Purpose of the Bill

The purpose of the Competition and Consumer Amendment (Unfair Trading Practices) Bill 2026 (the Bill) is to amend the Competition and Consumer Act 2010 (the Act) to introduce a new prohibition on unfair trading practices, strengthen protections against unfair subscription practices, and enhance transparency in pricing by addressing ‘drip pricing’ and other transaction‑based charges.

Background

Over the past decade, including in its Digital Platforms Inquiry (2017-19), the Australian Competition and Consumer Commission (ACCC) has argued that certain harmful business practices, especially in digital markets, fall outside existing prohibitions in the Australian Consumer Law (ACL), such as misleading or deceptive conduct and unconscionable conduct. An example is the ACCC’s evidence to the House of Representatives Standing Committee on Economics in 2022 (quoted at paragraph 2.62).

The ACCC has been concerned about conduct that exploits cognitive or behavioural biases, creates false urgency, imposes unnecessary obstruction or ‘friction’ (deliberate, artificial, or unnecessary obstacles to manipulate consumers’ behaviour), or otherwise distorts the environment in which consumers decide whether and how to transact. These practices are often described as ‘dark patterns’: ACCC, Digital Platform Services Inquiry – Final Report (March 2025), p. 30 and chapters 2.2 and 3.

The ACCC has raised a second set of harmful practices relating to subscription traps. Consumers (and in some cases small businesses) may be drawn into ongoing subscriptions without adequate understanding of renewal terms, pricing, or exit options.

The ACCC is also concerned about ‘drip pricing’ and hidden mandatory charges, where consumers are shown an initial base price but only discover unavoidable fees late in the transaction process. Such practices undermine price transparency and impair consumers’ ability to compare offers or make informed choices.

In September 2022, the Commonwealth, state and territory consumer ministers agreed that the Commonwealth would lead a public consultation on options to address unfair trading practices on behalf of all jurisdictions.

In August 2023, Treasury issued a Consultation Regulation Impact Statement (Consultation RIS) which sought ‘evidence on the nature of unfair trading practices… and the extent of consumer and small business harm arising from potential gaps in the Australian Consumer Law’. Seventy-nine submissions were received, 8 of which are confidential.

In November 2024, Treasury released a supplementary consultation paper seeking views on whether Australia should introduce a general prohibition on unfair trading practices, and/or targeted reforms addressing practices such as subscription traps and drip pricing. Fifty-three submissions were received. The consultation paper noted (page 4):

… some stakeholders considered that there are established unfair business practices that have never been adequately addressed by the ACL. For example, where a business omits important information that is relevant to a consumer’s purchasing decision, and this non-disclosure causes significant consumer detriment, this conduct may fall into a grey area if:

• It is not misleading, noting that it can be difficult to establish that a business engaged in misleading or deceptive conduct under the ACL in circumstances where material information is omitted;
• It would not meet the high threshold for unconscionable conduct under the ACL, and
• It is not prohibited by any other section of the ACL. [footnotes omitted]

Meanwhile, concerns about subscriptions, drip pricing and dark patterns were repeatedly raised in ACCC inquiries into digital platforms, including in the ACCC’s Digital Platforms Services Inquiry 2020–2025 (the final report was delivered to Government in 2025). The ACCC identified practices such as:

• ‘the design of user interfaces intended to confuse users, make it difficult for users to express their actual preferences, or manipulate users into taking certain actions’ (‘dark patterns’) (final report, p. 157)
• steering consumers towards options that may not accord with consumer preferences (pp. 314–315) and
• subscription‑related practices (pp. 157 and 349)

as causing consumer harm without necessarily being misleading or unconscionable under existing legal tests.

On 14 March 2025, the Government announced that it would also consult in 2025 on the design of unfair trading practices protections for small businesses.

In June 2025, the ACCC released its tenth and final report of the Digital Platform Services Inquiry. ACCC Chair Gina Cass-Gottlieb observed the critical importance of digital platform services to consumers and business and their role as a driver of productivity. However:

“While these services have brought many benefits, they have also created harms that our current competition and consumer laws cannot adequately address. This is why we continue to recommend that targeted regulation of digital platform services is needed to increase competition and innovation, and protect consumers in digital markets.”

