Consumer protection or interfering with freedom?

  • Kate Tokeley “Consumer Law and Paternalism: A Framework for Policy Decision–making” in Susy Frankel and Deborah Ryder (eds) Recalibrating Behaviour: Smarter Regulation in a Global World (LexisNexis 2013). The author of this paper tackles the difficult question of when it is appropriate for the state to intervene with the freedom of consumers in order to protect them. Paternalistic law is often controversial and creating a framework to assist with that decision making process is what this paper proposes. The author states a number of factors within that framework and discusses how each factor may strengthen or weaken the justification for intervention. More widely the paper traverses the ‘consumer freedom-paternalism’ debate and discusses the importance of establishing ‘consumer welfare’ in relation to ‘consumer preferences’. The effectiveness of regulation and its unintended consequences are also discussed as part of the gambit of considerations that policy makers of paternalistic law need to consider. Overall this paper lifts the debate from a political realm of whether it is right to intervene in people lives or not, to a more systematic analysis of the facts and likely outcomes of any paternalistic law.

  • See also Kate Tokeley “Consumer Law and Paternalism: A Framework for Policy Decision–making” in Susy Frankel (ed) Learning from the Past Adapting to the Future: Regulatory Reform in New Zealand (LexisNexis, 2011).

Consumer credit and what or who it protects

  • Graeme Austin “The Regulation of Consumer Credit Products: Interrogating Assumptions about the Objects of Regulation” in Susy Frankel and Deborah Ryder (eds) Recalibrating Behaviour: Smarter Regulation in a Global World (LexisNexis 2013). The regulation of Consumer Credit Products has previously been based on the ‘sovereign consumer’ who has been assumed to be an informed person who can freely choose between different credit products and make decisions in his/her best interests. The author of this paper challenges that proposition and proposes that the objects of regulation are vulnerable to a greater range of harms than the ‘sovereign consumer’ and that this needs to be considered when designing regulation in the Consumer Credit market. The papers aims to bring to the surface assumptions about the characteristics of the ‘objects of regulation’ and invites a more critical evaluation of those assumptions using examples from various areas of regulation including maritime safety, civil aviation safety, the former Department of Labour’s prosecution system to protect worker’s safety and a survey of safety issues in public hospitals. These regulatory schemes illustrate the requirement for regulation to protect more than just objects making bad choices and highlights why a more critical evaluation of the object’s vulnerabilities is important. The paper concludes with a focus on the concept of human vulnerability and its place in social policy and regulation.

  • See also Graeme Austin “The Regulation of Consumer Credit Products: An Examination of Baseline Assumptions” in Susy Frankel (ed) Learning from the Past Adapting to the Future: Regulatory Reform in New Zealand (LexisNexis, 2011).