Starts 1 July 2027/C2026A00064/Read from the authorised Act/Not legal advice; does not certify
Competition and Consumer CheckerThe Act, section by section
Section 48HScope or machinery

Standard form contracts in this Division

A contract alleged to be a standard form contract is presumed to be one unless another party proves otherwise. The court must weigh seven matters, including bargaining power, repeated use of the same terms, preparation before discussion, take-it-or-leave-it presentation, whether negotiation was available, and whether the terms reflect the subscriber.

Competition and Consumer Amendment (Unfair Trading Practices) Act 2026, Schedule 1, Part 3, item 20, section 48HStarts 1 July 2027Part 3: subscription contracts
The requirement

Apply the section 48H test, not the general section 27 test, in this Division. The presumption sits against the supplier, and minor negotiation or a choice from the supplier options does not defeat a finding.

Who it binds. The supplier defending a standard form allegation, and the team that maintains the contract template.

Operative term. presumed to be a standard form contract

What this means in practice

The small business requirement depends on the contract being standard form, so this section decides coverage. The presumption is important: the supplier has to prove the contract is not standard form, not the other way round. The seven matters are practical. A template used for many customers, prepared before any discussion, offered on a take-it-or-leave-it basis and not open to meaningful negotiation is likely to be standard form. An opportunity to choose a term from the supplier range, or to negotiate something minor, does not change that. Keep the template history and the negotiation record, because they are the evidence.

How to test it

Take the contract and answer the seven matters with documents, not impressions. Who had the bargaining power? How many contracts use the same or substantially similar terms? Was the template prepared before any discussion? Was the subscriber required to accept or reject the terms as presented? Was there an effective opportunity to negotiate the non-mandated terms? Do the terms reflect the subscriber or the transaction? Then check the anti-avoidance list in subsection (3). If the answers point to standard form, treat the contract as standard form and apply section 48G.

Evidence to keep

The Act does not prescribe these records. They are the artefacts our reading says a regulator or auditor may ask for; keep the ones that fit your business and the provision.

  • Template historyThe versions of the contract and the number of customers on each.
  • Negotiation recordThe changes a subscriber actually negotiated, and whether they were minor.
  • Bargaining noteThe commercial context that shows who set the terms.
  • Seven-matter assessmentA dated answer to each matter, with the document relied on.
  • Legal reviewThe review of the standard form conclusion for the product.

What to do first

  1. Keep the template history and the count of customers on each version.
  2. Record actual negotiations, not a general claim that terms were negotiable.
  3. Apply section 48H, not the general section 27 test, to this Division.

Questions

Does a choice of options make a contract non-standard?
Not by itself. Section 48H(3)(b) says a contract may still be standard form despite an opportunity to choose one option from the supplier list.
Who has the burden?
If a party alleges the contract is standard form, it is presumed to be standard form unless another party proves otherwise. In practice the supplier bears the burden of disproving it.

Related sections

s 48G: Who is covereds 48B: Subscription tests 48D(2): Offer disclosure