Treasury Laws Amendment (More Competition, Better Prices) Act 2022 (Cth)
Contents
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The Parliament of Australia enacts:
This Act is the
Treasury Laws Amendment (More Competition, Better Prices) Act 2022 .
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Sections 1 to 3 and anything in this Act not elsewhere covered by this table | The day this Act receives the Royal Assent. | 9 November 2022 |
Schedule 1 | The day after this Act receives the Royal Assent. | 10 November 2022 |
Schedule 2 | The day after the end of the period of 12 months beginning on the day this Act receives the Royal Assent. | 9 November 2023 |
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Insert:
adjusted turnover , of a body corporate during a period, means the sum of the values of all the supplies that the body corporate, and any body corporate related to the body corporate, have made, or are likely to make, during the period, other than:
(a) supplies made from any of those bodies corporate to any other of those bodies corporate; or
(b) supplies that are input taxed; or
(c) supplies that are not for consideration (and are not taxable supplies under section 72‑5 of the
A New Tax System (Goods and Services Tax) Act 1999 ); or(d) supplies that are not made in connection with an enterprise that the body corporate carries on; or
(e) supplies that are not connected with the indirect tax zone.
Expressions used in this definition that are also used in the
A New Tax System (Goods and Services Tax) Act 1999 have the same meaning as in that Act.
breach turnover period , of a body corporate, for an offence, a contravention, or an act or omission, means the longer of the following periods:
(a) the period of 12 months ending at the end of the month in which:
(i) for an offence—the body corporate ceased committing the offence, or was charged with the offence (whichever is earlier); or
(ii) for a contravention—the contravention ceased, or proceedings in relation to the contravention were instituted (whichever is earlier); or
(iii) for an act or omission—the act or omission ceased, or proceedings in relation to the act or omission were instituted (whichever is earlier);
(b) the period ending at the same time as the period determined under paragraph (a) and starting:
(i) for an offence—at the beginning of the month in which the body corporate committed, or began committing, the offence (as the case requires); or
(ii) for a contravention—at the beginning of the month in which the contravention occurred or began occurring (as the case requires); or
(iii) for an act or omission—at the beginning of the month in which the act or omission occurred or began occurring (as the case requires).
Repeal the definition.
Omit “paragraph 76(1A)(aa)”, substitute “paragraph 76(1B)(b)”.
Omit “$10,000,000”, substitute “$50,000,000”.
Repeal the paragraph, substitute:
(c) if the court cannot determine the total value of those benefits—30% of the corporation’s adjusted turnover during the breach turnover period for the offence.
Omit “$10,000,000”, substitute “$50,000,000”.
Repeal the paragraph, substitute:
(c) if the court cannot determine the total value of those benefits—30% of the corporation’s adjusted turnover during the breach turnover period for the offence.
Insert:
45AIA Section 4AB of the Crimes Act does not apply Section 4AB of the
Crimes Act 1914 does not apply to any provision of this Subdivision.
9
Section 45AB of Schedule 1 (definition of annual turnover ) Repeal the definition.
Omit “paragraph 76(1A)(aa)”, substitute “paragraph 76(1B)(b)”.
Omit “$10,000,000”, substitute “$50,000,000”.
Repeal the paragraph, substitute:
(c) if the court cannot determine the total value of those benefits—30% of the corporation’s adjusted turnover during the breach turnover period for the offence.
Omit “$10,000,000”, substitute “$50,000,000”.
Repeal the paragraph, substitute:
(c) if the court cannot determine the total value of those benefits—30% of the corporation’s adjusted turnover during the breach turnover period for the offence.
Insert:
45AIA Section 4AB of the Crimes Act does not apply Section 4AB of the
Crimes Act 1914 does not apply to any provision of this Subdivision.
Omit “annual turnover”, substitute “adjusted turnover”.
Omit “paragraph 76(1A)(b)”, substitute “subsection 76(1C)”.
Omit “annual turnover”, substitute “adjusted turnover”.
Repeal the subsection.
Omit “annual turnover”, substitute “adjusted turnover”.
Repeal the subsection.
Omit “annual turnover”, substitute “adjusted turnover”.
Repeal the subsection.
Omit “paragraphs 76(1A)(cc) and (1B)(aac)”, substitute “item 11 of the table in subsection 76(1A)”.
Repeal the subsections, substitute:
(1A) The pecuniary penalty payable by a person under subsection (1) is not to exceed the amount worked out using the following table.
1 | section 45AJ or 45AK | the greater of the amounts mentioned in subsection (1B) | $2,500,000 |
2 | section 45D, 45DB, 45E or 45EA | $750,000 | (see subsection (2)) |
3 | any provision of Part IV not covered by items 1 and 2 of this table (see note 1) | the greater of the amounts mentioned in subsection (1B) | $2,500,000 (for acts or omissions relating to section 45DA, see subsection (2)) |
4 | a civil penalty provision of an industry code | the amount set out in the civil penalty provision of the industry code | the amount set out in the civil penalty provision of the industry code |
5 | a provision of Division 4 of Part IVBA | 6,000 penalty units | $500,000 |
6 | section 52ZC, 52ZH, 52ZS or 52ZZE | the greater of the amounts mentioned in subsection (1B) | $2,500,000 |
7 | any provision of Part IVBA not covered by items 5 and 6 of this table | 600 penalty units | $500,000 |
8 | section 55B, 60C or 60K | 6,471 penalty units | 1,295 penalty units |
9 | subsection 56BO(1) or 56BU(1), section 56CD or a civil penalty provision of the consumer data rules not covered by item 10 of this table | the greater of the amounts mentioned in subsection (1C) | $500,000 |
10 | a civil penalty provision of the consumer data rules that sets out at its foot a pecuniary penalty indicated by the words “Civil penalty” | the amount of the pecuniary penalty for a body corporate set out at the foot of the provision | the amount of the pecuniary penalty for a person other than a body corporate set out at the foot of the provision |
11 | a civil penalty provision of Part IVE described by section 57GA | the number of penalty units for a body corporate set out at the foot of the provision | the number of penalty units for a person other than a body corporate set out at the foot of the provision |
12 | section 92 | $33,000 | $6,600 |
13 | a provision of Division 2 of Part XICA | the greater of the amounts mentioned in subsection (1B) | $2,500,000 (see note 2) |
14 | any other provision to which this section applies | $10,000,000 | $500,000 |
Note 1: Item 3 also applies to pecuniary penalties ordered under subsection (1) in respect of an act or omission that relates to subsection 10.49A(1), 10.60(1) or 10.65(1): see subsection 10.49A(2), 10.60(2) or 10.65(2).
