Nick McKim (Tasmania, Australian Greens) | Hansard source

Minister, while you are accurate in as far as your statements go that some elements of the collapse of First Guardian and Shield will be a matter for the courts, I want to say very clearly that the Australian Greens have a view that the government's response to the collapse of Shield and First Guardian has not yet met the threshold that would satisfy us. I know that some matters are being considered by government, and we can discuss those things in another forum, but I want to be very clear that justice has not been done for a large number of Australians who had some or all of their retirement savings stolen from them by unscrupulous behaviour. Not only has justice not been done but an adequate response from the government to the collapse of First Guardian and Shield has not yet manifested.

I want to be very clear about that, and I say to you, Minister, that the Greens do not intend to allow this to be the end of the matter. We will keep fighting for justice and adequate reparation for the significant number of Australians who were smashed and had their retirement savings smashed by the collapse of First Guardian and Shield. As there are no other folks wishing to discuss those matters, I will now seek leave to move the Australian Greens amendments together.

Leave granted.

I move amendments (1) to (3) on sheet 3774 together:

(1) Title, page 1 (line 2), after "2010", insert "and the Australian Securities and Investments Commission Act 2001".

(2) Schedule 1, heading, page 3 (line 1), omit "Amendments", substitute "Competition and Consumer Act 2010 amendments".

(3) Page 22 (after line 13), at the end of the Bill, add:

Schedule 2 — Australian Securities and Investments Commission Act 2001 amendments

Part 1 — Unfair trading practices

Australian Securities and Investments Commission Act 2001

1 Subsection 5(1)

Insert:

unfair trading practices: see subsection 12BN(2).

2 After Subdivision BA of Division 2 of Part 2

Insert:

Subdivision BB — Unfair trading practices

12BN Unfair trading practices towards consumers

(1) A person must not, in trade or commerce, engage in unfair trading practices.

(2) A person engages in unfair trading practices if, and only if, in connection with supply of, or an offer to supply, a financial product or services that are financial services to a consumer, the person engages in conduct that:

(a) does or is likely to do either or both of the following:

(i) manipulate the consumer;

(ii) unreasonably distort the environment in which the consumer makes, or is likely to make, a decision; and

(b) causes or is likely to cause detriment (whether financial or otherwise) to the consumer.

(3) Subsection (1) does not apply if the consumer is a body corporate.

(4) Subsection (1) does not apply if the supply is in the course of the consumer carrying on a business.

Note: A person who wishes to rely on subsection (3) or (4) in proceedings bears an evidential burden in relation to that matter (see section 12GBCP).

(5) Without limiting subsection (2), the following are examples of conduct that may be unfair trading practices:

(a) impeding the consumer's ability to exercise legal rights, or seek legal remedies;

(b) failing to disclose material information to the consumer;

(c) disclosing material information to the consumer in a complex, ineffective, unclear, unintelligible, ambiguous, untimely or overwhelming way;

(d) creating an environment (including by using design elements in digital interfaces) which places the consumer under unreasonable pressure in relation to, or obstructs the consumer from, making or fulfilling the consumer's decision;

(e) lead generation.

(6) In this section:

lead generation includes the following:

(a) collecting the consumer's personal information for a sales purpose in an obscure, complex or misleading way;

(b) failing to clearly disclose to the consumer the primary purpose for collecting, using or sharing the consumer's personal information.

3 After paragraph 12GBA( 6)( aa)

Insert:

(ab) a provision of Subdivision BB;

4 After subsection 12 GI( 4)

Insert:

(4A) In a proceeding against a person for a contravention of a provision of Subdivision BB it is a defence if the person establishes that he or she is a person whose business it is to publish or arrange for the publication of advertisements and that he or she received the advertisement for publication in the ordinary course of business and did not know and had no reason to suspect that its publication would amount to a contravention of a provision of Subdivision BB.

5 Paragraph 12GLD(1)(a)

After "Subdivision BA,", insert "BB,".

6 Before paragraph 12GXA(a)

Insert:

(aa) a provision of Subdivision BB;

7 Subsection 12 GXB( 2) (table item 1, column headed "If the infringement notice is for an alleged contravention of ...")

After "Subdivision", insert " BB,".

Part 2 — Drip pricing

Australian Securities and Investments Commission Act 2001

8 Subsection 5(1)

Insert:

base price: see subsection 12CD(5).

transaction based charge: see subsections 12CD(6) and (7).

