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This is a Bill, not an Act. For current law, see the Acts databases.
2013-2014-2015
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Treasury Legislation Amendment (Small
Business and Unfair Contract Terms)
Bill 2015
No. , 2015
(Treasury)
A Bill for an Act to amend legislation to extend
unfair contract protections to small business
contracts, and for other purposes
No. , 2015
Treasury Legislation Amendment (Small Business and Unfair Contract
Terms) Bill 2015
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Amendments
3
Australian Securities and Investments Commission Act 2001
3
Competition and Consumer Act 2010
7
No. , 2015
Treasury Legislation Amendment (Small Business and Unfair Contract
Terms) Bill 2015
1
A Bill for an Act to amend legislation to extend
1
unfair contract protections to small business
2
contracts, and for other purposes
3
The Parliament of Australia enacts:
4
1 Short title
5
This Act may be cited as the Treasury Legislation Amendment
6
(Small Business and Unfair Contract Terms) Act 2015.
7
2 Commencement
8
(1) Each provision of this Act specified in column 1 of the table
9
commences, or is taken to have commenced, in accordance with
10
column 2 of the table. Any other statement in column 2 has effect
11
according to its terms.
12
2
Treasury Legislation Amendment (Small Business and Unfair Contract
Terms) Bill 2015
No. , 2015
1
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1
The day after the end of the period of 6
months beginning on the day this Act
receives the Royal Assent.
Note:
This table relates only to the provisions of this Act as originally
2
enacted. It will not be amended to deal with any later amendments of
3
this Act.
4
(2) Any information in column 3 of the table is not part of this Act.
5
Information may be inserted in this column, or information in it
6
may be edited, in any published version of this Act.
7
3 Schedules
8
Legislation that is specified in a Schedule to this Act is amended or
9
repealed as set out in the applicable items in the Schedule
10
concerned, and any other item in a Schedule to this Act has effect
11
according to its terms.
12
Amendments Schedule 1
No. , 2015
Treasury Legislation Amendment (Small Business and Unfair Contract
Terms) Bill 2015
3
Schedule 1
--Amendments
1
2
Australian Securities and Investments Commission Act 2001
3
1 Subsection 12BA(1) (paragraph (b) of the definition of
4
non-party consumer)
5
Omit "consumer".
6
2 Subsection 12BA(1) (definition of rely on)
7
After "consumer contract", insert "or small business contract".
8
3 Subsection 12BA(1)
9
Insert:
10
small business contract has the meaning given by
11
subsection 12BF(4).
12
standard form contract has a meaning affected by section 12BK.
13
4 Subsection 12BA(1) (definition of transparent)
14
After "consumer contract", insert "or small business contract".
15
5 Subsection 12BA(1) (definition of unfair)
16
After "consumer contract", insert "or small business contract".
17
6 Section 12BF (heading)
18
Repeal the heading, substitute:
19
12BF Unfair terms of consumer contracts and small business
20
contracts
21
7 Subsection 12BF(1)
22
After "consumer contract", insert "or small business contract".
23
8 At the end of section 12BF
24
Add:
25
Schedule 1 Amendments
4
Treasury Legislation Amendment (Small Business and Unfair Contract
Terms) Bill 2015
No. , 2015
(4) A contract is a small business contract if:
1
(a) at the time the contract is entered into, at least one party to
2
the contract is a business that employs fewer than 20 persons;
3
and
4
(b) either of the following applies:
5
(i) the upfront price payable under the contract does not
6
exceed $100,000;
7
(ii) the contract has a duration of more than 12 months and
8
the upfront price payable under the contract does not
9
exceed $250,000.
10
(5) In counting the persons employed by a business for the purposes of
11
paragraph (4)(a), a casual employee is not to be counted unless he
12
or she is employed by the business on a regular and systematic
13
basis.
14
(6) For the purposes of subsection (4) and despite subsection 12BI(3),
15
in working out the upfront price payable under a contract under
16
which credit is or is to be provided, disregard any interest payable
17
under the contract.
18
9 Subsections 12BG(1), (2) and (4) and 12BH(1)
19
Omit "consumer".
