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Review Report on Existing Consumer Protection Laws of Fiji: the Way Forward

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Review Report on Existing Consumer Protection Laws of Fiji: the Way Forward REVIEW REPORT ON EXISTING CONSUMER PROTECTION LAWS OF FIJI: THE WAY FORWARD A Consumer Council of Fiji Report March 2012 Funded by CONSUMER COUNCIL OF FIJI EUROPEAN UNION About Consumer Council of Fiji (CCF) Consumer Council of Fiji (CCF) is a statutory organization dedicated to protect the rights and interests of consumers in Fiji and promote consumers’ interests nationwide through education, research, campaign and lobbying. It was established in 1976 and currently has 3 offices in Fiji. For more information, visit www.consumersfiji.org © 2012. This work is copyright. Apart from any fair dealing for the purpose of private study, research, criticism or review as permitted under the Copyright Act, no part may be reproduced by any process without written permission. USP Library Cataloguing-in-Publication Data Deshpande, Shirish V. Review report on existing consumer protection laws of Fiji /Shirish V. Deshpande. – Suva, Fiji : Consumer Council of Fiji, 2012. 71p. ; 30cm. ISBN : 97-982-98044-5-7 1. Consumer protection -- Law and legislation--Fiji. 2. Consumer education--Fiji. I. Consumer Council of Fiji. K3842.F5D372012 343.0710995 Published by Consumer Council of Fiji (CCOF) Suva Office (HQ) Ming Building, 4 Carnavon Street P Private Mail Bag T (679) 330 0792 | (679) 331 0183 | (679) 330 5864 F (679) 330 0115 E [email protected] Lautoka Office Suite 4, Popular Building, Vidilo Street P P.O.Box 5396, Lautoka T (679) 666 4987 F (679) 665 2846 M (679) 926 2807 E [email protected] Labasa Office Level 1, Lot 41 Raza Properties Limited, Nasekula Road P P.O.Box 64, Labasa T (679) 881 2559 F (679) 881 2559 E [email protected] REVIEW REPORT ON EXISTING CONSUMER PROTECTION LAWS OF FIJI: THE WAY FORWARD A Report by Advocate Shirish V Deshpande India March 2012 Funded by CONSUMER COUNCIL OF FIJI EUROPEAN UNION REVIEW REPORT ON EXISTING CONSUMER PROTECTION LAWS OF FIJI: THE WAY FORWARD Index of Contents 1.0 Executive Summary 4 2.0 Terms of Reference 6 3.0 Background to the Development of the Policy Paper 7 3.1 Background 7 3.2 The Need for Reform 8 3.3 Areas for Reform in Current Legislation 8 3.4 Drivers of reform 8 3.4.1 Change in the market economy & changing needs 8 3.4.2 Inadequacies of existing legislations 9 3.4.3 UN Guidelines for Consumer Protection 9 3.4.4 Need for speedy and inexpensive redressal of consumer complaints 9 4.0 Overview of Consumer Protection 10 4.1 Scope of reform 10 4.2 Existing legislations under reform 10 4.3 Consumer Policy Framework 11 5.0 Consumer Protection laws under Review 12 5.1 Small Claims Tribunal Decree 1991 12 5.1.1 Advantages of SCT Decree 12 5.1.2 Inadequacies in the Decree 13 5.1.3 Stakeholders’ Comments & Response 13 5.1.4 Recommendations 14 5.2 Commerce Commission Decree 2010 15 5.2.1 Fixing and Declaring Prices 16 5.2.2 Restrictive & Unfair Trade Practices 16 5.2.3 Unfair Contract Terms 17 5.2.4 Recommendations 18 5.3 Fair Rents Act Cap. 269, Distress for Rent Act Cap. 36 & Real Estate Agents Act 2006 19 5.3.1 The Fair Rents Act 19 5.3.2 Distress for Rents Act 19 5.3.3 The Real Estate Agents Act 2006 20 5.3.4 Stakeholders’ Comments & Response 21 5.3.5 Recommendations 23 5.4 Sale of Goods Act Cap 230 23 5.4.1 Inadequacies in the Act 24 5.4.2 Stakeholders’ Comments & Response 24 5.4.3 Recommendations 24 5.5 Second Hand Dealers Act Cap 238 25 5.5.1 Inadequacies in the Act 25 5.5.2 Stakeholders’ Comments & Response 25 5.5.3 Recommendations 26 5.6 Consumer Credit Act 1999 26 2 REVIEW REPORT ON EXISTING CONSUMER PROTECTION LAWS OF FIJI: THE WAY FORWARD Index of Contents 5.6.1 Stakeholders’ Comments & Response 28 5.6.2 Insurance 30 5.6.3 Section 106 30 5.6.4 Credit Documents – Credit Fees and Charges 30 5.6.5 Schedule 1 – Fees and Charges 30 5.6.6 Statements of account 31 5.6.7 Warranties/Extended Warranties 31 5.6.8 Responsible Lending 31 5.6.9 Multiple Borrowers 31 5.6.10 Financial Hardship 32 5.6.11 Recommendations 32 5.7 Moneylenders Act Cap 234 33 5.7.1 Stakeholders’ Comments & Response 33 5.7.2 Recommendations 34 5.8 Consumer Council of Fiji Act Cap 235 34 5.8.1 Stakeholders’ Comments & Response 34 5.8.2 Recommendations 35 6.0 Consumer Empowerment and Redress 36 6.1 Mediation by the Consumer Council of Fiji 36 6.2 Small Claims Tribunal 36 6.3 Court System 36 7.0 Need to Strengthen Existing Institutions 37 7.1 Institutional Arrangement 37 Existing 37 Proposed 38 8.0 New Consumer Protection Legistaltion: Proposed Scheme of Consumer Protection Decree for Fiji 39 8.1 Stakeholders’ Comments & Response 39 8.2 Lessons from Indian Consumer Protection Act 40 8.3 Consumer Protection Decree (Proposed) 40 9.0 Proposed Scheme of Landlord