Review of the MCCA Direct Marketing Model Code of Practice Discussion Paper

Appendix A - Australia's Consumer Product Safety System

General overview of the Australian system

Responsibility for product safety regulation in Australia is shared between the Australian, State and Territory Governments, with the division of responsibilities and powers determined by the Australian Constitution. That is, the Australian Constitution (Section 5l(xx)) empowers the Commonwealth to control and regulate certain corporations, including trading and financial corporations, on a national basis but does not extend such power to all business entities. This means that the coverage of Commonwealth product safety legislation is generally limited to manufacturers and suppliers who are corporations as well as non-corporations engaged in interstate trade.⁸ State and Territory legislation covers the remaining manufacturers and suppliers.

State and Territory Governments each have their own fair trading agencies which enact and enforce state-based consumer product safety legislation. Such legislation is similar, but not identical to, Commonwealth legislation, leading to some important legislative inconsistencies between jurisdictions.

State and Territory Ministers (the Commissioner for Fair Trading in Western Australia) have powers similar to the Australian Government Minister responsible for consumer affairs. They have the power to make product safety standards and most have the power to ban and recall products within their respective jurisdictions.

While State and Territory fair trading agencies pursue product safety policy and enforcement objectives, these roles are split between different agencies at the Australian Government level.

The Treasury is the responsible agency for consumer policy while the Australian Competition and Consumer Commission (ACCC) monitors and enforces compliance with product safety laws.

A number of specialised agencies administer product safety regulations associated with certain products including medicines, food, road safety products, electricity, buildings and agriculture. Additionally, other agencies can support product safety objectives through special powers. For example, the Australian Customs Service has the power to support the banning of products through import controls.

The role of various governments and agencies in pursuing product safety objectives is supported by Australia’s product liability system. By allowing consumer redress for loss and injury caused by an unsafe product, the system encourages businesses to pursue product safety objectives.

Existing regulatory framework

Trade Practices Act

The key Commonwealth legislation protecting consumers is the Trade Practices Act 1974 (TPA).

The TPA contains general product safety provisions⁹ as well as a product liability regime¹⁰ that enables consumers to seek a range of remedies including damages for loss or damage caused by a defective product.

The TPA provides the Australian Government Minister with responsibility for consumer affairs with the power to intervene in markets to ensure product safety. Such powers allow the Minister to:

• prescribe consumer product safety and consumer product information standards;

• declare goods unsafe and ban them;

• investigate goods to determine whether they will or may cause injury and/or issue a warning notice of the risk of using the good;

• order the compulsory recall of goods, when the supplier has not taken satisfactory action to prevent the goods from causing injury; and

• obtain information, documents and other evidence relating to the administration of the safety provisions of the TPA.

Consumer product safety standards

The TPA provides the Minister with the power to establish standards for a product where it can be demonstrated that a product has the potential to cause injury. Such standards are mandatory and it is an offence under the TPA to supply goods which do not comply with the standard.¹¹ Additionally, where a corporation does not comply and a person suffers loss or damage arising from the supply of those goods, that person may pursue damages under the product liability provisions of the TPA.¹²

Mandatory standards can be implemented in one of two ways. First, the Minister can make mandatory a standard, or part of a standard, published by Standards Australia (see below) by referencing the standard in a notice published in the Australian Government Gazette (the Gazette). Alternatively, the Minister may prescribe a standard by Regulation.

Regardless of the manner of implementation, there is a need for jurisdictional agreement on mandatory standards under the Council of Australian Governments (COAG) Guidelines. That is, under the guidelines, a Ministerial Council (in this case the Ministerial Council on Consumer Affairs) must approve a new mandatory standard. Similarly, the guidelines ensure mandatory standards are reviewed every five years though, in practice, reviews may be more frequent as standards are often altered regularly by Standards Australia.

Under the TPA there are two types of mandatory product standards, being safety and information standards. Safety standards require goods to comply with particular performance, composition, contents, methods of manufacture or processing, design, construction, finish or packaging rules. Information standards require prescribed information to be given to consumers when they purchase specified goods (for example, labelling for tobacco products). South Australia and Western Australia also have ‘quality’ and ‘packaging’ standards which aim to ensure goods are fit for use and packaged appropriately.

