What is the unfair trading practices ban?
It is a new general prohibition in section 28B of the Australian Consumer Law. A person in trade or commerce must not engage in unfair trading practices with a consumer. Conduct is caught only if it manipulates the consumer or unreasonably distorts the decision setting, and causes or is likely to cause detriment.
What does the ban add?
It adds a principles-based prohibition that sits alongside misleading conduct, unconscionable conduct and unfair contract terms. The Act says Part 3-1 is not limited by implication, so the existing provisions still apply.
What are the two limbs?
The first is manipulation of the consumer or unreasonable distortion of the setting in which the consumer decides, or a likelihood of either. The second is detriment, financial or otherwise, or a likelihood of it. Both are required.
Who is outside it?
A body corporate consumer, and a sale made in the course of the consumer carrying on a business. The supplier bears the evidential burden for either exclusion.