Unfair contract terms
A GUIDE FOR BUSINESSES AND LEGAL PRACTITIONERS
2 Unfair contract terms
This guide was developed by:
• Access Canberra, Australian Capital Territory
• Australian Competition and Consumer Commission
• Australian Securities and Investments Commission
• Consumer Affairs Victoria
• Consumer and Business Services South Australia
• Consumer, Building and Occupational Services, Tasmania
• New South Wales Fair Trading
• Northern Territory Consumer Affairs
• Queensland Office of Fair Trading
• Western Australia Department of Commerce, Consumer Protection
Important note:
The information in this guide relates only to the business to consumer unfair contract terms law as set out
under the Australian Consumer Law.
Amendments to the unfair contract terms law, which apply to business to business transactions, will take
effect on 12 November 2016.
The ACCC has produced guidance on the application of this new law, which is available at
www.accc.gov.au/uct
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March
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A guide for businesses and legal practitioners 3
Contents
Introduction 5
About this guide . . . . . . . . . . . . . . . . . . . . . . . 5
About the other guides . . . . . . . . . . . . . . . . . . . . 5
About the Australian Consumer Law . . . . . . . . . . . . . . 6
What types of contracts does the law apply to? 7
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . 7
What is a contract? . . . . . . . . . . . . . . . . . . . . . . 7
What is a consumer contract? . . . . . . . . . . . . . . . . . 7
What is a standard form contract? . . . . . . . . . . . . . . . 8
What if there is a dispute about whether a contract
is standard form?. . . . . . . . . . . . . . . . . . . . . . . 8
What standard form consumer contracts or
terms are exempt? 9
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Terms excluded from the unfair contract terms laws . . . . . . . 9
Contracts excluded from the unfair contract terms laws . . . . . . 10
When is a term ‘unfair’? 11
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Meaning of ‘unfair’ . . . . . . . . . . . . . . . . . . . . . . 11
What will a court consider in determining whether or not
a term is unfair? . . . . . . . . . . . . . . . . . . . . . . . 12
Examples of the types of terms in a standard form
consumer contract that may be unfair 13
About the examples . . . . . . . . . . . . . . . . . . . . . 13
Enforcement of the law 21
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Unfair terms in contracts for consumer goods and services . . . . 21
Unfair terms in contracts for financial products and
financial services . . . . . . . . . . . . . . . . . . . . . . 21
The role of the courts . . . . . . . . . . . . . . . . . . . . . 21
Remedies that may be sought . . . . . . . . . . . . . . . . . 22
Can consumers take action? . . . . . . . . . . . . . . . . . . 22
Glossary and abbreviations 23
Contacts 24
4 Unfair contract terms
A guide for businesses and legal practitioners 5
Introduction
About this guide
This is one of six guides to the Australian
Consumer Law (ACL), developed by Australia’s
consumer protection agencies to help businesses
understand their responsibilities under the law.
This guide will help businesses and legal
practitioners understand the unfair contract
terms of the ACL.
It covers what an unfair contract term is and
which contracts are affected by the law.
While the guide includes examples of the types
of terms that may be considered unfair, it does
not present a definitive list of what is unfair—or,
by omission, fair—under the law. Ultimately,
a court or tribunal will determine if a term in a
standard form consumer contract is unfair.
These guides:
• explain the law in simple language but are no
substitute for the legislation
• give general information and examples—not
legal advice or a definitive list of situations
where the law applies.
• include examples of the ACL’s application by
Australian Consumer Protection regulators
and by Australian courts.
About the other guides
The other guides in this series cover:
• Consumer guarantees
Covers supplier, manufacturer and importer
responsibilities when there is a problem with
goods and services; refunds, replacements,
repairs and other remedies.
• Sales practices
Covers unsolicited supplies, unsolicited
consumer agreements (door to door and
telemarketing), lay-by, pricing, proof of
transaction and itemised bills, referral
selling, pyramid schemes, harassment and
coercion.
• Avoiding unfair business practices
Covers misleading or deceptive conduct,
unconscionable conduct, country of origin,
false and misleading representations.
• Compliance and enforcement
Covers how regulators enforce the ACL.
• Consumer product safety
Covers safety standards, recalls, bans, safety
warning notices and mandatory reporting
requirements.
Further information and copies of these and other
publications are available from the Australian
Consumer Law website www.consumerlaw.gov.au
6 Unfair contract terms
Introduction continued
About the Australian Consumer Law
The ACL aims to protect consumers and ensure
fair trading in Australia.
