New NSW Fair Trading disclosure obligations will start to bite

Published On 08/06/2021 | By Jessica Waters | Consumer protection, Enforcement

Suppliers can expect NSW Fair Trading to more actively monitor and enforce new disclosure obligations under the Fair Trading Act 1987 (NSW). These obligations require suppliers to take extra steps to disclose certain terms and conditions to consumers.

The new requirements were introduced in July 2020 and, after a grace period during which NSW Fair Trading took an education and awareness raising approach to compliance, we expect the state regulator will be more closely scrutinising businesses, particularly their online terms, from now on.

The new provisions require businesses to “take all reasonable steps” to ensure consumers are aware of the “substance and effect” of terms and conditions which “may substantially prejudice” their interests.

For more details about what this means for you (as a consumer) and/or your business if you are in or supply to consumers in NSW, read our client alert here.

Pecuniary penalties and other enforcement action can apply if a supplier does not provide adequate disclosure of a prejudicial term, with NSW Fair Trading having power to take action.

We are helping clients understand what these obligations require of them, in light of the particular nature of their businesses and the ways sales are made to customers.

If you supply consumers directly, particularly online, we recommend reviewing all your terms and conditions in light of these new obligations. We are undertaking these reviews for clients and would be pleased to help.

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About The Author

Jessica Waters is a Senior Associate in the Competition Law and Regulatory Group at King & Wood Mallesons where she advises on a range of competition and regulatory issues. Jessica is also an ad hoc sports journalist and her travels have led her to practice competition and EU law in London and Brussels, with fleeting stints in Canada and the USA.

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