Well if it’s all too hard, let’s just forget it.
If a company makes a product and then labels it for a particular purpose then many would accept that it is produced for that particular usage. Then if the company produces a further series of items all labelled for individual uses most in the normal community would accept that each item was specific in it’s use. Then to add to this not everyone can read so they ask the seller or someone they trust what product would be useful to them in their circumstances and the other party looks at the list of products and picks the one labelled for that use. This is not quite the same as buyer beware as we have legislation in relationship to this kind of behavior.
The ethics of the producer in the Nurofen case were poor, some might say to the absence of any ethics. The public was mislead/deceived by a marketing ploy as the producer was trusted and indeed compelled by law to provide quality products of a medicinal nature for particular needs without deception and they abused this trust and the Law. The justice system then found that indeed the company had breached it’s lawful obligations and was fined, which was an insignificant amount in relation to the amount taken. The prosecution appealed the penalty as they thought the fine was insufficient and again the justice system agreed and increased the fine. However the argument still stands that many feel the penalty is inadequate to the wrong/harm done.
Fraud is a crime and if we commit fraud of a severe enough level jail time is a likely outcome. Many who are in business take the stance that when they are successful it is the efforts of the board/directors, and CEOs that bring about this result and when they fail this same leadership voice that it is the failure of someone else and they had no part in the failure. This is why people are upset and rightly demand that the leadership should suffer for fraudulent behavior such as in the Billabong CEO’s recent case and conviction for fraud.
It seems to me that the Big End of town get special license to abuse our trust without suffering satisfactory repercussions for illegal practices even though the Law does contain that ability to apply stronger deterrents to them. This approach needs to change and the Courts need to send a much stronger message to disabuse any who contemplate or carry out deceiving the community that their actions are anything but illegal.
It is interesting that you mention the ethics of the company, I would like to suggest we have three simple traffic light markers on the pack; one relating to the nutrition value of the product (for food items), another for its environmental impact and the third identifying the companies ethical standing - companies like Nurofen would have a RED. (This would also cover companies that have a poor tax standing and those who use slave labour in their supply chain, etc. Very simple, just look for products with three green indicators.
Fines mean nothing to the big end of town. The consumer needs to be able to quickly decide if they want to select a product or purchase from an alternative supplier.
I must disagree with this, from a personal perspective. A quick look at our laws, and then US law has been enough for me to reject the suggestion that the US can write legislation.
In fact, the US congress could start drafting a law saying “No household is to flush its toilet between 10pm and 6am”, and by the time it made its way through both houses the bill would include:
- a religious exemption;
- a criminalisation for any pregnant woman who flushes the toilet and thereby scares the baby;
- an additional criminal offense for pregnant women, on the basis that going to the toilet might lead them to want an abortion;
- funding for a toilet plant in Utah to build 3 million toilets for the US Air Force;
- funding for an electronics factory in Pennsylvania to manufacture portable fans for air force pilots;
- a requirement than no US government money be used to employ fan manufacturers who were born in seven majority-Muslim countries (none of which, unaccountably, have a Trump Hotel); and
- a statement praising god for being American.
Commonwealth laws are pretty easy reading, nowadays. I don’t know so much about the states.
Edited 08/02/2017: removed inappropriate statement that made inappropriate assumptions about another human.
I believe the statement was that the company earned $45 million in revenue from its dodgy labelling. That is not profit; which would be only a small part of the $45m. I am not sure whether a profit figure has been stated, but you need to take into account:
- Did the company sell more Nurofen as a result of its misleading and deceptive conduct, or did it merely sell some at a different price?
- What was the cost of manufacture and distribution?
- What about advertising? Sure the company may have charged more for ‘targeted’ tablets, but if it spent that money in advertising it wasn’t making a bigger profit.
- Who is hurt by the punishment of the company? Well, a quick search tells me that Nurofen is owned by a UK company, Reckitt Benckiser. Is that a private company? Another quick search says “No”. So - if you fine the company enough to really hurt, such as the $45 million revenue (not profit), who are you hurting? The board? Well, to some extent yes. The CEO? To the extent that the CEO has share options, sure. But what about all the other shareholders - such as your superannuation fund? By ‘punishing’ the company too harshly, it closes down its Australian operation and writes off a large chunk of its recorded value.