The ACL came into force on 1 January 2011 and
replaced the Trade Practices Act 1974 and
previous Commonwealth, state and territory
consumer protection legislation. It is contained in
Schedule 2 to the Competition and Consumer Act
2010 (Cth) (CCA) and is applied as a law of each
state and territory by state or territory legislation.
Under the ACL, consumers have the same
protections, and businesses have the same
obligations and responsibilities, across Australia.
Australian courts and tribunals (including those
of the states and territories) can enforce the ACL.
The regulators of the ACL are:
• the Australian Competition and Consumer
Commission (ACCC), in respect of conduct
engaged in by corporations, and conduct
involving the use of postal, telephonic and
internet services; and
• state and territory consumer protection
agencies, in respect of conduct engaged
in by persons carrying on a business in,
or connected with, the respective state or
territory.
Some of the consumer protection provisions in
the ACL are mirrored in the Australian Securities
and Investments Commission Act 2001 (Cth)
(ASIC Act) in relation to financial products
and services. The Australian Securities and
Investments Commission (ASIC) is responsible
for administering and enforcing the ASIC Act.
The ACL aims to protect consumers
and ensure fair trading in Australia.
A guide for businesses and legal practitioners 7
What types of contracts does
the law apply to?
Summary
A contract is an agreement made between two
or more parties that is intended to be legally
enforceable.
The unfair contract terms provisions apply to
standard form consumer contracts.
A standard form contract will typically be one
prepared by one party to the contract and not
negotiated between the parties—it is offered on
a ‘take it or leave it’ basis.
The ACL and the ASIC Act define ‘consumer
contract’ as a contract for the supply of goods
or services, or the sale or grant of an interest in
land, to an individual for personal, domestic or
household use or consumption.
A court can declare a term of a standard form
consumer contract to be unfair. Once a term
is declared to be unfair, it will be void (not
operative). However, the remainder of the
contract will continue to apply, if it can continue
without the void term.
Individuals can apply to a court to have a term
of a standard form contract they entered into
declared unfair and accordingly, void.
ACL regulators (the ACCC and state and territory
consumer protection agencies) can also apply
to have a term of a particular standard form
contract declared unfair. If it is so declared, the
term will be void in that particular contract and
in all standard form contracts entered into by the
business that contain that term.
The law does not impose penalties on a business
that includes or seeks to rely on an unfair
contract term. However consumers and ACL
regulators can seek redress for any loss that is
incurred as a result of a term of a standard form
contract that is declared to be unfair.
What is a contract?
A contract is an agreement made between
two or more parties that is intended to be
legally enforceable. A contract arises when
one party makes an offer and the other party
communicates acceptance of that offer.
Contracts can be in writing or made orally
and can be entered into in a variety of ways,
including:
• signing a document
• agreeing over the phone
• clicking an ‘I agree’ button on a web page
• starting to act in accordance with the
contract, having communicated acceptance of
the terms of the contract to the other party.
What is a consumer contract?
The unfair contract terms laws apply to
‘consumer contracts’ as defined by both the ACL
and the ASIC Act.
Under the ACL, a ‘consumer contract’ is a
contract for:
• the supply of goods or services or
• the sale or grant of an interest in land
to an individual who acquires it wholly or
predominantly for personal, domestic or
household use or consumption.
ACL reference: section ()
Under the ASIC Act, a similar definition of a
consumer contract applies in relation to financial
products and services.
ASIC Act reference: section BF
8 Unfair contract terms
What types of contracts does the law apply to? continued
The information in this guide relates only to the
business to consumer unfair contract terms law
as set out under the Australian Consumer Law.
Amendments to the unfair contract terms law,
which apply to business to business transactions,
will take effect on 12 November 2016.
The ACCC has produced guidance on the
applications of this new law, which is available at
www.accc.gov.au/uct
What is a standard form contract?
The unfair contract terms laws do not define
‘standard form contract’. However, in broad
terms, a standard form contract will typically
be one that has been prepared by one party to
the contract and is not subject to negotiation
between the parties—that is, it is offered on a
‘take it or leave it’ basis. Standard form contracts
are typically used for the supply of goods and
services to consumers in many industries,
including:
• telecommunications
• finance
• domestic building
• gyms
• motor vehicle rentals
• travel
• utilities.
In deciding whether a contract is a standard form
consumer contract, a court may consider a range
of relevant matters but must take into account:
• whether one of the parties has all or most of
the bargaining power in the transaction
• whether the contract was prepared by
one party before any discussion occurred
between the parties about the transaction
• whether the other party was, in effect,
required to either accept or reject the terms
of the contract in the form in which it was
presented
• whether the other party was given an
effective opportunity to negotiate the terms
of the contract
• whether the terms of the contract take into
account the specific characteristics of the
other party or the particular transaction.
