What’s changed?
From 9 November 2023, reforms will make UCTs illegal, attracting substantial penalties under the Competition and Consumer Act 2010 and the ASIC Act 2001, with each unfair term forming a separate contravention.
The reforms also expand the class of small business that can rely on UCT protections. To meet the small business threshold from 9 November 2023, a business must either employ fewer than 100 people or have a turnover of less than $10 million for the previous income year. Under the ASIC Act, the UCT regime will only apply to a small business contract if the upfront price payable (excluding interest) for the contract is $5 million or less. Under the ACL, the monetary contract threshold has been entirely removed.
Additionally, the reforms provide further detail about what constitutes a standard form contract (e.g. minor negotiated changes to an agreement might not exclude that agreement from the standard form definition).