Report No. 199

Trade Practices Act, 1974 (Australia):

At the federal level, the Trade Practices Act, 1974 implies various provisions into consumer contracts for sale, exchange, lease, hire or hire purchase. Any term that attempts to exclude these provisions is treated as void.

Section 51AB of TPA, together with its mirror provisions in State and the National Capital Territory fair trading legislation, prohibits conduct which is, in all the circumstances, unconscionable, in relation to certain defined situations. In deciding whether the conduct in a particular case is unconscionable, the court may have regard to matters such as:

• the relative bargaining strength of the parties;
• whether undue influence or pressure was exerted or unfair tactics used;
• whether the consumer was required to comply with conditions which were not reasonably necessary for the protection of legitimate interests of the supplier; and
• the amount for which, and the circumstances under which, the consumer could have acquired equivalent goods or services from another party.

On finding unconscionable conduct, the court can either grant an injunction or it can make certain other orders if it considers that they will compensate a party, in whole or, in part, for loss or damage or will prevent or reduce any loss or damage.