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Aboriginal and Torres Strait Islander People and Consumer Law

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Aboriginal and Torres Strait Islander People and Consumer Law ResearchOnline@JCU This file is part of the following work: Loban, Heron (2018) Aboriginal and Torres Strait Islander people and consumer law. PhD Thesis, James Cook University. Access to this file is available from: https://doi.org/10.25903/5c4905881c380 Copyright © 2018 Heron Loban The author has certified to JCU that they have made a reasonable effort to gain permission and acknowledge the owners of any third party copyright material included in this document. If you believe that this is not the case, please email [email protected] James Cook University Aboriginal and Torres Strait Islander People and Consumer Law Heron Loban LLB, BA, Grad Dip Legal Prac, LLM (coursework) Thesis submitted to the College of Business, Law and Governance in fulfilment of the requirements of the degree of Doctor of Philosophy (Law) March 2018 1 Acknowledgements I wish to acknowledge the mentoring, support and assistance of Professor Chris Cunneen. I wish to acknowledge my family for all their support – of all kinds. I wish to thank my friends Mrs Robyn Boucher and Ms Liz (Taneen) Callope for their moral support. I acknowledge and thank Dr Nikki Savvides for her assistance in editing and proofreading my thesis. I acknowledge and thank my participants for without their contribution this thesis could not be written. 2 Statement on the Contribution of Others Nature of Assistance Contribution Co-Contributors Intellectual Support Editorial Assistance Professor Chris Cunneen Associate Professor Tom Middleton Dr Felecia Watkin-Lui Dr Nikki Savvides 3 Abstract The literature identifies a number of underlying issues that impact on the consumer protection of Aboriginal and Torres Strait Islander people. These issues arise from locational (remoteness), historical (protection and assimilation policies enacted through the colonial process) and cultural factors (rooted in tradition, customs and relationships to people and place). These factors act as a unique combination of circumstances which require a specific approach to consumer protection – one that addresses these issues and redresses ‘advantage’ and ‘disadvantage’ and ‘power’ and ‘vulnerability’. A significant gap in the literature is an understanding of the role of culture in consumer transactions involving Aboriginal and Torres Strait Islander people; how to address locational issues; and the enduring historical impact of colonisation on the consumer behaviour of Aboriginal and Torres Strait Islander people. This thesis aims to contribute to this knowledge gap. The case law points to a particular need to look at options such as increased regulation in respect of matters such as unconscionable conduct, and misleading and deceptive conduct. It also indicates a greater need for access to legal education and community awareness about the consumer protections available to them and how best to exercise these legal rights especially for Aboriginal and Torres Strait Islander people living in remote Australia – to address locational ‘disadvantage’. These issues will be explored in depth throughout this thesis including through an analysis of the data collected from semi-structured interviews. Literacy, numeracy, commercial acumen and financial literacy also appear to impact on Aboriginal and Torres Strait Islander consumers in the same way they did 25 years ago, as evidenced by the analysis in Chapter 2 of the case law over this period. Inequality experienced as a result of socio-economic factors will continue to place Aboriginal and Torres Strait Islander consumers at a ‘disadvantage’ for as long as this inequality (gap) remains. 4 Positively, there is one area in which change is occurring; this is in respect of young Aboriginal and Torres Strait Islander people. Aboriginal and Torres Strait Islander consumer ‘vulnerability’ within the new generation has in some ways decreased as a consequence of generational differences and generational change within the Aboriginal and Torres Strait Islander population. The influence of culture and Aboriginal and Torres Strait Islander values (such as relationality) is strong and continues to contribute to Aboriginal and Torres Strait Islander consumers’ ‘vulnerability’. There are challenges present in the consumer protection law that negatively impact on an Aboriginal and Torres Strait Islander person’s ability to make informed decisions relate to interpretation and enforcement processes. Rather, the weight of the data together with an analysis of the case law leads to the conclusion that the law is sufficient but that problems lie in the broader themes of discrimination, socio- economic disadvantage and access to justice. Addressing Aboriginal and Torres Strait Islander consumer ‘vulnerability’ and ‘disadvantage’ cannot be attended to by the consumer protection laws alone, nor simply by consumer watchdogs, courts, financial counsellors and lawyers working independently from one another. A combination of all of these is required, pieced together within a broader strategy for improving all aspects of the lives of Aboriginal and Torres Strait Islander people. 