So, who is really likely to be punished by harsher corporate fines? ‘It’s complicated’.
My remark was intended as a light hearted jab about the differences in American and English(es).
“Not much” is a subjective term. I had to deal with (as a “victim” not a legislator 
) AU, UK, and US versions of legislation related to a UN treaty, international trade, mundane bits like road rules and building ordinances, aviation, and US and AU versions and explanatory summaries of that tax treaty. I also did my share of international contracting, having to rationalise the legalese to make both the silks happy.
You cited how American special interests bastardise legislation with unrelated pork barrelling, religion, and ideological mandates, not the words used in the laws. There is very little for them to be proud of in that regard. Many could be surprised the American pollies who master that skill tend to be popular in their electorates because they bring home the pork, bacon, chicken, religion, and ideology that got them elected by “hook or crook”. For analogy the power they can wield would be like Barnaby Joyce single handedly being able to stop a new coal mine in his agricultural electorate or Pauline Hanson being able to declare an immigration ban horse trading a law that otherwise just reduced corporate taxes.
You might (or might not) enjoy this, oblique to the drafting of legislation, but that I contend underscores my comment. I admit to finding real or imagined evidence of this day to day as language is used. I also contend Australian legislation often appears to be drafted for those who might not have English as a first language, because of the amount of clarification that gets embedded, hence with so many clarifications it gets difficult.
My apologies. I realise in retrospect that my remark was rather less than fully considered and considerate of others; I will amend it after posting this apology and clarification. I did not intend to offend, and made silly assumptions about you that I cannot back with evidence (not knowing you). That was disrespectful, and not what these fora are for.
Now to talk about legislation as I have encountered it. First, a quick discussion of how they do things ‘over there’:
- I have not had to deal with UK legislation at all, and so cannot comment about it.
- The only US legislation I have read deals with taxation or company financial statements. In both of these areas, the legislation is a nightmare and you pretty much have to rely upon professional translators. I have not encountered current, non-pork-barrelled legislation. My only awareness of US legislation regarding international treaties is from reading copies of those treaties - which are not the legislation that puts them in place. I have also had to deal with the impact of those treaties in Australia - but that’s a fair distance from the US legislation as well. (The treaties themselves can often be mind-numbing, but that is a different subject.)
On the subject of Australian legislation, I have to read some parts of it to perform my job, have reported errors/loopholes in existing legislation, and have drafted new and corrected one or two old instruments. (I should note that none of this is in my ‘job description’ - I was just the person who ‘knew stuff’ - and IANAL*.)
*I am not a lawyer.
In 1993, the Australian Government decided to move to (PDF link) ‘plain English’ (now ‘plain language’) in legislation. The Office of Parliamentary Counsel, which is responsible for drafting bills and regulations, has a raft of drafting instructions, specifying how legislation is to be written for ease of reading.
I just realised that I should insert some definitions:
- a ‘bill’ is a proposal that - once passing both houses of Parliament - becomes an ‘Act’ (…of Parliament)
- a ‘regulation’ is able to set rules and details of how an Act will operate, and must be provided for in the Act to which it pertains. Regulations are the responsibility of the portfolio department that is responsible for the Act. They will reflect the current government’s priorities. Regulations do not need to be ‘passed’ (voted upon, with the majority vote ‘aye’) by Parliament, but they need to be ‘tabled’ in both houses. Either house can vote to disallow a regulation - but they cannot fiddle with the contents as they can with bills.
- ‘legislation’ - or ‘legislative instrument’ is a broad term, and this comment is already lengthy. The interested reader (assuming anyone has made it this far) may refer to the OPC’s ‘Instruments Handbook’ for further information.
- No! No more definitions of the terms I have casually thrown around. Sorry, but I refer you to the links for further information.
