This session was recorded on 27 March 2024 as part of the Unfair contracts - the new penalties: Mandatory rule 6.1 - live webinar.

This course will focus on changes to the Australian Consumer Law which came into effect November 2023, and which prohibit businesses from proposing, using, or relying on unfair contract terms in standard form contracts with consumers and small businesses. ACCC Deputy Chair Mick Keogh has noted that “There was previously little motivation for businesses to comply with the law”.  With substantial penalties now available, there is a significant incentive to comply. 

Topics include:

Good drafting and compliance with the changes to unfair contracts law – Kathleen Morris, Barrister, Level 22 Chambers

On 9 November 2022 the Treasury Laws Amendment (More Competition, Better Prices) Act 2022 (Cth) came into effect, which expanded and reformed the unfair contract terms regimes applying under the Competition and Consumer Act 2010 (Cth) and Australian Securities and Investments Commission Act 2001 (Cth). Those amendments included the introduction of a new civil penalty regime prohibiting the use of, and reliance on, unfair contract terms by businesses, which came into operation from 9 November 2023. The amendments also broadened the definition of “small business” and clarified matters to be taken into account when assessing whether a contract is a “standard form contract”. This session considers those legislative changes and steps that can be taken to ensure compliance with the unfair contract terms regime. 

Ethical issues and unfair contracts – Linden Barnes, Senior Ethics Solicitor, Professional Support Unit, The Law Society of NSW

In this session, Linden Barnes will examine ethical issues relating to contract law.

Unfair terms - legislation and case review – Jennifer Dean, Partner, Johnson Winter Slattery

In this session, Jennifer Dean will review important recent decisions and critical legislative changes.

Complying with the unfair contract terms regime – Verity Quinn, Special Counsel, ACCC

ACCC Special Counsel Verity Quinn will provide an overview of what the unfair contract terms regime requires, and give some tips for businesses when reviewing their contracts to ensure they comply with the law including discussion around:

• Changes allowing courts to impose substantial penalties on businesses and individuals who include unfair terms in their standard form contracts. Prior to the changes, courts could only declare specific terms of a contract void, no penalties applied.
• Changes expanding the coverage of the regime to apply to more small business contracts.
• Changes clarifying aspects of the regime, including more clearly defining ‘standard form contracts'.

Practitioners should inform themselves of Rule 6.1 of the Legal Profession Uniform Continuing Professional Development (Solicitors) Rules 2015 which sets out the requirements for the four (4) mandatory CPD areas for NSW legal practitioners – (a) ethics and professional responsibility; (b) practice management and business skills; (c) professional skills; and (d) substantive law. It is the responsibility of each legal practitioner to self-assess as to whether a particular educational activity extends their knowledge and skills in areas that are relevant to their practice needs or professional development. If so, then the practitioner may claim one (1) "unit” for each hour of attendance, refreshment breaks not included. 

If you self-assess that this particular educational activity extends your knowledge and skills, this program may allow you to claim four (4) of the mandatory areas: (a) ethics and professional responsibility; (b) practice management and business skills; (c) professional skills; and (d) substantive law.