27 May 2020
The Australian Banking Association (ABA) supports an effective regulatory regime that provides consumers and small business with a strong level of protection from unfair contract terms (UCTs) in standard form contracts.
In our view, making UCTs illegal and attaching penalties will result in a more legalistic approach to contracting and an adversarial process with regulators. We believe that a supervisory focused enforcement approach by regulators can best deliver improved outcomes for small business.Download PDF
Currently, significant delay, financial costs and opportunity costs result from the need to sign and witness deeds and statutory declarations on paper; these costs also result from inconsistent and
uncertain regulations under Commonwealth, State and Territory laws.
The ABA strongly advocates for the reforms to remain technology neutral and provide a single, consistent approach to executing deeds and statutory declarations. Otherwise the reforms may make it
harder to use, and therefore disincentivise the use of, electronic execution.
• The eligibility requirements to trigger the safe harbour protections are too onerous and should be amended
• Use of the safe harbour should be made more cost effective
• The safe harbour regime would be improved by reducing complexity and providing more certainty in interpretation
• The safe harbour regime should provide for better incentives for the involvement of professional advisers
• Provide for advice to be obtained from a registered liquidator to ensure that it is appropriate
• Increase awareness of the safe harbour regime
• Any changes to the disclosure requirements for safe harbour should recognise that disclosure of the safe harbour restructuring plan is not appropriate in all circumstances
• Consider shifting the burden of proof to establish safe harbour defences to insolvent trading
While individual FICA members have provided their own detailed submissions, and these highlight several specific issues relevant to their membership, the purpose of this submission is to outline the key areas of common agreement between FICA members and suggested next steps.
Topics covered include:
– Introduction of civil penalties
– Flexible remedies – Rebuttable presumption
– Flexible remedies – Injunctions
– Existing remedies available under the UCT regime
– Definition of Small Business and Monetary Value of Contracts
– Transitional provisions