Category: Regulation

Why Australia needs stronger consumer laws to stop dangerous products being sold online

[Editor’s note: A version of this posting appears on The Conversation blog.[1] 日本語版 Japanese translation appears below.]

The Australian Competition and Consumer Commission (ACCC) has sued Amazon for having kids’ backpacks sold on its online platform, containing illegal and unsafe button batteries.[2] It has also issued takedown notices to Amazon, eBay, Kogan and Fruugo over concerns some of their products may contain small, high-powered magnets banned under Australian law.[3]

This flurry of regulatory action has come just before independent consumer advocacy group Choice lodged a “super” complaint about unsafe products generally on online platforms, requiring the ACCC to investigate and respond within 90 days.[4]

Meanwhile, can we consumers be confident products we buy online are safe? Not really.
The Australian Consumer Law (ACL) still lacks a General Safety Provision, as in the EU since 1992 and other Asia-Pacific states (eg Malaysia, Canada and Thailand) requiring suppliers to ensure only safe products are put on the market. A public consultation from 2019 stalled, despite e-commerce burgeoning since the pandemic.[5]

Instead the ACL (Part 3-3) allows mandatory safety standards to be set for specific products. But this takes time even after serious accidents start to be reported, and Australia has only 50 such standards.[6] Even for those products (often for babies or kids), suppliers quite often still deal with them – until caught out through occasional checks by regulators or NGOs like Choice,[7] whereupon suppliers implement voluntary recalls. Both problems are evident with button batteries, subject to a mandatory standard from 2022 after multiple deaths and injuries for babies ingesting them.[8] This ACCC lawsuit is belatedly trying to make firms take mandatory safety standards more seriously.

So what about the thousands of other consumer products? Regulators have further powers to ban or force recalls of unsafe products once already sold. But this too usually only happens after many serious accidents.

Suppliers can also be indirectly incentivised to deal in safe products out of fear of compensation claims by consumers, although again only after accidents. One avenue involves claiming breach of the mandatory consumer guarantee of acceptable quality, including safety (ACL s54), against direct sellers and/or manufacturers and some importers. The second is strict product liability (ACL Part 3-5), modelled on the 1985 EU Directive (also now adopted in many Asian economies), only imposed on manufacturers and importers. 

Generally, to be impactful such claims need credible access to justice for harmed consumers. Yet individually small-scale harms are not worth consumers bringing even before tribunals. Regulators almost never use their ACL powers (ss 149, 277) to sue on their behalf. Class action lawyers only bring the biggest and easiest claims, plus then mostly settle them (leaving few precedents for other suppliers to use to up their game).

A specific limitation is that online platforms like Amazon have argued (even in the US) that they are mere intermediaries – not even sellers, let alone manufacturers.[9] The recently revised EU Directive (2024/2853) tries to fill this gap for platforms. It deems them also manufacturers if presenting products leads an average consumer to believe the platform itself or a trader under its control is the supplier.[10] But the platform might avoid such joint liability through disclaimers, which consumers might not understand even if prominently displayed.[11]

Another way to encourage firms generally to take more care regarding product safety is to argue that they are engaged in misleading or deceptive conduct in trade (ACL s18) by continuing to offer goods that they know are subject to consumer complaints about product-related accidents. This premise was seemingly accepted in an ACCC lawsuit against Woolworths, but only to then contest the extent of the fine imposed for non-compliance with mandatory accident reporting obligations added to the ACL from 2010.[12] It is unclear if the ACCC’s current action against Amazon adds this argument, and perhaps anyway Amazon will say there were not yet reports of accidents or it didn’t know about them. But similar claims have been made in the US under broader prohibitions on unfair commercial practices (also found in the EU since 2005, and being added belatedly now to the ACL[13]).

Instead the ACCC’s lawsuit reportedly alleges that Amazon commercially “possesses or has control of” products violating the button battery standard (ACL s194(3)), through its warehousing etc. This neatly avoids having to prove that Amazon was a product “supplier” or “manufacturer”.

Hopefully therefore Amazon and other online platforms will already get the message to work harder to monitor (especially thanks to AI developments) the safety of products put onto the Australian market. It shouldn’t be too hard to ensure they comply with the 50 product-specific standards, and are not being voluntarily recalled. Amazon is already supposed to be doing this under a voluntary Safety Pledge, modelled on an EU innovation.[14]

But a revised EU Regulation (2023/988) has made mandatory a more intense version of that Pledge, and added other duties on traders (eg around recalls).[15] To make sure Australian consumers stay safe, in parallel with this lawsuit, Australia governments should review its ACL in light of both that Regulation and the EU’s revised Product Liability Directive. They should also revive a consultation on a General Safety Provision. Prevention is usually better than cure.

「なぜオーストラリアはオンラインで販売される危険な製品を阻止するために、より強力な消費者法を必要としているのか」

【編集者注：本稿は The Conversation ブログに掲載されたものの一版である。】

オーストラリア競争・消費者委員会（ACCC）は、オンラインプラットフォーム上で販売された子供用バックパックに、違法かつ安全でないボタン電池が含まれていたとして、Amazon を提訴した。また、ACCCは、Amazon、eBay、Kogan および Fruugo に対し、オーストラリア法で禁止されている小型高出力マグネットを含む製品があるとの懸念から、削除通知（テイクダウンノーティス）を発出した。

こうした一連の規制措置は、独立系消費者擁護団体 Choice がオンラインプラットフォーム上の安全でない製品全般について「スーパー」苦情（designated complaint）を申し立てる直前に行われたものであり、同苦情により ACCC は90日以内に調査・回答することが義務付けられる。

では、消費者として、オンラインで購入する製品が安全であると確信できるだろうか。残念ながら、そうとは言えない。

オーストラリア消費者法（ACL）には、EUで1992年以来存在し、アジア太平洋諸国（マレーシア、カナダ、タイなど）でも採用されている「一般安全規定」（General Safety Provision, GSP）がいまだ欠けている。GSPは、供給者が安全な製品のみを市場に流通させることを義務付けるものである。2019年に公開協議が開始されたが、パンデミック以降の電子商取引の急速な拡大にもかかわらず、その協議は頓挫した。

その代わりに、ACL（第3-3部）は、特定の製品について強制安全基準を定めることを認めている。しかし、重大な事故が報告され始めてから基準が設定されるまでには時間がかかり、オーストラリアにはそうした基準が50件しか存在しない。それらの製品（多くは乳幼児・子供向け）についてさえ、供給者は規制当局やChoice等のNGOによる不定期の検査で発覚するまで、違反品を取り扱い続けることが少なくない。発覚後に供給者が任意リコール（自主回収）を実施するのが通例である。

上記の両問題は、ボタン電池においても顕著である。ボタン電池については、乳幼児が誤飲して複数の死傷事故が発生した後、2022年に強制安全基準が導入された。今回のACCCによる訴訟は、事業者に強制安全基準をより真剣に受け止めさせることを遅ればせながら試みるものである。

