Academic journal article Defense Counsel Journal

Antipodean Alignment: Impact of the Proposed Australian Consumer Law

Academic journal article Defense Counsel Journal

Antipodean Alignment: Impact of the Proposed Australian Consumer Law

Article excerpt

WITH a population of some 21 million people, Australia is a small nation by global standards. However, by relative measures, the Australian economy is well developed and resilient. Out of sight perhaps, but not out of mind. Australia is a member of the G-20 (Group of Twenty Finance Ministers and Central Bank Governors). It houses four of the nine remaining AAA rated banks in the world. In fact, as the world economy sees glimmers of light after the global financial crisis, it seems that Australia has weathered that storm better than many. Amongst various indicia, increased consumer demand for products in Australia is expected to translate into increased opportunities for inbound international business.

Australia also has a highly developed federal legal system and, in common with our North American allies, a strong social appetite for consumer litigation, including class actions. As governments here change their political stripes, so too have the prospects of regulatory reform shifted gears. Consumer protection is now high on the governmental agenda, and the legislative wheels are in motion.

This article introduces the proposed Australian Consumer Law ("ACL") to an international defense orientated audience. Australia's federal consumer watchdog, the Australian Competition and Consumer Commission ("ACCC"), has described the ACL as the biggest upheaval of Australia's consumer policy framework in more than 30 years. The changes which are contemplated will impact consumer and consumer orientated business transactions throughout the nation. They will also have implications for international ventures conducting business in Australia. In short, every foreign corporation that supplies, or intends to supply, consumer products and services to or within Australia ought to be aware of the widespread changes that the ACL appears set to deliver.

A specific focus is the product safety provisions of the ACL. The current Commonwealth product safety provisions have not been updated comprehensively since they were introduced in 1986. Much has been made of the objective of harmonizing legislation across various Australian jurisdictions to reflect "best practices" in existing domestic legislation. However, the marketplace is global and a key concern is whether we will, in fact, also take the opportunity to harmonize Australian product safety law with international best practice. As matters stand, it appears likely that Australia will take a conceptually similar but substantively different approach, with some material consequences.

I. The Australian Legal System

Australia shares common (law) antecedents with many former British colonies. However distance and cultural difference have shaped our law. It is useful initially to briefly outline Australia's legal system.

Australia is a federation comprising six states and two self-governing territories. The Australian Constitution specifies a range of matters that are the responsibility of the Federal Government. The balance of legal matters remains the responsibility of State and Territory Governments.

Australia's laws and legal system have their foundation in the common law of England, and its practices and procedures broadly reflect those of the Anglo-American common law world. While judgments of the House of Lords and the English Court of Appeal are persuasive authority, they are not binding on Australian courts. More recently, in developing Australia's laws, our courts have looked to the jurisprudence of other countries, particularly the superior courts of the United States and Canada, for guidance.

Australia has both a federal court system and a hierarchy of courts in each of the States and Territories. In all cases, the ultimate appellate court is the High Court of Australia ("HCA"). Decisions of the HCA are binding on all other Australian courts. The HCA is also responsible for the determination of constitutional disputes, in the same way as the United States Supreme Court. …

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