Increased competition and consumer law penalties now take effect

The maximum penalties for contraventions of competition law prohibitions in the Competition and Consumer Act 2010 (Cth) and offence and civil penalty provisions in the Australian Consumer Law have now markedly increased following the Treasury Laws Amendment (More Competition, Better Prices) Act 2022 (Cth) having received the Royal Assent. Of particular note, the maximum penalty for […]

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Date set for ‘unfair contract terms’ to be rendered unlawful: Time to act

Businesses now have less than 12 months to cease using unfair contract terms in their standard form consumer contracts and small business contracts, now that the Treasury Laws Amendment (More Competition, Better Prices) Act 2022 has received the Royal Assent. Whereas unfair contract terms can presently be rendered void and unenforceable, the use of unfair contract terms […]

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Unfair contract terms – Commonwealth government driving major reforms

On 28 September 2022 the Commonwealth government introduced to Parliament a bill that will, if passed, make major changes to the unfair contract terms regime in Australia.  The bill is called the Treasury Laws Amendment (More Competition, Better Prices) Bill 2022. The unfair contract terms provisions in the Bill are virtually identical to the provisions […]

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Buy Now Pay Later: Industry awaiting Issues Paper with bated breath

For better or worse, the Buy Now Pay Later (BNPL) industry has continued to make headlines since our last report. The sector’s meteoric rise has been tempered in recent months by a combination of market saturation, broader macroeconomic factors, and, most recently, a new political climate. The new Labor Government has made clear its intentions […]

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Disclosure obligations for financial service providers in NSW: One-year on from reforms to the Fair Trading Act 1987 (NSW)

It has been over a year since reforms were introduced under the Fair Trading Act 1987 (NSW) (the Act) requiring suppliers (including of financial services) to take reasonable steps to disclose to their customers prejudicial contract terms and for intermediaries to disclose the arrangement under which they are acting, including referral commissions. The disclosure requirements […]

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Unconscionable conduct in asset based lending: Stubbings v Jams 2 Pty Ltd [2022] HCA 6

Recently, the High Court of Australia found unconscionable conduct on the part of a lender on an asset based loan and held that the lender could not rely on the certificates of independent legal and financial advice procured from the borrower to immunise the transaction against unconscionable conduct laws. The loan was made to a […]

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Buy Now Pay Later – A changing regulatory landscape

The Buy Now Pay Later (BNPL) industry has been making a lot of noise in recent times, attracting the attention of shareholders, regulators and consumer advocates alike. The industry has nevertheless remained largely unregulated to date, due in part to the proactive measures taken by BNPL providers to self-regulate under the Buy Now Pay Later […]

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The Director Identification Number (DIN) regime is here – Implications for directors

The Commonwealth Government has introduced the Director Identification Number (DIN) regime through reforms to Part 9.1A of the Corporations Act. From 1 November 2021, DINs became mandatory for all company directors. DINs are expected to assist regulators with their regulatory functions, such as combatting illegal phoenixing activities. DINs of course mean more admin for company […]

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Unfair contract terms – big changes mean big risk for businesses

Many businesses will be familiar with the existing ‘unfair contract terms’ regime in the Australian Consumer Law (the ACL). Draft legislation has been circulated which will implement big changes, including potential penalties of $10 million or more. Businesses will likely need to review many of their contract terms, as the new regime will be much […]

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The expansion of statutory unconscionable conduct risk in commercial transactions

Where a statute proscribes unconscionable conduct in business, a company can be liable whether or not the person to whom the allegedly unconscionable conduct is directed is vulnerable or at a special disadvantage. In ACCC v Quantum Housing Group Pty Ltd, handed down on 19 March 2021, the Full Federal Court placed the focus in […]

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ASIC’s new approach to regulatory investigations: the challenges and opportunities presented by Express Investigations

Under the banner of ‘when pilots become enduring practice’, ASIC Deputy Chair Karen Chester has announced that ASIC will supplement its traditional investigations processes with ‘Express Investigations’ (EI), ASIC’s new and preferred approach to enforcement. Corporate regulatory investigations are often legally and factually complex, high-stakes and process-heavy. Mountains of documents and witness evidence are commonplace. […]

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Immunity for serious financial misconduct – ASIC’s new policy

Overview ASIC has just announced a new policy that allows individuals who think they might have been involved in market manipulation, insider trading, dishonest conduct or other contraventions of Part 7.10 of the Corporations Act 2001 (the Act) to apply for immunity from civil penalty or criminal proceedings. This policy expands ASIC’s ability to identify […]

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