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Product safety and the Australian Consumer LawFair Trading is in the process of updating its product safety pages on this website with the introduction of the Australian Consumer Law from 1 January 2011. For more information visit the Product safety information disclaimer page. |
The Australian Consumer Law (ACL) requires that certain goods must comply with safety requirements before they can be sold, and certain information about a product must be supplied with that product when it is sold.
Where problems do occur with a product, either a State/Territory Minister or the Commonwealth Minister has powers to remove unsafe goods from sale. This might include recalling dangerous products or a public warning of a particular defect, or even that the product may be dangerous. Fair Trading can also provide advice on recall procedures.
Mandatory safety standards or information standards
Under the ACL, only the Commonwealth Minister has the power to make or declare a mandatory safety or information standard for a good or product related service. These apply nationally.
A mandatory safety standard for a consumer good can set requirements including:
- the way the good is made
- what it contains
- how it works
- what tests it needs to pass, or
- whether any warnings or instructions need to accompany the good.
Top of pageInterim and permanent bans
Under the ACL, only the Commonwealth Minister has the power to declare a permanent ban on a good or product related service. Commonwealth bans apply nationally. The Commonwealth Minister and the relevant State and Territory Ministers have the power to declare an interim ban. Interim bans last for 60 days unless extended for up to another 60 days, and they only apply in that State or Territory.
Product recalls
State/Territory Ministers and the Commonwealth Minister have specific roles under the ACL. The Product recalls page has more details on these roles or visit the Product Recalls website.
Penalty notices
In NSW, penalty notices can be issued for breaches of consumer protection provisions, Penalty notices provide an opportunity for a person to pay a penalty and resolve the matter.
A penalty notice can be issued where there are reasonable grounds to believe a person has breached various product safety provisions, including supplying goods that are subject to a ban order or that do not comply with a mandatory safety standard.
Public warning powers
Under the ACL the Commonwealth or a State/Territory Minister can issue a warning that certain goods or product related services are under investigation. In addition the ACCC and State/Territory Fair Trading offices can issue public warning notices when, on reasonable grounds, they suspect a contravention of the unconscionable conduct or consumer protection provisions; where someone is likely to suffer detriment from the conduct; and where it is in the public interest.
When a warning notice is published, suppliers do not have to stop supplying that good or service. However, they should stay informed about its status.
In NSW, the Minister or Director-General can issue a public warning statement about dangerous goods if it is in the public interest to do so.
Civil pecuniary penalties
Under the ACL, the Court may order a person to pay a civil pecuniary penalty if it is satisfied that the person contravened or attempted to contravene a product safety related provision of the ACL.
A court may order a civil pecuniary penalty for contraventions of the following product safety provisions of the ACL:
- supplying goods that do not comply with safety standards
- supplying product related services that do not comply with safety standards
- supplying consumer goods covered by a ban
- supplying product related services covered by a ban
- notification by persons who supply consumer goods outside Australia if there is compulsory recall
- compliance with recall notices
- notification of voluntary recall of consumer goods
- suppliers to report consumer goods associated with death or serious injury
- suppliers to report product related services associated with death or serious injury
- supplying goods that do not comply with information standards
- supplying services that do not comply with information standards
- compliance with substantiation notice.
The maximum civil pecuniary penalty for breaches of certain product safety provisions will be $1.1m for corporations and $220,000 for individuals.
Disqualification orders
A court will be able to disqualify a person from managing corporations for a period it considers appropriate as a consequence of contraventions of various consumer protection related provisions. In some circumstances, disqualification orders may be appropriate for directors who fail to take steps to ensure that products they sell or produce comply with mandatory product safety standards and other trade practices breaches.
Substantiation power to check claims
Substantiation notices can be used in a variety of circumstances, including in relation to product safety claims–such as requiring suppliers to provide information and/or produce documents to confirm that products comply with standards where a claim of compliance to a particular standard has been made by the supplier.
Mandatory reporting
Suppliers are required by law to advise the ACCC within 2 days when they become aware that a good or product related service they have supplied has caused, or may have caused death or serious injury or illness to any person. They are also required to report if another person (eg. a customer) considers that the death, injury or illness was or may have been caused by using the good or product related service.
Electrical appliances
Electrical appliances also need to comply with certain laws. The Electricity (Consumer Safety) Act 2004 requires electrical appliances be designed and manufactured so they will not, in normal use, result in electric shock, injury or death to the user or fire damage to the user's property.
Fair Trading administers a compulsory pre-sale certification scheme for specific types of electrical appliances, and a voluntary certification scheme for all other electrical products.
| IMPORTANT - Fair Trading maintains records of electrical accidents and analyses the data to improve the safety of electrical appliances. |
Gas appliances
The Gas Supply (Gas Appliances) Regulation 2004 regulates gas appliances which use gas supplied from a gas network. Currently, these appliances are certified by the Australian Gas Association (AGA) and SAI Global Pty Ltd. There are a number of recognised approval agencies relating to gas appliances.
Gas appliances which use gas from a gas cylinder are separately regulated by WorkCover NSW.
Check before you supply
It is a good idea to ask yourself the following questions and do your research to minimise the risk of supplying unsafe products and services to your customers.
- Have I complied with a mandatory safety standard or information standard?
Mandatory safety standards set specific requirements for consumer goods or product-related services - Have I checked for product recalls on the national recalls website www.recalls.gov.au?
This site provides current product recall information. - Have I contacted the peak industry body or association?
You can often obtain useful information about your industry from such organisations. - Should my business consider some type of liability insurance?
Someone injured using a product you supplied may be eligible for compensation. - Do I have accurate business records and am I able to identify individual products through copies of invoices?
You will need to provide Fair Trading with details of the supplier if a product you have sold does not comply with a ban or mandatory standard. - Have I got a copy of the current certificate for the gas appliance or declared electrical article from my supplier?
This will show that the product meets the requirements of the current mandatory standard. The approval certificate will show that the appliance or article is approved for sale.
The role of Fair Trading
Fair Trading's product safety officers regularly check the marketplace for unsafe products and assess compliance with the various mandatory safety and information standards.
Where problems do occur with products, Fair Trading and the Commonwealth Minister has powers to instruct retailers or suppliers to remove the unsafe goods from sale and may include requiring businesses to recall dangerous products.
Need more information?
For additional information about product safety and standards or product recall procedures, contact Fair Trading's Product Safety Unit on 9895 2049.
For information about electrical and gas appliances contact the Electrical Utilities and Energy Unit on 9895 0720.
Contacts
The Hon Dr Craig Emerson MP
Minister for Competition Policy and Consumer Affairs
C/-Australian Competition and Consumer Commission (ACCC)
GPO Box 3131
Canberra ACT 2601
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