ACL reference: section ()
The Commonwealth Minister (responsible for
competition policy and consumer affairs) may
make regulations listing other matters that must
be considered by a court in determining whether
a contract is a standard form contract. No such
regulation had been made at the time of this
publication.
ACL reference: section ()(f)
What if there is a dispute about
whether a contract is standard form?
A consumer contract is presumed to be a
standard form contract unless the business
relying on the term proves otherwise. The
business may present evidence to rebut the
presumption in the particular circumstances,
including that any of the factors a court must
consider were not present in that particular
circumstance. For example, a contract is not a
standard form contract where a consumer can
negotiate many of the terms.
Whether a contract is in fact a standard form
contract is properly assessed on an individual
case–by–case basis, having regard to the
matters previously outlined.
A guide for businesses and legal practitioners 9
What standard form consumer
contracts or terms are exempt?
Summary
The unfair contract terms laws do not apply to
standard form consumer contract terms that:
• define the main subject matter of a consumer
contract
• set the upfront price payable under the
contract or
• are required, or expressly permitted, by a law
of the Commonwealth or a state or territory.
The following consumer contracts are excluded:
• certain shipping contracts
• contracts that are constitutions of companies,
managed investment schemes or other kinds
of bodies
• contracts covered by the Insurance Contracts
Act 1984 (Cth).
Terms excluded from the unfair
contract terms laws
Terms that define the main subject matter of
a contract
The unfair contract terms laws do not apply to
terms that define the main subject matter of a
contract. The main subject matter of a contract
refers to the goods or services (including land,
financial services or financial products) that the
consumer is acquiring under the contract.
Where a consumer has decided to purchase
particular goods or services, they cannot then
challenge the fairness of a term that defines
these goods or services, given that they had a
choice of whether or not to make the purchase
on the basis of what was offered. For example,
a consumer cannot allege that a term is unfair
on the basis that they have changed their mind
about, or no longer require, the good or service
that they have agreed to purchase.
The main subject matter of the contract may also
include a term that is necessary in order for the
product or service to be supplied.
EXAMPLE
• When a consumer agrees to buy a product
over the internet and agrees to have that
product delivered by post, the consumer
cannot later challenge the delivery term as
being unfair, if delivery is necessary for the
product they agreed to buy to be supplied.
Terms that set the ‘upfront price’ payable under
the contract
The unfair contract terms laws do not apply to
the upfront price payable under the contract
provided it was disclosed before the contract
was entered into. The upfront price in a standard
form consumer contract is the amount that the
consumer agrees to pay under the contract, or
to be paid for the supply, sale or grant under the
contract. This includes the cash price of, or a series
of payments for, a good or service or sale or grant
of an interest in land, or an interest rate for credit.
ACL reference: section
The definition of upfront price in the laws would
also cover a future payment or series of future
payments provided these were disclosed at the
time the contract is entered into. In considering
whether a future payment, or a series of future
payments, forms part of the upfront price, a court
may take into account whether these payments
were disclosed to the consumer in a transparent
way. A court may also consider whether the
consumer was made aware of the basis on which
such payments would be determined, at or
before the time the contract was made.
Reference: Explanatory Memorandum to the Trade
Practices Amendment (Australian Consumer Law) Bill
(No.) (Cth), cl [.]
The upfront price would not include terms that
impose fees and charges levied as a consequence
of something happening or not happening at
some point over the period of the contract. These
fees and charges are not payments necessary for
the provision of the supply, sale or grant under
the contract, but are additional costs to the
upfront price. For example, terms that impose
additional fees for a default or exit would be
excluded from the upfront price.
10 Unfair contract terms
What standard form consumer contracts or terms are exempt? continued
In the context of a financial product or service—
for example, a consumer credit agreement—the
upfront price includes the amount borrowed and
the interest payable and any fees disclosed at
the time the contract is entered into. It does not
include contingent fees, such as default fees. As a
result, principal and interest cannot be challenged
under the unfair contract terms provisions.
ASIC Act reference: section BI() and ()
Terms that are required or permitted by a law
The unfair contract terms laws do not apply to
terms of contracts that are required or expressly
permitted by a law of the Commonwealth, or a
state or a territory.
There are many examples of terms expressly
permitted to be included in consumer contracts
as a matter of public policy, some of which may
be necessary to ensure the validity of specific
transactions.
