Craig Kelly (Hughes, Liberal Party) Share this | Hansard source

I am talking about bank fees. The real concern is that many of the measures this bill proposes to regulate the fees and charges imposed by the banks are possibly unenforceable, for it is a well-established legal principle that a contractual term which requires one party to the contract to pay the other 'innocent' party a sum of money upon default or breach of that contract is only enforceable if it provides that the sum is a genuine pre-estimate of the loss or damage suffered by the innocent party. If the fee is inflated to a level where it does not represent a genuine pre-estimate of loss or damage suffered, it is a penalty and is unenforceable at common law.

In our democracy only the government can issue penalties, not the big four banks. The possible illegality of many forms of bank fees that this bill attempts to regulate is something that a well-resourced ACCC should have been looking at.

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