Treasury Laws Amendment (Australian Consumer Law Review) Act 2018

The Treasury Laws Amendment (Australian Consumer Law Review) Act 2018 is an amending Act. It does not replace the Australian Consumer Law or the ASIC Act. Instead, it makes a series of targeted changes to consumer protection rules in the Competition and Consumer Act 2010 and the Australian Securities and Investments Commission Act 2001.

The schedules cover admissions of fact, listed public companies, unsolicited supplies, unsolicited consumer agreements, pricing, disclosure notices relating to the safety of goods or services, powers to obtain information, documents and evidence, non-punitive orders, guarantees relating to the supply of services, consumer protection under the ASIC Act, and consumer protections in relation to financial products.

For business owners, the practical point is that this Act changed several compliance areas at once. The main trigger points include how you advertise prices, whether optional charges are preselected, how your staff approach customers, whether you send invoices or demands for unrequested services, whether you use standard form contracts, whether you may receive a safety disclosure notice, and whether your business is regulated under the ASIC Act.

The Act affects a broad range of businesses, but not every schedule will matter to every business. The most commonly affected businesses are retailers, ecommerce businesses, service providers, direct sellers, businesses using standard form contracts, suppliers of consumer goods, and financial services businesses.

Some amendments are aimed at specific situations. The pricing change matters most where a business makes price representations and uses optional charges in advertising or checkout flows. The unsolicited consumer agreement amendment matters where sales are made through approaches to consumers, including in public places. The unfair contract term investigation powers matter where a business uses consumer contracts or small business contracts. The service guarantee clarification matters in the specific context of consigned goods and whether the consignee is carrying on or engaged in a business, trade, profession or occupation in relation to the goods.

Listed public companies should also note that wording excluding them was removed from certain unconscionable conduct provisions. That means listed public companies can no longer assume they sit outside those particular protections simply because of their corporate status.

This Act contains separate amendments, each with its own practical trigger points.

Listed public companies: wording excluding listed public companies was removed from certain unconscionable conduct provisions in both the ASIC Act and the ACL framework. Businesses that previously treated listed public company status as a carve out should revisit that assumption.

Unsolicited supplies: the definition of unsolicited services was expanded so it covers services supplied to a person without request, and also services purported to have been supplied but in fact not supplied, without any request by the person or on their behalf. Related wording changes were made so the prohibition also captures a person who purports to supply but does not supply.

Unsolicited consumer agreements: the Act inserted a clarification that the relevant place may be a public place and need not be a place the dealer cannot enter without the consumer’s consent or invitation. This matters for businesses using kiosks, shopping centre approaches, street sales, event sales and similar public place selling methods.

Pricing: the single price rule was amended so an optional charge can be left out only if, at or before the time of the representation, the customer has either deselected the charge or not expressly requested that it be applied. If an optional charge is preselected, the displayed single price must include it. The Act gives the example of a preselected carbon offset in an airline booking system.

Disclosure notices about safety: the Act reframed the disclosure notice provisions so the Commonwealth Minister or an inspector may give a notice where they have reason to believe the recipient is capable of giving information, producing documents or giving evidence about the supply, or possible supply, in trade or commerce, of consumer goods or product related services of a specified kind, and there is a risk of injury including from reasonably foreseeable misuse.

Unfair contract term investigations: ASIC and the ACCC were given clearer power to investigate the terms of certain contracts for the purpose of deciding whether to apply to the court about unfair contract terms. Under the ASIC Act amendment, this concerns consumer contracts or small business contracts that are financial products or contracts for the supply, or possible supply, of financial services. Under the CCA amendment, the ACCC power applies for investigating or inquiring into the terms of a consumer contract or small business contract for the purpose of deciding whether to make an application under the ACL.

Non-punitive orders: the Act added a form of order requiring a person, at the person’s expense, to engage another person specified in the order, or a person in a specified class, to perform a service specified in the order that relates to the conduct for the benefit of the community or a section of the community. The Act also states that such an order is not enforceable against the person engaged to perform the service.

Guarantees relating to services: the Act inserted a clarification that the relevant subsection does not apply if the consignee of the goods is not carrying on or engaged in a business, trade, profession or occupation in relation to the goods.

Consumer protection and financial products under the ASIC Act: the Act also made targeted amendments to consumer protection provisions in the ASIC Act, including replacing references to sale or grant, or possible sale or grant, with supply, or possible supply, in certain provisions, clarifying operation whether or not a representation or conduct occurs before or after the financial product consists of, or includes, an interest in land, and making changes to provisions dealing with financial products and unsolicited financial products.

Because this is an amending Act, the operative obligations sit in the underlying legislation as amended. Even so, there are clear practical checks businesses should make.

Review price displays and checkout flows. If your system preselects optional extras, the displayed single price may need to include those charges until the customer deselects them. This is especially relevant for travel, ticketing, subscriptions, insurance add-ons, delivery upgrades and any online booking path with default extras.

