Document ID: chunk:federal_register_of_legislation:C2025C00182:section:12bh:p1
Version: federal_register_of_legislation:C2025C00182
Segment Type: section
Provision Reference: s 12BH (pt 1/2)
Character Range: 96209–98742

12BH  Examples of unfair terms
 (1) Without limiting section 12BG, the following are examples of the kinds of terms of a contract referred to in section 12BF that may be unfair:
 (a) a term that permits, or has the effect of permitting, one party (but not another party) to avoid or limit performance of the contract;
 (b) a term that permits, or has the effect of permitting, one party (but not another party) to terminate the contract;
 (c) a term that penalises, or has the effect of penalising, one party (but not another party) for a breach or termination of the contract;
 (d) a term that permits, or has the effect of permitting, one party (but not another party) to vary the terms of the contract;
 (e) a term that permits, or has the effect of permitting, one party (but not another party) to renew or not renew the contract;
 (f) a term that permits, or has the effect of permitting, one party to vary the upfront price payable under the contract without the right of another party to terminate the contract;
 (g) a term that permits, or has the effect of permitting, one party unilaterally to vary financial services to be supplied under the contract;
 (h) a term that permits, or has the effect of permitting, one party unilaterally to determine whether the contract has been breached or to interpret its meaning;
 (i) a term that limits, or has the effect of limiting, one party's vicarious liability for its agents;
 (j) a term that permits, or has the effect of permitting, one party to assign the contract to the detriment of another party without that other party's consent;
 (k) a term that limits, or has the effect of limiting, one party's right to sue another party;
 (l) a term that limits, or has the effect of limiting, the evidence one party can adduce in proceedings relating to the contract;
 (m) a term that imposes, or has the effect of imposing, the evidential burden on one party in proceedings relating to the contract;
 (n) a term of a kind, or a term that has an effect of a kind, prescribed by the regulations.
 (2) Before the Governor‑General makes a regulation for the purposes of paragraph (1)(n) prescribing a kind of term, or a kind of effect that a term has, the Minister must take into consideration:
 (a) the detriment that a term of that kind would cause to consumers; and
 (aa) the detriment that a term of that kind would cause to persons who carry on a business and employ fewer than 100 persons; and
 (b) the impact on business generally of prescribing that kind of term or effect; and