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Competition and Consumer Legislation Amendment Bill 2011

Schedule 2 Unconscionable conduct

   

Australian Securities and Investments Commission Act 2001

1  Sections 12CB and 12CC

Repeal the sections, substitute:

12CB   Unconscionable conduct in connection with financial services

             (1)  A person must not, in trade or commerce, in connection with:

                     (a)  the supply or possible supply of financial services to a person (other than a listed public company); or

                     (b)  the acquisition or possible acquisition of financial services from a person (other than a listed public company);

engage in conduct that is, in all the circumstances, unconscionable.

             (2)  This section does not apply to conduct that is engaged in only because the person engaging in the conduct:

                     (a)  institutes legal proceedings in relation to the supply or possible supply, or in relation to the acquisition or possible acquisition; or

                     (b)  refers to arbitration a dispute or claim in relation to the supply or possible supply, or in relation to the acquisition or possible acquisition.

             (3)  For the purpose of determining whether a person has contravened subsection (1):

                     (a)  the court must not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention; and

                     (b)  the court may have regard to conduct engaged in, or circumstances existing, before the commencement of this section.

             (4)  It is the intention of the Parliament that:

                     (a)  this section is not limited by the unwritten law of the States and Territories relating to unconscionable conduct; and

                     (b)  this section is capable of applying to a system of conduct or pattern of behaviour, whether or not a particular individual is identified as having been disadvantaged by the conduct or behaviour; and

                     (c)  in considering whether conduct to which a contract relates is unconscionable, a court’s consideration of the contract may include consideration of:

                              (i)  the terms of the contract; and

                             (ii)  the manner in which and the extent to which the contract is carried out;

                            and is not limited to consideration of the circumstances relating to formation of the contract.

             (5)  In this section:

listed public company has the same meaning as it has in the Income Tax Assessment Act 1997 .

12CC   Matters the court may have regard to for the purposes of section 12CB

             (1)  Without limiting the matters to which the court may have regard for the purpose of determining whether a person (the supplier ) has contravened section 12CB in connection with the supply or possible supply of financial services to a person (the service recipient ), the court may have regard to:

                     (a)  the relative strengths of the bargaining positions of the supplier and the service recipient; and

                     (b)  whether, as a result of conduct engaged in by the supplier, the service recipient was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier; and

                     (c)  whether the service recipient was able to understand any documents relating to the supply or possible supply of the financial services; and

                     (d)  whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the service recipient or a person acting on behalf of the service recipient by the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the financial services; and

                     (e)  the amount for which, and the circumstances under which, the service recipient could have acquired identical or equivalent financial services from a person other than the supplier; and

                      (f)  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; and

                     (g)  if the supplier is a corporation—the requirements of any applicable industry code (see subsection (3)); and

                     (h)  the requirements of any other industry code (see subsection (3)), if the service recipient acted on the reasonable belief that the supplier would comply with that code; and

                      (i)  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; and

                             (ii)  any risks to the service recipient arising from the supplier’s intended conduct (being risks that the supplier should have foreseen would not be apparent to the service recipient); and

                      (j)  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; and

                             (ii)  the terms and conditions of the contract; and

                            (iii)  the conduct of the supplier and the service recipient in complying with the terms and conditions of the contract; and

                            (iv)  any conduct that the supplier or the service recipient engaged in, in connection with their commercial relationship, after they entered into the contract; and

                     (k)  without limiting paragraph (j), whether the supplier has a contractual right to vary unilaterally a term or condition of a contract between the supplier and the service recipient for the supply of the financial services; and

                      (l)  the extent to which the supplier and the service recipient acted in good faith.

