On January 1 this year, the Trade Practices Act 1974 (Cwlth) became history. In its place stepped the Competition and Consumer Act 2010 (Cwlth) (CCA), a single national act designed to streamline competition and consumer law. The new Act replaces more than the Trade Practices Act 1974 (Cwlth)(TPA), it replaces numerous provisions of the State and Territory Fair Trading and Sale of Goods Acts.
While the CCA introduces new laws for consumer guarantees, unfair contracts and product safety, there are more immediate implications in the meantime: the name change.
Businesses need to remove every reference to the Trade Practices Act from their commercial contracts, tax invoices, and standard terms and conditions immediately, and replace it with the CCA. They then need to change all section numbers as well - almost all of the section numbers in the TPA have changed under the CCA (for example, the provision on misleading and deceptive conduct is no longer section 52, it is section 18 of Schedule 2 of the CCA).
Sale of Goods Acts & Fair Trading Acts
As the CCA also replaces equivalent provisions of the State and Territory Fair Trading and Sale of Goods Acts, it is important to remove references to those Acts where the CCA covers those provisions, and ensure that the correct provisions in the CCA are included in their place.
Ensure that the amended terms and conditions are incorporated
The next step is to ensure that each contract, tax invoice and set of terms and conditions is incorporated into the contracts with each client or customer. Unless you give sufficient notice of the amendments to your terms of conditions, those amendments will not be incorporated so will be useless. Businesses can incorporate the amended terms and conditions or contracts using either of the following methods:
- Send a letter to each client/customer explaining that the standard terms and conditions or the particular contract have been amended. Enclose a copy of the amended terms and conditions and ask the client/customer to read the copy.
- As above, but ask each client/customer to sign the letter in acknowledgement of the amended terms and conditions.
The aim is to bring the terms and conditions to the attention of each client/customer. If the client/customer then chooses not to read the terms and conditions, but you can prove that they were sent to the appropriate contact of your customer, the new terms and conditions are incorporated regardless.
What are the new provisions?
We have compiled a table of the TPA provisions that are likely to be relevant to our clients’ businesses. The first column contains a description of the provision, the second column contains the section number in the TPA, the third column contains the equivalent section number in the CCA, and the fourth column contains the section numbers for each state’s fair trading/sale of goods legislation.
Click here for table