EXPLANATORY STATEMENT
1989 No. 336
Trade Practices Act 1974
Trade Practices (Consumer Product Safety Standards) Regulations (Amendment)
The regulations amend the Trade Practices (Consumer Product Safety Standards) Regulations in two ways: A general warning provision and certain specific consumer product safety standards are updated to reflect amendments to the Act, and a form of warrant under section 65Q of the Act is prescribed.
Product Safety Standards (Clauses 2-6)
Existing regulations 5, 7, 8, 9 and 10 refer to section 62 of the Act. That section was repealed by the Trade Practices Revision Act 1986 (the revision Act) and replaced by a new section 65C. By section 31 of the revision Act, regulations made under section 62 continue in force as if they had been made under section 65C; in consequence there has been no pressing need to update the regulations. However, the regulations will be easier to understand if they refer to s.65C rather than to a repealed provision, and accordingly clauses 2-6 replace references to Section 62 in the regulations with a reference to section 65C.
Form of Warrant (Clause 7)
Part V, Division 1A of the Act enacts provisions relating to product safety and product information. Under section 65Q, an authorised officer may enter premises for the purpose of inspecting allegedly unsafe goods (ie. goods which will or may cause injury to a person). Generally, the authorised officer can only exercise this power in accordance with a warrant issued by a judge of the Federal Court or of a State or Territory Supreme Court (the one exception being where the
exercise of the power is required without delay in order to protect life or public safety). Section 65Q(6) provides that the judge, before issuing a warrant, must be satisfied that there are reasonable grounds for issuing the warrant. Section 65Q(7) provides that the warrant must specify the purpose for which it is issued, the time restrictions (if any) on when entry is authorised, the description of the kind of goods authorised to be inspected or sampled, and a day (not later than 7 days from the day on which the warrant is issued) on which the warrant ceases to have effect.
No form of warrant under section 65Q is specified in the Act. The Rules Committee of the Federal Court of Australia has suggested a form the warrant might take, and that the form be prescribed by the regulations to the Act (instead of by Rules of Court). The regulation gives effect to the Committee’s suggestions.
Authority
Section 172 of the Trade Practices Act 1974 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters that are required or permitted by the Act to be prescribed, or are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Overview
The Trade Practices (Consumer Product Safety Standards) Regulations (Amendment) 1989 were enacted to update certain provisions of the Trade Practices (Consumer Product Safety Standards) Regulations in line with amendments made to the Trade Practices Act 1974. This amendment was necessitated by changes in the legislative framework, particularly the repeal of section 62 and its replacement with section 65C by the Trade Practices Revision Act 1986. The aim of these amendments is to ensure that the regulations remain coherent and easier to understand by aligning references to the new section 65C. Additionally, the regulations prescribe a form of warrant under section 65Q of the Act, which governs the inspection of allegedly unsafe goods, thus formalising the process recommended by the Federal Court of Australia’s Rules Committee. This was enacted by the Governor-General under the authority provided by section 172 of the Trade Practices Act 1974, ensuring that the regulations are consistent with the Act and necessary for its effective implementation.
Scope and Application
The Trade Practices (Consumer Product Safety Standards) Regulations (Amendment) under the Trade Practices Act 1974 updates existing consumer product safety standards to align with recent amendments to the Act. These regulations apply to all consumer products that fall under the purview of the Act, ensuring that safety standards are current and reflect legislative changes. The amendments include updating the general warning provisions and specific safety standards to correspond with the new section 65C of the Act, replacing the repealed section 62. This ensures that the regulations are more straightforward and reflective of the current legal framework. Additionally, the regulations prescribe a form of warrant under section 65Q, which authorises officers to inspect potentially unsafe goods. This warrant must specify the purpose of the inspection, any time restrictions, the type of goods to be inspected, and the expiry date of the warrant. The amendments apply nationally across Australia, ensuring consistent enforcement of consumer product safety standards throughout the Commonwealth, states, and territories.
Key Provisions
The Trade Practices (Consumer Product Safety Standards) Regulations (Amendment) brings about two significant changes to the existing regulations. Firstly, it updates the general warning provision and specific consumer product safety standards to align with amendments to the Trade Practices Act 1974 (the Act). This is achieved by replacing references to the repealed section 62 with section 65C in regulations 5, 7, 8, 9 and 10 (clauses 2-6). The replacement aims to make the regulations clearer and more understandable. Secondly, the regulations prescribe a form of warrant under section 65Q of the Act, allowing authorised officers to inspect potentially unsafe goods (clause 7).
The Act imposes several obligations and requirements on the parties and entities it governs. Under the updated provisions, manufacturers, importers, and suppliers must ensure that consumer products meet the safety standards outlined in the regulations. This includes providing appropriate warnings and information about the products to consumers. Additionally, authorised officers, when executing their duties under section 65Q, must adhere to the prescribed form of warrant. This warrant must be issued by a judge and specify details such as the purpose of the inspection, time restrictions, and the description of goods to be inspected or sampled.
Failure to comply with the requirements set out in the Trade Practices (Consumer Product Safety Standards) Regulations (Amendment) can lead to various consequences. While the specific penalties for breaches are not detailed in the explanatory statement, it is known that breaches of the Trade Practices Act 1974 can result in both civil and criminal penalties. Civil penalties can include fines, injunctions, and compensation orders, whereas criminal penalties may include imprisonment, depending on the severity and nature of the breach. The maximum penalties are not explicitly stated but can vary based on the specific provisions of the Act and the circumstances of the breach.