Are your contracts free of unfair terms?

The government has passed legislation that will amend the Competition and Consumer Act 2010, which includes the Australian Consumer Law (ACL). The new amendments, which will come into effect from late 2023 (12 months after Royal Assent), include big changes, primarily with respect to penalties for anti-competitive conduct and breaches of the ACL.

The amended maximum penalties will be the greater of $50 million, if the court is able to calculate the value of the benefit, then 3 times that amount, or if the court is unable to calculate the value of the benefit, 30% of adjusted annual turnover during the period in which the breach occurred. These represent significant fines, so it is important to check your current contracts.

The ACL’s unfair contract terms regime will also expand ‘standard form’ contracts and ‘small business’ contracts, meaning you may now find that your business falls under the regime.

As the amendments don’t kick in for another 12 months following Royal Assent, this period is intended to allow businesses time to review their contracts. It will also only apply to new contracts (and renewals) entered into on or after the legislation comes into effect.

We recommend that affected members seek legal advice to ensure your contracts are free of unfair contract terms before the amendments come into effect, so you aren’t subject to these hefty fines.

Please note that the contents of this article do not constitute legal advice and are not intended to be a substitute for legal advice. You should seek legal or other professional advice in relation to any matters you or your organisation may have.