Note 2: Pecuniary penalties may not be ordered under subsection (1) against certain individuals in relation to contraventions of section 153E, 153F, 153G or 153H in certain circumstances: see section 153ZD.
(1B) For the purposes of items 1, 3, 6 and 13 of the table in subsection (1A), the amounts are as follows:
(a) $50,000,000;
(b) if item 1 or 13 of the table applies, and the Court can determine the total value of the benefits that have been obtained (within the meaning of Division 1 of Part IV) by one or more persons and that are reasonably attributable to the act or omission—3 times that total value;
(c) if item 3 or 6 of the table applies, and the Court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the act or omission—3 times the value of that benefit;
(d) if the Court cannot determine the value of those benefits or that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the act or omission.
(1C) For the purposes of item 9 of the table in subsection (1A), the amounts are as follows:
(a) $10,000,000;
(b) if the Court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the act or omission—3 times the value of that benefit;
(c) if the Court cannot determine the value of that benefit—10% of the body corporate’s adjusted turnover during the 12‑month period ending at the end of the month in which the act or omission occurred or started to occur.
Omit “paragraphs (1A)(aa), (a) and (b)”, substitute “items 1, 2 and 3 of the table in subsection (1A)”.
Repeal the subsections.
After “for each contravention”, insert “, the greater of the following”.
Repeal the subparagraphs, substitute:
(i) if the contravention continued for 21 days or fewer—the sum of $50 million and $1 million for each day that the contravention continued;
(ii) if the contravention continued for more than 21 days—the sum of $71 million and $3 million for each day in excess of 21 that the contravention continued;
(iii) if the Court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the contravention—3 times the value of that benefit;
(iv) if the Court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the contravention; or
Omit “$500,000”, substitute “$2.5 million”.
Insert:
adjusted turnover , of a body corporate during a period, means the sum of the values of all the supplies that the body corporate, and any body corporate related to the body corporate, have made, or are likely to make, during the period, other than:
(a) supplies made from any of those bodies corporate to any other of those bodies corporate; or
(b) supplies that are input taxed; or
(c) supplies that are not for consideration (and are not taxable supplies under section 72‑5 of the
A New Tax System (Goods and Services Tax) Act 1999 ); or(d) supplies that are not made in connection with an enterprise that the body corporate carries on; or
(e) supplies that are not connected with the indirect tax zone.
Expressions used in this definition that are also used in the
A New Tax System (Goods and Services Tax) Act 1999 have the same meaning as in that Act.
32
Subsection 2(1) of Schedule 2 (definition of annual turnover ) Repeal the definition.
Insert:
breach turnover period , of a body corporate, for an offence or an act or omission, means the longer of the following periods:
(a) the period of 12 months ending at the end of the month in which:
(i) for an offence—the body corporate ceased committing the offence, or was charged with the offence (whichever is earlier); or
(ii) for an act or omission—the act or omission ceased, or proceedings in relation to the act or omission were instituted (whichever is earlier);
(b) the period ending at the same time as the period determined under paragraph (a) and starting:
(i) for an offence—at the beginning of the month in which the body corporate committed, or began committing, the offence (as the case requires); or
(ii) for an act or omission—at the beginning of the month in which the act or omission occurred or began occurring (as the case requires).
Omit “$10,000,000”, substitute “$50,000,000”.
Repeal the paragraph, substitute:
(c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence.
Omit “$500,000”, substitute “$2,500,000”.
Omit “$10,000,000”, substitute “$50,000,000”.
Repeal the paragraph, substitute:
(c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence.
Omit “$500,000”, substitute “$2,500,000”.
Omit “$10,000,000”, substitute “$50,000,000”.
Repeal the paragraph, substitute:
(c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence.
Omit “$500,000”, substitute “$2,500,000”.
Omit “$10,000,000”, substitute “$50,000,000”.
Repeal the paragraph, substitute:
(c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence.
Omit “$500,000”, substitute “$2,500,000”.
Omit “$10,000,000”, substitute “$50,000,000”.
Repeal the paragraph, substitute:
(c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence.
Omit “$500,000”, substitute “$2,500,000”.
Omit “$10,000,000”, substitute “$50,000,000”.
Repeal the paragraph, substitute:
(c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence.
Omit “$500,000”, substitute “$2,500,000”.
Omit “$10,000,000”, substitute “$50,000,000”.
Repeal the paragraph, substitute:
(c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence.
Omit “$500,000”, substitute “$2,500,000”.
Omit “$10,000,000”, substitute “$50,000,000”.
Repeal the paragraph, substitute:
(c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence.
Omit “$500,000”, substitute “$2,500,000”.
Omit “$10,000,000”, substitute “$50,000,000”.
Repeal the paragraph, substitute:
(c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence.
Omit “$500,000”, substitute “$2,500,000”.
Omit “$10,000,000”, substitute “$50,000,000”.
Repeal the paragraph, substitute:
(c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence.
Omit “$500,000”, substitute “$2,500,000”.
Omit “$10,000,000”, substitute “$50,000,000”.
Repeal the paragraph, substitute:
(c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence.
Omit “$500,000”, substitute “$2,500,000”.
Omit “$10,000,000”, substitute “$50,000,000”.
Repeal the paragraph, substitute:
(c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence.
Omit “$500,000”, substitute “$2,500,000”.
Omit “$10,000,000”, substitute “$50,000,000”.
Repeal the paragraph, substitute:
(c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence.
Omit “$500,000”, substitute “$2,500,000”.
Omit “$10,000,000”, substitute “$50,000,000”.
Repeal the paragraph, substitute:
(c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence.
Omit “$500,000”, substitute “$2,500,000”.
Omit “$10,000,000”, substitute “$50,000,000”.
Repeal the paragraph, substitute:
(c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence.