The report, which concludes the ACCC’s five year inquiry, has reiterated support for measures including an economy wide unfair trading practices prohibition, an external dispute resolution body for digital platform services, and a new digital competition regime.

On 23 November 2025, the Government announced it would proceed with unfair trading legislation. Amongst other things, the Government stated:

Under these reforms, businesses will have to play fair. They’ll be required to disclose key information before signing customers up for a subscription, notify customers before a free trial ends, and remove unreasonable barriers to cancellation. We’re also strengthening protections on drip pricing by forcing businesses to show mandatory transaction fees prominently and upfront, so Australians know the real price before they buy.

This is about putting an end to sneaky tactics that distort consumer choice and drive-up costs. The new laws will include a general prohibition on practices that manipulate consumer decision making and cause harm, while targeting specific problems like subscription traps and hidden fees. [emphasis added]

On 9 February 2026, Treasury released an exposure draft of the Competition and Consumer Amendment (Unfair Trading Practices) Bill 2026, together with draft explanatory materials. The consultation closed on 23 February 2026. There were forty-nine published responses.

Policy position of non-government parties/independents

At the time of writing, the non‑government parties and the independents have not announced formal policy positions on the Bill.

However, in a media release dated 11 November 2022, the then Shadow Treasurer Angus Taylor and Shadow Minister for Communications Senator Sarah Henderson stated:

The Albanese Government must urgently act on the ACCC’s Regulatory Reform report (Interim Report No 5) of its Digital Platform Services Inquiry, initiated by the former Coalition Government, which recommends tough new laws to combat scams and other harmful anti-competitive conduct on digital platforms.

Senator Fatima Payman has been leading a ‘Click to Cancel’ campaign. The campaign calls for ‘six common-sense reforms’:

1. Introduce mandatory, simple cancellation mechanisms for all subscriptions and recurring payments so consumers may cancel any digital or recurring service using the same method and with the same ease as sign-up.
2. Ban “drip pricing” and other hidden charges during checkout so that the full price of goods or services are displayed upfront.
3. Mandate clear and timely renewal reminders for subscription services allowing consumers to receive a standardised notification before being auto-charged for renewal when free trials convert to paid plans or for annual subscriptions.
4. Prohibit the use of manipulative urgency or scarcity tactics and similar pressure-based design techniques that distort purchasing decisions and create artificial time pressure.
5. Prevent forced account creation for one-time purchases so customers are not forced to create and store an account which often results in future charges, data harvesting and unsolicited marketing.
6. Ban dynamic pricing based on demand levels, browsing history, or device type to outlaw businesses using algorithms to increase prices for individual consumers based on how often they’ve searched, what device they’re using, or current demand.

Key issues and provisions

Constitutional savings/reading down provision

Section 6 of the Competition and Consumer Act 2010 extends the operation of parts of the Act to persons who are not corporations, relying on the Commonwealth’s other constitutional powers in relation to trade and commerce and telecommunications, among others. It also functions as a constitutional ‘reading down’ provision. It treats the Act as operating only to the extent constitutionally valid, and effectively instructs courts to read the Act as confined to supported heads of power where necessary. In constitutional terms, it prevents invalidity by calibrating the reach of the Act to power, rather than the court striking provisions down.

As explained in the Explanatory Memorandum (EM) (para 1.53), items 1 to 3, amend subsections 6(3) and 6(4) and insert proposed subsection 6(3B) to provide the necessary constitutional basis for the new general prohibition on unfair trading practices in proposed Part 2-4 of the ACL.  Existing subsections 6(3) and 6(4) are amended to refer to proposed Part 2-4 and proposed subsection 6(3B) provides that, in addition to the effect provided by other provisions, Part 2-4 also has the effect it would have if expressly confined to supply of, or offer to supply, postal, telegraphic and telephonic power (section 51(v) of the Constitution) including by a person who is not a corporation.

