ACL and supporting legislation. The ACL includes enforcement powers, penalties and remedies that can apply for breaches or suspected breaches of the ACL.
National enforcement powers available to regulators include enforceable undertakings, substantiation notices and public warning notices. National consumer law remedies include civil pecuniary penalties, disqualification orders, non‑punitive orders, adverse publicity orders, declarations, injunctions, damages, compensatory orders and redress for non‑parties. 
Resources
Information about the ACL is available at www.consumerlaw.gov.au. 
Australia’s consumer agencies have published joint guidance on the ACL to assist with consumer and business understanding and compliance with the ACL. These guides cover:
•	compliance and enforcement;
•	avoiding unfair business practices;
•	unfair contract terms;
•	sales practices ;
•	consumer guarantees; and
•	product safety.
The guides are available on www.consumerlaw.gov.au. Individual consumer agencies also publish their own material about the ACL and its enforcement. 	

What are the circumstances in which a new approach is required?
Where evidence suggests that an existing policy approach is no longer effective, or a policy change is deemed necessary, a new approach is considered. As discussed in Step 2, Australian governments have increasingly used data and information to assess the detriment associated with a policy problem. This evidence based policy making allows analysis of whether or not a new approach is required.
As discussed in Steps 2 and 3, this evidence may take a variety of forms, including assessing the level of consumer complaints to regulators, the releasing of consultation papers seeking comment and/or targeted consultation with individual stakeholders. 
Regulatory impact assessment
Australian Government
The Australian Government’s Office of Best Practice Regulation (OBPR) provides a formalised framework for considering policy issues. The Best Practice Regulation Handbook outlines the Regulation Impact Statement (RIS) process, and provides guidance on preparing the RIS and informing the decision making stage. 
A RIS is a document prepared by the Australian Government department, agency, statutory authority or board responsible for a regulatory proposal, following consultation with affected parties. It formalises and provides evidence of the key steps taken during the development of the proposal, and includes an assessment of the costs and benefits of each option (although RISs are not required to directly compare options).
What does an Australian Government RIS cover?
While there is no set format for a RIS, it should generally contain seven elements, setting out:
1.	The problem or issues that give rise to the need for action;
2.	The desired objectives;
3.	A range of options (regulatory and non‑regulatory, as applicable) that may constitute feasible means for achieving the desired objectives;
4.	An assessment of the impact (costs, benefits and, where relevant, levels of risk) of a range of feasible options for consumers, business, government and the community;
5.	A consultation statement;
6.	A conclusion and recommended option; and
7.	A strategy to implement and review the preferred option.
Source: OBPR Best Practice Regulation Handbook, page 14.	