An example of such a term can be found in section
105 of the Motor Dealers and Chattel Auctioneers
Act 2014 (Qld)*, which provides that a contract
for the sale of a used motor vehicle must contain
a clause providing for a cooling-off period of one
business day. The contract will be a consumer
contract if it was entered into by an individual.
This term could not then be found to be unfair,
for example, on the grounds that the cooling off
period of one business day was too short.
*Similar provisions are in force in some other
states and territories
Terms that have been negotiated
If a term has been subject to negotiation
between the parties and has not been presented
on a ‘take it or leave it’ basis, it is less likely that
it will be considered to be an unfair term. This is
because a party would need to claim that a term
that it had input into and was able to negotiate
was unfair. It may also be the case that a contract
with negotiated terms would not be found to be a
standard form contract. In the case of Director of
Consumer Affairs Victoria v Craig Langley Pty Ltd
& Matrix Pilates and Yoga Pty Ltd (Civil Claims),
the Victorian Civil and Administrative Tribunal
(VCAT) stated:
[T]erms of a consumer contract which have
been the subject of genuine negotiation should
not be lightly declared unfair. This legislation
is designed to protect consumers from unfair
contracts, not to allow a party to a contract
who has genuinely reflected on its terms and
negotiated them, to be released from a contract
term from which he or she later wishes to resile.
Legal reference: Director of Consumer Affairs Victoria
v Craig Langley Pty Ltd & Matrix Pilates and Yoga Pty
Ltd (Civil Claims) [] VCAT at []
Contracts excluded from the unfair
contract terms laws
Some contracts are excluded from the unfair
contract terms laws, including:
Shipping contracts
Shipping contracts that are excluded include:
• contracts of marine salvage or towage
• a charter party of a ship
• a contract for the carriage of goods by ship.
Shipping contracts are subject to a
comprehensive legal framework (nationally
and internationally) that deals with maritime
contracts.
Constitutions of companies, managed
investment schemes or other kinds of bodies
The unfair contract terms laws do not apply to
contracts that are constitutions of companies,
managed investment schemes or other kinds
of bodies. A constitution is defined in the
Corporations Act 2001.
Corporations Act reference: section
Insurance contracts
Unfair contract terms provisions do not apply to
terms regulated by the Insurance Contracts Act
1984.
Insurance Contracts Act reference: section
Private health insurance contracts, state and
Commonwealth government insurance contracts
and re–insurance contracts (among others) are not
regulated by the Insurance Contracts Act and are
therefore subject to the unfair contract terms laws.
Insurance Contracts Act reference: section
A guide for businesses and legal practitioners 11
When is a term ‘unfair’?
Summary
If a court finds a term is unfair, that term is void
(treated as if it never existed). If the contract can
operate without the unfair term, it will still be
binding on all parties.
A term of a consumer contract is unfair if it:
• would cause a significant imbalance in the
parties’ rights and obligations arising under
the contract
• is not reasonably necessary to protect the
legitimate interests of the party who would be
advantaged by the term; and
• would cause detriment (whether financial or
otherwise) to a party if it were to be applied
or relied on.
In deciding whether a term is unfair, a court may
take into account the matters that it considers
relevant but must take into account:
• the extent to which the term is transparent;
and
• the contract as a whole.
Meaning of ‘unfair’
In deciding whether a term in a standard form
consumer contract is unfair, the court or tribunal
will apply the three–limbed test for unfairness.
The test for unfairness, states that a term of a
consumer contract is unfair if it:
• would cause a significant imbalance in the
parties’ rights and obligations arising under
the contract; and
• is not reasonably necessary to protect the
legitimate interests of the party who would be
advantaged by the term; and
• would cause detriment (whether financial or
otherwise) to a party if it were to be applied
or relied on.
All three limbs of the unfairness test must be
proven to exist, on the balance of probabilities,
for a court to decide that a term is unfair.
ACL reference: section ()
ASIC Act reference: section BG
A ‘significant imbalance’
In considering whether a term of a consumer
contract would cause a significant imbalance in
the parties’ rights and obligations, this would
involve a factual assessment of the available
evidence. The claimant has to prove that, on the
balance of probabilities, a term of a consumer
contract would cause a significant imbalance in
the parties’ rights and obligations arising under
the contract.
‘Not reasonably necessary’
A court must find that the term is not reasonably
necessary to protect the legitimate interests of
the party that would be advantaged by the term.
The meaning of legitimate interest is open to
interpretation by the court.
