Canadian case law: Arora et al v Whirlpool Canada LP and ...

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FMA will deal with these offences rather theconduct being dealt with by the CommerceCommission under the Fair Trading Act 1986;— simplification of the disclosure regime so thatinvestors receive key information in a clearmanner;— Changes to the governance of financial productsand services including the addition ofduties for managers of investment schemes toact in the best interests of scheme participants;— An increased emphasis on civil liability forbreaches of the regime. Establishment of criminalliability for directors where there is adisclosure defect and the director is eitherreckless or the director has knowledge of thedefect;— Providing FMA with powers to monitor compliancewith the Act;— A prohibition of offers of financial products inthe course of unsolicited meetings.Otherconsumerprotectionlawunderreview• Leaky Buildings: From the mid-1990’s New Zealandhas suffered what has been termed a “leakybuilding crisis” which has been blamed at least inpart on the light-handed regulatory approach introducedby the BuildingAct 1991. 59 The Mediterraneanstylehomes built in the mid to late 1990s useduntreated timber and poor construction techniqueswhich subsequently caused buildings to leak. Thetotal economic cost of the crises has been estimatedat 11.3 billion dollars (in 2008 dollars). 60The Building Act 2004 replaced the 1991 Act. Itstrengthens the regulation of the building industryby extending the range of work for which abuildingconsent,movingbacktowardmoreprescriptivebasedregulation and providing implied warrantiesfor the quality of construction. 61 In addition, theWeathertight Homes Resolution Services Act 2006was enacted in order to provide a fast, flexible andinexpensive resolution service for claims involvingleaky buildings.-based regulation. 62 Homeownersare able to take their claim to a WeathertightHomes Tribunal instead of having to engage inlengthy and expensive court proceedings.• Anti-gambling Laws: In 2000 a review of NewZealand gambling laws was conducted in responseto a perception that consumers in New Zealandwere suffering from an increase in problemgambling.63 This review culminated in the GamblingAct 2003, which harmonised and strengthenedthe previous regulatory scheme. The objectives ofthe Act include controlling the growth of gambling,minimising the harm caused by problemgambling, and facilitating responsible gambling. 64Gambling is illegal unless it is authorised by theAct. One interesting consumer protection measureintroduced by the Act is to require gambling venuemanagers to exclude all self-identified problemgamblersfrom their venue. 65 More recently theGambling (Gambling Harm Reduction) Bill 2010seeks to introduce additional measures to minimiseharm caused by gambling. It aims to overcomeproblems caused by excessive numbers of pokiesbeing located in low income areas with highnumbers of Maori and Pasifika people by enablinglocal authorities, in consultation with their communities,to reduce or eliminate pokies from thosesuburbs and towns where they are particularlyconcentrated or doing particular harm. 66 The Billis currently going through the select committeeprocess.• Retirement Savings Regulation: the KiwiSaverscheme was introduced in 2007 in response toconcerns that New Zealander consumers spend toomuch and fail to adequately save for their retirement.The KiwiSaver scheme is an opt-out retirementsavings scheme which includes some governmentsubsidies. Joining the scheme is voluntary butworkers are automatically enrolled when they starta new job and then have six weeks to opt-out. 67Otherconsumerprotectionlawunderreview• Natural supplements: The regulation of the sale ofnatural health products in New Zealand is currentlyunder review. 68 Under the existing law thereis very little regulation of the natural healthproduct industry. Product labels must not be misleadingand no therapeutic claims can be made ifthe product is to avoid being categorised as amedicine and consequently be subject to the stringentsafety requirements of the MedicinesAct 1981. 69The Therapeutics Products and Medicines Bill 2006proposed a joint trans-Tasman regulatory schemefor the regulation of therapeutic products. The Billwas vigorously opposed by both the Green Partyand the Maori Party and the alternative healthproducts industry. One of the main concerns wasthat the joint scheme would undermine NewZealand’s sovereignty. There was insufficient supportfor the Bill to be enacted. In 2011 the NaturalHealth Products Bill was introduced in to Parliament.70 This Bill proposes a domestic scheme.306australian product liability reporter October 2012
