Expert legal commentary: New Frontlines in Regulating Unconscionable, Unfair, and Bad Faith Business Conduct

By Professor Bryan Horrigan

 

Overview

Professor Bryan Horrigan

In the last few months since the inaugural edition of The Monash Law e-Briefing, developments have continued on multiple fronts in the regulation of unconscionable, unfair, and bad faith business conduct. The ACCC v Lux case reached its end point in the High Court. The ACCC announced proceedings against Coles for alleged unconscionable conduct towards suppliers. The ANZ bank fees case is heading to appeal. The Abbott Government finalised its panel and terms of reference for the much-publicised ‘root and branch’ review of competition law. The Government also released proposed legislation on new franchising reforms, including the introduction of an obligation of good faith in franchising agreements.

These regulatory and litigious developments are of topical interest to commercial and consumer lawyers, competition and financial regulators, and businesses of all kinds and their corporate counsel. They are also relevant for policy-makers and law-makers, public lobby groups and industry peak bodies, and academics and students who study commercial law, competition law, consumer law, franchising law, contract law, and equity.

Dean’s message and invitation

Professor Bryan Horrigan

Welcome to this first edition of our new e-newsletter, The Monash Law e-Briefing. It is being launched in our Faculty’s 50th anniversary year. We hope that it keeps our alumni and the broader legal profession informed and connected with us and one another. Complementing our twice-yearly publication of Law Matters, The Monash Law e-Briefing is designed to be an accessible, regular, and useful briefing on Faculty matters and commentary of interest and relevance to you.

Now recognised as a truly global law faculty, we attract top students, provide first-rate opportunities, produce world-class research, and benefit from high-quality alumni, many of whom are well known as thought leaders and pioneers in their chosen professional careers throughout the world. In keeping with this societal outreach and track record after 50 years, The Monash Law e-Briefing aims to provide many things of value to you in your everyday work, engagement with us, and connections with others in professional life.

Expert legal commentary: Abbott Government’s ‘Root and Branch’ Review of Competition Law and Unconscionable Business Conduct

Professor Bryan Horrigan

By Professor Bryan Horrigan
Dean, Faculty of Law, Monash University

The Bottom Line
Unconscionable business conduct towards small business and consumers is a growth area for regulatory reform as well as ‘test case’ advice and litigation. So, what should the Abbott Government’s ‘root and branch’ review of competition law (‘“root and branch” review’) do with the regulation of unconscionable business conduct towards small business? The Government’s draft terms of reference for this review clearly signal that reforming business-to-business unconscionability and extending the ‘unfair contracts regime’ to small business are both clearly on the agenda of possible outcomes. These two areas of possible reform are linked, in ways outlined in this comment.