The Treasury develops Australian Government policy on mandatory standards for most consumer products. The ACCC works with the Treasury in both the development and review process to ensure enforcement matters are properly considered. Additionally, the ACCC enforces mandatory standards.

Mandatory standards developed by the Australian Government are expected to be adopted by the States and Territories, ensuring they are applied Australia-wide. However, the standard may vary, in certain respects, as a result of different legislative requirements. For example, in some jurisdictions there are additional legislative requirements affecting the standard in relation to the identity of the manufacturer, storage of goods, etc.

Moreover, it is not necessarily the case that a Commonwealth standard must be adopted by the States and Territories as they have powers to issue and enforce their own mandatory standards. There are various examples of a mandatory standard applying in one State but not elsewhere.

While all State and Territory legislation allows for the issue of mandatory standards applying to goods¹³, Victoria, Queensland and South Australia have legislation allowing mandatory standards to also be issued for services.

While standards can be mandated, they may also be voluntary. Underlining this, in Australia there are around 6,400 voluntary standards and 27 mandatory standards under the TPA.

Currently Standards Australia, an independent, non-government organisation, is the sole recognised ‘prescribed body’ for making standards under the TPA. Such standards are developed by technical committees and published as voluntary documents, available to the public in general. Standards Australia is a neutral party in this process and does not play an active part in the decisions of committees. Rather it provides the secretariat and back office services. At times, the ACCC, the Treasury and State and Territory fair trading representatives have participated in Standards Australia processes.

International bodies exist with objectives similar to Standards Australia. Australia does not automatically adopt the standards of these overseas jurisdictions in framing mandatory standards and as yet such bodies are not recognised as prescribed bodies under the TPA. However, such standards have been used in the process of making a mandatory standard by regulation.

Bans

All jurisdictions have the power to impose banning orders. However, there is a lack of consistency between the jurisdictions caused by different legislative and administrative approaches. This results in some goods being banned in one State or Territory but not elsewhere.

Under the TPA the Minister, by means of an interim banning order, can declare goods that will or may cause injury to a person to be unsafe.¹⁴ Effectively this means the goods will be banned from supply for 18 months unless the banning order is revoked.

Before issuing a ban, the Minister is required to publish a draft notice and a summary of the reasons for the ban in the Gazette. At this time suppliers are able to request the ACCC to hold a ‘conference’ (see below) to hear concerns relating to the ban order.

A permanent ban may be implemented when an interim banning order has expired and no mandatory standard has been prescribed in respect of the goods. Permanent bans are also subject to a conference. However, once the Minister has made a decision to issue a permanent banning order there is no right of appeal available to suppliers on the basis of the merit of the decision.¹⁵

Each State and Territory has the power to impose both interim and permanent banning orders, but differences exist between the jurisdictions. For example, the period of effect of an interim ban at a State and Territory level is significantly less than at an Australian Government level (broadly 3 months compared to 18 months). Also the rights of suppliers/manufacturers leading to a review of the ban vary between jurisdictions. In relation to interim bans Victoria, Tasmania and the Australian Capital Territory provide a right of appeal and New South Wales and South Australia allow suppliers the right of a conference. With permanent bans, Victoria, Tasmania, Western Australia and the Australian Capital

Territory offer the right of appeal while no State or Territory offers a conference. In all States and Territories a permanent ban remains in force indefinitely except in Queensland where the legislation specifies that the order expires after 18 months and can not be renewed.

Under the TPA, failure to comply with a permanent banning order is an offence with a maximum penalty of $1.1 million for a corporation and $220,000 for an individual. In contrast, the maximum fine in Tasmania for an individual is $5,000.

Banned goods may still be exported. However, the Australian Government Minister is required to approve the export of goods that are banned or do not meet mandatory standards.¹⁶ The Australian Customs Service deals with products coming into Australia and separate legislation exists to prohibit certain goods from being imported into Australia.¹⁷

Warning notices

Generally, warning notices involve: a statement that goods are under investigation (to determine if they are unsafe); an announcement of the results of the above investigation; or a warning about possible risks involved in the use of specific goods.

