Legal issues and the Attorney-General's portfolio National product safety regulation


Budget Review 2009-10 Index

Budget 2009 10: Legal issues and the Attorney-General's portfolio

National product safety regulation

Jonathan Chowns

The Australian Competition & Consumer Commission (ACCC) is to be provided with $24.8 million over five years to help it implement imminent reforms to Australia’s consumer product safety framework. These reforms, when legislated, will create ‘a single national product safety law with consistent enforcement by the Australian Government and state and territory regulators’.[1] Product safety is now regulated at the State, Territory and Commonwealth level giving nine different sets of substantive laws and enforcement regimes. The ACCC will have a prominent role in administering the new product safety framework which is the basis for this additional funding.

Brief recent history of product safety regulation reform

On 27 August 2004, the Ministerial Council on Consumer Affairs (MCCA) released the discussion paper, Review of the Australian Consumer Product Safety System.[2] This built on work done by the Standing Committee of Officials of Consumer Affairs (SCOCA), which consists of all chief executive officers of consumer protection agencies. SCOCA had identified two principal problems with the way in which product safety laws worked. Firstly, there is a perceived inability to operate swiftly and pro-actively. Secondly, the involvement of multiple jurisdictions causes inefficient use of government regulatory resources and imposes an excessive regulatory burden on business.[3] It is the second of these two problems which will eventually be addressed in the new product safety framework that the ACCC is being funded to administer.

In March 2005, the then Coalition Government asked the Productivity Commission (PC) to undertake a research study into Australia’s consumer product safety laws and to examine the various reform options raised in the MCCA discussion paper of August 2004.[4] On 16 January 2006, the PC published its 500 page research report, Review of the Australian Consumer Product Safety System.[5] In this report, the PC ‘argued that significant regulatory inconsistencies between governments reduce the overall efficiency and effectiveness of the system’ and recommended improvements including ‘introducing a single national product safety law administered by the ACCC or, if this is not achievable, harmonisation of core legislative provisions across jurisdictions’.[6]

On 11 December 2006, the then Treasurer, Peter Costello, asked the PC to inquire into Australia’s consumer policy framework and its administration. The inquiry was to have regard to, but not replicate, the work previously done on the consumer product safety system.[7] The PC published its report on 30 April 2008.[8] In this report, it repeated the view expressed in its earlier report on the consumer product safety system that ‘the Australian Government, through the Australian Competition and Consumer Commission (ACCC), should be responsible for enforcing the product safety provisions nationally, though possibly with scope for states and territories to implement, time limited, interim product safety bans’.[9] It observed that:

Product safety issues are generally national in nature, with most products being imported and sold across Australia. Product safety problems can also have potentially severe consequences for some consumers if not promptly addressed. Hence, the risks to consumer wellbeing under a system that requires nine jurisdictions to take quick and effective action are likely to be higher than for other parts of the generic law. The case for making the Australian Government, through the ACCC, solely responsible for enforcing the product safety provisions of the new national generic law — as recommended in the Commission’s recent study into Australia’s consumer product safety system — is therefore much stronger than for the rest of the generic law.[10]

By the time of the PC’s consumer policy framework report, COAG had, according to its communiqué of 23 March 2008, already agreed in principle to regulatory reform of the consumer product safety framework.[11] The nature of that reform was clarified in the COAG communiqué of 3 July 2008 which records that COAG had agreed that the Commonwealth will assume responsibility for the making of permanent product bans and standards under the Trade Practices Act 1974 while the states will retain powers to issue interim product bans.[12]

On 17 February 2009, the Assistant Treasurer and Minister for Competition Policy and Consumer Affairs released an information and consultation paper: An Australian Consumer Law: Fair Markets – Confident Consumers. [13] The paper records that there will be a new national consumer law and that, as recommended by the PC, the law will include ‘a new national legislative and regulatory regime for product safety’.[14] Responsibility for enforcing the consumer product safety provisions of the new law in all jurisdictions should be transferred to the Australian Government and undertaken by the ACCC.[15]

Legislation to implement reform to the product safety laws are expected to be finalised by 30 June 2010.[16]



[1].    Australian Government, Budget measures: budget paper no. 2: 2009–10, Commonwealth of Australia, Canberra, 2009, p. 380, viewed 21 May 2009,
http://www.budget.gov.au/2009-10/content/bp2/html/bp2_expense-23.htm

[2].    Ministerial Council on Consumer Affairs, Review of the Australian consumer product safety system, Canberra, August 2004, viewed 21 May 2009,
http://www.consumer.gov.au/html/Consumer_Product_Safety_Review/
download/Consumer_Product_Safety_Review.pdf

[3].    Review of Australian consumer product safety system, p. 5

[4].    C Pearce (Parliamentary Secretary to the Treasury), Productivity Commission consumer product safety system, media release, 16 March 2005, viewed 22 May 2009, http://parlsec.treasurer.gov.au/DisplayDocs.aspx?pageID=&doc=pressreleases/2005/008.htm&min=cjp

[5].    Productivity Commission (PC), Review of the Australian consumer product safety system, PC, Canberra, 2006, viewed 22 May 2009, http://www.pc.gov.au/projects/study/productsafety/docs/finalreport

[6].    Productivity Commission (PC), Review of Australia’s consumer policy framework, PC, Canberra, 30 April 2008, http://www.pc.gov.au/projects/inquiry/consumer

[7].    P Costello (Treasurer), Productivity Commission inquiry into Australia’s consumer policy framework, media release, 11 December 2006, viewed 22 May 2009, http://www.treasurer.gov.au/DisplayDocs.aspx?pageID=&doc=pressreleases/2006/133.htm&min=phc

[8].    PC, Review of Australia’s consumer policy framework.

[9].    PC, Review of Australia’s consumer policy framework. p. 2

[10]. PC, Review of Australia’s consumer policy framework. p. 23

[11]. Council of Australian Governments, Communiqué of 23 March 2008, Department of Prime Minister and Cabinet, 2008, p. 4, viewed 22 May 2009,
http://www.coag.gov.au/coag_meeting_outcomes/2008-03-26/index.cfm

[12]. Council of Australian Governments, Communiqué of 3 July 2008, Department of Prime Minister and Cabinet, 2008, p. 3,
http://www.coag.gov.au/coag_meeting_outcomes/2008-07-03/docs/communique20080703.pdf

[13]. Australian Government, ‘Consumer Policy’, Department of Treasury website, viewed 22 May 2009, http://www.treasury.gov.au/content/consumer_affairs.asp?ContentID=270

[14]. Treasury, An Australian consumer law: fair markets — confident consumers, Commonwealth of Australia, Canberra, 17 February 2009, p. 1, viewed 22 May 2009, http://www.treasury.gov.au/documents/1484/PDF/An_Australian_Consumer_Law.pdf

[15]. An Australian consumer law: fair markets, p. 6.

[16]. An Australian consumer law: fair markets, p. 11.


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