Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Hansard source

The government shares the concerns raised by Senator Xenophon and will be opposing Senator Joyce’s amendments. We think that removing these two important provisions would really undermine the bill. We think these unfair contract and provisions work to the benefit of consumers. The rebuttal presumptions at subsection 3(4) and subsection 7(1) of the bill are essential for the practical operation of the unfair contract provisions. The rebuttal presumptions reverse the onus of proof in two specific circumstances: (1) when requiring the business to show that the contract in dispute is not a standard form contract and (2) when requiring the business to show that the term in question is required by a legitimate business interest. It would be highly unlikely that the consumer would be able to prove that a contract is standard form if they have access only to their own contract. Similarly, it would be impossible for an individual consumer to prove that something is not in a business’s legitimate interests. The removal of these rebuttal presumptions would totally undermine the ability of consumers to use the unfair contract terms law at all. We think it fundamentally undermines the ability of consumers to advance their case. On that basis, we will not be supporting the amendments.