Claire Clutterham (Sturt, Australian Labor Party) Share this | Hansard source

I rise today to speak in support of the Competition and Consumer Amendment (Unfair Trading Practices) Bill 2026. This bill is designed to complement existing Australian consumer law legislation, increase consumer trust in the marketplace and encourage fairer trading amongst businesses. The bill operates to amend the Competition and Consumer Act 2010, including the Australian Consumer Law, which is set out in schedule 2 to that act, with a lens on improving protections against current unfair trading practices and emerging unfair trading practices. It does so by introducing a general prohibition on unfair trading practices towards consumers, strengthening protections against drip pricing by requiring transparency of transaction based charges and introducing protections against subscription practices that are detrimental to consumers and small business.

What do unfair trading practices actually look like? They relate to how businesses promote, sell and deliver products and services, how contract terms operate and how businesses take payments from consumers. It's things like accepting payments for products and services that a business does not intend to supply; using coercion or undue harassment against consumers; or exploiting known facts, circumstances or statements made by a consumer to coerce them into buying something or signing up to something or to enforce a debt. It's also unfair contract terms. It's making false or misleading statements about a product or service. It's a pyramid scheme. It's a referral scheme which does not result in discounts or other benefits to consumers despite a promise to do so. And it's unconscionable conduct, which is hard to define but which may involve behaviour so harsh that it goes against good conscience.

Under consumer law, businesses are prohibited from acting unconscionably towards consumers or other businesses, and this is something that is more than just unfairness. It is something that makes the circumstances especially harsh. It is, for example, where a business knowingly targets consumers who are experiencing a vulnerability, such as people who are going through something difficult, like the death of a loved one, domestic or family violence, homelessness, or the impact of a natural disaster; who are sick and have disabilities; who are too young to make informed decisions; who have difficulties reading and writing; who live in remote areas; who do not speak English as their first language; who are uncomfortable with using what is now considered very basic technology, such as the internet or smartphones; and who clearly have difficulties understanding and using basic financial skills.

By and large, Australian businesses would never dream of engaging in unconscionable conduct or any of the other unfair trading practices I have described. Australian private enterprise is the engine room of our economy, providing investment capital, innovation, secure employment and opportunities for thousands of people and, most importantly, providing the products, goods and services that we all need. We can't afford to paralyse business. Private enterprise must be provided with the right settings to grow, to increase revenue and to make money. If they can't do that consistently, then they can't supply products and services. The private sector in this country is an indispensable force for sustainable development because it operates to spark the innovation we need, to improve productivity and to improve the economic efficiency we need. And, as I said—this is worth repeating—it creates the jobs and growth needed to end extreme poverty and boost shared prosperity.

All of that being said, business must operate in a way that is fair to the consumer, and I'm confident there would be very few businesses that would argue against that proposition. I suggested earlier that most Australian businesses would never dream of participating in unfair trading practices like unconscionable conduct or misleading and deceptive conduct, but there is some conduct, which falls far short of these thresholds but that may take place, sometimes inadvertently, that is unfair to the consumer.

Just as we need private enterprise to prosper and to produce the products and services we need, we also need a fair marketplace that encourages consumer participation. If consumers are not getting a fair go or are being taken advantage of, then either they won't participate in certain marketplaces or they will make choices that they otherwise wouldn't if the trading and market conditions were fair.

This is particularly important given the rapid and significant shift to the online marketplace. We're now almost on autopilot. People enter their credit card details into online platforms to purchase goods or sign up to services because they are there and it is easy. The ease of access to the consumer marketplace that the online world provides and the online world's prolific reach mean that it's more important than ever to act to ensure fairness for the consumer.

This bill does three things to make the marketplace fairer to the average consumer. Firstly, it introduces a general prohibition on unfair trading practices. The bill does this by introducing the new part 2-4, with new section 28B(1) prohibiting a person from engaging in unfair trading practices—a defined term—in trade or commerce. In practical terms, this provides that a person engages in unfair trading practices if, and only if, in connection with the supply of goods or services to a consumer or an offer to supply goods or services to a consumer, the person engages in conduct that does or is likely to do either or both of the following: firstly, 'manipulate the consumer' or, secondly, 'unreasonably distort the environment in which the consumer makes, or is likely to make, a decision' and that 'causes, or is likely to cause, detriment, whether financial or otherwise, to the consumer'. In this context, a supply or offer to supply may occur in an online setting, such as on an app or a website, or an offline setting, which means your traditional in-store retail setting. The prohibition is intended to be flexible and capable of adapting with evolving commercial practices and rapid technological advances. Offers of supply are intended to include the promotion, advertising or marketing of a relevant good and service.

