Nick Xenophon (SA, Independent) Share this | Hansard source

by leave—I move amendments (1) and (6) in my name together.

(1)    Schedule 1, item 1, page 7 (after line 21), after section 4, insert:

4A  Unfair term—payments in person, in cash

        (1)    Without limiting section 3, a term that enables, or has the effect of enabling, a party to charge a fee for receiving a payment in person or in cash is taken to be an unfair term of a consumer contract.

        (2)    In this section:

fee means an amount additional to the upfront price payable under a consumer contract;

(2)    Schedule 1, item 1, page 7 (after line 21), after section 4, insert:

4B  Unfair term—personal information

        (1)    Without limiting section 3, a term that enables, or has the effect of enabling, one party to transfer personal information about another party to a person outside Australia without that other party’s written, informed consent is taken to be an unfair term of a consumer contract.

        (2)    In this section:

personal information has the meaning given by section 6 of the Privacy Act 1988.

transfer, in relation to personal information, means communicate, send, trade or republish that information by any means to any person.

(3)    Schedule 2, item 18, page 31 (line 9), omit “(other than an award of damages)”.

(4)    Schedule 3, item 26, page 69 (line 4), omit “(other than an award of damages)”.

This relates to the definition of consumer contracts and the inclusion of low value business-to-business contracts. These amendments are designed to include business-to-business contracts involving transactions less than $2 million, to also be subject to the unfair contract term provisions of the legislation. This provision was included in the first drafting of the legislation but was removed before the bill was introduced, as the minister pointed out in the exposure draft. Like consumers, small businesses are increasingly victims of unfair contract terms and should have access to these unfair contract terms and options for redress. This amendment will enable small businesses to be covered by the unfair contract terms provision of the legislation.