Review invoicing and debt collection practices. If your business sends invoices or demands for services that were not requested, or claims services were supplied when they were not, the unsolicited supplies amendments are directly relevant. Businesses should make sure internal billing systems do not generate demands for unrequested or merely purported services.

Train sales teams that approach customers in person. If staff approach consumers in shopping centres, on the street, at events or in other public places, the unsolicited consumer agreement clarification should be reflected in scripts, training and supervision. Public place selling should not be treated as outside the unsolicited agreement rules.

Review standard form contracts. The Act strengthened regulator investigation powers in relation to consumer contracts and small business contracts. Businesses using templates should expect closer scrutiny where a regulator is considering an unfair contract term application.

Prepare for safety disclosure notices. If you supply consumer goods or product related services, make sure your records and internal escalation processes are ready in case a disclosure notice is issued. The amended provisions are framed around whether the recipient is capable of giving information, producing documents or giving evidence about supply or possible supply.

Check listed public company assumptions. If your business is listed, or contracts with listed entities, do not assume listed public company status removes the business from the relevant unconscionable conduct settings that were amended.

Check service guarantee issues involving consigned goods. Businesses in transport, storage and logistics should review whether the consignee is carrying on or engaged in a business, trade, profession or occupation in relation to the goods before assuming how the service guarantee provision operates.

Do not treat this as only an ACL update. Several schedules amend the ASIC Act directly, including unconscionable conduct settings, investigation powers for unfair contract terms, and consumer protection provisions dealing with financial products and services.

The Act received Royal Assent on 25 October 2018. The whole Act commenced on 26 October 2018, being the day after Royal Assent.

That does not mean every amendment applies in the same way from that date. The application provisions are important and differ by schedule.

Listed public companies: the ASIC Act amendments in Schedule 2 apply in relation to acts or omissions on or after the day that schedule commenced. The ACL amendments in Schedule 2 also apply in relation to acts or omissions on or after the day that schedule commenced.

Unsolicited supplies: the Schedule 3 amendments apply in relation to acts or omissions on or after the day that schedule commenced.

Unsolicited consumer agreements: the Schedule 4 amendment applies in relation to acts or omissions that relate to agreements entered into on or after the day that schedule commenced.

Single price: the Schedule 5 pricing amendment applies in relation to acts or omissions on or after the day that is 12 months after the day that schedule commenced. As the schedule commenced with the Act on 26 October 2018, the practical application date for this change is 26 October 2019.

Disclosure notices about safety: the Schedule 6 amendments apply in relation to disclosure notices given on or after the commencement of that schedule.

Unfair contract term investigation powers: the Schedule 7 ASIC Act amendment applies in relation to contracts entered into on or after the day that schedule commenced. The Schedule 7 CCA amendment also applies in relation to contracts entered into on or after the day that schedule commenced.

Non-punitive orders: the Schedule 8 amendment applies in relation to orders relating to acts or omissions on or after the day that schedule commenced.

Guarantees relating to the supply of services: the Schedule 9 amendment applies in relation to services supplied under a contract entered into on or after the day that schedule commenced.

ASIC Act consumer protection amendments: the Schedule 10 amendments apply in relation to acts or omissions on or after the day that schedule commenced.

Financial products amendments: the Schedule 11 amendments apply in relation to acts or omissions on or after the day that schedule commenced.

when checking the current position, businesses should identify the exact schedule, then check whether the relevant trigger is the date of conduct, the date of agreement, the date of contract entry, the date of a disclosure notice, the date of an order, or the delayed pricing application date.

The main practical message is that this Act made multiple targeted amendments rather than one uniform set of new rules. Businesses should avoid broad assumptions such as thinking all changes started on the same day, all changes apply to old contracts, or all changes sit only in the ACL. The pricing amendment has a delayed application date. Unsolicited conduct rules were clarified and broadened. Regulator investigation powers were expanded in relation to unfair contract terms. Listed public companies were brought within provisions from which they had previously been excluded. Financial services businesses need to review the ASIC Act amendments as well as ACL changes.

If you are checking a specific issue, start with the schedule title, then move to the application provision. That is usually the quickest way to work out whether the amendment affects your business and from when.

This page is based on the text of the Treasury Laws Amendment (Australian Consumer Law Review) Act 2018 as published on the Federal Register of Legislation. It is an overview of the amending Act only. Businesses should read the amended provisions in the Competition and Consumer Act 2010 and the Australian Securities and Investments Commission Act 2001 for the operative rules.

The Act itself notes that some amendments were inserted in response to earlier court decisions, including the unsolicited consumer agreement clarification and the service guarantee clarification. This page does not attempt to summarise those decisions in detail. It focuses on the text of the Act and the practical compliance points that can be drawn from it.