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Strengthening protections against unfair contract terms

The Law Council of Australia provided a submission to the Treasury in response to the Strengthening protections against unfair contract terms consultation including the:

The Exposure Draft proposes amendments to the Australian Consumer Law (ACL) (schedule 2 to the Competition and Consumer Act 2010 (Cth) (CCA)) and the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) to implement a set of reforms to the unfair contract terms (UCT) regime as agreed by Commonwealth, State and Territory Ministers (the Consumer Affairs Ministers) at the Meeting of Ministers for Consumer Affairs in November 2020 (proposed reforms).

The Law Council is grateful to its Business Law Section (BLS) and Legal Practice Section (LPS) for contributing to this submission, in particular, the following Committees:

(a) the Competition and Consumer Committee of the BLS (Competition and Consumer Committee);
(b) the Financial Services Committee of the BLS (Financial Services Committee);
(c) the SME Business Law Committee of the BLS (SME Committee); and
(d) the Australian Consumer Law Committee of the LPS (ACL Committee).

The Law Council has also received substantive input from several of its Constituent Bodies, namely the Queensland Law Society (QLS), the Law Society of South Australia (LSSA), and Law Institute of Victoria (LIV).

Among each of these stakeholders there is a diversity of views across several aspects of the proposed reforms. In the limited time available in which to respond, it has not been possible to reconcile all divergent views, and therefore the Law Council provides the perspectives of each of the contributing stakeholders separately for consideration by Treasury.

However, there is consensus on two key issues which both relate to practical implementation of, and transition to, the proposed reforms should they proceed in their current (or substantially similar) form:

(a) the need for an increased transition and implementation period; and
(b) the need for adequate regulatory guidance and education programs to promote awareness and certainty for all parties.

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