Recently, a video clip about Chinese “daigous’ snapping up baby formula in Coles has gone viral in various online social media. The conducts of such daigous obviously infuriated local Aussies, who filmed what happened in the supermarket and uploaded to YouTube. In the video, the daigous were however unrepentant and one of them asked, “Is it illegal” when confronted by an Australian, who shot back “it is not illegal but is still wrong”.
Chinese daigous has been a common phenomenon in almost every part of the world in the past few years, and have aroused a lot of controversies in the western world. It owes its existence to China’s soaring economy, and with it, the purchasing power of its consumers, particularly the middle class, who is more confident in quality and safety of food products supplied by advanced western economies. The so-called “daigous” is in fact a Chinese term, meaning “buying for others”. Some of them may be overseas students, tourists or Chinese migrants. Most of them work part-time, but some also work full-time. The huge demands push up price in China’s domestic market, and create a broad price gap between the same products sold in the producing countries and China. As far as Australia is concerned, Australia’s milk products, especially baby milk powder, are what the Mainland Chinese are crazily after. Hence, we have what happened in the above video clip. The flourishing presence of Chinese daigous in the Australian consumer market is vividly testified by the recent back-door listing of a company known as AuMake International, which specialised in exporting Australian products to Mainland China. From its prospectus, it tells that one of its major sources of customers is the daigous, for whom the company provides one-stop services and a diversified product variety.
Local Aussies’ resentment of the prevalent Daigou activities is perfectly understandable, as they tend to put them out of instant reach of their daily necessities and may push my price up. But the problem here is that Australia’s current law contains no clear provision to prohibit daigou activities, and any ban or quotas imposed by large retailers like Coles are voluntary. The situation is like what happened in Hong Kong before 2013, but the Hong Kong Government was quick to impose an embargo which practically forbade carrying out of HK more than 1.8 kilograms of milk powder. In contrast, Australia’s current export law does not regulate the export of products below 10kg.
Hence, we had an arrogant daigou asking provocatively if it was against the law? Or is it really not? A provision in the Australian Consumer Law (section 21) (ACL) has flashed across my mind, which says a person must not, in trade or commerce, and in connection with supply or acquisition of goods and services, engage in unconscionable conduct. The term “unconscionable conduct” is given a broad meaning and the law expressly directs the court to consider all circumstances when determining whether a particular conduct is unconscionable. While the author is aware of no Australian cases which has held whether or not daigous’ conducts are unconscionable, it may be reasonably argued that their conducts are against commonly understood moral principles, as what they are snapping up and hoarding are not for satisfying their own personal needs, but for resale to overseas consumers at an obscene profit, while totally ignoring the legitimate needs of local Aussies. What is the difference between their behaviour and scalpers’? The only difference is that the former is for satisfying the demands overseas but the latter is usually not so, but then scalping is outlawed in Australia and there is no reason why daigou is not, or at least not subject to some sort of restrictions. However, despite all these arguments, it seems unlikely the Australian Competition and Consumer Council (ACCC) will take action against those individual and small daigous but in relation to those large, well-established ones, such as those having incorporated, set up dedicated websites, and hiring sub-daigous, it may well be worth a try to quietly gather evidence about their activities and file a complaint to ACCC to see what its attitude is.
Moreover, for the end consumers in Mainland China, they may not have the protection of the ACL when buying from small, individual daigous as the law has made it clear that ACL does not apply to private sellers. So, if there is any flaw with the products, they may not be able to sue or file a complaint in Australia. This will of course be different if they buy from some large retailers like AuMake mentioned above, where they will enjoy full protection of the ACL even though they are located outside Australia.