Omit “$500,000”, substitute “$2,500,000”.
Omit “$10,000,000”, substitute “$50,000,000”.
Repeal the paragraph, substitute:
(c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence.
Omit “$500,000”, substitute “$2,500,000”.
Omit “$10,000,000”, substitute “$50,000,000”.
Repeal the paragraph, substitute:
(c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence.
Omit “$500,000”, substitute “$2,500,000”.
Omit “$10,000,000”, substitute “$50,000,000”.
Repeal the paragraph, substitute:
(c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence.
Omit “$500,000”, substitute “$2,500,000”.
Omit “$10,000,000”, substitute “$50,000,000”.
Repeal the paragraph, substitute:
(c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence.
Omit “$500,000”, substitute “$2,500,000”.
Omit “$10,000,000”, substitute “$50,000,000”.
Repeal the paragraph, substitute:
(c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence.
Omit “$500,000”, substitute “$2,500,000”.
Omit “$10,000,000”, substitute “$50,000,000”.
Repeal the paragraph, substitute:
(c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence.
Omit “$500,000”, substitute “$2,500,000”.
Omit “$10,000,000”, substitute “$50,000,000”.
Repeal the paragraph, substitute:
(c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence.
Omit “$500,000”, substitute “$2,500,000”.
Omit “$10,000,000”, substitute “$50,000,000”.
Repeal the paragraph, substitute:
(c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence.
Omit “$500,000”, substitute “$2,500,000”.
Repeal the table, substitute:
1 | a provision of Part 2‑2 | the greater of the amounts mentioned in subsection (3A) | $2,500,000 |
2 | a provision of Part 3‑1 (other than section 47(1)) | the greater of the amounts mentioned in subsection (3A) | $2,500,000 |
3 | section 47(1) | $5,000 | $1,000 |
4 | section 66(2) | $50,000 | $10,000 |
5 | a provision of Division 2 of Part 3‑2 (other than section 85) | $50,000 | $10,000 |
6 | a provision of Division 3 of Part 3‑2 (other than section 96(2)) | $30,000 | $6,000 |
7 | section 99B(1), 99C, 99D(1), 99E or 99F(2) | $30,000 | $6,000 |
8 | section 100(1) or (3) or 101(3) or (4) | $15,000 | $3,000 |
9 | section 102(2) or 103(2) | $50,000 | $10,000 |
10 | section 106(1), (2), (3) or (5), 107(1) or (2), 118(1), (2), (3) or (5) or 119(1) or (2) | the greater of the amounts mentioned in subsection (3A) | $2,500,000 |
11 | section 125(4) | $16,500 | $3,300 |
12 | section 127(1) or (2) | the greater of the amounts mentioned in subsection (3A) | $2,500,000 |
13 | section 128(2) or (6), 131(1) or 132(1) | $16,500 | $3,300 |
14 | section 136(1), (2) or (3) or 137(1) or (2) | the greater of the amounts mentioned in subsection (3A) | $2,500,000 |
15 | section 221(1) | $16,500 | $3,300 |
16 | section 222(1) | $27,500 | $5,500 |
Omit “$10,000,000”, substitute “$50,000,000”.
Repeal the paragraph, substitute:
(c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the act or omission.
The amendments made by Parts 1 and 3 of this Schedule apply in relation to:
(a) offences committed; or
(b) contraventions, or acts or omissions, that occurred;
on or after the commencement of this Schedule.
Insert:
The amendments made by Part 2 of Schedule 1 to the
Treasury Laws Amendment (More Competition, Better Prices) Act 2022 apply in relation to offences committed on or after the commencement of that Schedule.
108
In the appropriate position in Chapter 6 of Schedule 2 Insert:
The amendments made by Part 4 of Schedule 1 to the
Treasury Laws Amendment (More Competition, Better Prices) Act 2022 apply in relation to offences committed, or acts or omissions that occurred, on or after the commencement of that Schedule.
Insert:
(2A) A person contravenes this subsection if:
(a) the person makes a contract; and
(b) the contract is a consumer contract or small business contract; and
(c) the contract is a standard form contract; and
(d) a term of the contract is unfair; and
(e) the person proposed the unfair term.
Note: A pecuniary penalty may be imposed for a contravention of this subsection: see section 224.
(2B) A person who contravenes subsection (2A) commits a separate contravention of that subsection in respect of each term that is unfair and that the person proposed.
(2C) A person contravenes this subsection if:
(a) the person applies or relies on, or purports to apply or rely on, a term of a contract; and
(b) the contract is a consumer contract or small business contract; and
(c) the contract is a standard form contract; and
(d) the term is unfair.
Note: A pecuniary penalty may be imposed for a contravention of this subsection: see section 224.
Insert:
(2A) A person contravenes this subsection if:
(a) the person makes a contract; and
(b) the contract is a consumer contract or small business contract; and
(c) the contract is a standard form contract; and
(d) the contract is either a financial product or a contract for the supply, or possible supply, of financial services; and
(e) a term of the contract is unfair; and
(f) the person proposed the unfair term.
(2B) A person who contravenes subsection (2A) commits a separate contravention of that subsection in respect of each term that is unfair and that the person proposed.
(2C) A person contravenes this subsection if:
(a) the person applies or relies on, or purports to apply or rely on, a term of a contract; and
(b) the contract is a consumer contract or small business contract; and
(c) the contract is a standard form contract; and
(d) the contract is either a financial product or a contract for the supply, or possible supply, of financial services; and
(e) the term is unfair.
Omit “subsection 12BF(1)”, substitute “section 12BF”.
Omit “subsection 12BF(1)”, substitute “section 12BF”.
Repeal the section, substitute:
In determining whether to make an order under subsection 237(1) or 238(1) of the Australian Consumer Law in relation to a contravention of a provision of Part 2‑2 or 2‑3 of the Australian Consumer Law, the court may have regard to the conduct of the parties to the proceeding referred to in that subsection since the contravention occurred.