             (2)  Without limiting the matters to which the court may have regard for the purpose of determining whether a person (the acquirer ) has contravened section 12CB in connection with the acquisition or possible acquisition of financial services from a person (the supplier ), the court may have regard to:

                     (a)  the relative strengths of the bargaining positions of the acquirer and the supplier; and

                     (b)  whether, as a result of conduct engaged in by the acquirer, the supplier was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the acquirer; and

                     (c)  whether the supplier was able to understand any documents relating to the acquisition or possible acquisition of the financial services; and

                     (d)  whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the supplier or a person acting on behalf of the supplier by the acquirer or a person acting on behalf of the acquirer in relation to the acquisition or possible acquisition of the financial services; and

                     (e)  the amount for which, and the circumstances in which, the supplier could have supplied identical or equivalent financial services to a person other than the acquirer; and

                      (f)  the extent to which the acquirer’s conduct towards the supplier was consistent with the acquirer’s conduct in similar transactions between the acquirer and other like suppliers; and

                     (g)  the requirements of any applicable industry code (see subsection (3)); and

                     (h)  the requirements of any other industry code (see subsection (3)), if the supplier acted on the reasonable belief that the acquirer would comply with that code; and

                      (i)  the extent to which the acquirer unreasonably failed to disclose to the supplier:

                              (i)  any intended conduct of the acquirer that might affect the interests of the supplier; and

                             (ii)  any risks to the supplier arising from the acquirer’s intended conduct (being risks that the acquirer should have foreseen would not be apparent to the supplier); and

                      (j)  if there is a contract between the acquirer and the supplier for the acquisition of the financial services:

                              (i)  the extent to which the acquirer was willing to negotiate the terms and conditions of the contract with the supplier; and

                             (ii)  the terms and conditions of the contract; and

                            (iii)  the conduct of the acquirer and the supplier in complying with the terms and conditions of the contract; and

                            (iv)  any conduct that the acquirer or the supplier engaged in, in connection with their commercial relationship, after they entered into the contract; and

                     (k)  without limiting paragraph (j), whether the acquirer has a contractual right to vary unilaterally a term or condition of a contract between the acquirer and the supplier for the acquisition of the financial services; and

                      (l)  the extent to which the acquirer and the supplier acted in good faith.

             (3)  In this section:

applicable industry code , in relation to a corporation, has the same meaning as it has in subsection 51ACA(1) of the Competition and Consumer Act 2010 .

industry code has the same meaning as it has in subsection 51ACA(1) of the Competition and Consumer Act 2010 .

Competition and Consumer Act 2010

2  Paragraph 131(2)(a)

Omit “section 22”, substitute “section 21”.

3  Subsection 20(2) of Schedule 2

Omit “or 22”.

4  Sections 21 and 22 of Schedule 2

Repeal the sections, substitute:

21   Unconscionable conduct in connection with goods or services

             (1)  A person must not, in trade or commerce, in connection with:

                     (a)  the supply or possible supply of goods or services to a person (other than a listed public company); or

                     (b)  the acquisition or possible acquisition of goods or services from a person (other than a listed public company);

engage in conduct that is, in all the circumstances, unconscionable.

             (2)  This section does not apply to conduct that is engaged in only because the person engaging in the conduct:

                     (a)  institutes legal proceedings in relation to the supply or possible supply, or in relation to the acquisition or possible acquisition; or

                     (b)  refers to arbitration a dispute or claim in relation to the supply or possible supply, or in relation to the acquisition or possible acquisition.

             (3)  For the purpose of determining whether a person has contravened subsection (1):

                     (a)  the court must not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention; and

                     (b)  the court may have regard to conduct engaged in, or circumstances existing, before the commencement of this section.

             (4)  It is the intention of the Parliament that:

                     (a)  this section is not limited by the unwritten law relating to unconscionable conduct; and

                     (b)  this section is capable of applying to a system of conduct or pattern of behaviour, whether or not a particular individual is identified as having been disadvantaged by the conduct or behaviour; and

                     (c)  in considering whether conduct to which a contract relates is unconscionable, a court’s consideration of the contract may include consideration of:

                              (i)  the terms of the contract; and

                             (ii)  the manner in which and the extent to which the contract is carried out;

                            and is not limited to consideration of the circumstances relating to formation of the contract.