20
10 After paragraph 12BH(2)(a)
21
Insert:
22
(aa) the detriment that a term of that kind would cause to
23
businesses employing fewer than 20 persons; and
24
11 Section 12BI (heading)
25
Repeal the heading, substitute:
26
12BI Terms that define main subject matter of consumer contracts
27
or small business contracts etc. are unaffected
28
12 Subsection 12BI(1)
29
Omit "consumer".
30
Amendments Schedule 1
No. , 2015
Treasury Legislation Amendment (Small Business and Unfair Contract
Terms) Bill 2015
5
13 Subsections 12BI(2) and (3)
1
Omit "consumer contract referred to in subsection 12BF(1)", substitute
2
"contract".
3
14 Section 12BL
4
Repeal the section, substitute:
5
12BL Contracts to which this Subdivision does not apply
6
(1) This Subdivision does not apply to a contract that is the
7
constitution of a company, managed investment scheme or other
8
kind of body.
9
(2) This Subdivision does not apply to a small business contract to
10
which a prescribed law of the Commonwealth, a State or a
11
Territory applies.
12
(3) Before the Governor-General makes a regulation prescribing a law
13
for the purposes of subsection (2):
14
(a) the Minister must be satisfied that the law provides
15
enforceable protections for businesses employing fewer than
16
20 persons that are equivalent to the protections provided by
17
this Subdivision together with Subdivision G; and
18
(b) the Minister must take into consideration:
19
(i) any detriment to businesses of that kind resulting from
20
prescribing the law; and
21
(ii) the impact on business generally resulting from
22
prescribing the law; and
23
(iii) the public interest.
24
15 Subsections 12GD(9), 12GM(10) and 12GN(9)
25
Omit "consumer".
26
16 Subparagraph 12GNB(1)(a)(ii)
27
Omit "consumer".
28
17 Section 12GND
29
Repeal the section, substitute:
30
Schedule 1 Amendments
6
Treasury Legislation Amendment (Small Business and Unfair Contract
Terms) Bill 2015
No. , 2015
12GND Declarations
1
(1) The Court may declare that a term of a consumer contract is an
2
unfair term, on application by:
3
(a) a party to the contract; or
4
(b) ASIC.
5
(2) The Court may declare that a term of a small business contract is
6
an unfair term, on application by:
7
(a) a party to the contract, if the party was a business of the kind
8
referred to in paragraph 12BF(4)(a) at the time the contract
9
was entered into; or
10
(b) ASIC.
11
(3) Subsections (1) and (2) do not apply unless the contract is a
12
standard form contract that is:
13
(a) a financial product; or
14
(b) a contract for the supply, or possible supply, of services that
15
are financial services.
16
(4) Subsections (1) and (2) do not apply if Subdivision BA does not
17
apply to the contract.
18
(5) Subsections (1) and (2) do not limit any other power of the Court
19
to make declarations.
20
18 At the end of the Act
21
Add:
22
Part 22--Application provision relating to the
23
Treasury Legislation Amendment (Small
24
Business and Unfair Contract Terms) Act
25
2015
26
27
301 Application
28
(1) The amendments made by Schedule 1 to the Treasury Legislation
29
Amendment (Small Business and Unfair Contract Terms) Act 2015
30
Amendments Schedule 1
No. , 2015
Treasury Legislation Amendment (Small Business and Unfair Contract
Terms) Bill 2015
7
apply in relation to a contract entered into on or after the
1
commencement of that Schedule.
2
(2) The amendments do not apply to a contract entered into before the
3
commencement of that Schedule. However:
4
(a) if the contract is renewed on or after that commencement--
5
the amendments apply to the contract as renewed, on and
6
from the day (the renewal day) on which the renewal takes
7
effect, in relation to conduct that occurs on or after the
8
renewal day; or
9
(b) if a term of the contract is varied on or after that
10
commencement and paragraph (a) has not already applied in
11
relation to the contract--the amendments apply to the term as
12
varied, on and from the day (the variation day) on which the
13
variation takes effect, in relation to conduct that occurs on
14
and after the variation day.
