The Fair Trading Act 1986 (the FT Act) is placing new obligations on businesses and providing new protections for consumers and small businesses.

There are some significant new protections to address unfair practices, including:

  • prohibiting unconscionable conduct in trade
  • extending unfair contract terms provisions to cover standard form small trade contracts
  • enabling people to direct uninvited direct sellers to leave or not enter their property.

These provisions will come into effect on 16 August 2022. It is important that businesses understand the implications of these changes and work towards being ready to comply on time.

Other provisions come into force straight away. These include changes to bring the FT Act into line with other legislation that the Commission oversees.


We will continue to develop and publish guidance on our website for some of the changes. This guidance will cover unconscionable conduct and unfair contract terms protections for small trade contracts.

To be kept up to date with any new guidance, please subscribe to our mailing list.

See Fair Trading Amendment Bill 2019

Key changes and dates

ChangeDate it comes into force
Prohibition on unconscionable conduct16 August 2022
Extension of unfair contract terms provisions to cover standard form small trade contracts16 August 2022
New directions to leave or not enter premises for uninvited direct selling16 August 2022
Extended disclosure period for extended warranty agreements sold over the phone17 August 2021
Broadened management banning orders17 August 2021
Ability of Commission to refer question of law for High Court opinion17 August 2021
Powers of Commission to prohibit disclosure of information, documents, and evidence17 August 2021
Matters included in enforceable undertakings17 August 2021

Significant new protections

Prohibition on unconscionable conduct – 16 August 2022

There is a new prohibition against unconscionable conduct in trade. The term itself is not defined in the FT Act, but there is a non-exhaustive list of factors that the court can consider when assessing whether a trader’s conduct is unconscionable. This includes:

  • the relative bargaining power of the trader engaging in the conduct and any affected person who is disadvantaged or likely to be disadvantaged by the conduct
  • the extent to which the trader and an affected person acted in good faith
  • whether the affected person was reasonably able to protect their interests when taking account of their particular characteristics and circumstances
  • whether the affected person was able to understand any documents provided by the trader
  • whether the trader subjected an affected person to unfair pressure or tactics or otherwise unduly influenced them.

Conduct can be unconscionable regardless of whether:

  • there is a system or pattern of unconscionable conduct
  • a particular individual is identified as disadvantaged
  • there is a contract or not.

Traders that engage in unconscionable conduct can be fined up to $600,000 for a business and $200,000 for an individual.


Extension of unfair contract terms to cover standard form small trade contracts – 16 August 2022

The unfair contract terms provisions, which currently apply to standard form consumer contracts only, are extended to include standard form small trade contracts. A contract is a ‘small trade contract’ if:

  • each party is engaged in trade
  • it is not a consumer contract
  • it does not comprise or form part of a trading relationship that exceeds an annual value threshold of $250,000 (including GST, if applicable) when the trading relationship first arises.

These new protections will not apply to relevant insurance contracts entered into before 1 April 2025 (or any earlier date appointed by the Governor-General by Order in Council). Contracts entered into before 16 August 2022 (and not varied or renewed on or after that date) will also not be considered small trade contracts.

If the Court declares a term unfair, it will be an offence for a person to include, apply, enforce, or rely on the term in a small trade contract. The offence is punishable by a fine of up to $200,000 for an individual or up to $600,000 for a body corporate, and civil remedies will also apply.


New directions to leave or not enter premises for uninvited direct selling – 16 August 2022

Under a new provision, residents can direct people to leave or not enter their property if they are there to negotiate uninvited direct sale agreements, which include consumer credit contracts.

These directions:

  • may be verbal or in written or other visual form
  • must be audible or visible
  • may be a general standing direction (eg, through a notice on a gate or front door directing salespeople not to call) or be specific (eg, a face-to-face spoken direction). If the direction is specific, the uninvited direct seller must not enter or re-enter the premises within 2 years of the direction for the purpose of negotiating an uninvited direct sale agreement.

A breach of this section could result in a fine of up to $10,000 for an individual or up to $30,000 for a body corporate. Certain civil remedies are also available such as an order cancelling or varying a contract or directing the payment of compensation.

For prosecutions relating to directions to leave or not enter, it is a defence if the defendant can prove that the person who gave the direction no longer resided at the premises at the time of the contravening conduct, or if permission was given for such conduct.

Other changes

Extended disclosure period for extended warranty agreements sold over the phone – 17 August 2021

Businesses selling extended warranties over the phone will have 5 working days after the date an agreement is entered into to provide consumers with a written copy of their extended warranty agreement.

Broadened management banning orders – 17 August 2021

The scope of management banning orders has broadened to cover cases where:

  • a person commits one offence, while an incorporated (or unincorporated) body commits the other offence (while that person is a director or involved in management)
  • where a person is a director or manager of two different bodies that commit offences.

These offences must still occur on two separate occasions within a 10-year period.

Ability of Commission to refer question of law for High Court opinion– 17 August 2021

An amendment confirms that the Commission can seek a High Court opinion on any question of law arising under the FT Act.

Powers of Commission to prohibit disclosure of information, documents, and evidence – 17 August 2021

The Commission can now prohibit the disclosure of information, documents, and evidence relating to an investigation or inquiry under the FT Act.

Matters included in enforceable undertakings – 17 August 2021

The FT Act now expressly allows for enforceable undertakings to include paying compensation or taking action to avoid, remedy, or mitigate the effects of a breach (or possible breach) of the FT Act. The changes also explicitly permit the Commission to accept undertakings from a party to pay the Commission’s costs incurred in investigating or bringing proceedings under the FT Act.

The Commission must publish the details of any enforceable undertakings containing compensation or the payment of its costs.


We will continue to develop and publish guidance on our website for some of the changes. This guidance will cover unconscionable conduct and unfair contract terms protections for small trade contracts.

To be kept up to date with any new guidance, please subscribe to our mailing list.