The Commonwealth, New South Wales, Victorian, South Australian and Western Australian legislation provides for the publication of public warning notices.

In New South Wales, Victoria and South Australia a public warning notice can relate to either goods or services. Commonwealth and Western Australian notices relate only to goods.

Under the TPA, warning notices are issued by the Minister in the Gazette. They may be issued quickly as there is no requirement to demonstrate a good is unsafe. Indeed, the Minister has no obligation to consult or inform relevant suppliers before warning notices are published. Additionally, the use of the warning notice power does not necessarily involve other agencies, although it is common practice to involve the States and Territories.

Under the TPA, businesses are protected to some extent as warning notices do not directly identify the manufacturer or supplier of goods, however the trade name and description of the goods may be fully identified, which in turn may identify the business indirectly.

Warning notices are not used often. The Australian Government has issued on average about one warning notice per year since 1986, and the trend is toward reduced use over time.

Recalls

While bans can prevent unsafe products reaching the market they may do little about the unsafe products that have already been sold. Where this is of concern a recall of the product may be undertaken. Product recalls may be either compulsory or voluntary.

Compulsory recalls

Under the TPA, goods may be subject to a compulsory recall¹⁸ where the Minister is of the view that the goods will or may cause injury, the goods do not comply with a mandatory standard, or where there is an interim or permanent banning order applying in relation to the goods.

There are two ways of initiating compulsory recalls. If the goods create an imminent risk of death, serious illness or serious injury, the Minister may publish an immediate compulsory recall order in the Gazette¹⁹ (see emergency orders below). If there is no immediate risk to the public the Minister must first publish a draft recall notice (and a summary of the reasons for it) inviting suppliers to request a conference before the ACCC.²⁰

Compulsory recall orders may be subject to challenge in the Federal Court under the Administrative Decisions Judicial Review Act 1977 (ADJR) (this Act has been used to overturn a Minister’s recall order). Where the affected supplier challenges a compulsory recall order, the Court may make an interim order allowing the supplier to continue to sell the relevant product until the challenge is decided.

Where a compulsory recall order is published, the Minister is required to provide a copy to each known supplier of the goods and to publish a copy of the notice in newspapers. However, failure to do so does not invalidate the recall.²¹

While the Minister may order a recall, suppliers may also be required to disclose to the public or to a particular class of persons identified in the notice the nature of the defect or the dangerous characteristic(s) of the goods and the circumstances in which the goods may be dangerous. Suppliers may also be required to inform the public of procedures for disposing of the goods²²and undertake to repair or replace the goods or refund the purchase price.

Goods that are recalled cannot be exported. Where the goods have already been sold overseas, notice must be given to the overseas purchaser and proof of such notification given to the Minister within 10 days.²³

State and Territory recall legislation is similar to Commonwealth legislation in relation to product recalls, although there are two States, Queensland and Tasmania, which do not have a product recall power. In South Australia the recall power takes the form of a defect notice, although the requirements and consequences of a defect notice are equivalent to those of a product recall.

Similar to the Commonwealth approach, recalls are subject to review, by conference, in New South Wales, South Australia and the Australian Capital Territory. Victoria also offers the right of review of a compulsory product recall notice.

It is an offence to supply goods in contravention of a compulsory product recall order (defect notice in South Australia). The offence attracts a penalty ranging from a maximum of $1.1 million (for a corporation) or $220,000 (for an individual) under the TPA to $10,000 (for an individual) in South Australia.

Voluntary recalls

In Australia, the vast majority of recalls are voluntary and primarily the responsibility of the supplier. There is on average more than one voluntary recall of a product each day in Australia.

On these occasions, under the TPA, suppliers are required to notify the Minister within 2 days of commencing the action. An Internet site²⁴ maintained by the Treasury, provides current product safety recall information based on such notifications. However, the site does not record all recalls taking place in Australia (as the coverage of the TPA does not extend to all recalls).

