Law Council of Australia

Business Law Section

Competition and Consumer Amendment (Unfair Trading Practices) Bill 2026

Submission Date: 29 May 2026

The Competition and Consumer Committee of the Business Law Section of the Law Council of Australia (the Committee) makes this submission to the Senate Economics Legislation Committee (the Senate Committee) in respect of its inquiry into the Competition and Consumer Amendment (Unfair Trading Practices) Bill 2026 (the Bill).

As noted in previous submissions in relation to this issue, the Committee acknowledges the Australian Government’s objective of strengthening the Australian Consumer Law (ACL) to address unfair trading practices.

However, the Committee makes the following observations:

  1. Insufficient consultation time: The Bill was referred to the Senate Committee on 14 May 2026 with submissions due by 27 May 2026, providing fewer than 10 business days for consultation. This follows a similarly truncated response period for earlier stages of policy development. The Committee reiterates its concern that this approach of compressed consultation does not allow for adequate or meaningful engagement with the complex issues raised by the Bill, and heightens the risk of unintended adverse consequences for the economy and particularly for consumer markets including digital markets.
     
  2. Absence of materiality threshold: The General Prohibition (defined below) in proposed section 28B does not include a materiality threshold in its “manipulate” limb, creating significant uncertainty as to the prohibition’s scope and a risk of over-capture of generally benign conduct. The Committee strongly submits that the prohibition needs to include a materiality threshold (for example, “significantly”, “materially” or “substantially”) to provide greater certainty for businesses and consumers. By merely removing the former reference to “unreasonable” but not replacing it with any other materiality threshold, the Bill creates real uncertainty and significantly increases the risk that the notion of “manipulation” will be applied across a wide range of conduct, much of which is common and benign. If this is not included in the statutory language (which would be preferable) then the concept must be clearly explained in the Explanatory Memorandum.
     
  3. Guidance on key concepts: Relatedly, the Explanatory Memorandum deploys concepts such as “wrongful interference” and “generally accepted marketing or sales practices” without adequate guidance on their intended meaning. The Committee recommends that the Explanatory Memorandum be updated to provide additional guidance on these concepts.
     
  4. An exemption for conduct that protects the legitimate interests of a supplier. The Committee reiterates its earlier submission that a “legitimate interests” exception, modelled on existing ACL provisions, should be included in the General Prohibition. If this is not included in the statutory language, the Committee submits that it should be included in the Explanatory Memorandum as a matter that should be assessed in considering whether the General Prohibition has been contravened.
     
  5. Subscription contracts: The proposed subscription contract requirements in Division 4A go beyond what is necessary to prevent consumer detriment. The Committee recommends that ongoing notification requirements not extend to small business contracts, that there be no separate notification requirement at the end of free trial or promotional periods, and that there be no mandatory online cancellation requirement where the Bill already obliges providers to offer an easy, straightforward cancellation process.
     
  6. Construction issues:
    1. General prohibition: The Committee has identified a number of drafting issues in the General Prohibition, including the omission of the definite article “the” before “supply of … goods or services” in subsection 28B(2), an incorrect cross-reference to “subsection (1)” rather than “subsection (2)” in subsection 28B(3), and the lack of particularity and definition in the examples set out in section 28B(6).
    2. Specific prohibition: The Bill proposes to incorporate subscription contract provisions as Part 3-1 Division 4A rather than as a new Part 2-3 Division B, resulting in unnecessary duplication with existing provisions. The Committee recommends restructuring the subscription contract provisions within Part 2-3 to ensure consistency with the existing unfair contract terms framework.

As currently framed, the Committee is concerned that the framework lacks clarity in relation to provisions with very substantial legal penalties and will therefore impose new economy-wide regulatory risk, complexity and burden for businesses and especially for those that operate in consumer facing markets.

The Committee’s specific observations and recommendations in support of each of these points are set out in the submission below.

Related Documents

Last Updated on 02/06/2026

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