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Antipodean alignment: impact of the proposed Australian Consumer Law.

WITH a population of some 21 million people, Australia is a small nation by global standards. However, by relative measures, the Australian economy is well developed and resilient. Out of sight perhaps, but not out of mind. Australia is a member of the G-20 (Group of Twenty Finance Ministers and Central Bank Governors). It houses four of the nine remaining AAA rated banks in the world. In fact, as the world economy sees glimmers of light after the global financial crisis, it seems that Australia has weathered that storm better than many. Amongst various indicia, increased consumer demand for products in Australia is expected to translate into increased opportunities for inbound international business.

Australia also has a highly developed federal legal system and, in common with our North American allies, a strong social appetite for consumer litigation, including class actions. As governments here change their political stripes, so too have the prospects of regulatory reform shifted gears. Consumer protection is now high on the governmental agenda, and the legislative wheels are in motion.

This article introduces the proposed Australian Consumer Law ("ACL") to an international defense orientated audience. Australia's federal consumer watchdog, the Australian Competition and Consumer Commission ("ACCC"), has described the ACL as the biggest upheaval of Australia's consumer policy framework in more than 30 years. The changes which are contemplated will impact consumer and consumer orientated business transactions throughout the nation. They will also have implications for international ventures conducting business in Australia. In short, every foreign corporation that supplies, or intends to supply, consumer products and services to or within Australia ought to be aware of the widespread changes that the ACL appears set to deliver.

A specific focus is the product safety provisions of the ACL. The current Commonwealth product safety provisions have not been updated comprehensively since they were introduced in 1986. Much has been made of the objective of harmonizing legislation across various Australian jurisdictions to reflect "best practices" in existing domestic legislation. However, the marketplace is global and a key concern is whether we will, in fact, also take the opportunity to harmonize Australian product safety law with international best practice. As matters stand, it appears likely that Australia will take a conceptually similar but substantively different approach, with some material consequences.

I. The Australian Legal System

Australia shares common (law) antecedents with many former British colonies. However distance and cultural difference have shaped our law. It is useful initially to briefly outline Australia's legal system.

Australia is a federation comprising six states and two self-governing territories. The Australian Constitution specifies a range of matters that are the responsibility of the Federal Government. The balance of legal matters remains the responsibility of State and Territory Governments.

Australia's laws and legal system have their foundation in the common law of England, and its practices and procedures broadly reflect those of the Anglo-American common law world. While judgments of the House of Lords and the English Court of Appeal are persuasive authority, they are not binding on Australian courts. More recently, in developing Australia's laws, our courts have looked to the jurisprudence of other countries, particularly the superior courts of the United States and Canada, for guidance.

Australia has both a federal court system and a hierarchy of courts in each of the States and Territories. In all cases, the ultimate appellate court is the High Court of Australia ("HCA"). Decisions of the HCA are binding on all other Australian courts. The HCA is also responsible for the determination of constitutional disputes, in the same way as the United States Supreme Court.

As in the multi-jurisdictional federation of the United States, the Australian legal system is necessarily complex. The division of law-making powers between the Federal Government and the States/Territories has major implications for the adoption of nationally consistent laws.

Consumer law provides a key illustration of the tension that exists in this arena: section 51(xx) of the Australian Constitution grants power for the Federal Government to make laws with respect to corporations, (1) but it is up to the States and Territories to provide legislation to protect consumers against the acts of individuals and organizations who do not formally incorporate. Creating a single, harmonious consumer protection system requires the political will of all the States and Territories to co-operate with the Federal Government. While such co-operation and collaboration has happened in Australia in its history, (2) it is not a common occurrence. This is discussed in more detail below.

