Changes to the laws on consumer protection, unconscionable
conduct, and creeping acquisitions all affect the transport and
Following the introduction of criminal penalties for cartel
conduct under the Trade Practices Act in the second half of last
year, legislators have continued to be busy in the Trade Practices
space. Recent changes will impact everyone involved in the
transport and logistics sector.
Unfair terms in standard form contracts (with unfairness being
determined by reference to whether the term causes a significant
imbalance in the parties' rights and obligations under the
contract) are void. If you are using a standard form consumer
contract, you should consider having it reviewed to determine
whether or not it contains "unfair terms" and needs to be
re-balanced in its drafting.
The ACCC now has
greater powers to take action for breaches of the unconscionable
conduct provisions. Corporations are prohibited from engaging
in unconscionable conduct in connection with supply or acquisition
of goods or services for a business purpose. The changes aim to
develop a new law for small business protection in this area and
come in the wake of the recent introduction of civil fines of up to
$1.1 million for businesses found to be engaging in unconscionable
conduct. These provisions will affect anyone who deals with small
The list of factors against which conduct is to be judged
potentially broadens the sorts of conduct that may be found to be
unconscionable and makes it easier for the ACCC to pursue a case
against a business. For example, "systems" may be found
to be unconscionable in their operation or design, even if there is
no clear instance of the system causing significant loss or
Creeping acquisitions (being a small-scale acquisitions that,
individually, may not substantially lessen competition in a market,
but collectively may do so over time) have raised concerns
primarily in relation to the independent supermarket sector in
Australia. However, they are equally relevant to other industries,
including the transport and logistics sector.
The Sportscraft refunds and returns policy limitations went beyond consumer's rights under the Australian Consumer Law.
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