Good faith or good fiction?

A central element of the proposed WA franchising legislation is the introduction of a new statutory duty that is described, in our view rather misleadingly, as "good faith". In reality the current push for a statutory duty of good faith is simply the latest effort by a small group of lobbyists to have what is essentially a new concept of "fairness" introduced into business contracts. The lobbyists failed in their attempts to do so in the context of the changes to the Australian Consumer Law, in the recent review of the operation of the unconscionable conduct provisions of the Trade Practices Act and in the recent Federal review of the Franchising Code of Conduct, so they have turned to other means to try to achieve their ends.