The Treasury monitors and audits the effectiveness of product recalls of most consumer goods.²⁵ However, technically the Treasury has no legal power or obligation to monitor voluntary recalls under the TPA. As there is no legal framework for monitoring voluntary recalls there is no legislative requirement that companies cooperate or provide information on voluntary recalls, with the exception of the requirement to notify the Minister that a recall is taking place.

The Minister may use his compulsory recall powers if he considers that any voluntary recall action taken was insufficient to prevent the goods from causing injury. This may occur at the request of other Ministers.²⁶

Since 1986, approximately 6,600 voluntary recalls have been notified to the relevant Minister, while 5 compulsory recall actions have been undertaken.

Emergency orders

Under the TPA where the Minister is satisfied that certain goods create an imminent risk of death, serious illness or injury, an emergency order can immediately be made implementing one of the following without a conference:²⁷

• a banning order; or

• an order for product recall, disclosure of defect and disposal, repair, replacement and refund of price.

If this course of action is taken a notice to this effect must be published in the Gazette and in appropriate newspapers and copies must be sent to all known suppliers of the goods within two days. However, the failure of the Minister to comply will not invalidate the notice.²⁸

Conference procedures

The TPA²⁹ establishes conference procedures that allow suppliers to request the ACCC to hold a conference to hear concerns relating to a compulsory recall or ban order.

The TPA provides that after the Minister issues a draft notice detailing a ban or recall, suppliers have ten days to seek a conference with the ACCC.³⁰ Where such conferences occur the ban or recall is generally only introduced after consultation with other interested regulators and affected suppliers. Following the conference, the ACCC is required to make a recommendation to the Minister as to whether the Minister should proceed with the notice, modify it or not continue with it.³¹ The Minister must consider the recommendation, but is not bound to follow it.³²

Emergency orders (see above) implementing a ban or recall order can be made without a conference³³.

When an emergency banning order is made, a conference may be held after it comes into effect³⁴ leading to a recommendation from the ACCC that the notice remain in force, be varied or be revoked.³⁵ Again, the Minister must consider the ACCC recommendation but is not bound by it.³⁶

Conferences are not available if the emergency order is for product recall, repair or replacement.

New South Wales, South Australia and the Australian Capital Territory also provide the opportunity for a conference, in specified circumstances. Such circumstances vary between these jurisdictions.

With Commonwealth conferences it is the ACCC that advises the Minister. In the case of State and Territory conferences, the Minister receives advice from product safety committees.

Review of Government product safety decisions

A right of appeal, in certain circumstances, is available against a product safety decision taken by a relevant Minister in Victoria, Queensland, Western Australia, Tasmania and the Australian Capital Territory. The Northern Territory provides no right of appeal.

The right of appeal extends to a magistrate (Queensland, Tasmania), a district court (Queensland), an administrative tribunal (Victoria, Australian Capital Territory), and the Minister (Western Australia — noting that in Western Australia, decisions relating to bans, recalls, etc are originally decided by the Commissioner for Fair Trading and not the Minister).

The right of appeal applies: to a review of a decision involving an interim banning order (Victoria, Tasmania and the Australian Capital Territory); a permanent banning order (Victoria, Western Australia, Tasmania and the Australian Capital Territory); a compulsory recall notice (Victoria); and seized goods (Queensland).

In the Australian Capital Territory, the right of review is not limited to the making of specified orders but also includes decisions of the Minister to refuse to make, amend, revoke and/or extend the period of effect of specified orders.

The Commonwealth, New South Wales and South Australian regimes provide conference provisions rather than the right of appeal.

Commonwealth product safety decisions are reviewable by the Federal Court under the ADJR. However, the review is of the process, not the merits of the decision.

Policy enforcement and compliance

The ACCC is the agency responsible for enforcing the TPA’s³⁷ product safety regime.

To ensure suppliers subject to mandatory standards and bans are responding appropriately, the ACCC may compel the provision of information, require evidence under oath, undertake random market surveys, enter premises and seize documents.

