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Friday, 25 November 2011
Page: 9653

Senator SHERRY (Tasmania—Minister Assisting on Deregulation and Public Sector Superannuation, Minister for Small Business and Minister Assisting the Minister for Tourism) (11:48): I am conscious of the time, so I will try to deal with your concerns, Senator Xenophon, though I am not necessarily sure I will satisfy them.

Effectively, clarifying the issues you raised, the expert panel that explicitly considered the issue of unconscionable conduct has raised a number of concerns about potential use of examples in the ACL. For example, listing a particular scenario as amounting to unconscionable conduct might be misleading when a court might decide that a scenario with slightly different facts does not involve unconscionable conduct. Examples might be treated as rebuttable presumptions either formally by the courts or in the development of business practices. Examples are unlikely to remain current as business practices and technologies evolve.

The Senate Standing Committee on Economics, which I referred to in my second reading speech, considered whether the definition of 'unconscionable conduct' should be inserted in the act in its December 2008 report, The need, scope and content of a definition of unconscionable conduct for the purposes of part IVA of the Trade Practices Act 1974. The committee noted two significant reservations about defining unconscionable conduct in the act. Firstly, terms used in a definition would need to be carefully considered for their judicial meaning, and it would need to be clear to stakeholders how the courts' interpretation of these terms might encroach on current business practices and how a definition would affect larger businesses' respon­sibilities under other statutes. Secondly, agreeing on a suitable definition would be a prolonged and difficult process, and definitions proposed, such as that put forward by Professor Zumbo, to whom Senator Xenophon has referred, were considered too complex and uncertain. Accordingly, the Senate committee consid­ered that a definition of unconscionable conduct should not be adopted, and recom­mended an alternative process whereby an expert panel should consider whether examples should be inserted in the act. This is the path the government took. The expert panel explicitly considered whether examples would improve the functioning of the law in this area, and instead recommended that principles be inserted in the act.

My only other comment is that it is correct that the principles that are inserted are obviously based on case law.