Decisions by the Council of Australian Governments (COAG) and its subordinate bodies
A RIS is required for agreements or decisions of COAG, Commonwealth‑State Ministerial Councils and national standard setting bodies which, when implemented, would encourage or force businesses or individuals to pursue their interests in ways they would not otherwise have done
A RIS, under the COAG requirements, is a two stage process involving a RIS for consultation and a RIS for the decision makers.
The RIS for consultation is a document prepared by officials (whether in a secretariat, advisory committee, or similar) developing a policy proposal for consideration by COAG itself, a Ministerial Council, or by a national standard‑setting body, which canvasses the regulatory options being considered, in order to determine the relative costs and benefits of those options. The consultation RIS aims to elicit views from affected parties prior to the development of final recommendations for decision makers.
The purpose of a RIS for decision makers is to draw conclusions on whether regulation is necessary, and if so, on what the most efficient and effective regulatory approach might be, taking into account the outcomes of the consultation process.
State and Territory governments
Each state and territory government imposes its own regulatory impact assessment requirements for policy decisions. Various approaches exist in each jurisdiction, which are under the control of different bodies.
In New South Wales, RISs are normally required when a principal regulation is made, or when a regulation is to be remade under the staged repeal program. They are an effective means of raising public involvement in the regulation‑making process, as they provide members of the community with the opportunity to comment on regulation, before it becomes law. 
The primary purpose of RISs is to ensure that the economic and social costs and benefits of regulatory proposals are examined fully so that Ministers proposing regulation and members of the community can be satisfied that the benefits of regulation exceed the costs. RISs are monitored by the Legislation and Policy Division of the NSW Department of Justice and Attorney General.
In Victoria, RISs are assessed by the Victorian Competition and Efficiency Commission (VCEC). The purpose of the RIS process is to ensure that: regulation is only implemented when there is a justified need; only the most efficient forms of regulation are adopted; and there is an adequate level of public consultation in the development of regulatory measures. 
In Queensland, the Regulatory Assessment Statement (RAS) System Guidelines describe the procedure for developing regulation for Queensland Government agencies under the RAS system. It is designed to assist officers working on the development, assessment and improvement of regulation, to produce better regulation in accordance with regulatory best practice principles. The Regulatory Principles Checklist (RPC) is designed to demonstrate that a regulatory proposal has been developed in accordance with regulatory best practice principles.
In Western Australia, the Regulatory Impact Assessment (RIA) process aims to ensure increased transparency in the decision making process, rigour of analysis and broad public consultation (where appropriate) on proposals having a significant negative impact on business, consumers or the economy. It should also provide an early warning to the Government of unintended consequences of regulatory proposals.
RIA Guidelines provide guidance on the RIA process. The guidelines provide advice on how to proceed with the RIA process once it becomes apparent that a policy issue may require regulatory intervention. It gives clear guidance on requirements for RIA documentation and procedures to be followed at each stage of policy development. The Regulatory Gatekeeping Unit of the WA Treasury administers the best practice process of RIA in Western Australia, and monitors, assesses and reports on compliance with those requirements.
In South Australia, RISs are required to ensure that South Australian government agencies adopt best practice approaches when designing new regulation and reviewing existing regulation. The Regulatory Impact Assessment (RIA) process is administered by the Cabinet Office in the South Australian Department of the Premier and Cabinet.
In Tasmania, the Legislative Review Program (LRP) requires RISs to be prepared for all proposed primary legislation which may significantly restrict competition or impact negatively on business. A restriction on competition is considered to be significant where it affects a sector of the economy, including consumers. The Economic Reform Unit in the Department of Treasury and Finance administers the LRP.
In the Australian Capital Territory, any proposal for new or amended primary legislation requires a RIS to be completed as part of the policy development process, overseen by the Microeconomic Reform Section of the ACT Treasury. 
In the Northern Territory, the Regulation Making Framework (RMF) is the NT Government’s formal regulatory review mechanism, designed to ensure that all new and amending legislative proposals are efficient and warranted, and only restrict competition where it is in the public interest to do so. Administered by the NT Treasury, it ensures new and amending legislation undergo the RIS process where the proposals are analysed to identify their full impacts, that is costs and benefits, to determine whether the NT’s net public benefit is maximised by the legislation under consideration.
Resources
OECD (2010), Consumer Policy Toolkit, Chapter 5.
OBPR (2010), Best Practice Regulation Handbook, Australian Government, Canberra.
COAG (2007), Best Practice Regulation: A Guide for Ministerial Councils and National Standard Setting Bodies.
Further information about the OBPR and the advice and services it can provide is available at www.finance.gov.au/obpr.
Government of Queensland (2010), Regulatory Assessment System Guidelines.
Government of Queensland (2010), Regulatory Principles Checklist.
Government of South Australia (2011), Better Regulation Handbook.
Government of Victoria (2007), Victorian Guide to Regulation.
Government of Western Australia (2010), Regulatory Impact Assessment Guidelines for Western Australia.	

