Bans can be placed on products and product-related services if there is a risk that they may cause serious injury, illness or death.
The Commonwealth Minister and the relevant state and territory ministers can impose an interim ban on products or product-related services if they consider:
- the product will or may injure someone
- as a result of the service being supplied, the product will or may injure someone
- using or misusing the product, or the product to which the service related, in a 'reasonably foreseeable' way will or may injure someone
- another minister has imposed an interim ban on the product or service, which is still in force.
Interim bans imposed by the Commonwealth Minister apply nationally. Suppliers must be notified and given an opportunity to call a conference before the ban is imposed, unless the Commonwealth Minister determines that there is imminent danger to the public. In this case, suppliers will be notified and have an opportunity to call a conference at the time, or shortly after the ban is imposed.
State and territory ministers can only impose interim bans that apply in their state or territory. They are not required by the ACL to notify suppliers or give them an opportunity to call a conference before imposing a ban.
Interim bans last for 60 days unless extended by the relevant minister for up to another 60 days.
The Commonwealth Minister has the power to declare a permanent ban on a product or product-related service. Permanent bans apply nationally.
If the Minister proposes to impose a permanent ban, they must publish a proposed ban notice on the internet, and invite affected suppliers to request a conference with the ACCC. If there is an imminent risk of death or injury from the unsafe product, a ban can be imposed immediately and suppliers invited to a conference after the event.
Under the Australian Consumer Law (ACL), a ban is a legislative instrument. A permanent ban imposed under the Trade Practices Act 1974, which was still in force on 1 January 2011, continues in force as if it were a permanent ban imposed under the ACL.
Complying with bans
If a product or product related service has been banned, it is against the law for anyone to:
- offer to supply
- have control of this product.
Special rules apply to consumer products supplied for export only. Businesses that supply consumer products for export only should seek legal advice if any of those items are subject to a ban.
Suppliers are responsible for staying informed about their legal obligations.
Does a ban apply to your business?
Under the Australian Consumer Law supply includes:
- in relation to goods - (including re-supply) by way of sale, exchange, lease, hire or hire-purchase
- in relation to services - provide, grant or confer.
A ban on a particular product applies to anyone in the business of supplying that product, including: