The Commonwealth is leading a public consultation on options to address unfair trading practices on behalf of all jurisdictions.

Treasury has issued a Consultation Regulation Impact Statement which provides an overview of how unfair trading practices are currently regulated, identifies issues for consumers and small
businesses posed by gaps in existing protections, and provides a preliminary impact analysis of the policy options being considered.

Unfair trading practices, also known as ‘unfair business practices’ or ‘unfair commercial practices’, are particular types of commercial conduct which are not covered by existing provisions of Australia’s
consumer laws (such as misleading or deceptive or unconscionable conduct), but nevertheless can result in significant consumer and small business harm.

The paper confines its attention to a possible unfair trading prohibition under the Australian Consumer Law and does not consider the extension of reform to Australian Securities and Investments Commission
(ASIC)-regulated financial services in the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act). This will be considered through a separate regulation impact assessment process
which will be advanced in 2024.

The following policy options are discussed:
• Option 1: Status quo (no change)
• Option 2: Amend statutory unconscionable conduct
• Option 3: Introduce a general prohibition on unfair trading practices
• Option 4: Introduce a combination of general and specific prohibitions on unfair trading practices.

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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.