では、その他何千もの消費者製品についてはどうか。規制当局は、すでに販売された安全でない製品を禁止したり、強制リコールを命じたりする権限を有する。しかし、これも通常は多数の重大事故が発生した後にようやく行使される。

供給者はまた、消費者による損害賠償請求を恐れて安全な製品を取り扱うよう間接的にインセンティブを与えられることもあるが、やはり事故発生後に限られる。第一の請求手段は、直接の販売者および／または製造者・一部の輸入者に対し、安全性を含む「許容しうる品質」の強制的消費者保証（ACL第54条）違反を主張する方法である。第二は、厳格製品責任（ACL第3-5部）であり、1985年のEU指令をモデルとして（アジア諸国でも多く採用されている）、製造者と輸入者にのみ課される。

一般に、こうした請求が実効性を持つには、被害を受けた消費者が信頼しうる司法アクセスを有することが必要である。しかし、個々の被害が小規模である場合、消費者は審判所（tribunal）にすら提訴する価値がないと考えがちである。規制当局は消費者に代わって訴訟を提起する ACL 上の権限（第149条、第277条）をほとんど行使しない。クラスアクション（集団訴訟）の弁護士は最大規模かつ容易な案件のみを引き受け、しかもその大半を和解で解決する（そのため、他の供給者が安全性向上に活用できる判例がほとんど残らない）。

特有の限界として、Amazon のようなオンラインプラットフォームは（米国においてさえ）、自らは単なる仲介者（intermediary）であり、販売者にも製造者にも当たらないと主張してきた。最近改正されたEU指令（2024/2853）は、プラットフォームについてこの法的空白を埋めようとしている。同指令は、製品を提示することが平均的消費者にプラットフォーム自体またはその管理下の取引業者が供給者であると信じさせる場合、当該プラットフォームも製造者とみなすこととしている。ただし、プラットフォームは免責条項（disclaimer）を通じてこの共同責任を回避しうる可能性があり、そうした免責条項は目立つように表示されたとしても消費者が理解できるとは限らない。

事業者に製品安全についてより注意を払わせるもう一つの方法は、当該事業者が製品関連事故に関する消費者からの苦情を知りつつ商品を提供し続けることが、取引における「誤認を招くまたは欺瞞的な行為」（ACL第18条）に該当すると主張することである。この前提は、ACCCがWoolworthsに対して提起した訴訟において事実上受け入れられたが、それは2010年にACLに追加された強制事故報告義務違反に対する制裁金の程度を争う文脈においてのみであった。ACCCの現在のAmazonに対する訴訟にこの主張が加えられているかは不明であり、おそらくAmazonは事故報告がまだなかった、または自社が事故を認知していなかったと反論するであろう。しかし、米国ではより広範な「不公正な商慣行」の禁止（EUでも2005年以来存在し、オーストラリアのACLにも遅ればせながら現在追加されつつある）のもとで、同様の主張がなされてきた。

報道によれば、ACCCの訴訟は、Amazonが倉庫保管等を通じてボタン電池基準に違反する製品を商業的に「所持または管理している」（ACL第194条(3)）と主張しているとされる。これはAmazonが製品の「供給者」や「製造者」であることを立証する必要性を巧みに回避するものである。

したがって、Amazonやその他のオンラインプラットフォームは、（特にAI技術の発展のおかげで）オーストラリア市場に流通させる製品の安全性をより積極的に監視せよというメッセージをすでに受け取ることになるであろう。50件の製品別基準への適合を確保し、自主回収対象となっていないことを確認するのは、それほど困難ではないはずである。AmazonはすでにEU発のイノベーションを模範とした自主的「安全誓約」（Safety Pledge）のもとでこれを行うことが期待されている。

しかし、改正されたEU規則（2023/988）は、その誓約のより厳格なバージョンを義務化し、取引業者にリコール等に関する追加的義務を課している。オーストラリアの消費者の安全を確保するためには、今回の訴訟と並行して、オーストラリア政府は同EU規則および改正EU製品責任指令の双方に照らしてACLを見直すべきである。また、一般安全規定に関する協議も再開すべきである。予防は通常、治療に勝るのである。

訳注（法学生向け）：

  • ACCC（Australian Competition and Consumer Commission）：オーストラリア競争・消費者委員会。連邦の消費者保護・競争法の執行機関。
  • ACL（Australian Consumer Law）：オーストラリア消費者法。Competition and Consumer Act 2010 (Cth) の Schedule 2 として規定される統一消費者法。
  • 一般安全規定（GSP）：供給者が市場に流通させるすべての製品が安全であることを義務付ける包括的な規制。EU では1992年の指令以来存在し、2023年の規則（EU 2023/988）で強化された。
  • スーパー苦情（designated complaint）：英国の制度を参考に2024年にオーストラリアで導入された仕組み。認定された消費者団体がACCCに対し調査・公表を義務付ける苦情を申し立てられる。
  • クラスアクション：集団訴訟。オーストラリアでは Part IVA of the Federal Court of Australia Act 1976 等に基づく。
  • 厳格製品責任：製造者の過失を証明せずとも、製品の欠陥と損害の因果関係を示せば賠償を請求できる制度。1985年のEU製品責任指令がモデル。

[1] https://theconversation.com/profiles/luke-nottage-3037

[2] https://www.accc.gov.au/media-release/amazon-in-court-over-alleged-missing-button-battery-warnings-on-children%E2%80%99s-unicorn-backpacks

[3] https://www.accc.gov.au/media-release/accc-issues-takedown-requests-to-amazon-ebay-kogan-and-fruugo-for-toys-and-games-containing-potentially-deadly-small-magnets

[4] https://www.choice.com.au/shopping/consumer-rights-and-advice/your-rights/articles/stopping-the-rising-flood-of-dangerous-goods-from-shein-temu-aliexpress-and-more

[5] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3530671

[6] https://www.productsafety.gov.au/business/search-mandatory-standards?layout=grid

[7] https://www.choice.com.au/babies-and-kids/children-and-safety/avoiding-common-dangers/articles/accc-takes-amazon-to-court-for-button-battery-safety-failures

[8] https://theconversation.com/rather-than-recalling-unsafe-products-why-not-ensure-theyre-safe-in-the-first-place-146988

[9] https://www.cbsnews.com/news/amazon-product-recalls-consumer-product-safety-commission/

[10] https://eur-lex.europa.eu/eli/dir/2024/2853/oj/eng

[11] https://www.cambridge.org/core/journals/international-and-comparative-law-quarterly/article/product-liability-and-online-marketplaces-comparison-and-reform/1CB76B1CD3951B6AF767A71E9BE5D032

[12] https://www.accc.gov.au/media-release/woolworths-misled-consumers-over-product-safety-hazards-%E2%80%93-ordered-to-pay-over-3-million-in-penalties