General prohibition on unfair trading practices towards consumers

The centrepiece of the Bill is a general, principles‑based prohibition on unfair trading practices toward consumers. Item 7 inserts new Part 2-4—Unfair Trading Practices into Chapter 2 of the ACL (at Schedule 2 to the Act), which deals with general protections such as misleading and deceptive conduct, unconscionable conduct, and unfair contract terms.

Proposed Part 2-4 contains only one provision, proposed section 28B, which provides that a person must not, in trade or commerce, engage in conduct in connection with the supply or possible supply of goods or services to a consumer that:

• manipulates the consumer, or unreasonably distorts the environment in which the consumer makes, or is likely to make, a decision; and
• causes, or is likely to cause, detriment (whether financial or otherwise) to the consumer.

Law firm Gilbert + Tobin noted key changes from the exposure draft of the Bill, including the removal of ‘unreasonably’ from the ‘manipulation of a consumer’ arm of the general prohibition on unfair trading practices (while keeping ‘unreasonably’ in the ‘distortion of the environment’ limb), which means any manipulation that is not a legitimate or reasonable sales practice may be captured.

Notably, a contravention may arise where conduct is likely to cause detriment, lowering the evidentiary burden and enabling earlier regulatory intervention by the ACCC.

The EM states (paras 1.25, 1.27 and 1.30):

Manipulation of a consumer is intended to capture wrongful interference with a consumer that results in a change in the consumer’s behaviour, decision-making or action that is against the consumer’s interests. It may involve the exploitation of common cognitive or behavioural biases and is not intended to require dishonesty. Manipulation of a consumer is also not intended to capture legitimate, reasonable or generally accepted marketing or sales practices. …

Unreasonable distortion of the environment in which a consumer makes a decision or is likely to make a decision, is intended to capture conduct that encourages a consumer to make economic decisions about proceeding with a transaction when they otherwise would have been unlikely to do so, and conduct that obstructs a consumer from implementing an economic decision that they would otherwise have done, such as seeking a refund. …

While conduct in contravention of the general prohibition may be online or offline, the first limb of the definition of unfair trading practices is intended to particularly address conduct that involves the use of ‘dark patterns’ in digital interfaces, which can manipulate a consumer or unreasonably distort the environment in which a consumer makes, or is likely to make, a decision. These tactics are typically aimed at benefitting the person supplying or offering to supply the relevant goods or services by nudging or pressuring consumers into unintended actions, often without the consumer’s full awareness. [emphasis added]

Both elements must be satisfied for a contravention to occur. Paragraphs 1.35 to 1.37 of the EM indicate that detriment is an established legal principle and is expressly not limited to financial loss. It may include wasted time, frustration or diminished consumer choice. While the Bill does not set out how non-financial detriment could be assessed, quantified or remedied, there are established processes for doing so in other parts of the ACL. For example, regarding unconscionable conduct (sections 20–22, ACL), the courts have been able to take into account non-economic loss, such as feelings of distress or embarrassment: e.g. ACCC v Lux Distributors Pty Ltd [2013] FCAFC 90. The courts can provide non-financial remedies such as declarations, injunctions, compliance programs and civil penalties.

Proposed subsections 28B(3) and (4) make it clear that the general prohibition does not apply if the consumer is a body corporate or is carrying on a business.

Proposed subsection 28B(6) contains a non-exhaustive (principles-based) list of examples of what may constitute unfair trading practices. Notably, proposed paragraph 28B(6)(d) provides some examples of conduct that may be unfair trading practices. There are also some examples of ‘dark patterns’ in paragraphs 1.31–1.32 of the EM.

Stakeholder views

Stakeholders have been broadly supportive of the policy intent of the general prohibition, but have highlighted a range of issues with the provisions as drafted and a risk of potential duplication with other provisions and regulatory schemes.