9 After Subdivision C of Division 2 of Part 2

Insert:

Subdivision CA — Drip pricing

12CD Transaction based charges to be displayed in certain circumstances

Requirement to display

(1) This section applies in relation to financial products or financial services of a kind ordinarily acquired for personal, domestic or household use or consumption.

(2) A person who, in trade or commerce, in offering to supply a financial product or services that are financial services to another person, displays a base price for any of the products or services must display in accordance with subsection (3) the following information for any transaction based charge for the supply:

(a) either:

(i) if the amount of the transaction based charge can be calculated—the amount of the transaction based charge; or

(ii) in any other case—the method for calculating the transaction based charge;

(b) that it is a per transaction charge;

(c) whether the transaction based charge is or may be payable;

(d) whether or not the base price displayed includes the transaction based charge.

Note: This subsection applies each time a base price is displayed. The base price, and the information required to be displayed, could be different at different stages of the purchase process.

(3) For the purposes of subsection (2), the information must be displayed:

(a) while the base price is displayed; and

(b) in a legible, prominent and unambiguous way; and

(c) in close proximity to the base price.

(4) Subsection (2) does not apply if the offer is made exclusively to a body corporate.

Note: A person who wishes to rely on subsection (4) in proceedings bears an evidential burden in relation to that matter (see section 12GBCP).

Base price

(5) An amount payable by a purchaser for a supply of financial products or financial services is a base price for the products or services if it includes an amount payable for the products or services themselves.

Example: An amount that is merely a tax, duty, fee or levy payable in relation to a supply is not a base price.

Transaction based charge

(6) A charge (or part of a charge) of any description is a transaction based charge for a supply of financial products or financial services if:

(a) it is or may be payable by the purchaser for the supply of the products or services; and

(b) it is not an amount payable for the products or services themselves; and

(c) it is, or would be, payable at the same time as an amount payable for the products or services themselves.

(7) However, the following are not transaction based charges:

(a) a charge (or part of a charge) that is payable at the option of the purchaser;

(b) a payment surcharge (within the meaning of Part IVC of the Competition and Consumer Act 2010);

(c) any tax, duty, fee, levy or charge imposed on the supplier;

(d) any amount paid or payable by the supplier with respect to any tax, fee, levy or charge if:

(i) the amount is paid or payable under an agreement or arrangement made under a law of the Commonwealth, a State or a Territory; and

(ii) the tax, duty, fee, levy or charge would have otherwise been payable by another person in relation to the supply;

(e) a charge (or part of a charge) prescribed for the purposes of this paragraph.

(8) Without limiting subsection 33(3A) of the Acts Interpretation Act 1901 or paragraph (7)(e) of this section, regulations made for the purposes of that paragraph may prescribe the following:

(a) that a charge (or part of a charge) is prescribed only in specified circumstances;

(b) different circumstances for different charges (or parts of charges).

10 After paragraph 12GBA(6)(a)

Insert:

(ab) a provision of Subdivision CA;

11 Paragraph 12GLD(1)(a)

After "C", insert ", CA".

12 Subparagraph 12GNB(1)(a)( i )

After "C", insert ", CA".

13 After paragraph 12GXA(a)

Insert:

(aa) a provision of Subdivision CA;

14 Subsection 12 GXB( 2) (table item 1, column headed "If the infringement notice is for an alleged contravention of ...")

After "Subdivision C,", insert "CA, ".

Part 3 — Subscription contracts

Australian Securities and Investments Commission Act 2001

15 Subsection 5(1)

Insert:

excluded subscription contract: see subsection 12FA(1).

meets the consumer requirement: see subsection 12FE(1).

meets the small business requirement: see subsection 12FE(2).

standard form contract:

(a) in Subdivision BA of Division 2 of Part 2 and sections 12GND and 12GNF—has a meaning affected by section 12BK; and

(b) in Subdivision F of Division 2 of Part 2 —has a meaning affected by section 12FF.

subscriber, in relation to a contract for supply of financial products or financial services, means a person who incurs, or may incur, liability to pay for a supply under the contract.

subscription contract: see subsection 12F(1).

16 Section 12BA (definition of standard form contract )

Repeal the definition.

17 At the end of section 12BK

Add:

(4) This section does not apply for the purposes of Subdivision F.

Note: Section 12FF deals with standard form contracts for the purposes of Subdivision F.