II. The Current State of Play

A. Trade Practices Act/Fair Trading Acts

For nearly four decades Australia's consumer protection and product safety laws have been housed within the federal Trade Practices Act, 1974 (Cth) ("TPA"), as well as through Fair Trading Acts in each State and Territory)

The key provisions in the TPA in relation to product safety and marketing (not including product recalls and safety actions) are:

(a) [section] 52: prohibiting misleading and deceptive conduct in trade or commerce;

(b) [section] 53: prohibiting misrepresentations made in trade or commerce;

(c) Part V, Division 2: implying terms into consumer transactions as to merchantable quality and fitness for purpose;

(d) Part V, Division 2A: imposing strict liability on manufacturers and importers, such that goods must be of merchantable quality and fit for purpose; and

(e) Part VA: imposing strict liability on manufacturers and importers in respect of "defective goods"--identical to those imposed under the European Product Safety Directive.

Given constitutional limitations, the TPA only applies to corporations acting in trade or commerce. The Fair Trading Acts contain similar provisions, but with a broader application to individuals and unincorporated groups.

B. Australia: Sun Burnt Country and a Litigious Environment

As a tourist destination, Australia has a number of internationally recognizable landmarks. We also possess a strong legal environment which actively encourages litigation and consumer product claims. For the purpose of this paper, there are three legal features which bear comment:

1. Litigious Culture:

A part of the United States legal landscape that is closely reflected in Australia is the tendency to litigate--sometimes described as a culture of "blame and claim". Today, and for the better part of the last decade, Australia is the nation outside North America where a corporation is most likely to find itself defending a consumer based class action.

There has been a significant incidence of "copy cat" litigation--where proceedings are commenced in the United States, identical or at least remarkably similar actions are subsequently commenced in Australia. The Association of Trial Lawyers of America (now the American Association for Justice ("AAJ")) assisted Australian plaintiffs' lawyers in establishing a sister organization in Australia, while Australian trial lawyers participate in a range of AAJ activities. This culture, and a willingness to sue for damages in tort and under the consumer protection provisions of the TPA, pose major risk considerations for Australian businesses and for manufacturers and suppliers wherever located.

2. Litigation Funders:

Once struck down as trafficking in litigation, litigation funding arrangements no longer fall prey to laws against champerty and maintenance. To the contrary, Australian governments and courts alike have embraced litigation funding as one means of facilitating what is all too often intoned as "access to justice". While such schemes are generally to be found in market-related financial loss claims, major plaintiffs' firms have, in effect, acted as funding agencies for large scale consumer claims. Contingency fees are currently unlawful--but the rise of "no win, no fee" arrangements and a market for litigation funding exerts considerable pressure on this historical restraint.

3. Listing of Plaintiff Firms on Australian Securities Exchange:

One major plaintiffs' firm has listed on the Australian Securities Exchange and thrived. Others are considering their options. There is no sign that the plaintiffs' bar in Australia expects to be short of work anytime in the foreseeable future.

III. Legislative Harmonization

Domestic and, increasingly, international legislative harmonization have been drivers behind historical reforms to Australia's consumer and product safety laws. Indeed, when the Commonwealth introduced Part VA of the TPA in 1992, imposing a strict liability regime on manufacturers and importers of defective goods, it based the legislation on the 1985 European Community Product Liability Directive. Australia sought to expressly recognize, and be recognized for, international comity.

However, as our Canadian colleagues well understand, there has also been a persistent and, at times, fractious federal-state divide. While the legislation in the different domestic jurisdictions may have similar objectives, substantive differences have resulted in variable implementation and interpretation. As detailed below, the proposed ACL seeks to address this domestic legacy. One of the stated aims of the ACL is the harmonization of consumer protection laws across the various state and federal jurisdictions in Australia.

The intention is that the ACL will be enacted at a federal and state level under an application law model which avoids any formal referral of powers from the State/Territory Governments to the Federal Government. This will establish one legislative regime across Australia. The Commonwealth will take the role of lead legislator, with the State and Territory governments applying the ACL as part of their own laws. It is proposed that amendments to the ACL must be agreed by the several Australian governments according to an Inter-Governmental Agreement. (4)

For the changes to be effective on a wholesale basis, the ACL will give each Australian jurisdiction the same enforcement powers and tools. State and Territory based consumer affairs agencies will sign a Memorandum of Understanding which commits each agency to cooperation in the enforcement of and compliance with the ACL, while the ACCC will remain as an overall federal watchdog.