A recurring theme in submissions from business groups was whether additional legislation is required at all. The Competition and Consumer (C&C) Committee of the Law Council of Australia (LCA) questioned whether the practices identified during consultation are already effectively addressed under current ACL provisions, suggesting the case for legislative gaps was not conclusively established (para 17). It suggested that, if the concern was in relation to a combination of practices breaching the ACL, the better approach would be through guidance materials (para 23).

The Australian Banking Association (ABA) emphasised that the financial services sector is already subject to extensive and overlapping regulation, including under the Corporations Act 2001, the Australian Securities and Investments Commission Act 2001, the National Consumer Credit Protection Act 2009 and the Privacy Act 1988, and warned of duplication, added complexity, and regulatory inconsistency (p. 1). The Insurance Council of Australia (ICA) also warned of duplication (p. 1).

The Australian Industry Group (Ai Group) argued that the breadth of the prohibition – especially its application to non‑financial detriment such as ‘wasted time’ – creates uncertainty about what constitutes ‘manipulation’, and whether common marketing practices (e.g. urgency messaging, user interface (UI) optimisation) may retrospectively be judged unlawful (p. 3).

Some stakeholders argued that the concept of detriment should be narrowed. The Ai Group recommended restricting detriment to material financial detriment, warning that an expansive concept could chill legitimate business behaviour (p. 3). The Australian Finance Industry Association (AFIA) proposed a refinement to ‘material detriment’ defined as economically meaningful, foreseeable and more than trivial inconvenience (pp. 2–3).

A joint submission by the Consumer Policy Research Centre (CPRC) and several other consumer bodies commented (p. 3):

The draft legislation is missing the most important element – a statement that a person or company must not engage in practices that are, or are likely to be, unfair. …

In addition to no broad statement, the exposure draft:

• focuses on the sales process, rather than ownership issues or consumer challenges post sale
• over-relies on prescriptive information disclosures instead of ensuring business practices are fair, and
• includes examples as a grey list which are limited and do not cover even the extent of practices that Treasury noted in its own Regulatory Impact Statements in 2025.

Enhanced drip pricing and transaction‑based charge protections

The Bill strengthens ACL protections against drip pricing, where additional mandatory fees are added incrementally and/or revealed late in the purchasing process. The requirements are intended to ensure consumers are informed of the full cost of a transaction before making a purchasing decision.

Item 15 inserts new section 48A in Part 3-1 of the ACL, which deals with unfair practices.

The Bill uses the concepts of base price and transaction based charge. Base price is defined in proposed subsection 48A(6) as including an amount payable for the goods or services themselves. A tax, duty, fee or levy payable in relation to the supply is not a base price.

Transaction based charge is defined in proposed subsections 48A(7). Normally, it is a charge that is payable by a consumer in connection with the supply of goods or services (rather than an amount payable for the goods or services themselves), and that is calculated by reference to the particular transaction or the way the transaction is carried out (such as booking and service fees), rather than forming part of the advertised base price (EM, paras 1.66–1.67). Proposed subsection 48A(8) clarifies that the concept excludes a charge (or part of a charge) that is payable at the option of the purchaser, or a tax, duty, fee, levy or charge imposed on the supplier.

In accordance with proposed subsection 48A(2), a person who offers goods or services at a base price must:

• disclose the amount of any applicable transaction based charge alongside the base price where the charge can be calculated or
• where the charge cannot be calculated in advance, disclose the method for calculating the charge.

The new requirements apply only to offers to supply goods or services that are of a type ordinarily acquired for personal, domestic or household use or consumption (proposed subsection 48A(1)). Further, the requirements do not apply where the offer is exclusively made to a body corporate (proposed subsections 48A(4) and (5)). These provisions limit the extent to which the requirements apply to business-to-business transactions.

Stakeholder views

Stakeholders broadly supported the objective of improving price transparency, but differed on whether additional legislative reform was necessary, with some arguing that existing ACL provisions already address harmful drip pricing practices.

The LCA stated (paras 125–126 and 128):

[t]he C&C Committee considers that forms of harmful drip pricing practices are adequately covered by the protections against misleading and deceptive conduct, and false and misleading representations, as well as the single price disclosure requirements [note: this is the ‘component pricing’ rule in ACL, subsection 48(1)].

