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The Treasury Laws Amendment (More Competition, Better Prices) Bill 2022 will, for the first time, apply penalties to unfair contract terms and will increase maximum penalties under the CCA and ACL five-fold

In brief

On 28 September 2022, the Government introduced the Treasury Laws Amendment (More Competition, Better Prices) Bill 2022 (“Bill“).  If passed, the Bill will:

  • Introduce a civil penalty regime prohibiting the use of and reliance on unfair contract terms (UCTs) in standard form contracts
  • Increase the maximum penalties that may be awarded for breaches of the civil penalty provisions in Parts IV, IVBA, X and XICA of the Competition and Consumer Act 2010 (CCA) and under the Australian Consumer Law (ACL) to the greater of:
    • AUD 50 million
    • If the court can determine the value of the benefit obtained — three times the value of that benefit
    • If the court cannot determine the value of the benefit obtained — 30% of the body corporate’s adjusted turnover during the breach turnover period for the offence, act or omission
  • Increase the maximum civil penalty for breaches by telecommunications providers of the Competition Rule, to up to AUD 71 million plus AUD 3 million for every day that a contravention continues in the most serious cases

So as to enable industry to make any necessary changes to applicable standard form contracts, the amended UCT regime will commence on the day after the period of 12 months after the Bill receives Royal Assent and will apply to standard form contracts that are made or renewed at or after the commencement date.

The amended penalty regime will commence the day after Royal Assent and will apply to offences committed, or contraventions, acts or omissions that occur from that date.

This alert provides an overview of the key changes that are proposed to be introduced and highlights important considerations for businesses.

Click here to access full alert.

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Anne-Marie Allgrove is a partner in the Sydney office of Baker McKenzie. She is the Global Chair of the Firm’s IP, Data and Technology Practice. Anne-Marie is recognised in both Chambers and The Legal 500 as a leading individual and was named a Best Lawyer of the Year for Privacy and Data Security in 2020.

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Lynsey Edgar is a partner in the Sydney dispute resolution team, whose practice focuses on competition and consumer law. She is global co-lead of the Firm's Competition Litigation Taskforce. Lynsey is recognised in Legal500 (Competition and Trade, Australia, 2022), where she is described by clients as having "high commercial acumen" and providing "clear and commercial merger control advice". Client feedback to Chambers & Partners states that Lynsey is "outstanding in her ability to advise on complex matters". Lynsey is a member of the Law Council of Australia's Competition and Consumer Committee, and has spoken widely on topics including compliance with competition law and responding to regulatory investigations.

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Jonathan Flintoft is a partner in the Sydney office of Baker McKenzie where he advises on intellectual property law (particularly brand protection and trade mark prosecution), commercial law and consumer law. He has almost 20 years of experience advising on the selection, registration and protection of trade marks in Australia and globally. Jonathan joined the Firm's London office in 1999 and relocated to Sydney in July 2005. He was appointed partner in 2015.

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Georgina Foster is a partner in Baker McKenzie's Sydney office and leads the Firm’s Australian competition practice.

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Helen Joyce is a partner in Baker McKenzie’s Dispute Resolution Practice Group in Melbourne. She joined the Firm in 2010 having spent the prior decade practising as a solicitor in London. Helen is recognised in the 2023 edition of Best Lawyers Australia for Competition Law and Litigation.

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Adrian Lawrence is the head of the Firm's Asia Pacific Technology, Media & Telecommunications Group. He is a partner in the Sydney office of Baker McKenzie where he advises on media, intellectual property and information technology, providing advice in relation to major issues relating to the online and offline media interests. He is recognised as a leading Australian media and telecommunications lawyer.

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Toby Patten is a partner in Baker McKenzie's Technology and Healthcare teams in Melbourne. He joined the Firm in March 2005.

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