The ACCC is calling for tougher laws around unfair contract terms. The current regime says that an unfair contract is void, but companies imposing unfair contract terms can't be hit with pecuniary penalties.
That means there's not much incentive for big businesses to sort out their trading terms, either with consumers or small businesses... Or is there?
We say tread carefully. The ACCC is correct about the absence of penalties for infringing the unfair contract term rules. But there's also unconscionable conduct. A big business trying to force unfair, standard terms onto consumers or small business is absolutely at risk of engaging in unconscionable conduct. And that opens the door for pecuniary penalties and other remedies.
In fact, "unconscionable" and "unfair" are pretty similar concepts, and courts have already figured out as much. They're both fluffy and amorphous, meaning there's a grey area between what's acceptable and what's not. The point is that unconscionable conduct can mean many things, and one of them is behaviour which is seriously unfair.
A business with particularly strong bargaining power that imposes standard terms on consumers or small businesses can face pecuniary penalties if those terms are unduly harsh and it makes them non-negotiable.
So what's the ACCC on about then? We don't know, maybe they've temporarily forgotten the weapons they've already got. Or they're foxing. Whatever it is, don't be fooled. If you're pushing unfair contract terms, the ACCC is armed and dangerous.
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