Product safety in Australia is governed by the Australian Consumer Law (ACL). The ACL is contained in a schedule to the Competition and Consumer Act 2010 (CCA). Relevant provisions can also be found in state and territory fair trading legislation.
Product safety provisions
The ACL product safety provisions set out how the Australian Government and the state and territory governments can regulate consumer goods and product-related services to address safety hazards. These can include:
- imposing mandatory safety standards or information standards for consumer goods or product-related services
- banning consumer goods or product-related services, either on an interim or permanent basis
- issuing a compulsory recall notice requiring suppliers to recall consumer goods.
The provisions also regulate supplier responsibilities, including:
- what to do when a voluntary recall is initiated for safety related reasons
- supplier responsibilities relating to exports of certain goods
- when to report an incident associated with a consumer good to the Minister
- when a manufacturer may be liable for loss or damage caused by a product with a safety defect.
Product safety regulations
The safety of consumer products and product-related services is regulated through a harmonised, nationally consistent framework.
Mandatory safety and information standards
Under the ACL, only the Commonwealth Minister has the power to make or declare a mandatory safety standard or information standard for a consumer product or product-related service. These standards apply nationally.
See: Mandatory standards
Interim and permanent bans
The Commonwealth Minister and the relevant state or territory ministers have the power to impose an interim ban. Interim bans last for 60 days, and can be extended by a further 30 days on two separate occasions. Interim bans only apply in the state or territory in which they are imposed. Interim bans imposed by the Commonwealth Minister apply nationally.
The Commonwealth Minister has the power to impose a permanent ban on a consumer good or product-related service. Permanent bans apply nationally.
See: Product bans
Compulsory recall notices
The Commonwealth Minister and the relevant state or territory ministers can issue a compulsory recall notice for consumer goods. This can require the supplier (or if the supplier cannot be found, the ACCC or the state or territory regulator) to take certain action.
Public warning powers
Under the ACL, there are two ways to warn the public about certain matters:
- the Commonwealth Minister or the relevant state or territory ministers can issue a safety warning notice:
- stating that certain consumer goods or product related services are under investigation and/or
- advising of the risks involved in the use of the consumer goods or the supply of the product related services.
- the ACCC and state and territory consumer protection agencies can issue public warning notices:
- when they suspect a contravention of the consumer protection provisions
- where someone is likely to suffer detriment from the conduct
- where it is in the public interest.
The ACCC can issue an infringement notice where it believes someone has contravened consumer protection provisions, enabling it to deal more efficiently with matters warranting a quick regulatory response.
Infringement notices provide an opportunity for a person to pay a penalty to resolve a matter with the ACCC. If a person who is issued with an infringement notice does not pay an infringement notice penalty, the ACCC may commence proceedings in respect of the underlying alleged contravention of the ACL.
Civil pecuniary penalties
The ACCC can institute proceedings in court for the recovery on behalf of the Commonwealth of a civil pecuniary penalty for consumer protection matters.
The court may order a person, who has contravened certain product safety provisions, to pay a civil pecuniary penalty if it is satisfied that the person contravened or attempted to contravene a product safety related provision of the ACL.
On application by the ACCC, a court is able to disqualify a person from managing corporations for a period it considers appropriate as a consequence of contraventions of various consumer protection related provisions, including provisions relating to product safety. Disqualification orders may be particularly useful when addressing problems that arise with ‘repeat offenders’ regarding breaches of consumer law.
Substantiation power to check claims
The ACCC has investigative powers and can issue a substantiation notice in order to check a claim made in promoting the supply of goods or services. A substantiation notice can be used in a variety of circumstances, including in relation to product safety claims.
Where a supplier has claimed compliance with a particular standard, for example, a notice may be issued requiring the supplier to provide information and/or produce documents to substantiate this claim.
Redress for non-party consumers
The ACCC has the ability to represent multiple consumers and seek orders for redress for those consumers not party to the legal action. This empowers the ACCC to deal more efficiently with matters that affect multiple consumers.
Suppliers are required by law to advise the ACCC when they become aware that the use or foreseeable misuse of a consumer good or product-related service they have supplied has caused or is associated with the death or serious injury or illness to any person. They are also required to report if another person (e.g. a customer) considers that the death, injury or illness was, or associated with, the use or foreseeable misuse of the consumer good or product-related service.
See: Mandatory reporting