[13] https://consult.treasury.gov.au/c2026-739506

[14] https://www.productsafety.gov.au/about-us/online-product-safety-pledge

[15] https://eur-lex.europa.eu/eli/reg/2023/988/oj/eng

Comparing (especially US) ESG Policies and Investment: 28 June symposium in Japan

As tenured Professor of Anglo-American Law at the University of Tokyo, cross-appointed with the University of Sydney Law School, I am happy to attend the 63rd annual Symposium of the Japanese-American Society for Legal Studies. This is a longstanding academic association for which my uTOkyo colleague sharing the same Chair – Prof Masayuki Tamaruya – is executive director, and led by Prof Futoshi Iwata (Kanagawa University) as the representative director. This year’s conference will be hosted on Sunday 28 June at Kwansei Gakuin University (established in 1889 with support from the South Methodist Episcopal Church in the US, plus the Canadian Methodist Church from 1910, now a highly-regarded non-denominational Christian private university). Registration and other details (in Japanese) can be found HERE, including abstracts of two presentations in English (by NYU Adjunct Prof Bruce Aronson on “ESG in the United States:  A Comparative Perspective”, then UC Berkeley Prof Adam Badawi on “Incentivizing ESG Performance or Greenwashing? Rewarding ESG in Executive Compensation”), and four in Japanese that (Claude and) I have translated as below along with an overview of the conference, which is focused on “Anti-ESG Policy in the United States and the Current State of ‘ESG Investing'”.

I am very much interested in learning more about the latest ESG developments in the US, beyond the often breathless media reports, not least because my eldest daughter Moana Nottage is a senior analyst for ESG investments in an Australian fund manager. Some of my own joint research led by USyd Prof Jeanne Huang has been focused instead on how the EU has been trying (with emerging controversy) to impose its norms around ESG by mandating carbon intensity and other “responsible sourcing” data disclosures through “digital product passports” associated with (initially) EV batteries imported into the the EU. These requirements, extending up the supply chain to eg lithium mines in Australia and manufacturers and recyclers particularly in Asia, are supposed to apply from February 2027, as we critically analysed in a recent journal special issue article HERE. The requirements seem quite likely now to be delayed and/or pared back in scope due to criticisms from various stakeholders about this regime, and others that the EU has tried to impose on the corporate sector in recent years to save the planet – and its economic bloc, especially perhaps against China. Jeanne also led a UN White Paper project comparing also other ESG-related traceability regimes for critical raw materials, and more broadly still we have recently submitted a major grant application and a proposal for a pioneering book to a major legal publisher.

“Anti-ESG Policy in the United States and the Current State of ‘ESG Investing'” (Outline of the conference, led by Aoyama Gakuin University Prof Yoichiro Hamabe)

The purpose of this symposium is to examine the current situation surrounding anti-ESG policies in the United States and ESG investing, and to explore ways in which Japan and other countries can move forward in encouraging corporate behavioral change that takes ESG considerations into account.

The attacks on ESG by the second Trump administration have had a significant global impact, and scrutiny of ESG investing has grown increasingly severe. Even within the legal field, debates surrounding corporate responses to ESG issues and ESG investing have become deeply complex.

From the outset, legal discourse on ESG investing has developed primarily around disclosure regulation in securities markets; however, the merits of such regulation extend beyond policy debates at the legislative level, inevitably raising questions about consistency with the fundamental theory of corporate law. In other words, foundational questions — such as the purpose of the corporation and for whom the corporate institution exists — are once again being called into debate, prompted by the rise of ESG investing. Furthermore, against the backdrop of issues surrounding financial markets and supply chains, as well as growing geopolitical risks, the legal questions around ESG investing now extend far beyond securities law and corporate law into a wide range of policy domains.

ESG investing in the United States had already been functioning poorly since the Biden administration, beset by a range of serious problems. Underlying this are structural and social factors inherent to the United States that make it difficult to advance ESG investing within the country’s basic institutional framework.

In light of this, the symposium aims to contribute to future discussions on ESG investing by examining the key legal and policy issues surrounding ESG — including those in corporate law — with reference to the situation in the United States, where anti-ESG policy movements are particularly pronounced, and by asking each presenter to consider how companies should approach ESG-related challenges going forward.

  • “Why Did ESG Investing Fail in the United States?” Yoichiro Hamabe (Professor, Faculty of Law, Aoyama Gakuin University)

Japan has looked to the ESG investment frameworks led by the EU and the United States as reference points; however, the tightening of disclosure regulation through hard law in the United States has not necessarily led to the resolution of ESG issues or to changes in corporate behavior. Indeed, it has itself become a cause of significant setbacks, and cracks are beginning to show in the EU’s own efforts as well.

This presentation examines the concept of shareholder primacy, shareholders’ participatory rights at general meetings, the structure of executive compensation regulation, the pursuit of liability for breach of duty arising from inadequate responses to ESG issues, capital market discipline, administrative regulation, and geopolitical and social factors — drawing on selected Japan-US comparisons — in order to analyze the background and causes of the failure of ESG investing in the United States. Drawing on the lessons derived from this analysis, the presentation will consider strategies for advancing ESG through measures such as revisiting approaches grounded in soft law and principles-based regulation.

  • “Sustainable Investment and the Influence of Evangelicalism in the US” Hiroyuki Bandō (Professor, Faculty of Law, Nagoya Gakuin University)

ESG initiatives in the United States have undergone repeated shifts with each change of administration. Since the first Trump administration, modifications to direction and policy — driven primarily by Republican administrations — have become increasingly pronounced across three main areas: (1) Department of Labor rules on ESG investing under ERISA (the Fiduciary Rule); (2) responses to the Paris Agreement; and (3) ESG disclosure by the SEC (covering both listed companies and investment managers).

This presentation analyzes the influence of SEC disclosure rules on ESG investing, with reference to Evangelical doctrine — which has supported the Republican Party and has shaped foundational values such as the view that the purpose of the corporation lies in maximizing shareholder returns

  • “The Law and Politics of ‘ESG and Corporate Governance’ in the United States” Sōichirō Kozuka (Professor, Faculty of Law, Gakushuin University)

Taking as its starting point the tendency in US corporate law to place excessive dogmatic emphasis on the principle of shareholder primacy, this presentation examines how the approach taken by pro-ESG corporate law scholars in the United States differs from debates on “ESG and corporate governance” in other regions such as Europe, and considers the characteristics of “anti-ESG” legislation that has been enacted in certain states against a backdrop of political polarization.

  • The Development of Japanese and US Debates on ESG and Directors’ Duties Gen Goto (Professor, Graduate Schools for Law and Politics, University of Tokyo)

Debates surrounding ESG and directors’ duties can be divided into two categories: those concerning whether directors are permitted to take ESG factors into account in relation to the principle of shareholder primacy, and those going further, concerning whether directors bear an affirmative duty to consider ESG factors. Drawing on this distinction, and focusing in particular on the question of how to respond to ESG-related risk disclosures, this presentation analyzes the development of debates on this issue in both Japan and the United States.