In situations where suppliers have failed to comply with mandatory standards or bans the ACCC can seek orders in the Federal Court requiring such suppliers to recall the non-complying products.³⁸ Additionally, the ACCC may institute civil proceedings³⁹ or criminal proceedings⁴⁰ under the TPA. Prosecution and conviction under the TPA⁴¹ can lead to significant fines.

Enforcement of the TPA may also be obtained through injunctions, damages or a requirement for corrective advertising.

In July 2001 Part VC was introduced into the TPA and acts to counter rogue traders who do not comply with specific product safety provisions, including Government orders. It provides for criminal actions to be taken for breaches of a range of unfair practices including breaches of the product safety provisions. Action may be taken in the case of false or misleading representations and conduct in relation to any breach of product safety and information standards as well as failure to comply with product recall orders.

State and Territory Governments have similar enforcement powers to the ACCC under their own legislation. The relevant State and Territory Fair Trading Acts contain criminal liability provisions in similar terms to those contained in the TPA.

Product liability

The TPA contains legislative powers to protect consumers from unsafe goods (for example, bans, standards, and recalls) and also supports and augments private rights of action under a product liability regime.⁴²

The product liability provisions of the TPA allow persons who suffer loss or damage because of a defective product to take legal action for compensation against the manufacturer of that product.

Goods are defective if their safety is not what persons are entitled to expect considering all relevant circumstances. It is ultimately for the court to determine whether a product is defective.

The product liability provisions provide a statutory right to compensation which does not depend on contract or tort law. In certain respects the provisions have extended the potential for compensation beyond those laws.⁴³ For example:

• the injured party need not be the purchaser of goods from the supplier, or a ‘consumer’ or a person who acquired or derived title to the goods from a ‘consumer’;
  • that is, dependants of a person injured or killed by a defect in goods can claim for the losses they suffer as a result;

• broadly defined, manufacturer includes maker, company claiming to manufacture, seller of own-brand goods made under licence, company promoting goods as manufacturer, and importers. Retailers can be deemed to be manufacturers when the manufacturer is unknown to the claimant;⁴⁴ and

• it is not necessary for the injury to have been foreseeable.

Recently the Australian Government introduced amendments to the TPA in this area. These changes will include thresholds and caps for the award of damages for claims for personal injuries and death. There will also be changes to limitation periods for these claims. Smoking and tobacco related injuries will be exempt from these changes.⁴⁵

A range of statutory defences are provided to a manufacturer in respect of a product liability action. One of these is where compliance with a mandatory standard (Commonwealth, State or Territory) was the sole cause of the defect. In such circumstances the responsible government may be liable to compensate the injured party.⁴⁶

Damage to commercial property is not covered by the provisions, nor is any loss arising from a business relationship, such as loss of profits. The TPA also excludes losses in respect of which a claim might be made for workers compensation and losses regulated by international agreements.

Where an injured person’s acts or omissions contribute to the loss, the court could reduce the amount of compensation payable to whatever extent is appropriate. This may be to nil in some cases.⁴⁷

The ACCC⁴⁸ can take representative action in the Federal Court on behalf of persons affected by defective goods if the parties give their written consent. This is intended to improve access to the law and allow the ACCC to act where goods have (or may) cause widespread detriment.

State and Territory product liability regimes to protect consumers from unsafe goods are similar, but not identical to the Commonwealth regime. All jurisdictions, except Tasmania, expressly state the type of remedy available as a result of a specified contravention of the relevant Act. Such remedies include actions for damages, compensation and other orders.

In New South Wales and Victoria, express reference is made to forums which may award damages for contraventions of product safety provisions. These include the Fair Trading Tribunal (New South Wales) and the Victorian Civil and Administrative Tribunal.

International context

Australia participates in various international bodies and is subject to obligations under both multilateral and bilateral agreements which can impact on the regulation of consumer product safety. Two of these are discussed below.

World Trade Organisation (WTO) agreements establish a framework for reducing non-tariff barriers. These agreements include an obligation on WTO members to adopt international standards whenever possible. Members are free to apply their own standards to meet what

are regarded as ‘legitimate’ objectives, which include consumer safety, but are required to ensure that these protections do not constitute technical barriers to trade.

