Australian Consumer Protection: Our Guarantees – Part 1

Australia is often called the lucky country.  We have some great food and drink.  We have some fantastic scenery and people.  However, when it comes to product pricing we are often gouged deeper than  the Mariana Trench.  Much to the fear of many American companies, Australians have protection against dodgy produce and practices.  In this series I will look at how we are protected and what we can do to ensure we are treated fairly. Today I hope to lay the ground work for what we are regularly entitled to under Australian law.

Disclaimer – I am not a lawyer, I do not claim to be an expert in any of this.  This is a guide written to give people an idea of where they stand when it comes to software and hardware.  I have taken all effort to ensure the accuracy and relevance of this guide.  For further information I have included links to the Australian Competition and Consumer Commission (ACCC) website at the end and throughout this article.

For a period of about 3 years I worked at retail games shop.  In my capacity working the floor I frequently encountered people who did not understand what consumer protection was or how it worked.  Eventually I printed out a few copies of the guide (an older version of the Consumer Guarantees pamphlet) to hand around to help people out.  The guide came in handy both for the business and for the customers as it allowed everyone to be on the same page (literally).  It saved many people becoming embarrassed by preventing them from making unrealistic demands while also helping secure many people refunds or exchanges.

These protections has always worked fine for physical products, such as discs and hardware.  The law does become very fuzzy very quickly when we start considering software as independent from a media product such as the cd. With many consumers moving from retail to online products, our rights shouldn’t change.  However, the waters are further muddied as we explore whether the online stores we are using are considered to be under Australian jurisdiction.

Update Part 2 is now available.


When are you not covered

While there is much that is included within Australian consumer protection, there are also some very clear exceptions.  The key two are:

  • If you change your mind, there is no obligation for the retailer to help you.  It may make good customer service, but there is no law saying they should.
  • If you find it cheaper elsewhere after you bought it, there is no obligation for the original store to give you a full or partial refund.
  • If the product fails as a consequence of inappropriate treatment.

This does include items that are bought as presents.  If you get or give something and want to change it, the store has no obligation to oblige.  However, most good retailers will be willing to help you as it is good customer service.  Both of these protections for retailers quite clearly transfer across into the digital space.

As a quick reminder, always keep your receipts.  Proof of purchase is often required when looking for a solution.  Even though other methods can be used (such as bank statements and customer reward cards) the most fool proof way is to not toss the little piece of paper we call the receipt.


When you are covered

For some products the law is clearer than for others.  The retail hardware space is one of the transparent areas.  Fortunately this makes it a great place to start exploring the broad conditions under which Australian consumer protection works.

The consumer guarantee that applies every time you purchase a good or service is there to ensure that both the retailer and the customer do not get short changed.  As such, the seller is expected to provide the goods of an appropriate quality for the purpose that was stated.  They match their description and demonstration models.  They guarantee that they will honour any warranties (in excess of consumers statutory rights) if something were to go wrong.  They also ensure that you are given ownership and undisturbed possession of the good.  Additionally, manufacturers of the goods are expected to provide spares and repairs for a reasonable time after purchase.

I have just introduced one of the worst terms we will encounter during this discussion.  That of “reasonable time“.  This term is frequently used to describe the amount of time that a product is expected to work for.  The length varies on the price and promises of the goods.  A good that is priced at $20 will have a lower length of reasonable time than a $500 or $2000 TV.   When we look at our consoles what could we expect as the reasonable time?  For a large quantity of electronic devices reasonable time is often defined as 12 months.  For more expensive consoles (like the PS3 at launch) it may be possible to push it to 18 months.

One of the things that throws a fun hammer into the works is that both Microsoft and Sony claimed that their consoles (PS3 and 360) will have a ten year lifespan.  While this reflected the time that they were planning on games being released for the console, it could be argued that this also reflects that they are supposed to be working for the duration.  This would be hard to argue, but while the chiefs of the companies claim that they will have a 10 year life, then it could be reasonably expected that they would potentially last for 10 years.  This is of course an ideal view.  It would be extremely unlikely that any retail shop would refund an XBox that breaks after the first year.

In specific relation to the XBox 360, the CD scratching issues that many people experienced is grounds for a refund/repair/replace request.  As consumer law states: “There is a guarantee that goods are of acceptable quality if they:  are safe, durable and free from defects.”  Scratching CD’s that are in the drive would be considered a defect of the console.  As such you will be entitled to a remedy.

Other attachments or items purchased from shops would be covered by the same guarantee.  This includes things such as discs, peripherals and other related stuff.  If a disc doesn’t play, you are entitled to a remedy. If a Guitar Hero guitar or console controller is not registering inputs correctly, you are entitled to a remedy.  If your Skylander figure’s head falls off… well you get the idea.  However, if these problems are caused by the way you treat the product, then you would not be able to ask for help.

One of the other issues that can be debated is when a product fails as a consequence of regular wear and tear.  If it fails within what a reasonable person would consider reasonable time then you may be entitled.  Outside that, then no luck.  If you are not sure, give the ACCC a call.

When applying regulations to software, according to the law, there is little difference.  The problems that tend to occur are more subjective.  When is a flaw or bug in a game serious enough for the game to be considered free from defects?  When is a glitch serious enough that it is no longer acceptable in appearance and finish?

The recent release of the new Tony Hawk game showed that glitches can affect the quality of the game.  They made the game visually and functionally awful.  This is a clear example of when you would be entitled to a remedy.


Remedies

When a customer has a legitimate claim to a remedy there are a few forms it can take.  The form the remedy takes is also chosen by the retailer.

The most common remedy is replacing the product with an equivalent version.  This means that if your 360 stops working, that they will replace it with an equivalent version.  Occasionally this means that they will offer you a refurbished product.

They are also able to offer you a repair.  They take the product in and fix it.  They are the ones that must take the hit for all the costs involved and all changes and fixes are then also covered by normal consumer guarantees.

Finally, they are able to offer a refund.  If they cannot replace it (changing the software doesn’t often fix the software) or repair it within a reasonable time (cannot be done with software) then they must offer a refund.  This refund is redeemable in the form of payment that was used for its purchase.  If you paid in cash then you get cash, if you paid by card, it is refundable to that card. You are able to request (but are not entitled) to change the form of a refund.  Store credit is not considered adequate.

Next time

In part 2 I will look at the obligations of companies selling software.  I will do this using two specific examples from events in the last year.

More information about consumer protection can be found on government websites at:

Part 2 is now up!


Julian has been involved in the games industry for more than a couple of years now, from working in retail to developing board games to judging Magic: the Gathering tournaments Australia wide. Now as a writer for OK Games he likes to explore niche titles that try to approach gaming from a different perspective. Now all he needs to do is start finishing all those games in his Steam Library...