18 Subsection 12 DA( 2)

After "12DN", insert "or Subdivision F".

19 After paragraph 12GBA( 6)( ba )

Insert:

(bb) a provision of Subdivision F;

20 Paragraph 12GLD(1)(a)

Omit "or D (other than section 12DA)", substitute ", D (other than section 12DA) or F".

21 Subparagraph 12GNB(1)(a)( i )

Omit "or D", substitute ", D or F".

22 After paragraph 12 GXA( ba )

Insert:

(bb) a provision of Subdivision F;

23 Subsection 12 GXB( 2) (table item 1, column headed "If the infringement notice is for an alleged contravention of ...")

Omit "or DA", insert ", DA or F".

24 After Subdivision E of Division 2 of Part 2

Insert:

Subdivision F — Subscription contracts

12F Subscription contracts

(1) A contract is a subscription contract if it:

(a) meets the requirement in subsection (2), (3), (5) or (6); and

(b) is not an excluded subscription contract.

Note: A contract may meet the requirement in more than one of subsections (2), (3), (5) and (6).

Indefinite period

(2) For the purposes of paragraph (1)(a), the requirement is that the contract contains terms that have the effect of providing:

(a) for recurring or continuing supply of financial products or financial services for an indefinite period; and

(b) for a person to automatically incur liability to pay for the supplies or continuing supply; and

(c) a right for that person to end the contract.

Fixed period

(3) For the purposes of paragraph (1)(a), the requirement is that the contract contains terms that have the effect of providing:

(a) for supply of financial products or financial services in, or recurring or continuing supply of financial products or financial services for, a fixed period; and

(b) for supply, or continuing financial products or financial services to continue after the end of the fixed period unless a party to the contract stops the supply or continuing supply or the contract is terminated; and

(c) for a person to automatically incur liability to pay for the supplies or continuing supply; and

(d) a right for that person to end the contract.

(4) For the purposes of paragraphs (2)(b) and (3)(c), disregard any supply or continuing supply that is free of charge.

Initial free period

(5) For the purposes of paragraph (1)(a), the requirement is that the contract contains terms that have the effect of providing:

(a) for supply of financial products or financial services in, or recurring or continuing supply of financial products or financial services for, an initial period free of charge; and

(b) for a person to automatically incur liability to pay for supply of financial products or financial services after the initial period; and

(c) a right for that person to end the contract before the liability is incurred.

Initial discount period

(6) For the purposes of paragraph (1)(a), the requirement is that the contract contains terms that have the effect of providing:

(a) for supply of financial products or financial services in, or recurring or continuing supply of financial products or financial services for, an initial period; and

(b) for a person to incur liability to pay for supply of financial products or financial services in or for the initial period at a rate; and

(c) for that person to automatically incur liability to pay for supply of financial products or financial services after the initial period at a higher rate; and

(d) a right for that person to end the contract before the liability to pay at the higher rate is incurred.

12FA Excluded subscription contracts

(1) The following contracts are excluded subscription contracts:

(a) a lease;

(b) a licence in respect of real property;

(c) a contract of hire-purchase;

(d) a contract for payment in instalments;

(e) a contract for supply of childcare;

(f) a contract for supply by a pre-school or school of tuition at a pre-school, pre-primary, primary or secondary level;

(g) a contract of a kind prescribed for the purposes of this paragraph.

(2) Without limiting subsection 33(3A) of the Acts Interpretation Act 1901 or paragraph (1)(g) of this section, regulations made for the purposes of that paragraph may prescribe the following:

(a) that a kind of contract is a prescribed kind of contract only in specified circumstances;

(b) different circumstances for different kinds of contract.

12FB Statement and information that must be disclosed when offering financial products or financial services under a subscription contract

Scope

(1) This section applies if:

(a) a person (the supplier), in trade or commerce, offers to supply, under a contract, financial products or financial services; and

(b) if the contract were entered, the contract would be a subscription contract.

Requirement to disclose

(2) The supplier must, when making the offer, disclose, in accordance with subsection (3):

(a) a statement that, if entered, the contract would be a subscription contract; and

(b) information about the matters mentioned in subsection (4).

