We describe below the changes expected to come in on 1 January
2012 to the Australian Consumer Law (ACL)
provisions outlawing unconscionable conduct (UC).
These changes are designed to cast the net wider and will affect a
broader class of conduct than before. Despite the fact they are in
the ACL, all businesses, large and small, (except for publicly
listed companies) will benefit from these changes, as well as
consumers. If you have experienced attitudes and tactics in your
business dealings that are highhanded or unfair, they may well be
unconscionable and therefore unlawful. Please contact us if you
have been bullied in business, (or as a consumer, by a business) to
learn more about your rights.
Unconscionable conduct in the ACL now
At the moment sections 21 (UC in consumer dealings) and 22 (UC
in business dealings) of the ACL each incorporate a "grey
list" of examples of UC which a court may consider when
deciding whether conduct has been unconscionable.
In 2008, an inquiry by the Senate Economics Committee
recommended changes be made to clarify the law in relation to UC,
but last year's federal election interrupted the passing of
this new law. On 15 June a replacement bill was introduced and is
expected to become law by 1 January 2012.
The new law will:
Introduce a list of interpretive principles to assist the
courts in applying the law in relation to UC, which is expected to
broaden the definition of UC; and
Merge sections 21 and 22 of the ACL into one section so that
businesses are given the same rights as consumers in this area, and
The Minister's second reading speech explains that the new
interpretive principles will ensure the grey list will not operate
to narrow the application of these provisions to certain factual
scenarios. In summary, the interpretive principles and amendments
clarify the following:
the ACL UC provisions will have a wider application than the
existing common law and equitable principles;
UC refers to not only conduct prior to the formation of a
contract, but also any conduct during the entire term of the
contract, including the way a contract is renewed, renegotiated or
UC can arise due to the effect of patterns of behaviour over a
period of time, and does not need to be an individual act or
a party does not need to be particularly vulnerable or suffer a
special disadvantage for there to be UC; and
the meaning of UC is to be interpreted in the same manner,
regardless of whether the victim is a business or consumer.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The Sportscraft refunds and returns policy limitations went beyond consumer's rights under the Australian Consumer Law.
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