Further, the C&C Committee notes that the ACCC has successfully taken enforcement action for drip pricing practices under these existing provisions, with outcomes including the imposition of significant penalties as well as infringement notices. ….

Given the effectiveness of the existing provisions in the ACL in addressing drip pricing, the C&C Committee considers that no gap exists that would warrant the introduction of a specific prohibition on drip pricing practices. The risk of the imposition of significant penalties under the existing provisions is a sufficient deterrent to businesses engaging in the practice of drip pricing.

The CPRC commented that the Government should (p. 16):

… consider adding obligations that would cover personalised and dynamic pricing or provide a timeframe for when the Government aims to consider these issues.

The obligation should be amended with an overarching requirement that requires businesses to make every effort to show the full-cost of the product including fees upfront.

Obligations for subscription contracts

The Bill introduces specific obligations for subscription contracts, aimed at addressing ‘subscription traps’ that are detrimental to both consumers and small business. According to the ACCC:

‘Subscription trap’ is a term used to describe online retailers treating a consumer’s decision to make a single purchase as consent to signing them up to a paid, ongoing subscription service without adequately disclosing that the subscription service involves ongoing fees. Generally, this involves consumers being enticed into the membership option with a discounted price offer for an initial purchase of goods or services.

Item 20 inserts a new Division 4A—Subscription contracts (containing proposed sections 48B to 48H) in Part 3-1 of the ACL. Proposed sections 48B and 48C respectively set out the circumstances in which a contract is a subscription contract, and list excluded subscription contracts. Subscription contracts include contracts for an indefinite period or a fixed period, or contracts which have an initial free period or initial discount period.

Key measures (proposed sections 48D, 48E and 48F) include requirements for suppliers to (EM, para 1.86):

• disclose prescribed key information about a subscription contract at the point the offer is made
• provide notices containing key information to subscribers at specified points during the life of the subscription (for example, before a free trial expires, when a subscription will be renewed, or when prices change). Both the required information and the timing will be set out in regulations, and
• ensure there is an easy‑to‑find and straightforward way to cancel a subscription contract.

These obligations apply to subscriptions supplied to consumers and, in some cases, to small businesses (see below).

Gilbert + Tobin noted some changes to the subscription contract provisions since the exposure draft:

… the detailed and specific tests and limbs in the exposure draft are replaced by a new definition of subscription contracts and a principles-based requirement to give information rather than specific lists of content. The specific information requirements are likely to be set out in regulations rather than the legislation, noting that specific information requirements have been replaced with references to requirements that are ‘prescribed’ for the purposes of these sections.

1. New definition of subscription contracts: according to the new s 48B, a contract is a subscription contract if it provides for an indefinite period (s 48B(2)), fixed period (s 48B(3)), initial free period (s 48B(5)) or initial discount period (s 48B(6)) and is not an excluded subscription contract.
2. Narrower list of excluded subscription contracts: a contract for supply of a public utility and a contract for supply of prescription healthcare products are no longer listed as excluded subscription contracts.
3. Deletion of content of the statement: the list of matters that must be contained in the statement has been deleted. …
4. Requirement to give information: the requirement in s 48E now applies to all suppliers of goods or services under subscription contracts, replacing the exposure draft's detailed, contract-specific disclosure requirements with a principles-based approach. Specific information requirements will be prescribed by regulation.
5. Ending subscription contracts: suppliers of goods or services under a qualifying subscription contract must ensure that every method available to the subscriber to end the contract is easy to find, straightforward, and requires only steps that are reasonably necessary. This strengthens the exposure draft, which only required the supplier to provide a way to end the contract ….

Stakeholder views

While supportive of the policy intent, stakeholders were critical of the proposed sections. Business groups were concerned about the breadth of the proposed provisions, and whether they were necessary, while consumer bodies considered the provisions to be overcomplicated and lengthy, and advocated removing exemptions. However, consumer bodies’ comments need to be viewed in the light of the changes made between the exposure draft Bill and the Bill as introduced into Parliament, including reducing the number of exemptions.