Manner of disclosure

(3) The statement and information must be disclosed:

(a) if the financial products or financial services are of a kind (if any) prescribed for the purposes of this paragraph—in the manner prescribed for financial products or financial services of that kind; or

(b) in circumstances (if any) prescribed for the purposes of this paragraph—in the manner prescribed for those circumstances; or

(c) in any other case—either:

(i) in a comprehensible, audible and unambiguous way within a reasonable time before a person could agree to enter the contract; or

(ii) in a legible, prominent and unambiguous way in close proximity to where a person (other than the supplier) can agree to enter the contract.

Information to be disclosed

(4) Information about the following matters must be disclosed:

(a) liabilities to pay that a party to the contract (other than the supplier) would or may incur under the contract;

(b) period of the contract;

(c) renewal, extension or other continuation of the contract;

(d) any notice required before a party to the contract (other than the supplier) can end the contract;

(e) how a party to the contract (other than the supplier) can end the contract;

(f) any matter prescribed for the purposes of this paragraph.

Exception

(5) Subsection (2) does not apply in the circumstances (if any) prescribed for the purposes of this subsection.

12FC Information to be given in relation to subscription contracts in effect

Requirement to give information

(1) If:

(a) a person, in trade or commerce, supplies financial products or financial services under a subscription contract prescribed for the purposes of this subsection; and

(b) the contract meets the consumer requirement or meets the small business requirement;

the person must, while the contract is in effect, give the subscriber, in accordance with subsection (2), the information prescribed for the purposes of this subsection at each time prescribed for the purposes of this subsection.

Manner of giving information

(2) The information must be given:

(a) in a legible, prominent and unambiguous way; and

(b) if a manner is prescribed for the purposes of this paragraph—in that manner.

Regulations

(3) Without limiting subsection 33(3A) of the Acts Interpretation Act 1901, subsection 13(3) of the Legislation Act 2003 or subsections (1) or (2) of this section, regulations made for the purposes of subsection (1) or (2) of this section may prescribe the following:

(a) all subscription contracts or a class of subscription contract;

(b) different information, times or manners for different classes of subscription contract;

(c) different information, times or manners for subscription contracts in different circumstances;

(d) different times or manners for different information.

Exception

(4) Subsection (1) does not apply in the circumstances (if any) prescribed for the purposes of this subsection.

12FD Exit method

Requirement to provide a way to end the contract

(1) A person (the supplier) who, in trade or commerce, supplies financial products or financial services under a subscription contract that meets the consumer requirement or meets the small business requirement must:

(a) provide a way for the subscriber to end the contract; and

(b) ensure that each way the supplier provides for the subscriber to end the contract:

(i) is easy to find; and

(ii) is straightforward; and

(iii) requires the subscriber to take only steps that are reasonably necessary to end the contract and protect the subscriber's interests; and

(c) if subsection (2) applies—ensure that one of the ways the supplier provides for the subscriber to end the contract is online.

(2) This subsection applies if:

(a) the subscriber enters the contract online; or

(b) the supplier provides an online way of entering into a contract that, if entered, would be a subscription contract for the same kind of financial products or financial services.

Exception

(3) Subsection (1) does not apply in the circumstances (if any) prescribed for the purposes of this subsection.

12FE Meeting the consumer requirement or the small business requirement

Meeting the consumer requirement

(1) A contract meets the consumer requirement if it is a contract for supply of financial products or financial services under which an individual acquires the products or services wholly or predominantly for personal, domestic or household use or consumption.

Meeting the small business requirement

(2) A contract meets the small business requirement if:

(a) it is a standard form contract for supply of financial products or financial services; and

(b) the subscriber satisfies either or both of the following conditions:

(i) the subscriber makes the contract in the course of carrying on a business and at a time when the subscriber employs fewer than 100 persons;

(ii) the subscriber's turnover, worked out under subsection (4) for the subscriber's last income year (within the meaning of the Income Tax Assessment Act 1997) that ended at or before the time when the contract is made, is less than $10,000,000.

Counting the number of persons employed

(3) In counting for the purposes of subparagraph (2)(b)(i) the number of persons that a person employs:

(a) a casual employee is not to be counted unless employed on a regular and systematic basis; and

(b) a part-time employee (including a part-time casual employee counted under paragraph (a) of this subsection) is to be counted as an appropriate fraction of a full-time equivalent.

Working out a subscriber's turnover

(4) For the purposes of subparagraph (2)(b)(ii), a subscriber's turnover for a period is the sum of the values of all supplies the subscriber made during the period, other than the following:

(a) supplies that are input taxed;

(b) supplies that are not for consideration (and are not taxable supplies under section 72-5 of the A New Tax System (Goods and Services Tax) Act 1999);

(c) supplies that are not made in connection with an enterprise that the subscriber carries on;

(d) supplies that are not connected with the indirect tax zone.