A harmonized approach to the regulation of consumer products and safety issues has many obvious advantages for local and international businesses marketing goods and services in Australia. At this level, the key to the ACL's success will be a reduction in the regulatory red tape that currently exists in dealing with different legislation, regulation and regulatory bodies.

However, it is worth noting that the ACL also represents a potential opportunity lost: it does not contain proposals to harmonize or streamline Australia's product liability framework. From a defense perspective, a critical area of concern is the multiplicity of causes of action, associated legal standards and forums currently available to consumers in Australia. Not without good cause has product liability litigation been described as commercial death by a thousand "in the alternative" claims.

IV. The ACL--What is it? Who drove it?

A. The need for reform

On December 11, 2006, Australia's previous conservative Government announced that the federal Productivity Commission would undertake a wholesale inquiry into Australia's consumer policy framework and its overall administration. (5) With this inquiry being the first to take place on a national level since 1984, an appetite for reform was apparent.

Not surprisingly, the Productivity Commission concluded that, in an increasingly global economic environment, the layers of jurisdictional complexity surrounding our consumer protection laws have become untenable. In its Final Report, the Productivity Commission's key recommendation was the implementation of a single, national, generic consumer law. (6)

This approach was endorsed by the States, Territories and the federal Government. The Ministerial Council on Consumer Affairs ("MCCA") and the Council of Australian Governments ("COAG") supported the introduction of a single national consumer law in August and October 2008 respectively, (7) and, as noted above, the ACL will be based on the existing provisions of the TPA.

The idea of a single, national consumer law is laudable. The status quo does not provide a clear sense of direction for business; indeed, the hurdles to be jumped in complying with a federal law, plus variations in each Australian State and Territory, are a constant source of frustration for industry and their legal advisors. The administrative burden placed on business is quite simply unjustifiable in an economy the size of Australia's.

In its October 2, 2008 Communique, COAG emphasized that a single national consumer law would assist in developing a "seamless national economy by providing a uniform and higher level of protection for Australian consumers and [by] addressing weaknesses in existing laws." (8) As currently envisaged, the ACL is expected to achieve these aims.

Quite apart from harmonization, the ACL will seek to augment existing consumer protection laws, especially in relation to product safety reporting, market claims (including tightened provisions regarding misleading and deceptive conduct and misrepresentation), and unfair terms in standard form consumer contracts. (9)

A change in Australia's federal government in late 2007 brought a perceptible change in the tenor of the proposed ACL. Under a more conservative Government, the terms of reference for the Productivity Commission's inquiry were largely focused on the potential impacts for business (especially small business) and a desire to reduce the burden of regulatory compliance with up to nine different forms of legislation that currently exist. The incumbent Government has shifted this focus; its attention is more squarely on consumer protection. (10) From a business perspective, the net impact of this political shift remains to be seen.

B. How the ACL will come into effect

The ACL will be implemented through two Federal Acts of Parliament. The first, which recently passed the Australian Parliament, is the Trade Practices Amendment (Australian Consumer Law) Act, 2010 (Cth) ("ACL1"). ACL1 amends the TPA and the Australian Securities and Investments Commission Act, 2001 (Cth). It establishes the ACL, introduces a national unfair contract terms law, new enforcement powers for the Australian Competition and Consumer Commission ("ACCC") (and the Australian Securities and Investments Commission for changes affecting corporations law), and new remedies for breaches of consumer laws.

ACL1 has now received Royal Assent (the final step in the Australian legislative process). While a number of its provisions are now operational, the majority of the provisions of ACL1 will become operational in late 2010. Building upon ACL1, the Government recently introduced the Trade Practices Amendment (Australian Consumer Law) Bill (No. 2), 2010 ("ACL2"). This second tranche of proposed reforms includes a new product safety and regulatory regime to address issues including product recall and standards, and changes to consumer guarantees and best practice provisions. These proposals are discussed in more detail below.

The TPA will ultimately be re-named the Competition and Consumer Act and will include the complete ACL (ACL1 and ACL2). As noted, mirror legislation is expected to be introduced and passed by each State and Territory government.