22   Matters the court may have regard to for the purposes of section 21

             (1)  Without limiting the matters to which the court may have regard for the purpose of determining whether a person (the supplier ) has contravened section 21 in connection with the supply or possible supply of goods or services to a person (the customer ), the court may have regard to:

                     (a)  the relative strengths of the bargaining positions of the supplier and the customer; and

                     (b)  whether, as a result of conduct engaged in by the supplier, the customer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier; and

                     (c)  whether the customer was able to understand any documents relating to the supply or possible supply of the goods or services; and

                     (d)  whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the customer or a person acting on behalf of the customer by the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the goods or services; and

                     (e)  the amount for which, and the circumstances under which, the customer could have acquired identical or equivalent goods or services from a person other than the supplier; and

                      (f)  the extent to which the supplier’s conduct towards the customer was consistent with the supplier’s conduct in similar transactions between the supplier and other like customers; and

                     (g)  the requirements of any applicable industry code; and

                     (h)  the requirements of any other industry code, if the customer acted on the reasonable belief that the supplier would comply with that code; and

                      (i)  the extent to which the supplier unreasonably failed to disclose to the customer:

                              (i)  any intended conduct of the supplier that might affect the interests of the customer; and

                             (ii)  any risks to the customer arising from the supplier’s intended conduct (being risks that the supplier should have foreseen would not be apparent to the customer); and

                      (j)  if there is a contract between the supplier and the customer for the supply of the goods or services:

                              (i)  the extent to which the supplier was willing to negotiate the terms and conditions of the contract with the customer; and

                             (ii)  the terms and conditions of the contract; and

                            (iii)  the conduct of the supplier and the customer in complying with the terms and conditions of the contract; and

                            (iv)  any conduct that the supplier or the customer engaged in, in connection with their commercial relationship, after they entered into the contract; and

                     (k)  without limiting paragraph (j), whether the supplier has a contractual right to vary unilaterally a term or condition of a contract between the supplier and the customer for the supply of the goods or services; and

                      (l)  the extent to which the supplier and the customer acted in good faith.

             (2)  Without limiting the matters to which the court may have regard for the purpose of determining whether a person (the acquirer ) has contravened section 21 in connection with the acquisition or possible acquisition of goods or services from a person (the supplier ), the court may have regard to:

                     (a)  the relative strengths of the bargaining positions of the acquirer and the supplier; and

                     (b)  whether, as a result of conduct engaged in by the acquirer, the supplier was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the acquirer; and

                     (c)  whether the supplier was able to understand any documents relating to the acquisition or possible acquisition of the goods or services; and

                     (d)  whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the supplier or a person acting on behalf of the supplier by the acquirer or a person acting on behalf of the acquirer in relation to the acquisition or possible acquisition of the goods or services; and

                     (e)  the amount for which, and the circumstances in which, the supplier could have supplied identical or equivalent goods or services to a person other than the acquirer; and

                      (f)  the extent to which the acquirer’s conduct towards the supplier was consistent with the acquirer’s conduct in similar transactions between the acquirer and other like suppliers; and

                     (g)  the requirements of any applicable industry code; and

                     (h)  the requirements of any other industry code, if the supplier acted on the reasonable belief that the acquirer would comply with that code; and

                      (i)  the extent to which the acquirer unreasonably failed to disclose to the supplier:

                              (i)  any intended conduct of the acquirer that might affect the interests of the supplier; and

                             (ii)  any risks to the supplier arising from the acquirer’s intended conduct (being risks that the acquirer should have foreseen would not be apparent to the supplier); and

                      (j)  if there is a contract between the acquirer and the supplier for the acquisition of the goods or services:

                              (i)  the extent to which the acquirer was willing to negotiate the terms and conditions of the contract with the supplier; and

                             (ii)  the terms and conditions of the contract; and

                            (iii)  the conduct of the acquirer and the supplier in complying with the terms and conditions of the contract; and

                            (iv)  any conduct that the acquirer or the supplier engaged in, in connection with their commercial relationship, after they entered into the contract; and

                     (k)  without limiting paragraph (j), whether the acquirer has a contractual right to vary unilaterally a term or condition of a contract between the acquirer and the supplier for the acquisition of the goods or services; and

                      (l)  the extent to which the acquirer and the supplier acted in good faith.

22A   Presumptions relating to whether representations are misleading

                   Section 4 applies for the purposes of sections 21 and 22 in the same way as it applies for the purposes of Division 1 of Part 3-1.