Any modern bill or regulation (let’s call them all ‘Instrument/s’ for convenience) that is tabled in Parliament must be accompanied by - respectively - an ‘Explanatory Memorandum’ or an ‘Explanatory Statement’ (hence, ‘Explanatory/ies’). These put - and are able to put - the instrument into even plainer language, as they are not directly part of what will be ‘L A W’. The Explanatory is required to contain certain information, including (depending on the Instrument; compulsory bits in bold - apologies if I miss anything or get bits wrong, but I am trying to write fairly quickly):
- the legislative authority for the new Instrument
- an overview/description of the Instrument’s purpose
- a description of what each clause in the Instrument means
- a financial impact statement for government, companies and real people
- broader context of the Instrument
- details of consultation that was conducted in drafting the Instrument (in most cases there must be consultation or a reason why there was none)
- the expected impact (which has been assessed before the Instrument gets the go-ahead)
- a statement of compatibility with human rights.
All Australian Government legislation (with a few ‘National Interest’ exceptions due to security/privacy) is published on the Internet, at https://www.legislation.gov.au, along with its Explanatory. If you are looking at an Act, the Explanatory will be attached to the bill that was tabled in Parliament. Additionally, there may be many amendments over the years, and so there is some skill to tracking down the Explanatory for a particular part… but it is all there if it was made after - er - 1980-ish? The need for an Explanatory is relatively recent, so if you are looking at something greater than about 20 years old it may not have one. Some of the older legislation is published as a scan, as that is what’s available.
Finally, all new legislation is required to have a review clause sunsetting clause unless granted an exemption. The review clause means “let’s see if it is doing what it is supposed to do”, while the sunsetting clause means “all legislation will die” - generally after ten years.
In my humble, non-lawyer opinion I think most Australian Government law is pretty well written, reasonably easy to understand and read, and reasonably good at doing what it says on the label. I recommend that readers take some time when they have ‘issues’ with Commonwealth Government actions, to have a look at what the law says on https://www.legislation.gov.au. It really isn’t that bad.
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Now to write something briefer, if only to show that I can.
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No offence was taken, and no apology needed.
Your previous post indicates you could be a master and your inclusions hit the mark. Well done.
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Thanks for that. 
I LOLd.
Sounds like the way forward to me.
Thanks very much for your very detailed outline of how the legislative process works. Good on you!
this is a dangerous practice: - someone may (buy and) take a Nurofen labelled “headache” and (buy and ) take another Nurofen labelled “joint pain” and (buy and) take another Nurofen labelled “period pain” and (buy and) take another Nurofen labelled “back pain” and so on - ending up overdosing on the product.
It is not just about ripping people off financially by misleading consumers but also endangering people’s health.
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More calls for tougher penalties for those who break the law:
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At last, a report response that seems to reflect community values. I indeed support the removal of profits gained through deceptive/illegal/fraudulent conduct. Severe fines that deter improper behaviour again would be a very welcome change. I think the report responds very well to many of the points made on this site, but as it still requires adoption by our Government I do not hold out great hope of any real outcomes.
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The Volkswagen company has clearly acted fraudulently around the world, with its emissions reduction software. It appears likely that the company has been fined way more than it gained from this fraud. Additionally, there are several ‘executives’ facing criminal charges - but they are largely quite low level.
The problem is that no sign has been given of where the buck is supposed to stop. The chief executive (CEO) creates and models the culture of their business. The CEO is paid hundreds of times more than the average worker, and much more than any of the executives who have actually been charged. Like in politics, it now seems that there is no place for the buck to stop - the CEO may be required to stand down or resign but is unlikely to be charged with any criminal actions even though they might reside over (and create the environment for) a company that deliberately avoids its obligations! Worse, when they do go they will normally take very large sums of money with them - the golden handshake is now worth the CEO’s weight in gold!
Unless and until the boss is held liable for the crimes of their subordinates, they will continue to create organisations in which the kind of malfeasance seen at Volkswagen is considered by some employees to be ‘what the boss wants’ or ‘how to get my bonus’.
I wonder what Volkswagen’s shareholders think about how much this affair is costing them?
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