A non-exhaustive list of unfair trading practices in the context of this general prohibition is included in the bill. This includes frustrating a consumer's ability to exercise legal rights or seek legal remedies; failing to disclose material information to the consumer; disclosing material information to the consumer but in a way that is complex, ineffective, unclear, unintelligible, ambiguous, untimely or overwhelming; and creating an environment, including by using design elements in online platforms, that places unreasonable pressure on a consumer or that obstructs the consumer from making or fulfilling their decision.

This list is designed to assist businesses to understand the parameters of what may qualify as a contravention. The list can't be absolutely exhaustive, because of the unique nature of businesses, the uniqueness of consumers and the incredible breadth of products and services available in the marketplace, particularly online. Each matter will necessarily need to be considered on its own facts, but the non-exhaustive examples in the bill are intended to help businesses understand where the line in the sand is, without impeding legitimate commercial action, like promotion and advertising, which every business is entitled to do.

Secondly, this bill addresses drip pricing. This is a practice where a consumer buys a service at what appears to be a fair and reasonable price and then experiences price creep, where new, previously unexpected fees start to come in. We've all bought a ticket to a concert, to a show, to live sport or to a movie and then experienced an inexplicable and proportionally large booking fee being tacked on at the very end of the transaction. You still want the ticket, so you pay the booking fee. The proposal in this bill is simply that businesses disclose these mandatory transaction-based charges, like a booking fee, at the same time as they display the base price. The consumer can then decide earlier in the process whether they wish to proceed with the transaction, knowing they will be paying a booking fee and what the amount of the booking fee is. This reform does not prohibit businesses from charging a booking fee, recognising that there are legitimate reasons to do so. All it does is ask businesses to be upfront about these costs. This is entirely reasonable and allows consumers to make informed decisions early on in the transaction.

Thirdly, this bill addresses subscription traps. Subscriptions to streaming services, newspapers, gyms, style guides, blogs and software services are often designed on the assumption that the consumer will forget to cancel free trials, will simply shrug off renewals or will find it so difficult to cancel that they'll just roll on. I recently had an experience like this. I consider myself to be a reasonably unfashionable person. Having recently had a birthday, taking me firmly into mid-40s territory, I decided to sign up to a style app which promised to help me find the right colours and the right styles for my body shape—which is inverted triangle, for those playing along at home—and transform me into a modern, youthful style fashionista. Fantastic!

Predictably, the app was not a revelation, presenting me with suggestions like jeans and white T-shirts. It turns out I was already stylish and there was no further room for improvement. So I rolled my eyes, chastised myself for actually signing up to this thing and then proceeded to try and cancel, before I got trapped in the endless renewal cycle. Cancelling was quite the exercise. I just wanted out, but I kept being presented with offers, promises and alternatives on a webpage that was clearly designed to make it hard for me to find and activate the cancel button. I had to trawl through the app. I had to go to the settings on my phone. I had to get a couple of codes, and then I had to click on a link in an email that was eventually sent to me. I'm all for businesses promoting their products, but why couldn't I just press a button and cancel? It took me longer to cancel than it did to be told that I look good in white t-shirts.

This bill addresses these issues by requiring businesses to clearly disclose that a customer is entering a subscription, what it costs, how long it runs, how it renews and how it can be cancelled, with cancellations required to be straightforward, easy to find and comprised of only reasonably necessary steps. Reminder notices reminding consumers that a renewal is approaching or that a payment is coming up will also be required.

This bill is a principled, proportionate and timely response to real harms and frustrations being experienced by the Australian consumer. It does not paralyse business. On the contrary, it recognises the right of a business to grow, to innovate, to make money and to increase productivity but within a marketplace that is fair to the Australian consumer in the rapidly changing way we do business. I commend the bill to the House.

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