C. Currently proposed provisions

Once fully operational, ACL1 will make the following amendments to Australia's product safety laws:

(a) introducing civil pecuniary penalties for contraventions (or attempted contraventions) of certain product safety and product information provisions of the TPA;

(b) empowering the ACCC to apply to the Court to seek an order to disqualify a person from managing corporations, in relation to a contravention of certain product safety and product information provisions of the TPA;

(c) empowering the ACCC to issue a person with an infringement notice containing a financial penalty for a suspected contravention of certain product safety and product information provisions (including sections 65C(1), 65C(3) and section 65D(1) of the TPA); and

(d) empowering the ACCC to issue a public warning notice where:

(i) it has reasonable grounds to believe a corporation's conduct may have breached certain provisions of the TPA; or

(ii) a person refuses or fails to respond to a substantiation notice; and

(iii) it is satisfied that one or more persons has suffered, or is likely to suffer, detriment as a result of the conduct; and

(iv) it is satisfied that it is in the public interest.

In addition to introducing provisions relating to product safety, ACL1 also introduces provisions that address the use of unfair contract terms in consumer contracts.

ACL2 proposes the introduction of a new national product safety regulatory framework. The proposed changes will impact on the following areas:

(a) product bans and recalls: the threshold test for product recalls and product bans will be amended to cover all goods of a kind which under normal (or reasonably foreseeable) conditions of use will, or may, cause injury to any person;

(b) mandatory reporting: the introduction of a requirement for suppliers to report to the Minister products of a kind that are associated with either serious injury or death. This is a potentially commercially onerous requirement because, as presently envisaged, there is no requirement for the product supplied to have a defect or a potential defect;

(c) false or misleading representations: the current provisions of Section 53 of the TPA are to be widened, with the criteria simply being that a representation is "false or misleading", rather than the existing criteria of "false" or "false or misleading". This is significant because potential criminal penalties attach to a breach of Section 53 of the TPA; and

(d) information standards for disclosure to consumers: the current provisions in the TPA (which apply only to goods) may be extended to allow a general power to prescribe information standards for both goods and services.

Issues surrounding a number these proposed changes, from an international perspective, are canvassed below.

V. Same Same, but Different

For those who have spent any time holidaying in South East Asia, "Same Same, but Different" is now a ubiquitous phrase (and tee-shirt) when confronted by street hawkers proffering what appear to be branded merchandise. For the purposes of this article, it is a convenient reminder that neither similar legal heritage, international regulatory cooperation nor local harmonization actually equate to a conformed global framework.

The introduction of the ACL will mark a significant shift in Australia's consumer safety laws. International interest in these changes is to be expected, in part, because they will come into play in the aftermath of the world's most severe and non-linear global financial crisis. In addition, Australia has emerged as a resilient economy and an enticing investment option.

However, this interest will also be the result of an active level of engagement amongst international regulators and agencies responsible for consumer product safety laws across different jurisdictions. The public debate pre-empting these reforms has encompassed bureaucrats and law reform agencies assessing the relative merits of the product safety systems of our global counterparts: principally, the USA, Canada and the EU. We continue to want to act and be seen to act in a global context.

In this regard, two aspects of the proposed approach to reform warrant specific discussion. At this point in time, there is no suggestion that either a general product safety duty (based on the product safety laws in force in the EU) or a positive duty to notify regulators of safety risks in fact posed by defects in products themselves (as exists in the US) will be introduced as part of the ACL. In the latter case, an alternative reporting requirement is proposed--but it parts company with international analogues.

These outcomes will impact international business in a number of ways. Most obviously, they will create a need for compliance-focused efforts to identify and manage the product safety and legal differentials in domestic and foreign markets, including Australia.

A. General safety duty

A requirement of "general safety" for products has existed in United Kingdom legislation since 1987, and a general safety provision was first adopted in the European Union in 1992. Today, the EU relies upon the European General Product Safety Directive as amended in 2004. As in other Western common law jurisdictions (in particular, Canada and New Zealand), the idea of incorporating this type of provision into federal legislation was mooted when the Productivity Commission first began investigating Australia's consumer product safety regime in 2005.