Repeal the paragraphs, substitute:
(b) an application under section 232 of the Australian Consumer Law for an injunction against the person in relation to a contravention of a provision of Chapter 2, 3 or 4 of the Australian Consumer Law; or
(c) an action under subsection 236(1) of the Australian Consumer Law against the person in relation to a contravention of a provision of Part 2‑1 or 2‑3, or of Chapter 3, of the Australian Consumer Law; or
(d) an application for an order under subsection 237(1) or 239(1) of the Australian Consumer Law against the person in relation to a contravention of a provision of Chapter 2, 3 or 4 of the Australian Consumer Law.
Omit “or 239(1)”, substitute “, 239(1), 243A(1) or 243B(1)”.
After “237(1)”, insert “, 243A(1) or 243B(1)”.
9
Subsection 2(1) of Schedule 2 (definition of declared term ) Repeal the definition, substitute:
declared term : see sections 239(1)(a)(ii), 243A(1) and 243B(1).
10
Subsection 2(1) of Schedule 2 (paragraph (b) of the definition of enforcement proceeding ) Omit “and 239”, substitute “, 239, 243A and 243B”.
11
Before subparagraph 224(1)(a)(ii) of Schedule 2 Insert:
(iia) section 23(2A) or (2C) (which is about unfair terms in standard form consumer or small business contracts);
12
Subsection 224(3) of Schedule 2 (before table item 2) Insert:
2A | section 23(2A) or (2C) | the greater of the amounts mentioned in subsection (3A) | $2,500,000 |
After “items 1,”, insert “2A,”.
Repeal the subsection.
15
Subdivision A of Division 4 of Part 5‑2 of Schedule 2 (heading) Repeal the heading.
Repeal the paragraphs, substitute:
(a) on application of a person (the
injured person ) who has suffered, or is likely to suffer, loss or damage because another person has engaged in conduct in contravention of a provision of Chapter 2, 3 or 4; or(b) on the application of the regulator made on behalf of, and with the consent in writing of, one or more such injured persons;
17
Subsection 237(1) of Schedule 2 (notes 1 and 2) Repeal the notes, substitute:
Note: The orders that the court may make include all or any of the orders set out in section 243.
Repeal the subsection, substitute:
(3) An application under subsection (1) may be made at any time before the end of 6 years from the day on which the cause of action accrued that relates to the conduct referred to in that subsection.
Repeal the subsection, substitute:
(1) If:
(a) a proceeding is instituted in a court under a provision of Chapter 4 or this Chapter (other than this section); and
(b) the court finds that a party to the proceeding (the
injured person ) has suffered loss or damage, or is likely to suffer loss or damage, because another person has engaged in conduct in contravention of a provision of Chapter 2, 3 or 4;the court may make such order or orders as it thinks appropriate against the other person, or against a person involved in that conduct.
Note: The orders that the court may make include all or any of the orders set out in section 243.
20
Subdivision B of Division 4 of Part 5‑2 of Schedule 2 (heading) Repeal the heading.
21
Subsection 239(1) of Schedule 2 (notes 1 and 2) Repeal the notes, substitute:
Note: The orders that the court may make include all or any of the orders set out in section 243.
22
Subdivision C of Division 4 of Part 5‑2 of Schedule 2 (heading) Repeal the heading.
Repeal the section.
Repeal the sections, substitute:
(1) If a declaration has been made under section 250 in relation to a term (the
declared term ) of a contract, a court may:
(a) on the application of a party to the contract; or
(b) on the application of the regulator made on behalf of, and with the consent in writing of, one or more parties to the contract;
make against a party (the
respondent ) to the contract who is advantaged by the declared term such order or orders (other than an award of damages) as the court thinks appropriate:
(c) to redress, in whole or in part, loss or damage that has been caused to any person by the declared term; or
(d) to prevent or reduce loss or damage that is likely to be so caused.
(2) Without limiting subsection (1), the orders that a court may make against the respondent include all or any of the following:
(a) an order declaring the whole or any part of the contract, or of a collateral arrangement relating to the contract:
(i) to be void; and
(ii) if the court thinks fit—to have been void ab initio or void at all times on and after such date as is specified in the order (which may be a date that is before the date on which the order is made);
(b) an order:
(i) varying the contract, or such a collateral arrangement, as specified in the order; and
(ii) if the court thinks fit—declaring the contract or arrangement to have had effect as so varied on and after such date as is specified in the order (which may be a date that is before the date on which the order is made);
(c) an order refusing to enforce any or all of the provisions of the contract, or of such a collateral arrangement.
(3) An application under subsection (1) may be made at any time before the end of 6 years from the day on which the declaration under section 250 was made.
(1) If a declaration has been made under section 250 in relation to a term (the
declared term ) of a contract, a court may, on the application of the regulator, make against a party (therespondent ) to the contract who is advantaged by the declared term such order or orders (other than an award of damages) as the court thinks appropriate:
(a) to prevent a term (a
similar term ) that is the same, or substantially similar, in effect to the declared term from being included in any future contract:
(i) to which the respondent is a party; and
(ii) that is a consumer contract or small business contract; and
(iii) that is a standard form contract; or
(b) to redress, in whole or in part, loss or damage that has been caused, or to prevent or reduce loss or damage that is likely to be caused, to any person by a similar term that is included in any existing contract:
(i) to which the respondent is a party; and
(ii) that is a consumer contract or small business contract; and
(iii) that is a standard form contract;
whether or not the future or existing contract is identifiable when the court makes the order or orders.
(2) Without limiting subsection (1), the orders that a court may make against the respondent include all or any of the following:
(a) an injunction restraining the respondent from making any future contract that is of the kind referred to in paragraph (1)(a) and includes a similar term;
(b) an injunction restraining the respondent from applying or relying on a similar term of any existing contract that is of the kind referred to in paragraph (1)(b);
(c) an order declaring the whole or any part of any existing contract of the kind referred to in paragraph (1)(b), or of a collateral arrangement relating to such a contract:
(i) to be void; and
(ii) if the court thinks fit—to have been void ab initio or void at all times on and after such date as is specified in the order (which may be a date that is before the date on which the order is made);
(d) an order:
(i) varying such an existing contract, or such a collateral arrangement, as specified in the order; and
(ii) if the court thinks fit—declaring the contract or arrangement to have had effect as so varied on and after such date as is specified in the order (which may be a date that is before the date on which the order is made);
(e) an order refusing to enforce any or all of the provisions of such an existing contract, or of such a collateral arrangement.