http://www.sbs.com.au/yourlanguage/cantonese/zh-hant/article/2017/10/20/shoppers-filmed-snapping-baby-formula-coles?language=zh-hant
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一個有關中國代購在澳洲Coles超市搶購奶粉的視訊片段最近在網上瘋傳。 這些代購的行為明顯地把當地澳洲人惹火了, 因而拍下片段上載到Youtube, 從影片所見, 中國代購語帶挑釁地問那個澳洲人這種囤積居奇的行為是否違法? 澳洲人則回答, 雖然並沒有違法, 卻仍然是錯 (It’s not illegal, but is still wrong!)。
中國的代購近年在世界各地大行其道, 但同樣地引起不少風波。所謂代購, 其實就是代他人購買的意思, 他們一般是中國的留學生、 遊客或者是已經移民到外地的華僑, 大多數是兼職, 但也有全職。代購的產生其實是源於中國近年經濟不斷向上發展， 中產階級興起， 他們對海外食品的質素及安全比較有信心，因而推高這些入口貨品在中國的售價, 同時亦產生同樣貨品在大陸市場與原產地市場巨大的價差, 因而令到代購有鉅利可圖。而就澳洲而言, 澳洲的奶類產品, 特別是嬰兒奶粉, 大陸人簡直是對其趨之若鶩。因而有上面Coles超市的一幕。事實上, 代購在澳洲的活躍程度, 由一間叫澳賣客 (AuMake International Ltd.) 的公司, 最近能在澳洲成功借殼上市可見一斑。從這間公司的招股書可見，其相當部分的客源是來自澳洲代購，她為這些代購提供一站式的服務及多元化產品，而當然這家公司亦有直接通過網上平台出售給大陸的客戶。
代購的行為引起很多澳洲人反感，是可以理解的，因為他們把一些澳洲的必需品,好像嬰兒奶粉掃光，對當地人當然是引來諸多不便了。但問題是, 澳洲的現行法律當中確實是沒有明文禁止這種行為。有的也是靠當地的零售商自發限制每個客戶可以購買的數量。這和香港在2013年前的情況差不多, 但香港政府之後發出了所謂’限奶令’, 規定不可携带超过1.8公斤奶粉出境。而反觀澳洲，其現行出口法並不監管在10kg以下的出口產品。
所以才有影片中一個代購客得意地反問是否違法。但又是否真的不違法? 澳洲消費者法(Australian Consumer Law) 中, 有一條就訂明任何人士, 在營商的過程(in trade or commerce) 及在獲取或提供貸品或服務時, 不能從事不道德的行為(unconscionable conduct)，而對何謂不道德行為, 定義十分廣泛，而法例亦訂明需要考慮所有情況。 在澳洲現有的案例當中似乎沒有涉及到代購的行為是否不道德, 但正如影片中的澳洲人說, 這仍然是錯的。她指的錯, 當然是道德上的錯誤了, 因為代購購買的奶粉不是自用, 而是轉售謀取私(鉅)利, 卻影響了當地真正有需要人士的合理利益, 而且是利用了法律的真空, 這種行為本身是廣義上的不道德。在性質上他們其實和賣黃牛沒有分別, 只不過黃牛通常是滿足當地市場需要, 但代購卻是滿足海外的中國市場, 黃牛活動在澳洲是違法, 但代購則不然, 這種情況並不合理. 但縱使如此, 以筆者的判斷, 對於一些小的個體戶代購, 澳洲的競爭及消費者委員會並不大可能採取行動, 但對一些大規模及有系統的代購公司, 例如其成立網站及聘請他人到超市搶購奶粉, 遇到這種情況, 受影響的人士不妨靜靜地搜集證據然後向競爭及消費者委員會作出投訴 。
而且, 在中國內地向澳洲代購直接購買貸品的用戶, 是得不到澳洲消費者法的保障, 因為澳洲消費者法訂明不適用於私人的賣家, 所以若遇上貨不對版或者貨物質量出現問題, 是不能在澳洲起訴或作出投訴的, 但當然, 如果直接向如上述澳賣客之類的零售商購買, 雖然身在澳洲境外, 仍然是受到澳洲消費者法的保障的 。