Step 5: Evaluate options and select a policy action
Summary
Once policy options have been identified, the aim is to determine the most appropriate and cost effective method for achieving the policy objective (from Step 4). In most cases, a benefit‑cost analysis should be carried out, covering both quantifiable aspects and those areas where quantification may not be practicable (for example, community values and ethical considerations). The scale and depth of an analysis should be determined on the basis of the likely consequences of the policy under consideration. Not every action by government requires in‑depth analysis. For example, an immediate product ban following a death or serious injury to consumers would not always require a cost‑benefit analysis. On the other hand, in some instances, it may be worthwhile to carry out surveys, field trials and research aimed at deepening an assessment. This would likely be the case for policies that entail high costs on some stakeholders and are of a relatively permanent nature (for example, locked in by legislation).
Consultation with stakeholders, which include consumer organisations, affected firms and/or industry associations, could take place at any point in time during an investigation. It is particularly important to consider at this step, however, as it can help to ensure that options are expressed clearly and adequately address all relevant issues. It may also help reveal consequences that are not anticipated or intended by policy makers. Finally, the effects of each option on other policy areas, such as competition and the environment, should be considered.
Source: OECD Consumer Policy Toolkit.	

Different types of decisions are required for different policy outcomes
The most appropriate policy response to a consumer problem will depend on the nature of the problem and the evidence available to support action. In some cases, regulatory intervention may be required, and in others no policy action may be necessary, as the problem may resolve itself in time or be addressed through enforcement action. 
Determining the most appropriate policy action from a range of policy options can be achieved through consultation and by following the RIS process, which includes an assessment of the benefits and costs of each policy option under consideration. While this is so, the nature of the process will differ according to the nature of the issue, the level of public interest or concern in it, and the ramifications of no action or a delayed response. 
For example, the risks of no action in some situations, such as product safety, are considerable, and a different approach may be applied to the regulatory impact assessment of that problem in recognition of the overriding public interest in ensuring that harm is prevented, rather than simply reduced or minimised. 
Amending the ACL
The Australian Government, a State or a Territory may submit a proposal to amend the ACL, and provide this to all other jurisdictions. For these purposes, the ACL includes the text of the ACL itself plus any Regulations or other legislative instruments made under it. 
The Australian Government will commence a consultation process within four weeks of receiving a proposed amendment, which involves:
•	the Commonwealth Minister writing to all States and Territories notifying them of the amendment and providing three months from the date of that notice to consider and respond to the proposal in writing;
•	after three months the Commonwealth Minister will call a vote. States and Territories will have 35 days to vote, and if they do not vote or abstain within that period, then they will be taken to have supported the proposed amendment; and
•	to be successful, the proposed amendment must be supported by the Australian Government and at least four other jurisdictions, of which three must be States. 
The Australian Government may make minor or inconsequential amendments to the ACL, provided it notifies the States and Territories of its intention to do so. It may not proceed with such amendments, if a State or Territory objects within 21 days of their receiving notice. In this situation, the Commonwealth Minister must call a vote. 
After an amendment has been agreed by the Australian Government and the States and Territories, the Australian Government will then introduce legislation to amend the ACL into the Australian Parliament.
Resources
OECD (2010), Consumer Policy Toolkit, Chapter 5.
COAG (2009), Inter‑Governmental Agreement for the Australian Consumer Law (available on www.consumerlaw.gov.au).
PC (2008), Review of Australia’s Consumer Policy Framework, Chapter 3.	

Step 6: Develop a policy review process to evaluate the effectiveness of policy
Summary
Regular reviews of consumer policies serve to determine if the objectives (set at Step 4) are being achieved in a cost‑effective manner. The review process needs to factor in changes in the nature of the consumer problem, changes in the marketplace, and potentially unforeseen or unintended consequences of the selected policy action. The review should take place after a policy has been in operation for a reasonable period of time. 
Post implementation evaluations can range from interim monitoring to full‑scale reviews. The methods for carrying out reviews are similar to those used for prior assessment of expected costs and benefits. The reviews should be used to determine whether a measure should be maintained, modified or eliminated, whether enforcement should be strengthened, whether an alternative policy action should be considered, or whether reassessment of the nature and/or source of a problem would be beneficial (Step 1).
Source: OECD Consumer Policy Toolkit.	