(3) An application under subsection (1) may be made at any time before the end of 6 years from the day on which the declaration under section 250 was made.
(4) An order made under this section against the respondent binds a person affected by the order, even if the person is not a party to the proceedings in which the order is made.
(1) An application may be made under section 237(1), 239(1), 243A(1) or 243B(1) even if an enforcement proceeding in relation to the conduct or term referred to in that section has not been instituted.
(2) A court may make an order under a provision of this Division whether or not the court:
(a) grants an injunction under Division 2; or
(b) makes an order under any other provision of this Division or under section 236, 246, 247 or 248.
(3) Nothing in this Division limits the generality of Division 2.
After “Part 2‑2”, insert “or 2‑3”.
Insert:
(ia) a provision of Part 2‑3 (which is about unfair contract terms);
27 Subsection 12BA(1) (definition of enforcement proceeding ) Omit “section 12GNB”, substitute “sections 12GNB, 12GNE and 12GNF”.
Insert:
(aa) a provision of Subdivision BA;
Repeal the subsection.
After “a provision of”, insert “Subdivision BA (sections 12BF to 12BM),”.
Repeal the section, substitute:
(1) In:
(a) a proceeding against a person under section 12GF or 12GFA; or
(b) an application under subsection 12GM(2), 12GNB(1), 12GNE(1) or 12GNF(1) for an order against a person;
a finding of any fact by a court is prima facie evidence of that fact if the finding was made in proceedings:
(c) under section 12GBA, 12GBB, 12GBCC, 12GD, 12GLA or 12GLB; or
(d) for an offence against section 12GB;
in which that person was found to have contravened, or to have been involved in a contravention of, a provision of this Division.
(2) The finding may be proved by production of a document, under the seal of the court, from which the finding appears.
Omit “or 12GNB(1)”, substitute “, 12GNB(1), 12GNE(1) or 12GNF(1)”.
33
Subsection 12GLA(4) (before paragraph (a) of the definition of contravening conduct ) Insert:
(aa) contravenes a provision of Subdivision BA (sections 12BF to 12BM); or
After “Subdivision”, insert “BA,”.
After “Subdivision”, insert “BA,”.
Repeal the subsection.
After “a provision of”, insert “Subdivision BA (sections 12BF to 12BM),”.
Repeal the subsection.
After “Subdivision”, insert “BA,”.
Insert:
(1) If a declaration has been made under section 12GND in relation to a term (the
declared term ) of a contract, the Court may:
(a) on the application of a party to the contract; or
(b) on the application of ASIC made on behalf of, and with the consent in writing of, one or more parties to the contract;
make against a party (the
respondent ) to the contract who is advantaged by the declared term such order or orders (other than an award of damages) as the Court thinks appropriate:
(c) to redress, in whole or in part, loss or damage that has been caused to any person by the declared term; or
(d) to prevent or reduce loss or damage that is likely to be so caused.
(2) Without limiting subsection (1), the orders that the Court may make against the respondent include all or any of the following:
(a) an order declaring the whole or any part of the contract, or of a collateral arrangement relating to the contract:
(i) to be void; and
(ii) if the Court thinks fit—to have been void ab initio or void at all times on and after such date as is specified in the order (which may be a date that is before the date on which the order is made);
(b) an order:
(i) varying the contract, or such a collateral arrangement, as specified in the order; and
(ii) if the Court thinks fit—declaring the contract or arrangement to have had effect as so varied on and after such date as is specified in the order (which may be a date that is before the date on which the order is made);
(c) an order refusing to enforce any or all of the provisions of the contract, or of such a collateral arrangement.
(3) An application under subsection (1) may be made at any time before the end of 6 years from the day on which the declaration under section 12GND was made.
(1) If a declaration has been made under section 12GND in relation to a term (the
declared term ) of a contract, the Court may, on the application of ASIC, make against a party (therespondent ) to the contract who is advantaged by the declared term such order or orders (other than an award of damages) as the Court thinks appropriate:
(a) to prevent a term (a
similar term ) that is the same, or substantially similar, in effect to the declared term from being included in any future contract:
(i) to which the respondent is a party; and
(ii) that is a consumer contract or small business contract; and
(iii) that is a standard form contract; or
(b) to redress, in whole or in part, loss or damage that has been caused, or to prevent or reduce loss or damage that is likely to be caused, to any person by a similar term that is included in any existing contract:
(i) to which the respondent is a party; and
(ii) that is a consumer contract or small business contract; and
(iii) that is a standard form contract;
whether or not the future or existing contract is identifiable when the Court makes the order or orders.
(2) Without limiting subsection (1), the orders that the Court may make against the respondent include all or any of the following:
(a) an injunction restraining the respondent from making any future contract that is of the kind referred to in paragraph (1)(a) and includes a similar term;
(b) an injunction restraining the respondent from applying or relying on a similar term of any existing contract that is of the kind referred to in paragraph (1)(b);
(c) an order declaring the whole or any part of any existing contract of the kind referred to in paragraph (1)(b), or of a collateral arrangement relating to such a contract:
(i) to be void; and
(ii) if the Court thinks fit—to have been void ab initio or void at all times on and after such date as is specified in the order (which may be a date that is before the date on which the order is made);
(d) an order:
(i) varying such an existing contract, or such a collateral arrangement, as specified in the order; and
(ii) if the Court thinks fit—declaring the contract or arrangement to have had effect as so varied on and after such date as is specified in the order (which may be a date that is before the date on which the order is made);
(e) an order refusing to enforce any or all of the provisions of such an existing contract, or of such a collateral arrangement.
(3) An application under subsection (1) may be made at any time before the end of 6 years from the day on which the declaration under section 12GND was made.
(4) An order made under this section against the respondent binds a person affected by the order, even if the person is not a party to the proceedings in which the order is made.
(1) An application may be made under subsection 12GNE(1) or 12GNF(1) even if an enforcement proceeding in relation to the declared term referred to in that subsection has not been instituted.
(2) The Court may make an order under section 12GNE or 12GNF whether or not the Court:
(a) grants an injunction under section 12GD; or
(b) makes an order under any other provision of this Division (other than section 12GND).
(3) Nothing in this Division limits the generality of section 12GD.
