Suppliers’ Duties to Report Product-Related Accidents under the New 'Australian Consumer Law': A Comparative Critique

Abstract

This paper offers a comparative critique of one of the few aspects of the new Australian Consumer Law (ACL) that had no counterpart in prior domestic or New Zealand law. ACL Part 3-3 Div 5 belatedly adds a new obligation on suppliers to notify regulators of certain consumer product related accidents. It had been more than a decade since the Australian Treasury first considered adding such disclosure obligations, which are now found among Australia’s main trading partners. Yet good information flows are essential for effective “responsive regulation”. A better information base, through mandatory reports on product safety related incidents, is critical for regulators credibly to issue public warnings and impose bans, recalls and mandatory safety or information standards – as provided under the rest of ACL Part 3-3 (largely restating the previous law).

Unfortunately, the ACL’s new mandatory reporting requirements still do not meet contemporary best practice Two particularly acute problems are the narrow scope of reportable incidents, and the strict confidentiality obligations then imposed on regulators. Such deficiencies will leave problems not only for Australian consumers but also for consumers and suppliers of Australian products abroad, as overseas suppliers are increasingly subject to more demanding disclosure standards. Significant differences will also impede cross-border regulatory cooperation and harmonisation initiatives in consumer product safety.

This article therefore compares the more expansive disclosure obligations found in several other jurisdictions, including the US, the European Union and Japan. It pays particular attention to the obligations recently set out in the Canada Consumer Product Safety Act 2010. Hopefully, Australian policy-makers will revisit the narrow scope of the ACL’s new reporting requirement as awareness grows about the requirements often now imposed abroad. Meanwhile, Australian regulators should actively use their powers under the new ACL, possibly in conjunction with agreements concluded with counterparts overseas, to improve consumer product safety outcomes in Australia.

Keywords: consumer law and policy, comparative law, Commonwealth law, Asian law, product safety regulation, legislative process, law reform

JEL Classification: K10, K13, K30, K33