Inquests and Consumer Product Safety

This the abstract of my forthcoming paper, based partly on participant observation of an inquest proceeding over 2019-21 in Sydney after the death of a Honda driver from an exploding Takata airbag that had not yet been replaced in a huge global recall. It will be be published in 49(3) UNSWLJ later this year. A pre-publication, author-produced version of the article, subject to editorial revision, is already freely available via SSRN.com . As noted in the Introduction, problems persist and for example hearings occurred in late 2025 in Singapore for an inquest into the death of a Honda driver from a Takata airbag.

‘The Interface of Inquests with Consumer Law and Policy: The Takata Airbag Debacle in Australia and Beyond’#

Luke Nottage

  1. Introduction
  2. Consumer Product Safety Re-regulation in Australia
  3. The Takata Airbag Debacle
  4. The Coronial Inquest (2019-2021)
  5. The Aftermath of the Inquest
  6. Other Consumer Product-related Inquests and Analogues Abroad
  7. Conclusions

Abstract: Unsafe Takata airbags remain in circulation, in Australia and worldwide, despite almost two decades of recalls and recent initiatives to improve consumer product safety regulation generally (Parts 1-3). The NSW coronial Inquest over 2019-2021 into Australia’s first known fatality in 2017 uncovered how Honda Australia and regulators were partly asleep at the wheel regarding voluntary recalls (Part 4). The fatality triggered a belated compulsory recall and legislative reform to allow the Transport Department such powers, both introduced in 2018, and by the end of the Inquest the Department was taking a clear lead role in vehicle recalls. The Inquest findings and recommendations for avoiding future harms from Takata airbag and other recalls, only released in November 2021, flew largely under the radar in the media but influenced some regulatory practices and could have had an impact on private litigation (Part 5). Such inquests and analogues overseas, little discussed in the legal literature, deserve wider scrutiny (Part 6). They can help identify serious product related risks and responses, assisting compensation claims and regulatory learning, while avoiding future harms and providing an extra resource for consumer product safety law reforms.

# I thank Sean Hasegawa for research and editorial assistance.  I am also grateful for helpful feedback and/or information from Simon Bronitt, Philip Dwyer, Sarouche Razi, Damian Scattini, Cameron Stewart and two anonymous reviewers. Any misconceptions and errors remain my sole responsibility.

Rising and misleading electricity bills

So far in 2025, Japan has seen minor increases in electricity prices from April (partly after comparatively small subsidies were suspended) and minor decreases from July (as they are reinstated). But Australia will see yet another much higher hike as its new financial year begins from July. The ABC, Australia’s equivalent of NHK, ran a segment on this for a news report on its 730 TV news show on 30 June 2025. The broadcast incorporated parts of an interview with me at home (plus some nice drone footage), including my recommendation that an energy supplier should automatically put their customers on any better plan – as I discussed a year ago here.

The news report also mentioned that I had complained through Choice (Australia’s peak NGO for consumers) to the consumer regulator about my electricity bills. That triggered Choice’s empirical inquiry uncovering widespread allegedly misleading bills being issued by Australian electricity suppliers, contrary to s18 of the Australian Consumer Law. Choice has filed its first-ever “designated complaint” requiring the ACCC to investigate further and notify publically whether or not it will pursue suppliers for such violations. Here, via Choice’s announcement, are some more details of the problem:

“… Luke, an academic specialising in consumer law, had a similar experience with EnergyAustralia. He received a bill that was 31% higher than the same quarterly billing period a year earlier, even though his energy usage hadn’t changed. 

The bill said he could save $617 a year if he switched to the ‘Flexi Plan (Home)’ offer, which was the name of his current plan. Apparently he should have switched to this new version of the plan earlier. 

“Eventually I got through to someone at EnergyAustralia and discovered they had a new plan with the same name but better terms,” Luke says. “I couldn’t resist telling them I think their bill’s wording is misleading.” 

Redesigning Consumer Law for the E-Commerce Era: Insights from Comparing Australia and Japan

Written by: Luke Nottage (University of Sydney) and Souichirou Kozuka (Gakushuin University, ANJeL-in-Japan program co-convenor)

Leading up to Australia’s federal election due by May 2025, the Commonwealth Treasury has (re-)initiated public consultations into reforms to the Australian Consumer Law (ACL), partly responding to the growth of e-commerce especially since the COVID-19 pandemic. Two main consultations in fields outlined below, compared to regimes in Japan, highlight some intriguing features for policy debate – extending also into the wider Asia-Pacific region.

First, unlike consumer laws in most jurisdictions across Asia, the ACL has already come to apply to many business-to-business (B2B) transactions. A typical economic argument is that this levels the playing field so businesses compete transparently and consumers have more trust in the market. However, there is a risk of individual consumers cross-subsidising through higher overall prices the businesses gaining similar protections. An additional political dynamic may be that Australia has often closely-fought elections, and many small businesses pressing for the same protection as individual consumers.

Secondly, the federal consumer affairs regulator, the Australian Competition and Consumer Commission (ACCC) and State or Territory regulators also have comparatively strong enforcement powers. Thirdly, the ACL and some proposed reforms highlight whether consumer law can and should rely on generally worded standards, more specific rules, or both.

Australia’s Treasury last year renewed a consultation into whether the ACL should add further prohibitions on unfair commercial practices, to address burgeoning concerns such as ‘subscription traps’ (suppliers making it much harder to cancel subscriptions than to sign up). Such practices are not easily covered by the ACL’s prohibition on misleading conduct by any suppliers ‘in trade’ (hence also B2B, since the 1970s). Nor do they usually fall within the broadly worded prohibition on unconscionable conduct, taking advantage of particular vulnerable groups (gradually extended to B2B since the 1990s).

The latest Treasury-led proposal sought further views on adding both a general prohibition on unfair practices (for example as in the EU, but there limited to business-to-consumer or B2C transactions, ie involving an individual transacting with a supplier for a non-commercial purpose). It also discussed specific prohibitions (as with legislation recently added in Germany, the UK and the USA against subscription traps). Regulators like the ACCC would enforce such new prohibitions in both B2B and B2C situations, including through injunctions, as for unconscionable or misleading conduct and specific types of prohibited misrepresentations.

Japan’s comparable regime instead regulates only B2C transactions and has come to preference specific prohibitions. The Consumer Contracts Act 2000 allows consumers to cancel contracts arising from some types of misrepresentations, plus various very specific situations of unconscionable advantage-taking. Business associations argue that a broader general provision would be very hard to comply with.

Extra challenges for consumers arise because injunctions against suppliers’ bad advertising and practices leading into contracts can only be brought through government-certified consumer NGOs. This system was inspired by German law but Japan’s NGOs are very small and under-resourced. Further, because the Consumer Contracts Act applies only B2C, it is hard to generate sufficient momentum among claimants, and hence case law.