The C&C Committee of the LCA commented (at paras 106–110) that the ACCC ‘has, on multiple occasions, prosecuted subscription-related practices of the kind that the Consultation Paper seeks to address’ and stated that it favoured removing barriers to cancelling a subscription as the most effective consumer remedy, citing the recent US ‘click to cancel’ rule.

Ai Group commented (p. 6):

… prescriptive notification requirements may not always result in improved consumer engagement. While intended to keep consumers informed, this requirement risks creating "notification fatigue," where consumers begin to ignore official alerts due to their frequency. …

Recommendation: The guidance for this Bill should allow flexibility in how notification requirements are met. This could include:

• Allowing different communication methods
• Recognising digital and in-app notification
• Allowing businesses to tailor communication approaches.

In relation to the Exposure Draft, CPRC commented: ‘The ban on subscription traps is convoluted and full of loopholes. With so many examples worldwide of clear laws prohibiting subscription traps, it is disappointing to see the complexity that has been baked into this legislation’ (p. 4).

Regulation-making powers

The Bill contains additional powers to enable regulations to:

• prescribe a charge or part of a charge that is not a transaction based charge in specified circumstances, and prescribe different circumstances for different charges or parts of charges (item 15, proposed subsections 48A(8) and (9); EM paras 1.68–1.70)
• prescribe a contract that is an excluded subscription contract (item 20, proposed paragraph 48C(1)(g)), and prescribe a kind of contract that is an excluded subscription contract in specified circumstances or with different circumstances for different kinds of contract (proposed subsection 48C(2)) (EM paras 1.105 –1.107)
• prescribe additional information that must be disclosed when offering goods or services under subscription contracts (item 20, proposed paragraph 48D(4)(f), EM paras 1.117–1.118)
• prescribe a range of information to be provided to subscribers and the manner of giving such information (item 20, proposed subsections 48E(1) to (3), EM paragraphs 1.138–1.140).

The most significant reliance on delegated legislation relates to the subscription contract regime.

The EM explains that these powers and the ensuing regulations: enable the Government to make timely changes and help to ‘future proof’ the legislation; are disallowable instruments; and help reduce the complexity of the primary law.

Application to small businesses

In short, the only new measure that applies to small businesses is the subscription contracts measure, but only where they meet the ACL small‑business criteria.

As explained in the EM (para 1.41–1.59), under item 7, proposed subsections 28B(3) and (4), and item 15, proposed subsections 48A(4) and (5), the general prohibition on unfair trading practices and the prohibition on drip pricing do not apply if the consumer is a body corporate, or where the supply is in the course of the consumer carrying on a business. A person who wishes to rely on this exception in proceedings bears the evidential burden in relation to the matter.

However, the protections for subscription contracts extend to both consumers and small businesses. The Government considers that small businesses can face similar vulnerabilities to individual consumers when entering and managing subscription contracts (EM, para 1.156). The ACCC also supported this point in its final report of the Digital Platform Services Inquiry (e.g. at page 66).

A contract meets the small business requirement if it is a standard form contract for supply of goods or services, and the subscriber satisfies either or both of the following conditions, defined consistently with the ACL’s existing small business contract regime in subsections 23(4)–(6) (item 17, new paragraph (b) of definition of standard form contract in subsection 2(1)); item 20, proposed subsections 48G(2)–(5)):

• it has fewer than 100 employees or
• it has annual turnover for the last income year below the relevant statutory threshold of $10,000,000.

In this context, item 20, proposed section 48H, broadly provides that a subscription contract is a standard form contract if it is prepared by one party and offered on a take‑it‑or‑leave‑it basis, with the other party having little or no real opportunity to negotiate the terms. Proposed subsection 48H(2) lists considerations that a court may take into account in determining whether a contract is a standard form contract.

Stakeholder views

While there was recognition that small businesses can experience vulnerabilities similar to consumers, views differed on whether this justified extending protections beyond targeted contexts. Industry particularly opposed extending the general prohibition to business-to-business dealings.

