How old is the product, and how long do similar
products normally last?
Was the product sold new or second‑hand?
Has the product been used in a way it wasn’t
designed for?239
The fit for purpose guarantee is also highly relevant
as this guarantee applies when:
a consumer tells a business they want to use a
product for a particular purpose
the consumer buys the product based on the
advice of the business
the business advertises in any way that the
product can be used for a particular purpose.240
Where a supplier or manufacturer fails to meet a
guarantee, such as acceptable quality or fitness for
purpose, the remedy may be repair, replacement or
refund and/or compensation for damages and loss.241
Obviously, replacement parts and expertise need to
be available for consumers to avail themselves of
repairs. A concern when it comes to neurotechnology
is the availability of these remedies if the supplier
goes into liquidation (as discussed above in respect
of people with disability). While there may be a
consumer guarantee that replacement parts are
available within a reasonable amount of time, a
consumer might be left with a degrading piece of
technology in their body on which they have come
to rely but which may not be able to be repaired.
Further, under the consumer guarantees, suppliers
of recreational services can exclude, limit or
modify liability, when they do not meet the legal
expectations to provide services:
with due care and skill
fit for any particular purpose
within a reasonable time (when no time is set).
Such suppliers may only limit their liability
for death or personal injury, including illness
(mental or physical), but not for property loss.242
Liability for reckless conduct by the supplier
cannot be excluded.243 Given the likelihood that
neurotechnology may be used for recreational
services that could, if not provided with due care
and skill, cause mental harm, consumer guarantees
are unlikely to be a suitable regulatory tool to
regulate these products.
32
The consumer guarantees allows consumers to
take action against suppliers to enforce their rights.
However, litigation is expensive and complex
which can be a barrier to justice, particularly when
opposing a well‑resourced business. Consumers
would be unlikely to have the technical knowledge
around neurotechnologies to confidently assert
their consumer guarantees rights.
The ACL also prohibits businesses from engaging in
misleading or deceptive conduct, and from making
false or misleading representations.244 To comply
with the ACL requirements, neurotechnology
suppliers need to ensure that they provide clear and
accurate information to consumers through their
marketing, product labelling, and in any other way
they engage with consumers to promote and supply
their products.
The ACL also contains the product safety provisions
which apply to all consumer goods and product
related services supplied in Australia. The ACL’s
primary regulatory powers for product safety are
mandatory safety and information standards,
compulsory product recalls and interim or
permanent bans.245
The ACL regulatory framework for the safety of
general consumer goods does not contain the full
suite of tools needed to effectively regulate specific
types of products because they require a tailored
approach. Specific types of products are regulated by
specialist product safety regulators, which can provide
that tailored approach as well as in‑depth technical
expertise, and ongoing focus needed to manage the
unique risks associated with specific products.
While the ACL does allow the relevant
Commonwealth Minister to make a mandatory
safety standard,246 the safety regulation of
consumer‑oriented neurotechnologies is likely
to need technical expertise in neuroscience,
biometrics, and BCIs. A generalist product safety
regime like the ACL may not be able to provide
this type of expertise or ongoing focus to monitor
compliance (as opposed to a general consumer
goods like a trampoline). Given the potential for
neurotechnology to monitor and/or intervene in
neural activity and the inherently unknown risks of
harm to the individual and likely profound impacts
Protecting Cognition: Background Paper on Human Rights and Neurotechnology