Insert:
(ba) whether one of the parties has made another contract, in the same or substantially similar terms, prepared by that party, and, if so, how many such contracts that party has made;
Add:
(3) A contract may be determined to be a standard form contract despite the existence of one or more of the following:
(a) an opportunity for a party to negotiate changes, to terms of the contract, that are minor or insubstantial in effect;
(b) an opportunity for a party to select a term from a range of options determined by another party;
(c) an opportunity for a party to another contract or proposed contract to negotiate terms of the other contract or proposed contract.
Insert:
(ba) whether one of the parties has made another contract, in the same or substantially similar terms, prepared by that party, and, if so, how many such contracts that party has made;
Add:
(3) A contract may be determined to be a standard form contract despite the existence of one or more of following:
(a) an opportunity for a party to negotiate changes, to terms of the contract, that are minor or insubstantial in effect;
(b) an opportunity for a party to select a term from a range of options determined by another party;
(c) an opportunity for a party to another contract or proposed contract to negotiate terms of the other contract or proposed contract.
Omit “businesses employing fewer than 20 persons”, substitute “persons who carry on a business and employ fewer than 100 persons”.
Omit “businesses employing fewer than 20 persons”, substitute “persons who carry on a business and employ fewer than 100 persons”.
Repeal the subsections, substitute:
(4) A contract is a
small business contract if:
(a) the contract is for a supply of goods or services, or a sale or grant of an interest in land; and
(b) at least one party to the contract satisfies either or both of the following conditions:
(i) the party makes the contract in the course of carrying on a business and at a time when the party employs fewer than 100 persons;
(ii) the party’s turnover, worked out under subsection (6) for the party’s last income year (within the meaning of the
Income Tax Assessment Act 1997 ) that ended at or before the time when the contract is made, is less than $10,000,000.(5) In counting for the purposes of subparagraph (4)(b)(i) the number of persons that a person employs:
(a) a casual employee is not to be counted unless employed on a regular and systematic basis; and
(b) a part‑time employee (including a part‑time casual employee counted under paragraph (a) of this subsection) is to be counted as an appropriate fraction of a full‑time equivalent.
(6) For the purposes of subparagraph (4)(b)(ii), a party’s turnover for a period is the sum of the values of all supplies the party made during the period, other than the following:
(a) supplies that are input taxed;
(b) supplies that are not for consideration (and are not taxable supplies under section 72‑5 of the
A New Tax System (Goods and Services Tax) Act 1999 );(c) supplies that are not made in connection with an enterprise that the party carries on;
(d) supplies that are not connected with the indirect tax zone.
(7) Expressions used in subsection (6) that are also used in the
A New Tax System (Goods and Services Tax) Act 1999 have the same meaning as in that Act.
Omit “a business of the kind referred to in”, substitute “covered by”.
Repeal the subsections, substitute:
(4) A contract is a
small business contract if:
(a) the upfront price payable under the contract does not exceed $5,000,000; and
(b) at least one party to the contract satisfies either or both of the following conditions:
(i) the party makes the contract in the course of carrying on a business and at a time when the party employs fewer than 100 persons;
(ii) the party’s turnover, worked out under subsection (7) for the party’s last income year (within the meaning of the
Income Tax Assessment Act 1997 ) that ended at or before the time when the contract is made, is less than $10,000,000.(5) For the purposes of paragraph (4)(a), in working out the upfront price payable under a contract under which credit is provided or is to be provided, disregard any interest payable under the contract.
(6) In counting for the purposes of subparagraph (4)(b)(i) the number of persons that a person employs:
(a) a casual employee is not to be counted unless employed on a regular and systematic basis; and
(b) a part‑time employee (including a part‑time casual employee counted under paragraph (a) of this subsection) is to be counted as an appropriate fraction of a full‑time equivalent.
(7) For the purposes subparagraph (4)(b)(ii), a party’s turnover for a period is the sum of the values of all supplies the party made during the period, other than the following:
(a) supplies that are input taxed;
(b) supplies that are not for consideration (and are not taxable supplies under section 72‑5 of the
A New Tax System (Goods and Services Tax) Act 1999 );(c) supplies that are not made in connection with an enterprise that the party carries on;
(d) supplies that are not connected with the indirect tax zone.
(8) Expressions used in subsection (7) that are also used in the
A New Tax System (Goods and Services Tax) Act 1999 have the same meaning as in that Act.Note: This section applies to Insurance Contracts Act insurance contracts in addition to the
Insurance Contracts Act 1984 (see paragraph 15(2)(d) of that Act).
Omit “businesses employing fewer than 20 persons”, substitute “persons who carry on a business and employ fewer than 100 persons”.
Omit “businesses employing fewer than 20 persons”, substitute “persons who carry on a business and employ fewer than 100 persons”.
Omit “a business of the kind referred to in paragraph 12BF(4)(a)”, substitute “covered by paragraph 12BF(4)(b)”.
Repeal the subsection, substitute:
(1) Section 23 does not apply to a term of a contract to the extent, but only to the extent, that:
(a) the term defines the main subject matter of the contract; or
(b) the term sets the upfront price payable under the contract; or
(c) the term is required, or expressly permitted, by a law of the Commonwealth or of a State or Territory; or
(d) the term is included in the contract, or is taken to be so included, by operation of a law of the Commonwealth, or of a State or Territory, that regulates the contract; or
(e) inclusion of the term has either or both of the following results:
(i) one or more other terms are included in the contract, or are taken to be so included, by operation of a law of the Commonwealth, or of a State or Territory, that regulates the contract;
(ii) such a law requires one or more other terms to be included in the contract.
Example: A State law provides that, if a retail lease contains a provision for termination on the ground of proposed demolition of the building containing the leased premises, then provisions set out in the State law are taken to be included in the lease.
Paragraph (d) covers the provisions that are set out in the State law and taken to be included in the lease. Paragraph (e) covers inclusion of the provision for termination, since it has the result that the provisions set out in the State law are taken to be included in the lease.
Add:
(5) This Part does not apply to a contract:
(a) that establishes, contains or incorporates rules governing the operation of a payment or settlement system approved under section 9 of the
Payment Systems and Netting Act 1998 ; or(b) that is made in the course of, or for the purposes of, operating such a system.