The Productivity Commission's 2006 research report, Review of the Australian Consumer Product Safety System, examined at length the merits of adopting a general safety provision along the lines of the European General Product Safety Directive. (11) Ultimately, the Productivity Commission's report suggested that the potential costs and administrative red tape that would be caused by a general safety provision outweighed the benefits it might bring.

Interested parties who made submissions to the Productivity Commission noted that a key reason Australia does not require a general safety provision is that the existing provisions of the TPA already effectively achieve what a general safety provision would be intended to achieve. (12) In particular, Part V, Division 2A of the TPA provides that goods must be of a "merchantable quality" and Part VA of the TPA offers redress options if a good is "defective", which encompasses the idea of "unsafe". The Productivity Commission also concluded that the EU experience with its General Product Safety Directive has not resulted in any clear improvements in safety outcomes, but noted increased costs. (13)

From a defense perspective, business should welcome the decision not to increase the regulatory and administrative burden that a general safety provision would likely encompass. At its broadest, a general safety provision could be defined as one to "ensure only safe products are placed on the market" (14) and a legislative change of that kind would be challenging in a federal structure. Demonstrating compliance with a broad provision would be problematic for many businesses and would likely increase costs in this area.

B. Mandatory reporting requirements

The second area in which the proposed ACL will depart from what might be called an international "best-practice" is in the mandatory reporting obligations to be imposed on suppliers. It is worth briefly noting the regimes that we observe in some of Australia's major trading partners and jurisprudential "allies".

(a) United States of America: The Consumer Product Safety Act (15) imposes reporting obligations on manufacturers, distributors and retailers. Triggers for reporting include (amongst other things) situations where a product contains a defect which could create a substantial product hazard to consumers, or where the product creates an unreasonable risk of serious injury or death. Actual serious injury or death is not a prerequisite.

(b) European Union: Article 5(3) of the EU Directive (16) imposes a duty to notify which is triggered if the supplier knows or ought to have known that there are risks of their products proving unsafe. Notifications under the EU system are made to a central database (RAPEX) which is currently linked with other countries (through Memoranda of Understanding with China, the United States, and possibly soon, Japan).

(c) Canada: We understand that reform is afoot in Canada. The proposed Canada Consumer Product Safety Act (17) includes mandatory product reporting requirements on manufacturers, importers or retailers of consumer products. Such entities would be required to notify the government, within two days, if an "incident" occurs with their product. The definition of "incident" includes:

(i) an occurrence (in Canada or elsewhere) that resulted or may reasonably have been expected to result in the death of an individual or have serious adverse effects on their health; and

(ii) the existence of a defect or characteristic that may reasonably have been expected to result in the death of an individual or have serious adverse effects on their health.

A common thread linking these reporting obligations is that they are triggered when a reporting entity acquires knowledge of a risk posed by the product, even if that risk has not yet manifested in a serious injury or death. This may be contrasted with the proposed mandatory reporting obligation to be implemented under ACL2.

Currently, Section 65R of the TPA requires suppliers to report to the Minister within two days when they conduct a voluntary recall on safety grounds. At present there are no other formal requirements for suppliers to report potential or actual issues with the safety of their products to consumer agencies. In its 2006 report, the Productivity Commission recognized that this left regulators with a knowledge gap, and recommended the introduction of a mandatory reporting requirement for products associated with serious injury or death. (18)

The mandatory reporting regime proposed by ACL2 has the following features:

* the obligation is imposed upon suppliers of goods, and extends to all "goods of that kind". Arguably, this imposes an obligation on suppliers in respect of goods which they have not themselves supplied;

* reports must be made to the Minister within 2 days;

* "serious injury" is defined as acute physical injury or illness that requires medical or surgical treatment by, or under the supervision of, a medical practitioner or nurse (whether or not in a hospital);

* reporting is not required where:

** it is clear that the goods were not associated with the death or serious injury; or

** it is very unlikely that the goods were associated with the death or serious injury;

* the obligation applies whether or not the goods were being used before or at the time of death or serious injury;

* there is no requirement on the reporting entity to substantiate the report or to admit that the product was either at fault or even a contributing factor;

* the product need not be the direct cause or indeed the only cause, it is only necessary for the product to be "associated" with the serious injury or death to trigger the reporting requirement; and

* a pecuniary penalty may be imposed for non-compliance.