15
(3) If paragraph (2)(b) of this section applies to a term of a contract,
16
subsection 12BF(2) and section 12BK of this Act apply to the
17
contract.
18
(4) Despite paragraphs (2)(a) and (b) and subsection (3) of this section,
19
the amendments do not apply to a contract, or a term of a contract,
20
to the extent that the operation of the amendments would result in
21
an acquisition of property (within the meaning of
22
paragraph 51(xxxi) of the Constitution) from a person otherwise
23
than on just terms (within the meaning of that paragraph of the
24
Constitution).
25
Competition and Consumer Act 2010
26
19 Paragraph 137D(b)
27
Omit "consumer".
28
20 Subparagraphs 137F(2)(b)(ii) and (d)(ii)
29
Omit "consumer".
30
21 Subsection 139G(2)
31
Omit "consumer".
32
Schedule 1 Amendments
8
Treasury Legislation Amendment (Small Business and Unfair Contract
Terms) Bill 2015
No. , 2015
22 After paragraph 139G(2)(a)
1
Insert:
2
(aa) the detriment that a term of that kind would cause to
3
businesses employing fewer than 20 persons; and
4
23 After subsection 139G(2)
5
Insert:
6
(2A) Before the Governor-General makes a regulation prescribing a law
7
for the purposes of subsection 28(4) of Schedule 2:
8
(a) the Commonwealth Minister must be satisfied that the law
9
provides enforceable protections for businesses employing
10
fewer than 20 persons that are equivalent to the protections
11
provided by Part 2-3, together with Parts 5-1 and 5-2, of
12
Schedule 2; and
13
(b) the Commonwealth Minister must take into consideration:
14
(i) any detriment to businesses of that kind resulting from
15
prescribing the law; and
16
(ii) the impact on business generally resulting from
17
prescribing the law; and
18
(iii) the public interest.
19
24 Subsection 2(1) of Schedule 2 (paragraph (b) of the
20
definition of non-party consumer)
21
Omit "consumer".
22
25 Subsection 2(1) of Schedule 2 (definition of rely on)
23
After "consumer contract", insert "or small business contract".
24
26 Subsection 2(1) of Schedule 2
25
Insert:
26
small business contract: see subsection 23(4).
27
standard form contract has a meaning affected by section 27.
28
Amendments Schedule 1
No. , 2015
Treasury Legislation Amendment (Small Business and Unfair Contract
Terms) Bill 2015
9
27 Subsection 2(1) of Schedule 2 (paragraph (b) of the
1
definition of transparent)
2
After "consumer contract", insert "or small business contract".
3
28 Subsection 2(1) of Schedule 2 (definition of unfair)
4
After "consumer contract", insert "or small business contract".
5
29 Section 23 of Schedule 2 (heading)
6
Repeal the heading, substitute:
7
23 Unfair terms of consumer contracts and small business contracts
8
30 Subsection 23(1) of Schedule 2
9
After "consumer contract", insert "or small business contract".
10
31 At the end of section 23 of Schedule 2
11
Add:
12
(4) A contract is a small business contract if:
13
(a) the contract is for a supply of goods or services, or a sale or
14
grant of an interest in land; and
15
(b) at the time the contract is entered into, at least one party to
16
the contract is a business that employs fewer than 20 persons;
17
and
18
(c) either of the following applies:
19
(i) the upfront price payable under the contract does not
20
exceed $100,000;
21
(ii) the contract has a duration of more than 12 months and
22
the upfront price payable under the contract does not
23
exceed $250,000.
24
(5) In counting the persons employed by a business for the purposes of
25
paragraph (4)(b), a casual employee is not to be counted unless he
26
or she is employed by the business on a regular and systematic
27
basis.
28
32 Subsection 24(1) of Schedule 2
29
After "consumer contract", insert "or small business contract".
30
Schedule 1 Amendments
10
Treasury Legislation Amendment (Small Business and Unfair Contract
Terms) Bill 2015
No. , 2015
33 Subsections 24(2) and (4) of Schedule 2
1
Omit "consumer".