Australia also has a special relationship with New Zealand under the Australia New Zealand Closer Economic Relations Trade Agreement (ANZCERTA). While evolving, this relationship represents one of the most closely integrated bilateral arrangements in the world. As competition and consumer protection laws are of fundamental importance to economic development and trade, it is likely that their harmonisation will be given early attention in the further development of this relationship. This review of the Australian consumer product safety system provides an important opportunity to explore such potential harmonisation.

Product safety agencies in Australia

Agency	Basis	Main role	Key relationships
Department of the Treasury	Commonwealth.	To provide advice to the relevant Minister on issues related to product safety and, in particular, the use of his/her broad range of powers under the TPA.	The Australian Government Minister responsible for consumer affairs (currently the Parliamentary Secretary to the Treasurer). Also works with the ACCC, MCCA, and State and Territory Fair Trading agencies.
Australian Competition and Consumer Commission (ACCC)	Commonwealth.	The enforcement of the TPA product safety provisions. In particular, the enforcement of mandatory recalls, bans and standards.	The ACCC is an independent statutory authority accountable to Parliament and the Courts. It also works with the Treasury, MCCA, and State and Territory Fair Trading agencies.
State and Territory Fair Trading Agencies	State and Territory Governments.	Operating under State and Territory legislation such agencies pursue product safety policy and enforcement functions within their respective jurisdictions.	The relevant State or Territory Consumer Affairs Minister (Commissioner for Fair Trading in Western Australia) is the key relationship. These agencies also work with the Treasury, MCCA, the ACCC and other Fair Trading Agencies.
Ministerial Council on Consumer Affairs (MCCA)	Consumer Ministers from the Australian, State, Territory and New Zealand (NZ) Governments.	MCCA plays a leading role in facilitating co-ordination between the numerous jurisdictions and agencies in the area of product safety. MCCA focuses on strategic national consumer issues (including product safety issues), meets annually and is supported by SCOCA (see below).	SCOCA and CPAC. Also works with the Treasury, ACCC, and State and Territory Fair Trading agencies.
Standing Committee of Officials of Consumer Affairs (SCOCA)	Includes the heads of Australian, State and Territory government agencies responsible for consumer affairs or fair trading policy, as well as NZ Government representatives.	The role of SCOCA is to act as an advisory body for MCCA and it is supported by four advisory committees. One of these is CPAC (see below).	MCCA and CPAC. Also works with the Treasury, ACCC, and State and Territory Fair Trading agencies.
Consumer Products Advisory Committee (CPAC)	Officers responsible for product safety in the Australian, State, Territory and NZ Governments as well as representatives of Standards Australia and Standards NZ who are involved in a consultative capacity.	The aim of CPAC is to promote a safe and well-informed marketplace across Australia and NZ by promoting a consistent, strategic response to consumer product issues through provision of advice to SCOCA on consumer product safety issues.	SCOCA. Also works with MCCA, the Treasury, ACCC, and State and Territory Fair Trading Agencies.
Product Safety Committees	Established by express provisions in all jurisdictions except at the Australian Government level and in Victoria. Generally, members are appointed by the relevant State or Territory Minister.	Generally, to provide advice on product safety matters referred by State or Territory Ministers.	Relevant State or Territory consumer affairs or fair trading Minister.
Department of Health and Ageing	Commonwealth.	The Department has responsibility for health policy matters, including in relation to the TGA	The TGA and AIHW.
Australian Institute of Health and Welfare (AIHW)	Commonwealth.	Data management and analysis, in consultation with key stakeholders, such as the National Injury Surveillance Unit (NISU) at Flinders University (which is a Collaborating Unit of the AIHW).	The AIHW is a statutory authority, reporting to the Commonwealth Parliament. Other key relationships include the Department of Health and Ageing and NISU.
Food Standards Australia New Zealand (FSANZ)	Health Ministers from the Australian, State, Territory and NZ Governments.	To develop and maintain laws and systems that regulate food in Australia and NZ by developing food standards and other regulatory measures. FSANZ also coordinates food product recalls in cooperation with the States and Territories.	The Minister responsible for FSANZ does not have the power to order compulsory recalls. However, most of the States and Territories have enacted compulsory recall powers within their Food Acts, with the exceptions of South Australia and the Northern Territory.
Therapeutic Goods Administration (TGA)	Commonwealth.	The TGA determines standards for therapeutic goods, maintains an Australian Register of Therapeutic Goods that are approved for import, export and supply, and licences corporations which manufacture therapeutic goods for human use in Australia.	The Therapeutic Goods Act 1990 gives the TGA comprehensive compulsory recall powers.
The Australian Pesticides and Veterinary Medicines Authority (APVMA)	Commonwealth.	APVMA is a Commonwealth authority responsible for the assessment and registration of pesticides and veterinary medicines and for their regulation up to and including the point of retail sale.	APVMA administers the National Registration Scheme for Agricultural and Veterinary Chemicals (NRS) in partnership with the States and Territories and with the active involvement of other Commonwealth agencies.
Electrical Regulators Advisory Council (ERAC)	State, Territory and NZ Governments.	ERAC is a national decision maker providing liaison between the Australian, State, Territory and NZ Governments in relation to technical electrical regulation. It has responsibility for developing a policy framework that encourages and provides for coordinated regulatory development in each jurisdiction.	ERAC is actively involved in policy and technical committees of organisations such as Standards Australia and Standards NZ to ensure that the content of national technical standards is consistent with regulatory directions and requirements.
Australian Building Codes Board (ABCB)	Joint initiative between the Australian, State and Territory Governments and industry.	The ABCB maintains the Building Code of Australia, which embodies technical building requirements including safety standards. The ABCB has no power to order recalls or to ban defective products.	State or Territory Minister responsible for building and construction. Local Councils have the power to approve building construction and declare buildings fit for occupancy or unsafe.