5 Abbreviations Aboriginal Peak Organisations Northern Territory (APO NT) Australian Communications and Media Authority (ACMA) Australian Consumer Law (ACL) Australian Securities and Investments Commission (ASIC) Australian Competition and Consumer Commission (ACCC) Australian Securities and Investments Act 2001 (Cth) (ASIC Act) Australian Financial Counselling and Credit Reform Association (AFFCRA) Competition and Consumer Act 2010 (Cth) (CCA) Corporations Act 2001(Cth) (Corporations Act) Consumer Affairs Australia and New Zealand (CAANZ) Financial Counselling Australia (FCA) Indigenous Consumer Assistance Network Ltd (ICAN) National Consumer Credit Protection Act 2009 (Cth) (NCCP Act) Northern Territory National Emergency Response Act 2007 (Cth) (NTNER Act) Trade Practices Commission (TPC) Trade Practices Act 1975 (Cth) (TPA) United Nations Declaration on the Rights of Indigenous People (UNDRIP) 6 CHAPTER 1 BACKGROUND AND NEED FOR RESEARCH 10 CONSUMER PROTECTION LAW IN AUSTRALIA 12 THE WATCHDOGS 17 A GROWING BODY OF CASES 20 NATIONAL ABORIGINAL AND TORRES STRAIT ISLANDER CONSUMER POLICY CONTEXT 23 CURRENT RESEARCH ON ABORIGINAL AND TORRES STRAIT ISLANDER CONSUMER-RELATED ISSUES 27 THE WIDER CONTEXT OF ABORIGINAL AND TORRES STRAIT ISLANDER CONSUMPTION 29 RESEARCH AIM 35 METHODOLOGY 36 A SOCIO-LEGAL ANALYSIS OF THE ABORIGINAL AND TORRES STRAIT ISLANDER CONSUMER EXPERIENCE 37 CONCEPTUAL FRAMEWORK FOR ANALYSIS: FRONTIER ECONOMY 39 THESIS ARGUMENT AND CHAPTER OUTLINE 46 CHAPTER 2 – INDIGENEITY MATTERS FOR CONSUMER PROTECTION 50 HISTORY OF CONSUMER PROTECTION LAWS IN AUSTRALIA 56 OUTLINE OF THE COMMONWEALTH CONSUMER PROTECTION LAWS 57 OVERVIEW OF THE KEY CASES 62 ABORIGINAL AND TORRES STRAIT ISLANDER CONSUMERS: INDICIA OF VULNERABILITY AND DISADVANTAGE 66 INDICIA 1 – LOCATIONAL IMPACTS AND DISCRETE AND REMOTE ABORIGINAL AND TORRES STRAIT ISLANDER COMMUNITIES 66 INDICIA 2 – LITTLE UNDERSTANDING OF TRANSACTION 74 INDICIA 3 – USE OF DIRECT DEBIT MECHANISMS 76 INDICIA 4 - GOODS AND SERVICES UNSOLICITED 77 INDICIA 5 – PRODUCTS INAPPROPRIATE AND/OR OVERVALUED 78 INDICIA 6 – LANGUAGE DIFFERENCES (S 22(1)(C) ACL) 80 INDICIA 7 – FAILURE TO ASSESS FINANCIAL SITUATION 81 INDICIA 8 – LIMITED COMMERCIAL EXPERIENCE OF THE CONSUMER 82 INDICIA 9 – PRODUCT EXPLANATION 85 CONCLUSION: COURT CONCEPTIONS OF ABORIGINAL AND TORRES STRAIT ISLANDER CONSUMERS 86 CHAPTER 3 – PRIORITY OF VALUES: RELATIONSHIPS COME FIRST 92 COMPETING VALUES AND THE ‘FRONTIER ECONOMY’ 93 CUSTOMARY LAW PRINCIPLES AND RELATIONSHIPS 103 COMMON LAW EXPRESSIONS OF ABORIGINAL AND TORRES STRAIT ISLANDER RELATIONAL VALUES 107 RELATIONALITY, COMMUNICATIONS AND ABORIGINAL AND TORRES STRAIT ISLANDER CONSUMER BEHAVIOUR 115 CONCLUSION 122 CHAPTER 4 – CONTROLLED CONSUMERS: WHAT’S THE COLOUR OF MONEY? 125 EARLY INEQUALITY OF ACCESS 130 CONTROL OF CONSUMPTION 139 CONTROLLED CONSUMPTION CENTRALISED THROUGH THE COMMUNITY AND STATION STORES 140 A REMNANT PRACTICE – BOOK UP (BOOK DOWN) 148 7 CONCLUSION 152 CHAPTER 5 – EXTERNAL FACTORS AFFECTING ABORIGINAL AND TORRES STRAIT ISLANDER CONSUMER DECISIONS 155 INTRODUCTION 155 FINDINGS ARISING OUT OF THE INTERVIEWS ABOUT EXTERNAL FACTORS 156 LOCATION AND REMOTENESS 157 LOCATION, DISTANCE AND TRANSPORT 159 A BY-PRODUCT OF LOCATION – ENFORCING BREACHES OF CONSUMER CONTRACTS 160 THE SIGNIFICANCE OF EXTERNAL FACTORS 162 AFFIRMS THE COURTS’ PRESENT UNDERSTANDING OF THE IMPACT OF REMOTENESS. 162 AN EXPANDED DEFINITION OF LOCATION – DISTANCE PLUS TRANSPORTATION 164 MITIGATING AGAINST THE IMPACT OF REMOTENESS 171 GIVE A WIDE MEANING OF LOCATION AS A CIRCUMSTANCE 171 FUTURE DIRECTIONS 172 CHAPTER 6 – TRADER FACTORS 178 KEY TRADER BEHAVIOURS THAT IMPACT ON CONSUMER DECISION-MAKING 178 HIGH PRICES IN REMOTE PLACES 180 TRADERS CAPITALISING ON LIMITED CONSUMER KNOWLEDGE AND ENFORCEMENT PROCESSES 184 UNSOLICITED APPROACHES WITH HIGH PRESSURE SALES TACTICS 192 THE SIGNIFICANCE OF THESE TRADER BEHAVIOURS 194 LAW AND POLICY IMPLICATIONS 199 LOOKING FORWARD 201 CHAPTER 7 – FACTORS ATTRIBUTABLE TO ABORIGINAL AND TORRES STRAIT ISLANDER CONSUMERS 204 CONSUMER BEHAVIOUR IS MULTI-FACETED 205 IDENTITY 205 COMMERCIAL ACUMEN 218 SELF-ADVOCACY 222 SOLUTIONS MUST ACKNOWLEDGE THE CULTURAL AND RACIAL DIMENSIONS OF THE PROBLEM 223 IDENTITY 223 CULTURE 225 FINANCIAL CAPACITY 229 FINANCIAL LITERACY 229 CONSUMER FITNESS 230 FUTURE DIRECTION - EMPOWERMENT 231 CONCLUSION: COMPETING AND INTER-RELATED DETERMINANTS 234 CHAPTER 8 – STRATEGIES FOR CHANGE 236 FACTORS THAT
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