and Tenancy Decree For Fiji 46 Appendix I Stakeholders’ List at Western Div. Workshop - 7th March 2011 49 Appendix II Stakeholders’ List at Suva Workshop - 10th March 2011 53 Appendix III One to One Stakeholders’ Meeting at Suva - 7th -11th March 2011 57 Appendix IV One to One Stakeholders’ Meeting at Lautoka - 7th -11th March 2011 58 Appendix V Suva - List of Stakeholders’ Workshop - 18th - 29th October 2010 58 Appendix V1 Western - List of Stakeholders’ Workshop - 18th - 29th October 2010 62 Appendix V11 One to One Stakeholders’ Meeting at Suva - 18th - 29th October 2010 67 Appendix V11I One to One Stakeholders’ Meeting at Lautoka - 18th - 29th October 2010 68 3 REVIEW REPORT ON EXISTING CONSUMER PROTECTION LAWS OF FIJI: THE WAY FORWARD 1.0 Executive Summary The Consumer Council of Fiji (CCF) has reviewed the existing 10 pieces of consumer protection legislation and proposed a comprehensive single national Consumer Protection legislation for Fiji. This project was undertaken by the CCF as a part of a European Union funded project on “Strengthening Consumer Rights in Fiji and Eliminating Unfair Trade Practices through Advocacy & Enforcement of Consumer Protection Laws (CPLs)”. The project included a careful review of all legislation, including the Commerce Commission Decree 2010 that was passed during the final stage of the desktop review by repealing three pieces of legislation. Despite the existence of several piece of consumer protection legislations, many of them became outdated with advent of economic reforms. They have not been suitably amended to meet the challenges posed by the new liberal economy. Unfortunately economic reforms did not accompany legal reforms to better protect consumer interests. A single comprehensive piece of consumer protection legislation to recognize certain consumer rights/responsi- bilities and provide simple, speedy and inexpensive redressal machinery to settle consumer complaints has been recommended. The proposed legislation keeps in mind consumer interests on one hand and the concerns and suggestions of various stakeholders on the other. Recommendations to the Government are made in connection with each of the 10 pieces of existing consumer protection legislation which are as follows: 1.1 Commerce Commission Decree 2010: Considering the seriousness and impact of Restrictive Trade Practices (RTPs) and Unfair Trade Practices (UTPs) it is highly recommended to empower the Commission with powers to grant temporary and permanent injunction to restrain any person from continuing with RTPs or UTPs in the interest of consumers. For claiming compensation for losses suf- fered by the consumers, a court of competent jurisdiction will be the Consumer Tribunal and a suitable amendment to this effect may be made in the Commerce Commission Decree 2010, after enactment of the proposed Consumer Protection Legislation. 1.2 Consolidation of the Distress for Rents Act (Cap 36) and Fair Rents Act (Cap 269): The repeal of the Distress for Rents Act (Cap 36) and Fair Rents Act (Cap 269) is recommended, to be replaced with a consolidated “Landlord & Tenancy Decree” as described in the latter part of this report. 1.3 Sale of Goods Act to be re-named as “Sale of Goods & Services Act” in order to highlight the services component more prominently. Alternatively, the provision of this Act is recommended to be merged, with necessary changes, into the Commerce Commission Decree. 1.4 Second Hand Dealers Act to be renamed “Second-hand Goods Act” which will deal with second hand goods as well as second hand dealers. The Act is to be administered and enforced by the Ministry of Industry & Trade. 1.5 Merger of the Money Lenders Act with the Consumer Credit Act: Merging the Money Lenders Act [Cap 234] into Consumer Credit Act with necessary amendments in the latter Act has been recommended. Since the Money Lenders Act and the Consumer Credit Act both deal mainly with credit being made available to consumers, the Money Lenders Act may be merged into the Consumer Credit Act by providing a separate chapter to regulate and control private moneylenders’ activities. 1.6 Consumer Credit Act 1999: The Council through a consultancy with Fiji National University (FNU) has analysed the Consumer Credit Act 1999, Consumer Credit (Amendment) Act 2006 and Consumer Credit Regulations 2009. The observatons and recommendations on this legistlation is based on analysis provided by the consultant (Professor Ram Karan) from FNU. Financial services play an important role in social and economic development of a country. Access to credit has enabled fami- lies to purchase homes, educate family members, deal with emergencies, obtain goods and services 4 REVIEW REPORT ON EXISTING CONSUMER PROTECTION LAWS OF FIJI: THE WAY FORWARD 1.0 Executive Summary and create self employment.
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