For example, the Ai Group recommended that the Bill’s initial application be limited ‘to Business to Consumer (B2C) transactions, with a mandatory assessment of the UCT [Unfair Contract Terms] regime before expanding to B2B [Business to Business] arrangements’ (p. 2). The LCA expressed caution about extension of consumer law concepts into B2B dealings (e.g. paras 115, 160). On the other hand, in commenting on the exposure draft, the Australian Small Business and Family Enterprise Ombudsman (ASBFEO) (p. 1) and the CPRC (p. 13) supported extending protections to small business.

Penalties and enforcement

Contraventions of the new unfair trading practices provisions, as well as the subscription and drip pricing reforms, would be subject to the civil penalty regime under the ACL.

Maximum penalties would be aligned with existing ACL penalty settings as set out in section 224 of the ACL (items 8 and 10). From 28 March 2026 they include, for corporations, the greater of:

• $100 million (increased from $50 million)
• if the court can determine the value of the benefit obtained as a result of the breach—three times the value of the benefit or
• if the court cannot determine the value of the benefit—30% of the body corporate's adjusted turnover during the breach turnover period for the act or omission.

The maximum pecuniary penalty for contravention of the general prohibition by an individual is $2,500,000 (item 9). A court could also make an adverse publicity order and/or disqualify a person from managing corporations on the application of the regulator (items 11 and 12). An infringement notice may be issued for an alleged contravention of the general prohibition on unfair trading practices (item 4).

The ACCC is responsible for enforcement, using existing investigative and enforcement powers. The ACCC applies a proportionate compliance and enforcement model depending on the seriousness of the offence and its impacts on the affected party.

Stakeholder views

The Ai Group recommended the Government ‘introduce a tiered penalty structure (Tier 0 for good-faith early implementation, Tier 1 for less serious breaches, Tier 2 for serious or deliberate misconduct), with penalties aligned to comparable international frameworks such as the EU Omnibus Directive’ (p. 2).

The C&C Committee of the LCA said (paras 75–77):

The C&C Committee considers that a proportionate approach should be applied when considering whether civil penalties apply to the general and any specific prohibitions.

Consistent with the differential remedies available for contraventions of sections 18 and 29 of the ACL, the C&C Committee considers that penalties for breaches of the proposed general prohibition (which covers a broader range of conduct) should be limited to non-pecuniary measures, including undertakings, injunctions and remedial orders.

The proposed specific prohibitions relate to “specific problematic conduct” identified by the government that are likely causes of consumer harm. These types of behaviours are more defined and targeted. It is, therefore, proportionate for the specific prohibitions to attract civil pecuniary penalties—in line with the current maximum civil penalty under the ACL—and to do so after an appropriate transition period to provide businesses with the opportunity to review and amend their practices and processes, as necessary.

Review of the Bill

Item 21 provides for the Minister to cause a review of the new measures within 2 years of commencement.

Issues not addressed by the Bill

Some significant issues that were raised during consultation, by regulators, or by stakeholders are not expressly covered in the Bill, or are addressed only indirectly through the general prohibition.

The Bill does not include an express prohibition or transparency requirement in relation to dynamic pricing based on demand levels (Impact Analysis (accompanying the EM), p. 46), or personalised pricing based on browsing history, device type, location or inferred willingness to pay. Such conduct may only be addressed indirectly where it is misleading (under existing ACL provisions), or satisfies the new general unfair trading practices test (for example, unreasonable manipulation causing detriment).

The Bill does not expressly prohibit businesses from requiring consumers to create an account for a single, one‑off purchase (forced or mandatory account creation) (Impact Analysis, p. 46), with stakeholders having viewed the issue as primarily privacy related. Forced account creation could potentially be captured by the general prohibition where it creates unnecessary friction at checkout, coerces data disclosure unrelated to the transaction, or exploits consumer inertia.

Finally, while subscription‑specific protections extend to eligible small businesses, the general unfair trading prohibition applies only to consumers.