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Jonathan Flintoft

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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.

Our 16 February 2024 Client Alert reported on the recommendations of the Federal Government’s Independent Review of the Franchising Code of Conduct (“Code”). 

We noted that the recommendations were largely sensible and light touch and that the Review considered that the Code was generally fit-for-purpose.

The Government has now released its formal response, adopting the Review recommendations in full.

From 9 November 2023, the unfair terms regime will change so that significant penalties may apply for breaches of the UCT regime. As a result, businesses need to look again at their standard terms for unfair terms risks.

The Treasury Laws Amendment (More Competition, Better Prices) Act 2022 received royal assent on 9 November and is now in force. Maximum penalties for contraventions of the CCA and ACL have significantly increased, effective immediately, exposing business to very substantial risk. The need for robust policies, systems and training to ensure compliance with the legislation has never been more important.

On 28 September 2022, the Government introduced the Treasury Laws Amendment (More Competition, Better Prices) Bill 2022. If passed, the Bill will: introduce a civil penalty regime prohibiting the use of and reliance on unfair contract terms 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 (and under the Australian Consumer Law 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, and 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.

Changes to the Franchising Code commencing 1 April 2022 will introduce an online public Register of franchises in Australia from later this year. Anticipated for some time, the Register and will add to the annual compliance requirements for most franchisors. However, the information required to be filed is significantly reduced from that suggested in the Government’s 2021 Exposure Draft legislation.