AUSTRALIA Law and Practice Contributed by: Greg Williams, Alexandra Rose and Caitlin Sheehy, Clayton Utz
Incident-Based There is a broad-ranging requirement to report inci - dents related to products to the ACCC. A supplier of consumer goods who becomes aware of the death or serious injury or illness of any person that was caused or may have been caused – or, in the opinion of any other person, was or may have been caused – by the use or foreseeable misuse of those consumer goods must notify the ACCC of that fact within two days of becoming aware of it (Section 131 of the Australian Consumer Law). The Australian Consumer Law defines “serious injury or illness” as meaning “an acute physical injury or ill - ness that requires medical or surgical treatment by, or under the supervision of, a medical practitioner or a nurse (whether or not in a hospital, clinic or similar place), but does not include: • an ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or • the recurrence, or aggravation, of such an ailment, disorder, defect or morbid condition”. There are certain limited exceptions to this obligation where: • it is clear that the death or serious injury or illness was not caused by the use or foreseeable misuse of the consumer goods; • it is very unlikely that the death or serious injury or illness was caused by the use or foreseeable misuse of the consumer goods; or • the goods in question are subject to one of a number of alternative incident-based notification regimes in accordance with an industry code of practice or Commonwealth, state or territory law that is specified in the regulations to the Competi - tion and Consumer Act 2010 (Cth) (these include notification regimes relating to therapeutic goods, agricultural and veterinary chemicals, and motor vehicles). Notification pursuant to Section 131 is also typical - ly undertaken using an online form available on the ACCC’s recalls website.
of negligence – that is, what are the reasonable steps required of the supplier as a result of a foreseeable risk of injury to users of the product? If a supplier initiates a recall action, there are no spe - cific legal requirements as to how such recalls must be conducted. However, the various regulators (in par - ticular, the ACCC, the TGA, FSANZ and the electri - cal safety regulators) publish guidelines in relation to the conduct of recalls. As a result of those guidelines, there are: • common notification requirements to regulators regarding recall actions; • commonly expected formats for recall notices; and • common ongoing reporting obligations regarding the progress of recalls. 1.4 Obligations to Notify Regulatory Authorities There are two notification obligations in relation to consumer goods in Australia: one risk-based and one incident-based. Risk-Based A supplier who voluntarily takes action to recall con - sumer goods because of a safety risk (including non- compliance with bans and certain safety standards) must, within two days of taking such action, give the relevant federal minister (which is, in effect, the ACCC) written notice that such action has been taken (Section 128 of the Australian Consumer Law). Such notice is typically given using the online form avail - able on the ACCC’s recalls website . The online form requires the provision of relatively detailed informa - tion about the nature of the product, the extent of its distribution in Australia, the reason for the recall, how the supplier intends to inform customers of a recall and what remedy the supplier will provide. Careful and detailed completion of the notification is recom - mended because provision of this information could otherwise be formally compelled by the ACCC. The ACCC continues to take an active and detailed interest in the initiation and continuing conduct of recall actions, so as to ensure that the best possible return rates are achieved and that continuing recall actions are taken by suppliers and manufacturers.
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