competition-and-consumer-legislation-amendment-act-2011.pdf, p.8
Omit 'a market', substitute 'any market'
1 Subsections 50(1) and (2)
Amendments of section 50 apply to acquisitions after commencement
179 Amendments of section 50
This provision requires a temporal relation between acquisitions and commencement
Temporal relations are required for conditional commencement
2 Subsection 50(6) (definition of market)
3 At the end of Part XIII
4 Subsection 50(1) of Schedule 1
5 Subsection 50(6) of Schedule 1 (definition of market)
competition-and-consumer-legislation-amendment-act-2011.pdf, p.9
Repeal sections and substitute with new ones.
1 Sections 12CB and 12CC
12CB Unconscionable conduct in connection with financial services
Prohibition on unconscionable conduct in connection with financial services
12CB(1) Unconscionable conduct in connection with financial services
The prohibition applies during trade or commerce
Exemption from application of section for conduct related to legal proceedings or arbitration.
12CB(2) Unconscionable conduct in connection with financial services
Court must not consider unforeseeable circumstances when determining contravention.
12CB(3) Unconscionable conduct in connection with financial services
Court must not consider unforeseeable circumstances.
Court may consider circumstances reasonably foreseeable at the time of contravention.
This section is not limited by the unwritten law of the States and Territories relating to unconscionable conduct.
12CB(4) Unconscionable conduct in connection with financial services
This section imposes an obligation on the Parliament.
12CB(5) Unconscionable conduct in connection with financial services
competition-and-consumer-legislation-amendment-act-2011.pdf, p.10
12CC Matters the court may have regard to for the purposes of
Court may have regard to various factors when determining whether a person has contravened section 12CB in connection with the supply or possible supply of financial services.
12CC(1) Matters the court may have regard to for the purposes of
...the extent to which the supplier’s conduct towards the service recipient was consistent with the supplier’s conduct in similar transactions between the supplier and other like service recipients;
The text mentions specific time-related factors, such as the amount for which the service recipient could have acquired identical or equivalent financial services.
(e) the amount for which, and the circumstances under which, the service recipient could have acquired identical or ComLaw Authoritative Act C2011A00184 Unconscionable conduct Schedule 2 equivalent financial services from a person other than the
...the court may have regard to: (a) the relative strengths of the bargaining positions of the supplier and the service recipient; and
Court may consider various factors when determining whether a person has contravened section 12CB.
(1) Without limiting the matters to which the court may have regard for the purpose of determining...
...the conduct of the supplier and the service recipient in complying with the terms and conditions of the contract;
The text imposes obligations on the supplier, such as disclosing information and acting in good faith.
(i) if there is a contract between the supplier and the service recipient for the supply of the financial services: (i) the extent to which the supplier was willing to negotiate the terms and conditions of the contract with the service recipient;
...the extent to which the supplier unreasonably failed to disclose to the service recipient: (i) any intended conduct of the supplier that might affect the interests of the service recipient;
The text mentions specific factors that must be considered in a particular order, such as the relative strengths of the bargaining positions.
(a) the relative strengths of the bargaining positions of the supplier and the service recipient; and
Court may have regard to various factors when determining whether a person has contravened section 12CB in connection with the acquisition or possible acquisition of financial services.
12CC(2) Matters the court may have regard to for the purposes of
Court's consideration of various factors is within a specific time frame.
...when determining whether a person has contravened section 12CB.
Court's obligation to consider various factors when determining whether a person has contravened section 12CB.
Court's obligation to disclose information is not absolute.
Court's consideration of various factors is part of a recurring pattern.
12CC(3) Matters the court may have regard to for the purposes of
competition-and-consumer-legislation-amendment-act-2011.pdf, p.13
2 Paragraph 131(2)(a)
competition-and-consumer-legislation-amendment-act-2011.pdf, p.14
21 Unconscionable conduct in connection with goods or services
Prohibition on unconscionable conduct in trade or commerce
21(1) Unconscionable conduct in connection with goods or services
21(2) Unconscionable conduct in connection with goods or services
(2) This section does not apply to conduct that is engaged in only because the person engaging in the conduct:
21(3) Unconscionable conduct in connection with goods or services
Court must consider contract terms and manner of performance when determining unconscionable conduct.
21(4) Unconscionable conduct in connection with goods or services
Court must consider contract terms and manner of performance.
competition-and-consumer-legislation-amendment-act-2011.pdf, p.15
22 Matters the court may have regard to for the purposes of
Court may have regard to various factors when determining whether a person has contravened section 21 in connection with the supply or possible supply of goods or services.
22(1) Matters the court may have regard to for the purposes of
The court may have regard to various factors when determining whether a person has contravened section 21 in connection with the supply or possible supply of goods or services.
Court may have regard to certain matters when determining whether a person has contravened section 21 in connection with the acquisition or possible acquisition of goods or services.
22(2) Matters the court may have regard to for the purposes of
competition-and-consumer-legislation-amendment-act-2011.pdf, p.18
Presumptions relating to whether representations are misleading
22A Presumptions relating to whether representations are
3 Subsection 20(2) of Schedule 2
Repeal sections and substitute with new provisions
4 Sections 21 and 22 of Schedule 2
competition-and-consumer-legislation-amendment-act-2011.pdf, p.19
Substitute certain section numbers in Schedule 5.
1 Item 36 of Schedule 5
Omit “or of the Australian Consumer Law”.
2 Item 50 of Schedule 5
3 Item 54 of Schedule 5 (note)
4 Item 65 of Schedule 5
Omit specified phrase from Australian Consumer Law.
5 Item 71 of Schedule 5
6 Item 74 of Schedule 5
Omit specified provisions of the Australian Consumer Law.
7 Item 90 of Schedule 5
Prohibits omitting specified provisions.
Omit 'Division 2', substitute 'or Division 2'
8 Item 90 of Schedule 5
9 Item 96 of Schedule 5
Prohibits omitting ‘or a’, substituting ‘, or of a’.
competition-and-consumer-legislation-amendment-act-2011.pdf, p.5
1 Short title
competition-and-consumer-legislation-amendment-act-2011.pdf, p.6
1 Section 1
1 January 2012
Note on table limitations and amendments
1 January 2011
2 Commencement
2 Section 2
3 Section 3
3 Schedule(s)
4 Section 4
6 December
6 February 2012
An Act to amend the law relating to competition and consumers, and for related purposes
Competition and Consumer Legislation Amendment Act 2011