Changing times: developments in the regulation of dealings between large and small businesses under the Competition and Consumer Act

The Australian Government is proposing to extend the unfair contract terms regime under the

Competition and Consumer Act so that it applies to business to small business contracts.

The necessary legislation is likely to pass in the spring Federal Parliamentary sittings. A six

month transition period is proposed. The transition period is to allow businesses to prepare for

the implementation of the new regime.

The ACCC is also focussing on using its existing powers to regulate unconscionable conduct by big business against small business, as highlighted by the recent Coles litigation.
The Government is also considering its response to the Harper Report which has recommended changes to the misuse of market power provisions, partly to address small business concerns. The ACCC noted in its Small Business Half Yearly Report that misuse of market power is the competition related issue that receives the most competition law complaints (being 367 complaints in the 2014-2015 financial year).
In the circumstances, we recommend that businesses conduct an internal due diligence on their business processes with small business and the use of standard form contracts to assess which processes and types of contracts may need to be changed to ensure compliance.

Clifford Chance