Add:
(1) This Part does not apply to a contract:
(a) that exists because of:
(i) section 793B of the
Corporations Act 2001 (legal effect of operating rules of a licensed market); or(ii) section 822B of that Act (legal effect of operating rules of a licensed CS facility); or
(b) that is made under, or in accordance with:
(i) the operating rules of a licensed market; or
(ii) the operating rules of a licensed CS facility.
Note: A licensed CS facility is a clearing and settlement facility whose operation is authorised by an Australian CS facility licence.
(2) This Part does not apply to a contract between:
(a) the operator of a licensed market; and
(b) any of the following:
(i) an entity included in the market’s official list;
(ii) the responsible entity for a registered scheme that is so included;
(iii) the operator of a foreign passport fund that is so included;
to the extent that the contract consists of, or includes, listing rules of the licensed market.
(3) An expression has in paragraph (1)(b) and subsection (2) the same meaning as in Chapter 7 of the
Corporations Act 2001 .
Repeal the subsection, substitute:
(1) Section 12BF does not apply to a term of a contract to the extent, but only to the extent, that:
(a) the term defines the main subject matter of the contract; or
(b) the term sets the upfront price payable under the contract; or
(c) the term is required, or expressly permitted, by a law of the Commonwealth or of a State or Territory; or
(d) the term is included in the contract, or is taken to be so included, by operation of a law of the Commonwealth, or of a State or Territory, that regulates the contract; or
(e) inclusion of the term has either or both of the following results:
(i) one or more other terms are included in the contract, or are taken to be so included, by operation of a law of the Commonwealth, or of a State or Territory, that regulates the contract;
(ii) such a law requires one or more other terms to be included in the contract; or
(f) if the contract is an Insurance Contracts Act insurance contract—the term is a transparent term and:
(i) is disclosed at or before the time when the contract is made; and
(ii) sets an amount of excess or deductible under the contract.
Add:
(4) This Subdivision does not apply to a contract:
(a) that establishes, contains or incorporates rules governing the operation of a payment or settlement system approved under section 9 of the
Payment Systems and Netting Act 1998 ; or(b) that is made in the course of, or for the purposes of, operating such a system.
Insert:
(1) This Subdivision does not apply, and is taken never to have applied, to a contract made on or after 5 April 2021 that constitutes a life policy within the meaning of the
Life Insurance Act 1995 and:
(a) replaces as mentioned in subsection (2) of this section:
(i) a contract that constitutes a life policy within the meaning of that Act and was made before 5 April 2021; or
(ii) a contract to which this Subdivision does not apply because of one or more previous applications of this section; or
(b) links, as mentioned in subsection (3) of this section, 2 or more contracts, each of which is a contract of a kind referred to in subparagraph (a)(i) or (ii) of this subsection; or
(c) is one of 2 or more contracts that unlink, as mentioned in subsection (4) of this section, a contract of a kind referred to in subparagraph (a)(i) or (ii) of this subsection.
Note: 5 April 2021 is the day on which Schedule 1 to the
Financial Sector Reform (Hayne Royal Commission Response—Protecting Consumers (2019 Measures)) Act 2020 commenced.(2) For the purposes of paragraph (1)(a), a contract (the
replacement policy )replaces another contract (theprevious policy ) if:
(a) the replacement policy reinstates the previous policy and is issued at the request of the owner of the previous policy after the previous policy lapses; or
(b) the replacement policy is a reissue of the previous policy to correct an administrative error in the previous policy; or
(c) the replacement policy is issued, at the request of the owner of the previous policy, for one or more of the following reasons:
(i) to change the ownership of the policy;
(ii) to extend or vary, in accordance with a term of the previous policy, the cover provided under the policy;
(iii) to change the terms relating to premiums paid under the policy.
(3) For the purposes of paragraph (1)(b), a contract (the
replacement policy )links 2 or more contracts (theprevious policies ) if the only differences between the terms and effect of the replacement policy and those of the previous policies taken together are attributable to linking the cover under the respective previous policies to form the cover under the replacement policy.(4) For the purposes of paragraph (1)(c), 2 or more contracts (the
replacement policies )unlink a contract (theprevious policy ) if the only differences between the terms and effect of the replacement policies taken together and those of the previous policy are attributable to unlinking elements of the cover under the previous policy to form the cover under the respective replacement policies.
(1) If a contract covered by subsection (2) or (3) is renewed, or was renewed on or after 5 April 2021, this Subdivision does not apply, and is taken never to have applied, to the contract as renewed.
Note: 5 April 2021 is the day on which Schedule 1 to the
Financial Sector Reform (Hayne Royal Commission Response—Protecting Consumers (2019 Measures)) Act 2020 commenced.(2) This subsection covers a contract that:
(a) constitutes a life policy within the meaning of the
Life Insurance Act 1995 ; and(b) was made before 5 April 2021; and
(c) either:
(i) is guaranteed renewable; or
(ii) the insurer guarantees not to cancel in response to a change in the risk.
(3) This subsection covers a contract to which this Subdivision does not apply because of one or more previous applications of this section.
(1) This Subdivision does not apply to a contract:
(a) that exists because of:
(i) section 793B of the
Corporations Act 2001 (legal effect of operating rules of a licensed market); or(ii) section 822B of that Act (legal effect of operating rules of a licensed CS facility); or
(b) that is made under, or in accordance with:
(i) the operating rules of a licensed market; or
(ii) the operating rules of a licensed CS facility.
Note: A licensed CS facility is a clearing and settlement facility whose operation is authorised by an Australian CS facility licence.
(2) This Subdivision does not apply to a contract between:
(a) the operator of a licensed market; and
(b) any of the following:
(i) an entity included in the market’s official list;
(ii) the responsible entity for a registered scheme that is so included;
(iii) the operator of a foreign passport fund that is so included;
to the extent that the contract consists of, or includes, listing rules of the licensed market.
(3) An expression has in paragraph (1)(b) and subsection (2) the same meaning as in Chapter 7 of the
Corporations Act 2001 .
Insert:
non‑party means:
(a) in relation to conduct—a person who is not, or has not been, a party to an enforcement proceeding in relation to the conduct; or
(b) in relation to a term of a contract—a person who is not, or has not been, a party to an enforcement proceeding in relation to the term.
