Product Safety Regulation Reform in Australia and Japan: Harmonising Towards European Models?

Abstract

This Note for the Yearbook of Consumer Law first updates on proposals to reform Australia's consumer product safety regulation regime. Discussions have largely stalled, despite legitimacy and efficiency concerns evident from a related review of its main standard-setting body.

By contrast, Australia's major trading partner, Japan, has developed more momentum towards comprehensive reform. Ironically, this comes out of an anno horribilis involving four major product safety issues in quick succession from mid-2005: asbestos, defective buildings, second-hand electrical goods, and then elevators made by Swiss-based Schindler. Further incidents keep being reported too. Admittedly, tort law remains on an upward trajectory in Japan, and in parallel with economic deregulation since the late 1990s the government has been implementing civil justice reforms aimed to encouraging active pursuit of rights through the courts as a more indirect means of socio-economic ordering, in lieu of ex ante regulation by public authorities. However, many tort claims have been directed specifically against the government after World War II. Criminal prosecutions for professional negligence remain another salient feature of the way the Japanese legal system deals with safety issues. This underpins re-regulatory reforms underway or called for in specific areas, such as asbestos products and construction. It also makes it easier to generate 'horizontal' reforms (covering all types of goods) like those enacted on 28 November 2006 for the Consumer Product Safety Law of 1973. As now in the EU, firms in Japan will generally need to report serious accidents to the authorities. Such developments may yet feed back into reform discussions ongoing in Australia. Nonetheless, Japan's revised Law does not go as far as the new EU regime, and Japan's bureaucrats still try to retain their influence through sector-specific legislation. In addition, over 2001-2006 the Koizumi government accelerated deregulation, at least in some areas and certainly in the overall rhetoric of policymaking. The analysis therefore concludes by highlighting the shared challenges faced by law reformers in our 'world risk society'.

Keywords: Japanese law, Australian law, comparative law, Torts/Product Liability law, consumer law

JEL Classification: K13, K10