New book critiques new consumer laws

24 April 2013

Australia's recently amended product safety laws lag behind those of its major trading partners and limit public access to information on potentially risky products, the co-editor of the newly published book on consumer law says.

Professor Luke Nottage from the Sydney Law School says the "re-harmonisation" of consumer law in the last few years offers consumers greater certainty and broader protection on the whole. But some areas of the law, such as product safety, have been left wanting, he says.

Consumer Law & Policy in Australia and New Zealand (Federation Press) examines of the history of consumer law, reviews recent policy changes and compares trans-Tasman consumer laws with those of major jurisdictions including the EU, the US and Japan. State and territory fair trading and consumer protection legislation enacted in the 1980s had started to diverge from the groundbreaking Trade Practices Act, passed federally in 1974. On the back of a Productivity Commission report released in 2008, the Act was revamped as the Competition and Consumer Act 2010, returning Australia to one core consumer law and reducing red tape associated with compliance.

But some areas of consumer law need further attention, Dr Nottage says. One of the three chapters he co-authored in Consumer Law & Policy in Australia and New Zealand takes aim at product safety under the new legislation.

"If a supplier becomes aware of a consumer product-related accident or illness they need to tell the regulator (the ACCC)," he says. "But only actual and sudden-onset medical conditions or deaths need to be reported, whereas in other countries the regulator needs to be told if there is a serious risk of illness. Australia also requires awareness of an actual product risk to be reported, whereas in other jurisdictions the bar is set higher. In the EU since 2001, for example, a business needs to notify the regulator about a dangerous product in situations where the business ought to know about the potential risk.

"Furthermore, product reports filed with the ACCC - already comparatively narrow in scope - have to be kept confidential unless there is a serious public interest exception, which hasn't been invoked since Australia's new notification duty came into effect from 2011. In Japan, the equivalent regulator simply posts these reports on its website identifying manufacturers, model numbers and other specifications.

"Unlike Australians, consumers in Japan, the EU and North America are more likely to become aware of products which have caused harm, even if they haven't been recalled."

The passing of the Competition and Consumer Act inspired legislative consumer law reform in New Zealand, partly to further entrench the trans-Tasman "single economic market". But New Zealand has been dragging the chain with its reform, says Dr Nottage.

"The Consumer Law Reform Bill proposes only to require suppliers to notify the New Zealand regulator if they make voluntary recalls. A late amendment adds provisions voiding unfair contract terms, substantively similar to those now applicable nation-wide in Australia. Australians also enjoy better statutory protection against unconscionable conduct, compared to their neighbours across the Tasman," he says.

While authored mainly by leading academics from Australia, New Zealand and the EU, Dr Nottage says Consumer Law & Policy in Australia and New Zealand is written for anyone with a working interest in consumer law and policy. It also includes an Appendix from the broader Australasian Consumer Law Roundtable group, urging better institutional support for ongoing interdisciplinary research - as recommended by the Productivity Commission in 2008.

Consumer Law & Policy in Australia and New Zealand is available from the Federation Press website.

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