The Consumer Affairs Agency, when established independently in 2009, assumed jurisdiction from the Japan Fair Trade Commission (the competition regulator) only to enforce the Act against Unjustifiable Premiums and Misleading Representations that prohibits representations promoting the quality of goods or services as ‘significantly superior’ or describing trade terms as ‘significantly more advantageous’ than they actually are.  Particular bad practices are also regulated by the Designated Commercial Transactions Act (as it was renamed from the Door-to door Sales Act in 2000), for example allowing ‘cooling off’ (withdrawal rights) for consumers in high-pressure situations like door-to-door selling or buying. Besides administrative orders now issued by the Agency, criminal penalties can be imposed for not providing contracts in writing or alerting consumers to such rights.

A second major Treasury consultation in Australia from 2024 asks for further views on whether regulators should be able to issue civil fines on suppliers failing to give ACL remedies for minimum performance standards in contracts (‘consumer guarantees’, as in New Zealand and Malaysia, but extending to some B2B situations). These require goods to be of ‘acceptable quality’ and services to be provided with due care. Since 2023, Australian regulators already have such a power to fine for first-time use of unfair terms in standard-form contracts. From 2016, regulation of such terms was extended to contracts with  ‘small business’, including now some medium-sized ones.

Adding such civil pecuniary penalties was seen as more effective than relying on injunctions to stop misuse of unfair terms, and/or consumers proving they are unfair so are void. This innovation, adding public sanctions, is despite Australia gradually introducing from the 1990s a US-style ‘opt-out’ class action system. That was premised on lawyers (perhaps with third-party litigation funders, allowed since 2006) might efficiently aggregate smaller value claims (such as excessive and therefore unfair bank fees). Yet even this regime seems to have been insufficient to prevent the spread of unfair terms, including in online businesses.

Japan’s Consumer Contracts Act similarly voids a few specific types of unfair terms. It does have also a general provision voiding others where contrary to good faith (ie unreasonable, compared to general Civil Code default provisions for contracts). However, business associations are opposed to listing in the Act even a ‘grey list’ of further contract terms that may be unfair, as in the ACL (and the EU law on unfair terms that influenced Australia, as well as partly Japan).

Furthermore, Japan’s Act again applies only B2C, although there is also some weak regulation of standard form terms extending to B2B under Civil Code amendments for contracts concluded after 2020. Injunctions to prevent misuse of unfair terms are only possible through certified NGOs, not consumer regulators, and the latter cannot issue fines. A class action regime introduced in 2013 also requires coordination through certified NGOs (not eg a law firm), and inefficiently requires individual consumers to opt-in to claim damages if and when a court finds liability for a class. Unsurprisingly, few claims have been made so far.

Despite these comparative limitations on consumer protection law in Japan, the practical outcomes in Australia may not be so different until recently, thanks to better customer service and reputational effects in Japan. However, the explosion in e-commerce and new types of marketing or practices, as well as possible transplantation of unfair terms into online contracts, may lead to a stronger message being sent to Japan (and Asian countries like Singapore, similarly lacking a broad unfair practices prohibition). This could be achieved by law reforms extending protections to some B2B situations, beefing up generally worded and/or specific prohibitions, expanding powers of regulators (for injunctions and even fines), and/or moving to a US-style opt-out class action system. However, the compliance costs and chilling effects on business innovation also need to be weighed carefully.

Regulating ‘subscription traps’ and other unfair commercial practices

Happy New Year of the Snake!

In my presentation on 5 December 2024 at the annual Australasian Consumer Law Roundtable, hosted by Deakin U in Melbourne’s CBD, presented an updated version of my 2024 CCLJ article with Prof Souichirou Kozuka comparing consumer law administration, contracts and product safety. I mentioned my Submissions (linked below) to three recent federal Treasury-led public consultations (perhaps prompted by a general election due by May 2025!) into (i) facilitating the Australian government adopting foreign standards for minimum safety of specific goods, (ii) adding civil pecuniary penalties for consumer guarantee remedies not provided by suppliers (including regarding safety, as an aspect of “acceptable quality” for goods), and (iii) a generic unfair commercial practices prohibition. Japanese consumer law has none of these features, but each raises interesting issues.

Relatedly on 6 January 2025, perhaps a slow day for the news (after the excitement of Australia winning a test cricket series against India!), I was quoted in an ABC article focusing specifically on Subscription Traps, whereby suppliers make it easy for consumers to sign up (sometimes including “free trials”) but hard to cancel subscriptions. This led to a 3AW radio morning interview (7-minute recording here) with Tony Jones in Melbourne, where I talked about the trap experienced with The Economist (elaborated in my Submission available here for the first Treasury-led consultation in 2023 on adding a general unfair trading prohibition to the Australian Consumer Law, and in this 21 August 2024 interview with SBS Radio: podcast and transcript here). And then an ABC Radio interview (14-minute recording here) with Lisa Pelligrino in Sydney, where I talked in a spirit of bilateral fairness about the trap experienced more recently with The Japan Times.

Momentum seems to be building for ACL amendments to regulate generally against unfair trading practices, and specific practices such as subscription traps, adding to the chorus of concern expressed also eg at the annual Consumer Law Congress in mid-2024.

Guest Blog: “A new explanation of China’s patenting phenomenon with a focus on the patenting of traditional medical knowledge”

Written by: Corinna Chen (CAPLUS research assistant, 2024)

On 2 September 2024, Melbourne Law School lecturer and researcher Dr Ben Hopper presented a thought-provoking seminar on the patenting of traditional medical knowledge in China and its contribution towards China’s patent boom phenomenon. The event was hosted by Sydney Law School’s Centre for Asian and Pacific Law (CAPLUS) as part of its ongoing PhD/Early Career Researcher presentation series. Dr Hopper’s thesis offered a fresh perspective on the broader motivations and societal trends behind the growing number of patent applications for traditional medical practices, particularly in China’s southwestern province of Guizhou, challenging more conventional explanations based on strengthened patent laws, state subsidisation, research and development intensification and increases in foreign direct investment.

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Dr Hopper began by outlining the historical development of China’s patent laws, from early attempts during the Qing Dynasty to the establishment of the country’s first modern patent law in 1984. He highlighted how China’s unique legal landscape, influenced by Marxist economics and socialist characteristics, has shaped the evolution of its patent system. This paved way for the ensuing discussion on the “patent boom” that has seen China become the world’s leading filer of patents, with an extraordinary level of growth occurring from the late 2000s into the early 2010s.  

