AUSTRALIA Law and Practice Contributed by: Greg Williams, Alexandra Rose, Caitlin Sheehy and Sarah Aljassim, Clayton Utz
an ailment, disorder, defect or morbid condition (whether of sudden onset or gradual develop- ment); or the recurrence, or aggravation, of such an ail- ment, disorder, defect or morbid condition” . There are certain limited exceptions to this obli - gation where: • it is clear that the death or serious injury or illness was not caused by the use or foresee - able 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 notifica - tion regimes in accordance with an industry code of practice or Commonwealth, state or territory law that is specified in the regula - tions to the Competition 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 typi - cally undertaken using an online form available on the ACCC’s recalls website. 1.5 Penalties for Breach of Product Under the Australian Consumer Law, the maxi - mum pecuniary penalties that may be imposed for breach of product safety obligations gener - ally are, in the case of a corporation: • a fine of up to AUD50 million; • if the court can determine the value of the benefit that the body corporate (and any body Safety Obligations Pecuniary Penalties
corporate related to the body corporate) have obtained directly or indirectly and that is rea - sonably attributable to the act or omission, a fine of three times the value of that benefit; or • if the court cannot determine the value of the benefit, a fine of 30% of the adjusted turnover of the corporation during the breach turnover period for the act or omission. The maximum penalty that may be imposed on an individual is a fine of AUD2.5 million. In either case, the above-mentioned pecuniary penalties can be sought in either a criminal pros - ecution or a civil penalty proceeding. The above-mentioned fines are the maximum fines payable in respect of breaches of substan - tive provisions of the Australian Consumer Law. There are some breaches that may attract lesser penalties – for example, penalties for breach of the recall notification obligations outlined under 1.4 Obligations to Notify Regulatory Authori- ties include (at present) AUD16,500 for a corpo - ration and AUD3,300 for an individual, but can also include orders disqualifying individuals from managing corporations for a period (on applica - tion by the regulator). Civil penalties There are numerous examples of the ACCC seeking and obtaining civil penalties in respect of breaches of the Australian Consumer Law. By way of example, in relation to product safety, in June 2024 a national wholesale distributor of gifts, toys, novelty products and homewares and an owner /operator of family entertainment centres were each required to pay $49,500 for alleged non-compliance with the Consumer Goods (Products Containing Button/Coin Bat -
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