Agreed. Optus have always been clear on the charge. However unfair contract terms apply on take it or leave it contracts (like Optus plans). It seems the criteria is:
The ACL protects consumers against contract terms that:
* would cause a significant imbalance in their rights and obligations under a contract
* are not reasonably necessary to protect the business, and
* would cause detriment (financial or otherwise) to a consumer.
As a layman I think a penalty that is not even capped at $1000's (financial detriment), that is non negotiable under any circumstances including theft, fraud, children, malice or even just an honest mistake (significant imbalance) and that might involve perhaps a 10% overrun of data allowance esp. where alternative shaping options exist (not reasonably necessary to protect the business) does meet the criteria necessary.
IMO Optus seems exposed on this issue. They settled (but still won) the Premium SMS scam because penalties went from a maximum of $20 million (chickenfeed) to 10% of annual revenue.
Personally, I don't care about the legalities. Data usage penalties may have been necessary in the past to protect bandwidth to customers but now its patently unnecessary. Optus have simply decided that they make more profit arbitrarily fining customers for no necessary reason.
Hopefully peer pressure (and the threat of a $1 billion fine) might tip Optus into doing the right thing.
At least its not the old excess rate of 25 cents per mb.
Try $2/MB for Vodafone prepaid back in the day. The're a little better these days at $0.04/MB , but that still equates to a brutal $40/GB, at least they charge in respectable 256 KB ($0.01) increments.