The core of Dr Hopper’s research thesis lies in his claim that traditional explanations for China’s patent boom – such as research and development (R&D) intensification, foreign direct investment (FDI), and patent subsidies – are incomplete. He argues that the epistemological shift in individual perspectives, led by the intense commoditisation of the economy, is a critical yet often overlooked factor. He further hypothesises that there exists a positive correlation between an individual’s marketisation (that is, how market-oriented a person is) and their ‘patent grip’ index (the likelihood of engaging with the patent system and complying with patent laws), with the individual’s proximity to the State being an enhancing factor.

Using original fieldwork data from 53 traditional medical practitioners in Guizhou, Dr Hopper found statistically significant results in support of his hypothesis that more market-oriented individuals are more likely to be subject to the patent grip. In particular, the case study focused on how traditional medicine practitioners in Guizhou, many of whom belong to ethnic minorities, navigated the patent landscape. Dr Hopper’s mixed-methods research, combining surveys and qualitative interviews, revealed that market exposure influences how these practitioners increasingly view their traditional knowledge as commodities that can be protected, sold, or licensed. This shift in perspective aligns with a broader trend towards the commodification of knowledge in China’s rapidly evolving market economy.

Dr Hopper’s findings challenge assumptions that traditional medical knowledge is inherently resistant to patenting due to cultural norms of secrecy and communal ownership; instead, they suggest that even within the realm of traditional knowledge, market forces and closer relationships with the state play a vital role in driving patenting activity.

At the end of the presentation, Dr Olugbenga Olatunji from Sydney Law School offered insightful commentary on the unique nature of China’s patent phenomenon compared to other developing countries such as India, where similar population levels and much stronger patent legislation have not produced comparable results in terms of the ‘boom’ observed in China. Dr Olatunji also raised interesting questions about how traditional knowledge is protected, shared and commercialised in China, pointing to inherent conflicts between customary practices in the field and the more stringent legal requirements of full disclosure in patent applications.

The session concluded with a lively discussion on the broader policy implications and potential transferability of the Chinese model in other countries navigating through similar issues, with one example raised being the approach towards traditional and Indigenous knowledge in Australia.

Guest Blog – Corruption and Investment Arbitration in Asia: New Frontiers

Written by: Corinna Chen (CAPLUS research assistant, 2024)

On 1 August 2024, the University of Sydney Law School hosted an insightful seminar jointly presented by its Centre for Asian and Pacific Law (CAPLUS) and the Australian Network for Japanese Law (ANJeL). The event featured the local re-launch of a new book titled Corruption and Illegality in Asian Investment Arbitration (Teramura, Nottage and Jetin eds, published in Open Access in Springer’s Asia in Transition series in April 2024) as well as discussions on the latest research in the field.

Professor Simon Bronitt, immediate past Dean of Sydney Law School with personal research interests in criminal law and Indonesia, opened the session with a brief welcome and address. Assistant Professor Nobumichi Teramura from Universiti Brunei Darussalam – lead co-editor of the new book – then presented an overview of the book’s aims, research questions and key findings (also summarised in a recent piece here and in the East Asia Forum). Professor Luke Nottage from the University of Sydney, also co-editor, complemented this by sharing empirical results from his recent research on corruption-related provisions in international investment agreements (IIAs).

Various other contributing authors also spoke on their areas of focus within the book. These included Professor Vivienne Bath from the University of Sydney discussing China and the Hong Kong SAR, Professor Simon Butt from the University of Sydney and Antony Crockett from Herbert Smith Freehills (Hong Kong) discussing Indonesia, as well as additional commentary from Dr Amokura Kawharu, President of the New Zealand Law Commission. The seminar concluded with closing remarks from the Honourable Wayne Martin AC KC, former Chief Justice of Western Australia, who officiated the book re-launch.

* * *

Despite avid efforts to combat corruption through international treaties and domestic legislation, corruption and illegality in foreign direct investment (FDI) remains prevalent across many Asian countries. Associate Professor Teramura highlighted this as the key motivation behind the project, emphasising the book’s focus on illustrating ‘Asian’ perspectives towards corruption in investment arbitration and exploring the potential for significant Asian states to become ‘rule makers’ rather than ‘rule takers’ in this field (PDF of Powerpoints here). 

The research examines the practical impacts of corruption on FDI and local economies in Asia, as well as how illegality in foreign investment projects and disputes have been dealt with across various Asian jurisdictions such as China, Hong Kong, India, Japan, Lao Republic, the Philippines, the Republic of Korea and Thailand. Associate Professor Teramura noted that while some ‘Asian approaches’ are emerging, they are still far from establishing a uniform stance across the region.

The book concludes by proposing a roadmap for developing a more cohesive Asian approach. This includes establishing a regional forum for discussing FDI-related corruption, developing unified rules for handling corruption in investment arbitration, and considering the creation of an independent institution or permanent court to address allegations of corruption in Asian investment disputes.

Following this, Professor Luke Nottage presented compelling insights from his recent paper co-authored with Associate Professor Teramura: “Corruption-related Provisions in East and South Asian Investment Agreements: An Empirical Analysis” (PDF of Powerpoints here). The study revealed a nuanced and often rational approach by Asian countries in negotiating bilateral investment treaties, particularly in their treatment of anti-corruption provisions and legality clauses. 

The research found that net FDI-exporting countries like Japan tend to prefer anti-corruption provisions (59%) over direct legality clauses (16%) in their IIAs, aligning with the aim to reduce corruption in investment destinations and protect their outbound investors. Conversely, net FDI-importing countries such as China are more likely to include legality clauses (95%) and almost no anti-corruption provisions, as the former can be invoked to protect their government and domestic taxpayers from inbound ISDS claims. Overall, the empirical analysis found largely rational treaty drafting practices around these two types of provisions across most countries, based on their FDI status. 

However, Professor Nottage noted some curious exceptions to this rationality, particularly in the case of Singapore. Despite being virtually corruption free, Singapore rarely includes anti-corruption provisions in its IIAs (only 4%) but retains many legality clauses (61%). This apparent irrationality might be related to Singapore’s outbound FDI often coming from government-linked companies. Such instances of “bounded rationality” or status quo bias provide valuable insights for policymakers and IIA drafters, emphasising the need to consider these complex dynamics when addressing corruption and illegality in international investment frameworks. He concluded with the observation that although most countries appear to be acting rationally with regard to their national interests, such approaches may not be entirely conducive towards addressing the overall prevalence of corruption in the Asian region. 

Professor Vivienne Bath then presented insights on China and Hong Kong, based on her chapter with former student Dr Tianqi Gu. In particular, she highlighted several inconsistencies in China’s stance towards eliminating corruption. While China has increasingly sought to tackle these issues through extensive regulations, anti-corruption campaigns and signing the UNCAC, there is a notable lack of transparency with investigations and details of cases, both domestically and in investor-state dispute settlement proceedings. Official Chinese court databases feature very few corruption cases relating to foreign investors or FDIs. Professor Bath also pointed out the absence of legislation addressing corruption by companies and officials outside China, raising this as an important area for future development. 