⁸ The TPA also relies on the territories power to cover non-corporations in the Australian territories.

⁹ In Part V, Division 1A.

¹⁰ In Part VA.

¹¹ Section 65C(1).

¹² Section 82.

¹³ Tasmanian legislation does not provide generally for the prescribing of standards, however there is coverage in ancillary legislation.

¹⁴ Section 65C(5).

¹⁵ Banning orders may be subject to challenge in the Federal Court under the Administrative Decisions Judicial Review Act 1977 (ADJR).

¹⁶ Section 65C(3).

¹⁷ The power to ban products exists under the Customs (Prohibited Imports) Regulations 1956.

¹⁸ Section 65F.

¹⁹ Section 65L.

²⁰ Section 65J.

²¹ Section 65S.

²² Section 65F(1)(e) and (f).

²³ Sections 65F(7)-(8).

²⁴ www.recalls.gov.au.

²⁵ Other regulators responsible for specific products generally monitor recalls of those products.

²⁶ At the Commonwealth level only the Minister, the Therapeutic Goods Administration and the Australian Pesticides and Veterinary Medicines Authority have compulsory recall powers under the TPA, the Therapeutic Goods Act 1989 and the Agricultural and Veterinary Chemicals Code Act 1994 respectively.

²⁷ Section 65L.

²⁸ Section 65S(1)-(2).

²⁹ Section 65J.

³⁰ Section 65J.

³¹ Section 65K.

³² Section 65P.

³³ Section 65L.

³⁴ Section 65M.

³⁵ Section 65P.

³⁶ Section 65P.

³⁷ State and Territory Fair Trading agencies enforce their own legislation.

³⁸ Sections 80 and 87.

³⁹ Part V.

⁴⁰ Part VC.

⁴¹ Parts V, VC and VI.

⁴² Part VA.

⁴³ These provisions apply to goods supplied after 9 July 1992.

⁴⁴ Section 75AJ.

⁴⁵ Under Part IVA, Part V Division 1A, Part V Division 2A and Part VA of the TPA - see Trade Practices Amendment (Personal Injuries and Death) Act No 2 2004.

⁴⁶ Section 75AL.

⁴⁷ Section 75AN.

⁴⁸ Section 75AQ.

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