Aboriginal and Torres Strait Islander people and consumer law

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. 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.