2
34 Subsection 25(1) of Schedule 2
3
Omit "(1)".
4
35 Subsection 25(1) of Schedule 2
5
After "consumer contract", insert "or small business contract".
6
36 Subsection 25(2) of Schedule 2
7
Repeal the subsection.
8
37 Section 26 of Schedule 2 (heading)
9
Repeal the heading, substitute:
10
26 Terms that define main subject matter of consumer contracts or
11
small business contracts etc. are unaffected
12
38 Subsection 26(1) of Schedule 2
13
After "consumer contract", insert "or small business contract".
14
39 Subsection 26(2) of Schedule 2
15
Omit "consumer".
16
40 At the end of section 28 of Schedule 2
17
Add:
18
(4) This Part does not apply to a small business contract to which a
19
prescribed law of the Commonwealth, a State or a Territory
20
applies.
21
41 Subsection 232(3) of Schedule 2
22
Omit "consumer".
23
42 Subparagraph 237(1)(a)(ii) of Schedule 2
24
Omit "consumer".
25
Amendments Schedule 1
No. , 2015
Treasury Legislation Amendment (Small Business and Unfair Contract
Terms) Bill 2015
11
43 Paragraph 238(1)(b) of Schedule 2
1
Omit "consumer".
2
44 Subparagraph 239(1)(a)(ii) of Schedule 2
3
Omit "consumer".
4
45 Subsection 242(1) of Schedule 2
5
Omit "consumer".
6
46 Section 250 of Schedule 2
7
Repeal the section, substitute:
8
250 Declarations relating to consumer contracts and small business
9
contracts
10
(1) The Court may declare that a term of a consumer contract is an
11
unfair term, on application by:
12
(a) a party to the contract; or
13
(b) the regulator.
14
(2) The Court may declare that a term of a small business contract is
15
an unfair term, on application by:
16
(a) a party to the contract, if the party was a business of the kind
17
referred to in paragraph 23(4)(b) at the time the contract was
18
entered into; or
19
(b) the regulator.
20
(3) Subsections (1) and (2) do not apply unless the contract is a
21
standard form contract.
22
(4) Subsections (1) and (2) do not apply if Part 2-3 does not apply to
23
the contract.
24
(5) Subsections (1) and (2) do not limit any other power of the court to
25
make declarations.
26
47 After Part 1 of Chapter 6 of Schedule 2
27
Insert:
28
Schedule 1 Amendments
12
Treasury Legislation Amendment (Small Business and Unfair Contract
Terms) Bill 2015
No. , 2015
Part 1A--Application provision relating to the
1
Treasury Legislation Amendment (Small
2
Business and Unfair Contract Terms) Act
3
2015
4
5
290A Application
6
(1) The amendments made by Schedule 1 to the Treasury Legislation
7
Amendment (Small Business and Unfair Contract Terms) Act 2015
8
apply in relation to a contract entered into on or after the
9
commencement of that Schedule.
10
(2) The amendments do not apply to a contract entered into before the
11
commencement of that Schedule. However:
12
(a) if the contract is renewed on or after that commencement--
13
the amendments apply to the contract as renewed, on and
14
from the day (the renewal day) on which the renewal takes
15
effect, in relation to conduct that occurs on or after the
16
renewal day; or
17
(b) if a term of the contract is varied on or after that
18
commencement and paragraph (a) has not already applied in
19
relation to the contract--the amendments apply to the term as
20
varied, on and from the day (the variation day) on which the
21
variation takes effect, in relation to conduct that occurs on
22
and after the variation day.
23
(3) If paragraph (2)(b) of this section applies to a term of a contract,
24
subsection 23(2) and section 27 apply to the contract.
25
(4) Despite paragraphs (2)(a) and (b) and subsection (3) of this section,
26
the amendments do not apply to a contract, or a term of a contract,
27
to the extent that the operation of the amendments would result in
28
an acquisition of property (within the meaning of
29
paragraph 51(xxxi) of the Constitution) from a person otherwise
30
than on just terms (within the meaning of that paragraph of the
31
Constitution).
32