Antony Crockett and Professor Simon Butt spoke on Indonesia, which is infamous for having high levels of corruption across its numerous levels of government. The pervasiveness of corruption in the Indonesian government was illustrated by reference to the three high-profile cases of Churchill / Planet Mining, Al Warraq and Rafat. They noted that judicial corruption dramatically increases the attractiveness of international commercial arbitration, as commercial parties lack confidence in the judiciary and therefore refuse to settle disputes locally. An in-depth analysis of corruption in Indonesian courts can be found in Professor Butt’s recent book, Judicial Dysfunction in Indonesia. This details 30 trials involving allegations of corruption against judges from the supreme court, constitutional court, administrative court, and most disconcertingly, the anti-corruption court itself.

Finally, Dr Amokura Kawharu, who wrote the foreword to the book, briefly discussed the perspective of New Zealand, currently ranked the third least corrupt country in the world. Despite this, New Zealand only ratified the UNCAC and enacted anti-corruption legislation in 2015. This, according to Dr Kawharu, might be explained by the difficulty policymakers face in competing for space on the legislative agenda, an issue compounded by the country’s short 3-year parliamentary terms.

The Hon Wayne Martin AC KC concluded the evening’s discussions with his perspective on the importance of continued efforts to tackle corruption and illegality, which strike at the heart of the rule of law. He added some caution towards the idea of establishing a permanent international court, citing practical challenges such as the inability to attract strong candidates for the bench as well as the customary process of state appointments giving rise to further risks of nepotism.

“Rule-based International Traceability of Critical Raw Materials Supply Chains”

Written by: A/Prof Jeanne Huang & Prof Luke Nottage

This is the theme for our project (with Jeanne Huang as one Chief Investigator) funded recently by the University of Sydney, jointly with institutional partner Fudan University (Shanghai). The sub-theme is “Climate and Environmental Justice between China, Australia, and Other Selected Countries”, including Japan. It is part of series of research projects aimed at advancing the UN’s Sustainable Development Goals (SDGs), and involves also from our Sydney Business School Prof Hans Hendrischke (specialist in China). The other Chief Investigator from the Fudan University side is A/Prof Ping Jiang, assistant director of the Department of Environment Science and Engineering.

Abstract: “The US Inflation Reduction Act and the EU Digital Product Passport both underscore the urgent need for enhanced Environmental, Social, and Governance data traceability across Australian miners, Chinese processors, and US/EU regulators and consumers of critical raw materials (CRM) like Lithium. Addressing this need, this project explores how to establish a rule-based traceability framework to foster sustainable CRM supply chains between Australia, China, the US, and the EU. It adopts a multifaceted approach, incorporating law-business-engineering interdisciplinary research, interviews, case studies, conflict-of-law concepts, and comparative law methodology to address cross-border legal and ethical tensions and promote circular economy within CRM supply chains. It aims to use traceability to enhance transparency, visibility, and trust in CRM supply chains, and promote responsible sourcing and consumption, crucial for global digitalization, electric vehicles deployment, energy transition, and ultimately achieving the UN Sustainable Development Goals.”

The first of many planned research outputs planned through to mid-2025 is our presentation (slides here) on 12 July 2024 at the “Law and Sustainability” conference at the University of Sydney, co-organised with Singapore Management University and Hong Kong University (program and other details here). We look forward to feedback as we develop our presentation, “Private International Law and Sustainable Development: Establishing International Traceability of Critical Raw Materials Supply Chains” into a full paper that assesses and adapts models particularly from international dispute resolution (arbitral award and judgment recognition) and other international treaty regimes to facilitate recognition of CRM certificates in cross-border supply chains.

Consumer Law Compared and Refreshed

[Update of 4 December 2024: in my presentation tomorrow at the annual Australasian Consumer Law Roundtable, hosted by Deakin U in Melbourne’s CBD, I will present an updated version of my 2024 CCLJ article with Prof Souichirou Kozuka comparing consumer law administration, contracts and product safety. This will mention my Submissions (linked below) to three recent federal Treasury-led public consultations (perhaps prompted by a general election due by May 2025!) into (i) facilitating the Australian government adopting foreign standards for minimum safety of specific goods, (ii) adding civil pecuniary penalties for consumer guarantee remedies not provided by suppliers (including regarding safety, as an aspect of “acceptable quality” for goods), and (iii) a generic unfair commercial practices prohibition. Japanese consumer law has none of these features, but each raises interesting issues. Update of 6 January 2026: on the last-mentioned, see also my media commentary here.]

Yesterday (28 June 2024) I enjoyed attending the ACCC National Consumer Congress in sunny Sydney (program here). This annual invitation-only event provides an excellent opportunity to discuss cutting-edge law and policy issues with new and old colleagues working in Australian state and federal governments, consumer NGOs, businesses and academia (more limited, but I am pictured here with QUT’s Nicola Howell [expert in consumer credit, co-convenor of the academic-focused annual Consumer Law Roundtable] and Dr Catherine Niven [expert in product safety regulation, major contributor to my ARC Discovery Project on child product safety begun before the pandemic- with our last research output published in 2023 here] and Monash Em Prof Justin Malbon [co-author of my 2019 book on ASEAN Consumer Law Harmonisation, with UMelb Prof Jeannie Paterson who had to attend the Congress virtually this year]). It would be good to see more such events bringing together such stakeholders in Japan (compared with in my recent CCLJ article with Souichirou Kozuka), ASEAN and other Asian states.

The first session was on “Buying in Australia – Are We Safe?”. The answer was “No” from panellists including Catherine (except perhaps one speaker). The opening speaker gave a moving account of how long and traumatic the process was to secure a mandatory product safety standard around button batteries, which were fatally ingested by her infant Bella. Another early fatality involving Britney was highlighted in my 2020 piece for The Conversation (leading to an ABC radio interview). That related also to my then Journal of Consumer Policy article arguing that the Australian Consumer Law did need to add an EU-style “general safety provision” (GSP) to fill gaps so suppliers switched to a more pro-active approach to risk assessments to ensure only safe consumer products were put onto the market, rather than waiting for accidents or risks to be identified and then conduct “voluntary” recalls of unsafe goods (mainly then only to avoid potential product liability claims for compensation and/or adverse reputational effects). In my comments at the Congress, I mentioned that after Canada added such a requirement in 2010, its recall rates went down; and when Singapore added a partial GSP (requiring all products to comply with EU, specified American or ISO standards) there were immediately fewer unsafe toys on their market. Yet the Treasury-led Consultation in 2020 into adding a GSP has led nowhere.

As alternatives, it seems, we find from late 2021 a further Consultation about allowing foreign standards to be adopted into the ACL (which I commented was a no-brainer) and another Consultation into allowing civil penalties for suppliers not providing remedies to consumers from defective – including unsafe – products under mandatory consumer guarantees (which I suggested was rather broad-brush and indirect, compared to ex ante regulation).