Unlike other jurisdictions, the proposed trigger for the duty to notify will be the association with serious injury or death. This contrasts with circumstances where, relevantly, a defect or potential defect has been identified, which gives rise to a substantial risk of injury to the public. There is a reporting differential.

Despite the proposed exceptions, there is now a prospect that, for example, auto manufacturers may be obliged to report incidents caused by events beyond their control to intoxication, or that food manufacturers would be obliged to report idiopathic outcomes to anaphylactic reactions. This would be required notwithstanding that, in each instance, the product concerned is, in fact, safe. Indeed, this cost to business is acknowledged by the Productivity Commission in their 2006 report. (19)

These concerns are apparent. The government's regulatory impact statement noted that "the Commission's view was that a tightly defined mandatory reporting requirement should limit compliance costs on business and was likely to be a cost effective way of enhancing the ability of consumer agencies to identify the most hazardous consumer products early." (20) As currently drafted, this requirement is not, in fact, tightly defined.

The Commission also noted: "As the net benefits of these proposed reporting requirements are uncertain, the Commission considers that if either (or both) are adopted, they should be reviewed three years after their commencement to determine their effectiveness and efficiency." (21) A final observation is that the Productivity Commission considered, but rejected, an even broader proposal requiring suppliers to investigate or monitor the safety of all products that they supply.

VI. Areas to Watch

The previous section addressed potential areas where we expect the ACL to change the dynamic of Australia's product safety laws. We will not know whether, in fact, and, if so, how these provisions will be incorporated into ACL2, but there are three key areas to watch:

A. Reporting requirements

The most obvious area for concern is the proposed introduction of onerous reporting requirements into Australia's product safety framework.

B. Non-party redress

There is a proposal that the TPA be amended to afford the regulator additional powers to seek non-party redress (i.e. take a representative action on behalf of a "class" of consumers). One questions the need for such a public extension given the availability and plaintiff friendly nature of class actions in Australia generally. (22) Indeed, the ACCC currently has the power under the TPA to bring a representative action on behalf of consumers generally if those consumers consent. This power has only been used infrequently in the product liability area.

ACL2 represents the first step in this area, with the proposed legislation allowing the ACCC to apply to the Court to seek an order to redress loss or damage suffered by a non-party in relation to contraventions of a certain industry codes.

C. Product recall provisions

The proposal to expand the current ambit of the product recall provisions is one that that should be taken seriously by local and international business. The broader brush powers that are envisaged will almost certainly mean that the number of products recalled in Australia every year increases.

The notion of a recall based on consumer misuse, rather than due to an actual product defect, is of particular concern. This could act as a disincentive to new product innovation, or to the provision of goods in the Australian market that have potential uses outside the "intended purpose". We note that the Product Safety Branch of the ACCC is currently reviewing the Australian product recall system against international best-practice. (23) It is proposed that the ACCC will submit a paper to the MCCA following this review.

If completed in time, this review may lead to further legislative amendments being included in the ACL. If it is not completed in time, the resulting amendments will be an interesting test of the proposed amendment procedures which will form part of the ACL.

VII. Conclusion

Australia appears poised to embrace harmonization, reform and a global standing in the area of consumer product safety legislation and regulation. The concern for international business and their advisers is, in part, the differentials which will be built into that structure and, in part, the way in which a notoriously plaintiff-friendly legal system makes use of a new regime.

(1) CONSTITUTION OF AUSTRALIA, Section 51 (xx).

(2) For example, the Commonwealth has enacted model legislation in respect of evidence laws which have systematically been adopted in the States/Territories. The ACL will require more urgent legislative response from the States/Territories in order to be rolled out as effectively as possible.

