New Zealand's consumer protection law is contained in a number of pieces of legislation. Primarily, the general provisions are contained in the Consumer Guarantees Act 1993 and the Fair Trading Act 1986.
The Fair Trading Act 1986 is designed to prohibit certain conduct and practices in trade, to provide for the disclosure of consumer information relating to the supply of goods and services, and to promote product safety and prescribes a broad standard of conduct by prohibiting any person in trade from engaging in conduct that is misleading or deceptive, or is likely to mislead or deceive.
The Fair Trading Act 1986 has wide application and extends to areas of common law principles such as passing off actions. The Fair Trading Act 1986 prohibits misleading and deceptive conduct in trade and specifically prohibits particular types of misleading conduct and the making of false representations. The Act prohibits certain selling practices such as pyramid selling schemes, third party trading stamp schemes, referral selling, bait advertising, and similar conduct. The Act makes provision for the promulgation of consumer information and the regulation and promotion of product and service safety.
The Fair Trading Act was enacted at the same time as the Commerce Act 1986 which seeks to promote competition and prohibit restrictive trade practices.
The Consumer Guarantees Act 1993 implies mandatory guarantees as to title, quality, fitness, and performance in the supply in trade of goods and services normally acquired for household, domestic, or personal use. Redress for breach of the guarantees is available against suppliers and manufacturers. Attempting to wrongfully contract out of the Consumer Guarantees Act 1993, or misleading consumers as to their rights under the Act, is deemed to be a breach of the provisions of the Fair Trading Act 1986. These types of breach attract maximum fines of $60,000 in the case of an individual, and $200,000 in the case of a company.
Under the Consumer Guarantees Act 1993 goods must be:
- fit for their normal purpose;
- durable - last for a reasonable time;
- have no minor defects; and
- acceptable in look and finish.
When deciding whether goods are of acceptable quality, the test is whether a reasonable person would find the goods acceptable taking into account the nature of the goods, the price paid, any information on the goods or the package, anything said by the manufacturer or seller about the goods.
Access to Justice
Cost is often a significant barrier for the consumer seeking access to justice.
In Aotearoa, one mechanism used to improve access to justice is the use of low-cost statutory tribunals, such as the Disputes Tribunal, Motor Vehicle Disputes Tribunal and Tenancy Tribunal. Such tribunals have the advantage of low filing fees, self-representation, and largely informal processes.
Some industry-based schemes exist also. They have the disadvantage that not all members of the industry necessarily participate. nevertheless, they represent an opportunity for a consumer to obtain resolution to a dispute in a cost-effective manner.
Remember - Rennie Cox Urban Legal can advise you on how to obtain the most cost-effective outcome when using either statutory or industry-based tribunals/schemes.
Secured Consumer Finance
Almost invariably when you obtain finance, you will be required to provide some security as part of the agreement. Aotearoa has an efficient and well-developed system of registering, monitoring and discharging securities.
The key pieces of legislation which affect securities include:
Credit Contracts and Consumer Finance Act 2003;
Personal Property Securities Act 1999;
Land Transfer Act 1952;
Property Law Act 2007; and
Credit (Repossession) Act 1997.
On average, the banking ombudsman resolves over 700 complaints a year. The increased popularity of electronic banking and credit cards are frequently associated with complaints. The banking ombudsman provides a free service for consumers, and deals with complaints relating to certain non-bank financial services providers also (such as building societies).
The legal profession is regulated by the Lawyers and Conveyancers Act 2006, which also regulates conveyancing services and conveyancers. The Act provides for the licensing of lawyers, the work reserved for lawyers, complaints and discipline, and a fidelity fund. The Act allows for regulations to be promulgated regulating the profession. Two of these are (a) the Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008 and the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008.
The majority of domestic residential tenancy relationships are covered by the provisions of the Residential Tenancies Act 1986. If you are moving to Middle Earth and intend renting accommodation while you find your feet, talk to Rennie Cox about your rights and obligations. In particular, note that if you sign a residential tenancy for a fixed term of 5 years or more, The Residential Tenancies Act 1986 does not apply. Before signing any residential tenancy agreement, talk to Rennie Cox to ascertain what your rights are vis-a-vis termination, quiet enjoyment, and bond recovery.
Residents of retirement villages are now protected by the provisions of the Retirement Villages Act 2003. The Retirement Villages Act, passed in 2003, strengthens consumer protection for residents and intending residents. The Act provides a regime to control and monitor retirement village operators.
For the first time there is a legal definition of 'retirement villages' that covers a range of operations. The definition focuses on the substance of the village, rather than the form, documentation or the title granted to a resident. The Act specifically states under section 6(5) that in determining whether a property is a 'retirement village', regard should be given to the nature, substance and economic effect of the operation of the property, independent of its form or description in any document.
The Act provides rights for people who live in or are considering entering such a village. It contains detailed provisions about residents' rights in the period before an intending resident enters a retirement village, during their occupation, and after they leave.
The Act places responsibilities on all retirement village operators. These requirements replace obligations under the Securities Act 1978 that previously governed some operators.