I also mentioned that unfortunately the written Submissions made by myself and others to all three Consultations have still not been made public. This is also true of the 2023 Consultation into adding to the ACL a general unfair trading prohibition (as under EU, US or Singaporean law). That would go beyond existing ACL prohibitions on misleading or unconscionable conduct to better address eg “dark patterns” facilitated by new technologies (such as “subscription traps” that the ACCC CEO reiterated at the Congress remain a concern). There were moves to make public Submissions to that Consultation (including mine, reproduced here for convenience and giving as an example such a subscription trap laid by The Economist magazine) and they were disclosed from 28 June (the day after the ACCC Congress) noting “79 submissions were received for this consultation, including 8 confidential submissions”. But in principle I believe such consumer law reform consultations should automatically make public submissions unless confidentiality is requested. That is now common good practice across Australian law reform bodies, including the Productivity Commission. In the same vein, Australia’s consumer law reform agencies should publicise at least a short report stating whether and why they may not be proceeding with ACL amendments.

I ended my comments by alerting Congress attendees to new developments in the EU that intersected with concerns raised by the panelists. The new General Product Safety Regulation requires suppliers to document product risk assessments (and implement traceability measures), notify regulators of progress on recalls, set up a public complaints portal (as the US has had for over a decade, but was not recommended in the 2017 ACL Review report) and make mandatory for online platforms some requirements (like responding within set time frames to complaints about unsafe products) that larger firms had adopted voluntarily under the 2018 EU Product Safety Pledge (mirrored by Australia’s 2020 Pledge). The EU Product Safety Pledge has itself been updated, and existing firms have re-signed it, to allow eg regulators to have access to the platforms’ portals to better monitor them for unsafe products.

The EU’s Product Liability Directive, which was adopted in 1992 has also recently been revised to better address new technologies and trends. For example, Article 7 makes an online platform jointly liable for harm if it suggests to an average consumer that products are provided either by the online platform itself or by a recipient of the service who is acting under its authority or control. However a recent comparative law article that Jeannie Paterson co-authored (and I helped with) noted a risk that platforms will avoid this liability potential by website and other disclaimers about exercising control over the suppliers. The article contrasts Californian cases against Amazon and other legal concepts that go further in imposing shared liability on such platforms, including pros and cons of such initiatives.

The second Congress session was on “Justice delayed: strengthening consumer dispute resolution in Australia”. Panellists highlighted persistent problems of access to justice, focusing initially on (prolific) defective vehicles and National Disability Insurance Scheme services. Although Prof Kozuka and I also highlight problems in Japan, I think Australia can do better in various ways. For example, because of the evidentiary issues raised in tribunals or magistrates’ courts, regulators should first more pro-actively use their ACL powers since 2010 to bring representative actions against suppliers who claim for example that cars or other complex products comply with the consumer guarantee of acceptable quality, such as reasonable durability. They can also support consumer NGOs who could run such test cases (eg to to determine how long a mid-value washing machine should last) and then publicise the outcomes, to help facilitate future negotiations and settlements.

Secondly, the NSW Office of Fair Trading should actually use its powers (added before the COVID-19 pandemic) to order suppliers to compensate consumers for up to $3000 in harm caused by products not complying with consumer guarantees, and publicise this among suppliers and consumers. Other jurisdictions should add such powers too, especially as the ACL is supported to be uniform across Australia. It is true that some suppliers may contest such orders. But they will also likely do that if and when the ACL adds powers for all consumers regulators to order civil pecuniary penalties for major failures, as mooted in late 2021 Consultation (paralleled by the Productivity Commission’s recommendations from an inquiry into Rights to Repair). Decisions from tribunals and courts, even at lower levels, will help clarify the meaning of general terms like reasonable durability.

Thirdly, we should introduce effective public complaints registers across Australia. Most jurisdictions lack them. And for example the NSW register does not differentiate by sales volumes or other measures of scale, making it hard for consumers or their advisors to determine if one supplier is really better or worse than others. These and other questions were raised in a 2017 Report by the Productivity Commission and should be revisited to improve access to consumer redress (and indeed informed purchasing decisions).

The third Congress session was on “Regulating for real people: understanding consumer behaviour to drive effective markets”. In his thought-provoking introduction (kindly shared now here), Consumers Federation of Australia chair Gerard Brody highlighted observed limits even with “nudges”, for example regarding electricity contract switching, and asked why suppliers shouldn’t just promise or be required to automatically put customers on the best plan. The CEO of (peak NGO) Consumers NZ pointed out that past consumption patterns may not be a good guide. I also wonder about handing over so much power and data to suppliers, and making consumers too passive (which is partly why for unfair contract terms regulation the price and subject matter cannot be impugned: consumers are assumed to be able at least to investigate and consider those, provided these items are not presented in a misleading way). A better solution might be electricity bills that say “if you switched to our Plan B you would save $XXX dollars” and then the customer could opt-in. [Update of 4 December 2024: after a recent problem with my electricity company in NSW, which had stated something like this on their bills but in a confusing way, I now am more amenable to Gerard Brody’s suggestion for an automatic “upgrade”.]

The Consumers NZ CEO provided an update on the progression of a private Member’s Bill to introduce a right of repair for New Zealand, including around spare parts availability, and likely mandatory labelling about durability (as recommended also by the Productivity Commission’s Right to Repair report). Again, I would add that the EU provides some good lessons for the antipodes (and say Japan). In February 2024 the EU institutions reached provisional agreement to enact the Right to Repair Directive, as part a larger environmental initiative aiming to extend a product’s life cycle and support a circular economy. Relevant features compared to the ACL regime (which for example allows the supplier not consumer to chose between repair and replacement):

“The Directive will require producers to carry out repairs outside of the legal guarantee for products covered by repairability obligations under certain EU ecodesign regulations listed in an Annex … [likely beginning with] certain white goods (including household washing machines, dishwashers and refrigerators), vacuum cleaners, electronic displays, and mobile phones and tablets (among others)

… [requirements for] information on certain spare parts to appear on a website, making them available to all parties in the repair sector and preventing certain practices that can hinder repair – including contractual clauses or certain software- and hardware-related barriers

… [seemingly] loan devices to be provided to consumers while they wait for repair in certain cases and to enable a consumer to opt for a refurbished unit as an alternative

… Under the existing Sale of Goods Directive, the seller is liable to the consumer for any lack of conformity which exists at the time when the goods were delivered and which becomes apparent within two years of that time. In the event of non-conformity, the Sale of Goods Directive sets out a hierarchy of remedies, allowing consumers to initially choose between repair and replacement … to encourage consumers to choose repair over replacement, the legal guarantee under the Sale of Goods Directive would be extended by 12 months following a repair …”.

This EU development also intersects with greenwashing, and the hot topic of the last Congress session – “Lightbulb moments: bold ideas to help consumers play a meaningful role in the green transition”.