The Treasury Laws Amendment (More Competition, Better Prices) Bill 2022 has been passed by both Houses of Federal Parliament and is awaiting Royal Assent.
UPDATE: Royal Assent was given on 9 November 2022.
The Bill amends the Competition and Consumer Act 2010, including the Australian Consumer Law (ACL), and the Australian Securities and Investments Commission Act 2001 (the ASIC Act)
Competition and consumer law penalties
Increased penalties for breaches of competition and consumer law will commence the day after Royal Assent. The amended penalty regime will apply to offences committed, or contraventions, acts or omissions that occur, on or after the Bill commences.
The new maximum penalty for breach of a relevant offence or civil penalty provision of the ACL by a body corporate will be the greatest of:
• $50 million;
• if the court can determine the value of the benefit obtained—three times the value of that benefit; or
• if the court cannot determine the value of the benefit obtained—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence, act or omission.
The “breach turnover period” generally represents the duration of the breach, but 12 months is the minimum period over which the penalty is calculated.
The maximum penalty for individuals will be increased to $2.5M.
Unfair contract terms penalties
The Bill introduces a civil penalty regime prohibiting the use of and reliance on unfair contract terms in standard form contracts. The amendments also expand the class of contracts covered by the unfair contract terms provisions.
The amendments in Schedule 2 to the Bill commence on the day after the period of 12 months after the Bill receives Royal Assent. This is to enable industry to make any necessary changes prior to commencement.
Under the ASIC Act, the protections will apply to a small business contract if the upfront price payable does not exceed $5,000,000, and one party to the contract employs fewer than 100 persons or has a turnover for the last income year of less than $10,000,000.
A pecuniary penalty may be imposed if a person proposes, applies, relies or purports to apply or rely on, an unfair contract term.
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Author: David Jacobson
Principal, Bright Corporate Law
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About David Jacobson
The information contained in this article is not legal advice. It is not to be relied upon as a full statement of the law. You should seek professional advice for your specific needs and circumstances before acting or relying on any of the content.