The new requirements mean that every retirement village operator must:
- register each village with the Registrar of Retirement Villages. To register operators must lodge the following documents with the Registrar of Retirement Villages:
a) application form
b) disclosure statement
c) title documents
d) deed of supervision
e) an occupation right agreement
f) any other relevant documents.
- provide the Registrar of Retirement Villages with annual returns, including audited financial statements
- appoint a statutory supervisor (unless exempted from doing so)
- comply with the Code of Residents' Rights
- provide a complaints facility and dispute resolution process for residents
- comply with a Code of Practice for Retirement Villages when it is in force.
All Regulations that accompany the Act are in force.
If you are thinking of entering a retirement village (or placing a loved one in a retirement village), this is a big decision! Talk to Rennie Cox first to ensure that you are making the most informed decision possible.
Consumers are affected by transportation issues in a myriad of ways. If contracting for the delivery of goods, the Carriage of Goods Act 1979 applies. Understanding this Act, and how it is applied by the courts, can be difficult. Talk to Rennie Cox if you have any issues surrounding loss or damage to goods while in transit.
Taxis, rental car services, air travel (domestic and international), travel agencies are also frequently involved in consumer disputes. If you have any issue with any transportation service, talk to Rennie Cox to understand your potential remedies.
Telecommunication and Power
The Telecommunications Dispute Resolution Service is a free service offered to consumers. The service fields over 1,000 complaints per annum. Likewise, the Electricity and gas Complaints Commissioner (who also offers a free independent service to consumers) fields over 1,000 complaints per annum, also.
Copyright is regulated by the Copyright Act 1994. If you are considering operating or consuming digital products in Aotearoa, you should be aware of the Copyright (New Technologies) Amendment Act 2008. This Act accommodates advances in digital technology, such as digital protection measures.
Several Acts impinge on consumer protection vis-a-vis investment products. However, the most recent Act, with wide ramifications for investment advisors, is the Financial Advisors Act 2008 (fully effective on 01 July 2011).
Under the Act:
- All financial advisers must act with care, diligence and skill.
- All financial advisers must be publicly registered and belong to a dispute resolution scheme.
- With some exceptions, financial advisers must be individually authorised by the Securities Commission to give personalised investment advice to retail clients.
The new regulatory regime is underpinned by two key pieces of legislation:
Financial Service Providers (Registration and Dispute Resolution) Act 2008
This law requires all financial service providers, including financial advisers, who operate in New Zealand to be on a public Financial Service Providers Register (FSPR). It also requires advisers to belong to an approved dispute resolution scheme or to the reserve scheme (a scheme appointed on recommendation of the Minister to perform the functions of a default scheme). This gives consumers access to an independent dispute resolution process.
Financial Advisers Act 2008
This law introduces minimum standards of professionalism for financial advisers and gives the Securities Commission power to regulate them.
The Financial Advisers Act aims to build public confidence in the professionalism and integrity of financial advisers by:
- Requiring competence so advisers have the experience and expertise to match a person to a financial product that meets their needs and risk profile.
- Requiring disclosure by advisers so that consumers can make informed decisions about whether to use an adviser and follow their advice.
- Making advisers accountable for the advice they give.
The Act requires all advisers to act with care, diligence and skill and not to mislead clients.
The Act applies to all financial advice received in New Zealand, including advisory services provided from overseas.
Code of Professional Conduct
In addition to meeting the conduct and disclosure obligations of the Financial Advisers Act, advisers who are authorised by the Securities Commission must meet minimum standards of competence, knowledge and skills, client care, ethical behaviour and continuing professional training. These are set out in the Code of Professional Conduct for Authorised Financial Advisers. The Code serves as the benchmark for the professionalism of financial advisers and consumer protection in the financial adviser industry.
The Code comprises a number of Code standards, each containing an overarching principle and details of the application of the standard. It reinforces the purpose of the Financial Advisers Act, promoting the professionalism and integrity of financial advisers.
The Code was developed by a Code Committee appointed by the Commissioner for Financial Advisers, with significant industry input through extensive consultation.
All Authorised Financial Advisers (AFA) must comply with the Code. The Code is also the benchmark for the conduct of QFE advisers who are expected to demonstrate a similar standard of behaviour to AFAs for similar work. Financial adviser businesses that have many advisers may choose to become a Qualifying Financial Entity (QFE) for efficiency benefits. The QFE is licensed as an entity, instead of all of its financial advisers and representatives each having to be individually registered.
QFEs are registered on the Financial Service Providers Register and granted QFE status by the Securities Commission. They can be single entities or comprise a number of partner entities that are each registered and jointly hold QFE status.
Standards applying to consumer products may be statutory, private, or a combination of both. There are several standards authorities/codes in operation in New Zealand, including New Zealand Standards, the Advertising Standards Authority, the Australian New Zealand Food Standards Code, the Weights and Measures Regulations 1999, and a host of occupational licensing authorities.
Talk to Rennie Cox if you are considering establishing a business in Aotearoa, and we can help guide you through the standards applicable to your proposed activity.