AUSTRALIA Law and Practice Contributed by: Greg Williams, Alexandra Rose and Caitlin Sheehy, Clayton Utz
conduct searches and seize consumer goods, equip - ment and documents. Typically, the powers of entry, search and seizure must be exercised pursuant to a warrant, unless there are circumstances that require their exercise without delay in order to protect life or public safety. The ACCC also has powers to take a range of actions to protect consumer safety, including commencing compulsory recall actions, issuing substantiation notices and product safety notices, and prohibiting the making of certain representations in relation to a consumer product. Finally, the ACCC can issue penal - ty notices for breach of the Australian Consumer Law or commence proceedings seeking declaratory and injunctive relief as well as civil penalties. It may also refer certain breaches of the Australian Consumer Law to the Commonwealth Director of Public Prosecutions for consideration of criminal prosecution, with associ - ated criminal penalties. State In addition to the federal regulator, each state and territory has a Department of Fair Trading or similar – although the role of these entities in relation to product safety diminished following the commencement of the Australian Consumer Law in 2011. Each state also has offices or regulators responsible for safety issues relating to gas, electricity and home building products. Product liability issues in these subject areas will often require engagement with both federal and state (or territory) authorities. Sector-Specific The other important sector-specific regulators are: • the Therapeutic Goods Administration (TGA) in respect of medicines, medical devices and a range of other therapeutic goods; • Food Standards Australia New Zealand (FSANZ) and the Australian Pesticides and Veterinary Medi - cines Authority (APVMA) in respect of agricultural and veterinary chemicals; • the Office of the Gene Technology Regulator (OGTR) in respect of genetically modified organ - isms;
• the Australian Industrial Chemicals Introduction Scheme (AICIS) in respect of industrial chemicals; and • state and territory fair trading, electrical safety and home building regulators (as mentioned previ - ously). The TGA, the APVMA, the OGTR and the AICIS each operate registration or licensing regimes that require certain products to be assessed and registered before they may be supplied or used in Australia. These regu - lators also have various investigatory, regulatory and enforcement powers – the precise scope of which var - ies from regulator to regulator, but which are generally similar in scope to the ACCC’s powers in relation to consumer goods, tailored to the particular products in question. Subject to certain carve-outs, the regimes are not exclusive, so a product that falls, for example, within the TGA’s remit may also be – in some circum - stances – a consumer product that is regulated by the ACCC and subject to the Australian Consumer Law. 1.3 Obligations to Commence Corrective Action The powers of the ACCC and other Australian regula - tors, as summarised in 1.2 Regulatory Authorities for Product Safety , include powers to compel local spon - sors, suppliers and/or manufacturers to take certain actions in relation to goods. By way of example, the ACCC may require corrective action or information to be supplied regarding goods, order a compulsory recall (in rare circumstances), issue an interim or per - manent ban on the supply of specified products, or create an information or safety standard in relation to particular products. However, outside situations where the ACCC or the TGA has created a specific obligation in relation to particular goods, the institution of voluntary recall action is generally a matter for manufacturers or sup - pliers to determine for themselves. The concept of product recall is well recognised under Australian law as covering a range of corrective actions in relation to products in the marketplace. The analysis of whether a recall is necessary in respect of a particular product safety issue is typically conducted by reference to the standards established by the tort
12 CHAMBERS.COM
Powered by FlippingBook