AUSTRALIA Law and Practice Contributed by: Greg Williams, Alexandra Rose, Caitlin Sheehy and Sarah Aljassim, Clayton Utz
of voluntary recall action is generally a matter for manufacturers or suppliers to determine for themselves. The concept of product recall is well recognised under Australian law as covering a range of cor - rective actions in relation to products in the mar - ketplace. The analysis of whether a recall is nec - essary in respect of a particular product safety issue is typically conducted by reference to the standards established by the tort 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 specific legal requirements as to how such recalls must be conducted. However, the vari - ous regulators (in particular, the ACCC, the TGA, FSANZ and the electrical safety regulators) publish guidelines in relation to the conduct of recalls. As a result of those guidelines, there are: • common notification requirements to regula - tors regarding recall actions; • commonly expected formats for recall notic - es; 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 consumer 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 typi - cally given using the online form available on the ACCC’s recalls website . The online form requires the provision of relatively detailed information about the nature of the product, the extent of its distribution in Australia, and the reason for the recall. Careful and detailed completion of the notification is recommended because the infor - mation provided 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 sup - pliers and manufacturers. Incident-Based There is a broad-ranging requirement to report incidents 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 illness that requires medical or surgi- cal 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:
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