Review of the ACL and its enforcement
Regular reviews of the ACL and related issues
Legislative reviews
It is Australian Government practice to review laws five years after their introduction, unless otherwise specified.  As the administration and enforcement of the ACL is to be reviewed within seven years of its commencement, this would coincide with the commencement of a review of the ACL under the general Australian Government policy. In addition to this general requirement for review of the ACL, certain provisions of the ACL are subject to review under specific requirements, including the product safety provisions of the ACL and the provisions dealing with fitness for purpose of services provided by architects and engineers, both of which are to be reviewed three years after the commencement of the ACL. 
These reviews will provide an opportunity for MCCA to consider whether the ACL’s policy objectives are being achieved in the most cost‑effective manner possible.
The Productivity Commission performs an annual review of the impact of regulatory burdens on business for designated areas of regulation. In 2010 the Productivity Commission published a report titled Business and Consumer Services, which considered regulation applying to businesses providing financial and insurance services, accommodation and food services, hiring, real estate, professional and personal services, arts and recreation, and repair and maintenance services. 
The provisions of the ACL are subject to constant monitoring and review by SCOCA. The SCOCA advisory committees meet on a monthly basis, or more regularly if required, to discuss policy, administration, compliance, education and enforcement issues that arise under the ACL. 
Parties to the ACL Intergovernmental Agreement (IGA) may choose to review particular provisions of the ACL at any time and may propose an amendment to the ACL as a result of such a review. Proposed amendments could involve certain provisions of the ACL being modified or eliminated, or new provisions being inserted into the ACL. The IGA governs the consultation and voting processes that apply to any such proposals.
The Australian Government regularly asks the Productivity Commission to conduct reviews of policy issues that have may have implications for consumer policy. Information about the Productivity Commission and how it works is available at www.pc.gov.au.
Reviews of enforcement and administration
Clause 23 of the IGA provides for a review of the ACL’s administration and enforcement within seven years of its commencement. As the ACL commenced on 1 July 2010, a review is due before 1 July 2017. This review would provide an opportunity to reconsider the appropriateness and effectiveness of the ACL’s practical application, administration and enforcement. 
Clause 51 of the IGA also provides that the terms of the IGA will be reviewed within seven years of its commencement. As the ACL commenced on 2 July 2009, a review is due before 2 July 2016. This review would provide an opportunity to reconsider the appropriateness of the institutions that underpin the ACL as a co‑operative arrangement between the Australian Government and the State and Territory governments, including arrangements for administration and enforcement of the ACL, and consultation and voting on any proposals for amendment of the ACL. 
The regular collection of survey data, under the Australian Consumer Survey (ACS), will provide an evidentiary basis for review of the ACL. Survey data will allow new issues to be identified, allow consumer detriment from identified issues to be estimated and time‑series comparison of ACS data will provide a basis for evaluating the effectiveness of the ACL.
Proposals for amendment to the ACL
Proposals to amend the ACL may be submitted to all or any of the ministers responsible for consumer affairs in the Australian Government or the state and territory governments. Details for those ministers may be found on the MCCA pages of www.consumerlaw.gov.au. 
Inquiries and questions about the ACL and suggestions about potential changes to the ACL may be submitted in writing to:
The Chair
SCOCA Policy and Research Advisory Committee
c/‑ The Manager
Consumer Policy Framework Unit
Infrastructure, Competition and Consumer Division
Department of the Treasury
Langton Crescent
PARKES  ACT  2600
Issues relating to enforcement and administration
Inquiries and questions about the administration and enforcement of the ACL, including questions about enforcement policy, may be submitted in writing to:
The Chair
SCOCA Compliance and Dispute Resolution Committee
c/‑ MCCA Secretariat
Department of the Treasury
Langton Crescent
PARKES  ACT  2600

Figure 3: Consumer policy‑making steps

Source: OECD Consumer Policy Toolkit.