Relevant legislation and responsible minister
Australia’s product safety laws are found in both the common law and federal and state legislation. The main statutory provisions prescribing product safety requirements are contained in Parts 3-3 (Safety of consumer goods and product-related services) and 3-4 (Information standards) of the Australian Consumer Law (ACL). The ACL forms Schedule 2 to the Competition and Consumer Act 2010 (Cth) (CCA). The CCA commenced on 1 January 2011, replacing the Trade Practice Act 1974 (Cth) (TPA). The various state and territory fair trading legislation incorporates the provisions of the ACL, in an attempt to establish a single, national law concerning consumer protection and fair trading.
While the provisions of the TPA applied only to corporations engaged in trade and commerce, or interstate business ventures, the ACL effectively applies to individuals partnerships, businesses and corporations.
The product safety provisions of the ACL cover the:
- publication of public warning notices with regard to potentially dangerous goods (section 129);
- banning of unsafe goods (sections 109 and 114);
- making of product information standards (section 134);
- compulsory recall of unsafe goods (sections 122 to 127);
- notification to the authorities of voluntary recalls (section 128); and
- mandatory reporting requirements on suppliers of consumer goods and services (sections 131 and 132).
The federal minister responsible for consumer protection is the minister for Small Business (the minister). The minister relies on the Australian Competition and Consumer Commission (ACCC) to monitor and audit the effectiveness of product recalls of general consumer goods. The ACCC is also responsible for the investigation, and prosecution, of breaches of the CCA.
Legislative safety requirements and powers of the minister
Under the ACL, consumer goods must comply with:
- relevant product safety standards (section 106); and
- relevant product information standards (section 136).
Under section 104 of the ACL, the minister is entitled to publish product safety standards where reasonably necessary to prevent or reduce the risk of injury to any person. These standards may include requirements as to:
- performance, composition, contents, methods of manufacturing or processing, design, construction, finish or packaging of the goods;
- testing of the goods either during or after the completion of manufacturing or processing; and
- the form and content of markings, warnings or instructions to accompany the goods.
Similarly, under section 134 of the ACL the minister is entitled to publish product information standards in respect of goods (not just consumer goods). These standards may set such requirements as:
- the content of information about goods;
- the provision of specified information; and
- the form and manner in which that information is to be disclosed.
Section 105 of the ACL allows the minister to declare all or part of a standard prepared or approved by Standards Australia International Limited or by a prescribed association or body to be a consumer product safety standard for the purposes of section 104. A similar provision exists in respect of information standards (section 135).
The ACL prohibits the manufacture, possession, control and supply (or offer of supply) of consumer goods that do not comply with safety standards (section 106). Goods that fail to meet these requirements may be subject to a compulsory product recall (section 122).
Under section 129 of the ACL, the responsible minister can declare goods to be unsafe where they are of a particular kind that will or might cause injury to any person, or a reasonably foreseeable use (including a misuse) of those goods will or may cause injury to any person. A notice declaring goods to be unsafe remains in force for 18 months. Thereafter, the minister may impose a permanent ban on the goods.
The compulsory product recall mechanism contained in the ACL is discussed in detail below.
Finally, the ACL has introduced a mandatory reporting requirement on suppliers of consumer goods and product-related services (sections 131 and 132). The supplier has two days to provide the written notification to the minister if it becomes aware of the death, serious injury or illness of any person and:
- considers that this incident was caused, or may have been caused, by the use or reasonably foreseeable misuse, of the goods or services; or
- becomes aware that a person other than the supplier considers that the incident was caused, or may have been caused, by the use or reasonably foreseeable misuse, of the goods or services.
In addition to the product safety provisions of the ACL, specific safety requirements and guidelines exist for certain types of products. For example:
- medicines and medical devices are regulated by the Therapeutic Goods Administration (TGA) under the Therapeutic Goods Act 1989 (Cth) (www.tga.gov.au);
- food must meet the requirements set out in the Australia New Zealand Food Standards Code (Food Standards Code). The Food Standards Code is developed and administered by Food Standards Australia New Zealand (a binational government agency deriving its power from the Food Standards Australia New Zealand Act 1991 (Cth)), and is enforced by the various state and territory health departments (www.foodstandards.gov.au);
- motor vehicles and motor vehicle parts are regulated by the Federal Department of Infrastructure, Transport, Regional Development and Local Government (https://www.infrastructure.gov.au/vehicles/recalls/index.aspx);
- electrical and gas supply and products are regulated by state and territory electrical and gas regulators (www.erac.gov.au and www.gtrc.gov.au); and
- agricultural and veterinary products are regulated by the Australian Pesticides and Veterinary Medicines Authority (www.apvma.gov.au).
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