In 2016 the Australian government introduced a new law that will come into effect on 9 November 2023 to protect small business from unfair terms in business-to-business standard form contracts. Are you are compliant?

Foreign investors will be required to provide notice to the Commissioner of Taxation of certain transactions relating to interests held in land and in entities and businesses in Australia.

Transactions that occur on or after 1 July 2023 are captured by the new Register of Foreign Ownership of Australian Assets, irrespective of when an approval was granted, (if any).

Over the last couple of years, the Franchising Code of Conduct has increased the disclosure obligations on franchisors. However, franchisors have always had to make sure that, in simple terms, they deliver what they promise to franchisees.

Under the Australian Consumer Law, franchisors can be liable where they engage in misleading or deceptive conduct – which can include promising an amount of start-up costs without a reasonable basis.

The Federal Court recently found that this is what took place within the ‘UFC Gym’ system in Australia.

Holman Webb Lawyers is expanding its capability in several teams to support ongoing growth, announcing the addition of three partners across our Sydney and Melbourne offices.

The NSW Court of Appeal recently delivered an interesting judgment in the matter of Scenic Tours Pty Ltd v Moore [2023] NSWCA 74.

The Plaintiff in this matter, Mr David Moore, was the lead Plaintiff in a class action against Scenic Tours by thousands of disgruntled cruise ship passengers from multiple separate cruises.

For extra context, we suggest reading our 2020 article discussing Moore v Scenic Tours Pty Ltd [2020] HCA 17: Damages for ‘Disappointment and Distress’ Available to Consumers for Breaches of Consumer Guarantees for Travel and Recreational Contracts.

The Australian Competition and Consumer Commission has ordered Booktopia Pty Ltd (‘Booktopia’) to pay $6 million dollars in penalties for breaches of the Australian Consumer Law.

Specifically, Booktopia was found to have made false and misleading representations regarding consumer rights and guarantees in the Terms of Business provided on their website, and by their customer relations and service staff working within their service centres.

On 7 March 2023, the new chair of the Australian Competition and Consumer Commission, Gina Cass-Gottlieb, announced the Commission’s 2023-2024 Compliance and Enforcement Priorities  in relation to competition and consumer issues.

One of the top priorities is combatting ‘greenwashing’ claims by businesses.

In late 2021, the much-anticipated Franchise Disclosure Register was announced by the government of the day. Around that time, Holman Webb dove into what the register would look like, and what franchisors would need to do to prepare for its introduction. See our November 2021 article ‘The Franchise Disclosure Register – What is it and When Does it Begin?’.  The register is now in force.

Key Takeaways:

• Franchisors must, if they haven’t already, create a profile on the Franchise Disclosure Register as soon as possible and provide the mandatory information.
   
• The profile and information provided should be updated at least annually. Franchisors should also take care to make sure the information provided is consistent with their disclosure document and key facts sheet.

The Privacy Act 1988 (Cth) requires all businesses to have a privacy policy in place, if that business is an Australian Privacy Principles entity (‘APP entity’).

A privacy policy is a document that sets out how a business collects, holds, uses, and discloses personal information.

Personal information is information that identifies a person, irrespective of whether the information is true or not. This information can include a person’s name, physical or email address, photograph, telephone number, or their payment details.

The Australian Consumer Law has now changed, meaning that businesses with standard contracts will soon be at risk of incurring penalties in excess of $50 million for each unfair contract term within their standard form agreements. 

The definition of small business contracts in section 23(4) will be amended to apply to a business that has either:

1. fewer than 100 employees; or
2. an annual turnover of less than $10 million (calculated on the business’ last income year).

Casual employees are not counted unless employed on a regular and systemic basis, and part-time employees are counted as a fraction of a full-time employee.

The change to this definition potentially expands the scope of businesses that would be captured under this section, as it would no longer be confined to businesses with fewer than 20 employees.