60
Subsection 2(1) of Schedule 2 (definition of non‑party consumer ) Repeal the definition.
Omit “
non‑party consumers ”, substitute “non‑parties ”.
62
Subdivision B of Division 4 of Part 5‑2 of Schedule 2 (heading) Omit “
non‑party consumers ”, substitute “non‑parties ”.
Omit “
non‑party consumers ”, substitute “non‑parties ”.
Omit “non‑party consumers” (wherever occurring), substitute “non‑parties”.
Omit “
non‑party consumers ”, substitute “non‑parties ”.
Omit “non‑party consumers” (wherever occurring), substitute “non‑parties”.
Omit “
consumer ”.
Omit “consumer” (wherever occurring).
69 Subsection 12BA(1) (definition of non‑party consumer ) Repeal the definition, substitute:
non‑party means:(a) in relation to conduct—a person who is not, or has not been, a party to an enforcement proceeding in relation to the conduct; or
(b) in relation to a term of a contract—a person who is not, or has not been, a party to an enforcement proceeding in relation to the term.
Omit “
non‑party consumers ”, substitute “non‑parties ”.
Omit “non‑party consumers” (wherever occurring), substitute “non‑parties”.
Omit “
consumer ”.
Omit “consumer” (wherever occurring).
Omit “
non‑party consumers ”, substitute “non‑parties ”.
Omit “consumer” (wherever occurring).
The amendments of sections 137D and 137F of the
Competition and Consumer Act 2010 made by Schedule 2 to this Act apply in relation to a contract to the same extent as the amendments of Schedule 2 to that Act made by Schedule 2 to this Act apply in relation to the contract.Note: For application provisions for the amendments of Schedule 2 to that Act made by Schedule 2 to this Act, see section 305 of Schedule 2 to that Act.
Omit “a services”, substitute “services”.
78
At the end of Part 7 of Chapter 6 of Schedule 2 Add:
(1) This section applies to the amendments of this Schedule made by Schedule 2 (the
amending Schedule ) to theTreasury Laws Amendment (More Competition, Better Prices) Act 2022 .(2) The amendments:
(a) apply in relation to a contract made at or after the commencement (the
relevant commencement ) of the amending Schedule; and(b) do not apply to a contract (an
existing contract ) made before the relevant commencement, except as provided in this section.(3) If an existing contract is renewed at or after the relevant commencement, the amendments apply to the contract as renewed, on and from the day (the
renewal day ) on which the renewal takes effect, in relation to conduct that occurs on or after the renewal day.(4) If an existing contract is varied at or after the relevant commencement by varying or adding a term and subsection (3) has not already applied in relation to the contract:
(a) the amendments apply to the term as varied or added, and so apply:
(i) on and from the day (the
variation day ) on which the variation of the contract takes effect; and(ii) as if the contract as varied had been made on the variation day; and
(iii) in relation to conduct that occurs on and after the variation day; and
(b) section 23(2A)(e) applies in relation to a person proposing the varied or added term, whether before, at or after the relevant commencement; and
(c) subsection 23(2), and section 27, as in force at and after the relevant commencement, apply to the contract.
(5) If a contract is made or renewed at or after the relevant commencement, section 23(2A)(e) applies in relation to a person proposing a term of the contract, whether before, at or after the relevant commencement.
(6) Despite subsections (3) to (5) of this section, the amendments do not apply to a contract, or a term of a contract, to the extent that the operation of the amendments would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph of the Constitution).
Insert:
(1) This section applies to the amendments of this Act made by Schedule 2 (the
amending Schedule ) to theTreasury Laws Amendment (More Competition, Better Prices) Act 2022 , except item 58 of that Schedule.(2) The amendments:
(a) apply in relation to a contract made at or after the commencement (the
relevant commencement ) of the amending Schedule; and(b) do not apply to a contract (an
existing contract ) made before the relevant commencement, except as provided in this section.(3) If an existing contract is renewed at or after the relevant commencement, the amendments apply to the contract as renewed, on and from the day (the
renewal day ) on which the renewal takes effect, in relation to conduct that occurs on or after the renewal day.(4) If an existing contract is varied at or after the relevant commencement by varying or adding a term and subsection (3) has not already applied in relation to the contract:
(a) the amendments apply to the term as varied or added, and so apply:
(i) on and from the day (the
variation day ) on which the variation of the contract takes effect; and(ii) as if the contract as varied had been made on the variation day; and
(iii) in relation to conduct that occurs on and after the variation day; and
(b) paragraph 12BF(2A)(f) applies in relation to a person proposing the varied or added term, whether before, at or after the relevant commencement; and
(c) subsection 12BF(2), and section 12BK, as in force at and after the relevant commencement, apply to the contract.
(5) If a contract is made or renewed at or after the relevant commencement, paragraph 12BF(2A)(f) applies in relation to a person proposing a term of the contract, whether before, at or after the relevant commencement.
(6) Despite subsections (3) to (5) of this section, the amendments do not apply to a contract, or a term of a contract, to the extent that the operation of the amendments would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph of the Constitution).
(1) Sections 12BLA and 12BLB have effect despite section 325 as inserted by Schedule 1 to the
Financial Sector Reform (Hayne Royal Commission Response—Protecting Consumers (2019 Measures)) Act 2020 .(2) However, neither of sections 12BLA and 12BLB applies to the extent that its operation would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph of the Constitution).
(1) The Commonwealth Minister must cause a review to be undertaken, in accordance with this section, of the operation of:
(a) the provisions of Schedule 2 to the
Competition and Consumer Act 2010 that are amended by this Schedule, as those provisions are applied under Subdivision A of Division 2 of Part IX of that Act; and(b) the provisions of the
Competition and Consumer Act 2010 (other than Schedule 2) that are amended by this Schedule; and(c) the provisions of the
Australian Securities and Investments Commission Act 2001 that are amended by this Schedule.(2) The review must relate to the operation of those provisions, as so amended, during the 2 years from the commencement of this Schedule.
(3) The review must be completed, and a report on the review must be given to the Minister, within 6 months after the end of those 2 years.
(4) The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives the report.
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