The Bill aims to improve the accuracy of consumerinformation and to introduce safety measuresproportionate to the risks associated withthese products. 71 If enacted, it will tighten theregulation of natural health products in NewZealand.• Tobacco Regulation: The current government iscommitted to making New Zealand smoke-free by2025. 72 A recent government inquiry into thetobacco industry has recommended interventionssuch as banning cigarette vending machines, prohibitingshop displays of tobacco, plain packagingand reducing duty-free allowances. 73• Alcohol Regulation: The Alcohol Reform Bill 2010was drafted in response to the New Zealand LawCommissions 2010 report entitled Alcohol in OurLives: Curbing the Harm. 74 Alcohol causes majorsocial and health-related harm to consumers inNew Zealand. The Bill aims to reduce this harmby measures such as tighter liquor licensing rulesand changing the legal purchasing age. However,many of the recommendations in the Law Commissionreport, such as price control and strictercontrol of alcohol advertising, are not adopted bythe Bill.Kate TokeleySenior LecturerVictoria University of Wellington, New ZealandA version of this article is forthcoming in J Malbon andL Nottage (eds) Consumer Law and Policy in Australiaand New Zealand Federation Press, 2013.Footnotes1. See, for example, G Austin “The Regulation of ConsumerCredit Products: An Examination of Baseline Assumptions”in S Frankel (ed) Learning from the Past Adapting for theFuture: Regulatory Reform in New Zealand Lexis Nexis,Wellington, 2011 p 295.2. The Saskatchewan statute on which the New Zealand legislationis modeled is called the Consumer Product Warranty andLiability Act 1978. It has subsequently been replaced by theConsumer Protection Act 1996 (Saskatchewan).3. For example, the Electricity and Gas Complaints Commission,The Office of the Banking Ombudsman, The Insurance andSavings Ombudsman and the New Zealand Medical AssociationCode of Ethics available at: www.nzma.org.nz/sites/all/files/CodeOfEthics.pdf.4. Disputes Tribunal Act 1988 (NZ).5. See the Smoke-free Environments Act 1990 (NZ), the Sale ofLiquor Act 1989 (NZ) and the Medicines Act 1981 (NZ).6. The government released a statement on regulation entitled:Better Regulation, Less Regulation in 2009. The statementindicates that the government has a preference for minimallegal intervention in the market place. See Hon Bill Englishand Hon Rodney Hide “Government Statement on Regulation:Better Regulation, Less Regulation” 17 August 2009 availableat: www.treasury.govt.nz.7. The Organisation for Economic Co-operation and Development(OECD) The Consumer Policy Toolkit 2010 was devisedby the OECD with significant input from New Zealandofficials. It is regularly used by the Ministry of ConsumerAffairs in the development of policy. See, for example,Ministry of Consumer Affairs Consumer Law Reform AdditionalPaper — February 2011 Consumer Information Standards(2011).8. These findings provide a rationale for some of the morepaternalistic consumer law reform in areas such as gambling,smoking, alcohol consumption, over-indebtedness and retirementsavings. See generally T Irwin Implications of BehaviouralEconomics for Regulatory Reform in New Zealand (SapereResearch Group, 2010); New Zealand Ministry of EconomicDevelopment, Behavioural Analysis for Policy: New lessonsfrom economics, philosophy, psychology, cognitive science andsociology (2006). There is a substantial body of literature onthe implications of behavioural economics to law. See, forexample, C Sunstein “Empirically Informed Regulation” (2011)U. Chi. L. R. 1349 at 1350–361; R B Korobkin & T S Ulen“Law and Behavioural Science: Removing the RationalityAssumption from Law and Economics” (2000) 88 Cal. L. Rev1051: C Joll et al, “Law and Behavioural Approach to Law andEconomics” (1998) 50 Stan. L. Rev 1471.9. Competition and Consumer Act 2010, Sch 2; Malbon andNottage, Ch 1 of this volume.10. Above, n 6.11. “Consumer credit contracts” are defined as those that are“primarily for personal, domestic or household purposes”(CCCFA s 11).12. Credit Contracts and Consumer Finance Act 2003 (NZ) s 7(2).13. Apart from the provisions in respect of oppressive creditcontracts, the CCFA leaves the regulation of credit provided forbusiness purposes largely to the common law.14. Credit Contracts and Consumer Finance Act 2003 (NZ) Sch 1.15. Credit Contracts and Consumer Finance Act 2003 (NZ) ss 41–44(unreasonable fees), ss 55–59 (unforeseen hardship), ss 117–131(oppressive credit contracts).16. J Legge and A Heynes Beyond Reasonable Debt Part 1: ABackground Report on the Indebtedness of New ZealandFamilies (Research Report 8/08, Families Commission andRetirement Commission, Wellington, December 2008), availableat www.familiescommission.govt.nz. Ministry of ConsumerAffairs Review of the Operation of the Credit Contractsand Consumer Finance Act 2003 (September 2009) availableat www.consumeraffairs.govt.nz.17. See Malbon, Ch 9 of this volume.australian product liability reporter October 2012 307
Page 1 and 2: 2012 . Vol 22 No 10Contentspage 296
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Page 17 and 18: INDEX TO VOLUME 22Table of articles
Page 19 and 20: Rolla, Francesca and Chiaves, Filip
Page 21 and 22: McGhee v National Coal Board [1973]
Page 23 and 24: New South WalesCivil Liability Act
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