(3) Fair Trading Act, 1987 (N.S.W.), Fair Trading Act, 1999 (Vic.), Fair Trading Act, 1989 (Qld.), Fair Trading Act, 1987 (S.A.), Fair Trading Act, 1987 (W.A.), Fair Trading Act, 1990 (Tas.), Fair Trading Act, 1992 (ACT.), and the Consumer Affairs and Fair Trading Act, 1990 (N.T.).

(4) Ministerial Council on Consumer Affairs, Joint Communique, August 15, 2008, available at ttp://www.consumer.gov.au/html/ download/MCCA_Meetings/Meeting_20_15_ Aug_08.pdf.

(5) Australian Government, The Treasury, "Productivity Commission Inquiry into Australia's Consumer Policy Framework", December 11, 2006, available at http://www.treasurer.gov.au/ DisplayDocs.aspx?pageID=& doc=pressreleases/2006/133.htm&min=phc.

(6) Productivity Commission, Review of Australia's Consumer Policy Framework, April 30, 2008, available at http://www.pc.gov.au/projects/ inquiry/consumer/docs/finalre port.

(7) MCCA, Joint Communique, August 15, 2008, supra note 4; Council of Australian Governments Communique, October 2, 2008 (Perth), available at http://www.coag.gov.au/ coag_meeting_outcomes/2008-10-02/index. cfm.

(8) COAG Communique, October 2, 2008 (Perth), supra note 7, at 2.

(9) For more detail, see provisions in the Trade Practices Amendment (Australian Consumer Law) Bill, 2009 (Cth).

(10) See Intergovernmental Agreement for the Australian Consumer Law, available at http://www.coag.gov.au/coag_meeting_outcomes/2009-07-02/ docs/IGA_australian_consu02/docs/IGA_australian_consumer_law.pdf.

(11) Productivity Commission, Review of the Australian Consumer Product Safety System, January 16, 2006, available at http://www.pc.gov.au/_data/assets/ pdf_file/0008/9998/prod uctsafety.pdf; see Chapter 5, "General safety provision".

(12) See comments from the Australian Toy Association, in Productivity Commission, Review of the Australian Consumer Product Safety System, supra note 11, at 103.

(13) Productivity Commission, Review of the Australian Consumer Product Safety System, supra note 11, at 105.

(14) Productivity Commission, Review of the Australian Consumer Product Safety System, supra note 11, at 109.

(15) 15 U.S.C. [section][section] 2051 et seq.

(16) Directive 2001/95/EC of the European Parliament and of the Council of December 3, 2001 on general product safety.

(17) See generally Eunice Machado, Frank Robinson, Geoffrey B. Shaw, Lawrence M. Weinberg and Jayne Westlake, Update on Canada Consumer Product Safety Act, available at http://www.lexology.com/library/ detail.aspx?g=5a15032b-368b-4b36-8b70-72f112d0f37a.

(18) Productivity Commission, Review of the Australian Consumer Product Safety System, supra note 11, at 227.

(19) Productivity Commission, Review of the Australian Consumer Product Safety System, supra note 11, at 223-224.

(20) Standing Committee of Officials on Consumer Affairs, The Australian Consumer Law--Consultation on Draft Regulation Impact Statements, November 16, 2009, at 95, available at http://www.treasury.gov.au/ contentitem.asp?NavId=037&ContentID=1665.

(21) Productivity Commission, Review of the Australian Consumer Product Safety System, supra note 11, at 225-6.

(22) See generally, Jocelyn Kellam, Stuart Clark and Christina Harris, Representative Actions: A Review of 15 Years of Product Liability Class Actions Litigation in Australia 16 TRADE PRACTICES L.J. 161, 249 (2008).

(23) See www.accc.gov.au/content/index.phtml/ itemId/888791.

Andrew Morrison is a Partner and Richard Abraham and Mary Sheargold are Lawyers in the product risk management group of the Australian law firm, Clayton Utz. Andrew is current President of Australia's National Product Liability Association and, together with his partners, Stuart Clark and Colin Loveday, is a member of IADC and DRI. Andrew is current Chair of DRI's International Issues SLG within the Product Liability Committee.
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Author:Morrison, Andrew; Abraham, Richard; Sheargold, Mary
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Date:Jul 1, 2010
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