(5) Expressions used in subsection (4) that are also used in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning as in that Act.

12FF Standard form contracts for the purposes of this Subdivision

(1) For the purposes of this Subdivision, if a party to a proceeding alleges that a contract is a standard form contract, it is presumed to be a standard form contract unless another party to the proceeding proves otherwise.

(2) For the purposes of this Subdivision, in determining whether a contract for supply of financial products or financial services is a standard form contract, a court may take into account such matters as it thinks relevant, but must take into account the following:

(a) whether the supplier has all or most of the bargaining power relating to the transaction;

(b) whether the supplier has made another contract, in the same or substantially similar terms, prepared by the supplier, and, if so, how many such contracts the supplier has made;

(c) whether the contract was prepared by the supplier before any discussion relating to the transaction occurred between the parties;

(d) whether the subscriber was, in effect, required either to accept or reject the terms of the contract (other than the terms referred to in subsection (4)) in the form in which they were presented;

(e) whether the subscriber was given an effective opportunity to negotiate the terms of the contract that were not the terms referred to in subsection (4);

(f) whether the terms of the contract (other than the terms referred to in subsection (4)) take into account the specific characteristics of the subscriber or the particular transaction;

(g) any other matter prescribed by the regulations.

(3) For the purposes of this Subdivision, a contract may be determined to be a standard form contract despite the existence of one or more of the following:

(a) an opportunity for the subscriber to negotiate changes, to terms of the contract, that are minor or insubstantial in effect;

(b) an opportunity for the subscriber to select a term from a range of options determined by the supplier;

(c) an opportunity for a party to another contract or proposed contract to negotiate terms of the other contract or proposed contract.

(4) For the purposes of paragraphs (2)(d), (e) and (f), the terms are:

(a) a term required, or expressly permitted, by a law of the Commonwealth or of a State or Territory; or

(b) a term included in the contract, or taken to be so included, by operation of a law of the Commonwealth, or of a State or Territory, that regulates the contract.

25 Review of operation of amendments made by this Part

(1) The Minister must cause a review to be conducted of the operation, during the 2 years from the commencement of this Part, of the following:

(a) the amendments made by this Part;

(b) any legislative instruments made for the purposes of Subdivision F of Division 2 of Part 2 of the Australian Securities and Investments Commission Act 2001.

(2) The review must be completed, and a written report on the review must be given to the Minister, within 6 months after the end of those 2 years.

(3) The Minister must cause a copy of the report of the review to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives the report.

Part 4 — Application provisions

Australian Securities and Investments Commission Act 2001

26 At the end of the Act

Add:

Part 43 — Application provisions relating to Schedule 2 to the Competition and Consumer Amendment (Unfair Trading Practices) Act 2026

348 Application — unfair trading practices

Section 12BN, inserted by the Competition and Consumer Amendment (Unfair Trading Practices) Act 2026, applies in relation to conduct that occurs on or after commencement of Part 1 of Schedule 2 to that Act, whether in connection with a supply or an offer to supply made before, on or after that commencement.

349 Application — subscription contracts

(1) Sections 12F, 12FC and 12FD, inserted by the Competition and Consumer Amendment (Unfair Trading Practices) Act 2026, apply in relation to a contract entered into on or after the commencement of Part 3 of Schedule 2 to that Act.

(2) Sections 12F, 12FC and 12FD do not apply to a contract entered into before that commencement. However:

(a) if the contract is renewed, extended or otherwise continued on or after that commencement—sections 12F, 12FC and 12FD apply to the contract as renewed, extended or otherwise continued, on and from the day on which the renewal, extension or other continuation takes effect; or

(b) if the contract is varied on or after that commencement and paragraph (a) has not already applied in relation to the contract—sections 12F, 12FC and 12FD apply to the contract as varied, on and from the day on which the variation takes effect.

350 Acquisition of property

(1) Sections 12BN, 12FC and 12FD, inserted by the Competition and Consumer Amendment (Unfair Trading Practices) Act 2026, do not apply to the extent that:

(a) the operation of the sections would result in an acquisition of property from a person otherwise than on just terms; and

(b) the acquisition of property would be invalid because of paragraph 51(xxxi) of the Constitution.

(2) In this section:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.