A term is presumed not to be reasonably
necessary to protect the party’s interests
unless that party proves otherwise. The party
advantaged by the term needs to provide
evidence that its legitimate interest is sufficiently
compelling to overcome any detriment caused to
the consumer, and that therefore the term was
‘reasonably necessary’.
Such evidence might include relevant material
relating to a business’s costs and structure, the
need to mitigate risks, or particular industry
practices.
Detriment
The court would need to find that the term would
cause detriment to a party if it were applied or
relied on.
The court will consider whether the term causes
detriment such as financial detriment , delay or
distress for the consumer as a result of the unfair
term. A claimant does not need to show proof of
having suffered actual detriment, but must show
more than a hypothetical case in which he or she
would suffer detriment.
Reference: Explanatory Memorandum to the Trade
Practices Amendment (Australian Consumer Law) Bill
(No.) , paragraph .
12 Unfair contract terms
When is a term ‘unfair’? continued
What will a court consider in
determining whether or not a term is
unfair?
In determining whether a term of a standard form
consumer contract is unfair, a court may consider
any matter that it thinks relevant. It must take
into consideration:
• the extent to which the term is transparent;
and
• the contract as a whole.
A transparent term
A lack of transparency in a term of a standard
form consumer contract may cause a significant
imbalance in the parties’ rights and obligations.
A term is considered to be transparent if it is:
• expressed in reasonably plain language
• legible
• presented clearly
• readily available to any party affected by the
term.
Again, it is important to note that only a court
can determine what a transparent term is for the
purposes of the unfair contract terms provisions.
Examples of terms that may not be considered
transparent include terms that are hidden in
fine print or schedules, phrased in legalese or in
complex or technical language, or are ambiguous
or contradictory.
A term that is not transparent will not necessarily
be unfair. Further, transparency alone will not
necessarily overcome underlying unfairness in a
contract term.
The United Kingdom’s unfair contract terms
provisions use the term ‘plain and intelligible
language’ rather than ‘transparent’.
Reference: The Unfair Terms in Consumer Contracts
Regulations (UK) Regulation
Despite the difference in terminology, the finding
of Lord Bingham in Director General of Fair Trading
v First National Bank may provide some guidance:
‘Transparency requires that the terms should be
expressed fully, clearly and legibly, containing
no concealed pitfalls or traps. Appropriate
prominence should be given to terms which might
operate disadvantageously to the customer.’
Legal reference: Director General of Fair Trading v First
National Bank [] AC ; [] UKHL
The ‘contract as a whole’
The fairness of a particular contractual term
cannot be considered in isolation but must be
assessed in light of the contract as a whole.
Some terms that might seem quite unfair in one
context may not be unfair in another. Conversely,
if a particular term was decided by a court in one
case to be fair, this does not mean it will always
be fair.
An apparently unfair term may be regarded
in a better light when seen in the context of
other counterbalancing terms. For example,
a potentially unfair term may be included in a
consumer contract but may be counterbalanced
by additional benefits—such as a lower price—
being offered to the customer.
However, even if a contract contains terms that
favour the consumer, such favourable terms
may not counterbalance an unfair term if the
consumer is unaware of them. Examples include
implied terms, or terms hidden in fine print, in
a schedule or in another document, or written
in legalese. This may result in an information
imbalance in favour of the business.
Legal reference: Director of Consumer Affairs Victoria
v AAPT Ltd (Civil Claims) [] VCAT
In considering the contract as a whole, a
court will often need to balance the legitimate
commercial interests of the business against the
detriment the term would cause to a consumer if
it were enforced.
Some businesses often include terms that allow
them to make unilateral changes to the contract
or limit the extent of what they are promising,
with no resultant remedy for the consumer.
These terms may sometimes appear to be unfair.
However, businesses use these terms to manage
risk and keep their costs low. For example, if a
business had to renegotiate with every customer
when its circumstances changed, this would
be expensive and the business would probably
need to increase its prices to offset the cost of
potential renegotiations. In these circumstances,
the management of risk and minimising cost
may be viewed by a court as legitimate business
interests. However, this will always depend on
the particular circumstances.
A guide for businesses and legal practitioners 13
Examples of the types of terms in
a standard form consumer contract
that may be unfair
About the examples
Examples of terms in a standard form consumer
contract that a court may regard as unfair can be
found in:
• the unfair contract terms laws and related
regulations
• guidance from industry bodies; for example,
the Telecommunications Consumer
Protections Code (C628:2007) provides
guidance for the telecommunications
industry.
ACL reference: section
ASIC Act reference: BH
These examples provide guidance but do not
prohibit the use of these terms or create a legal
presumption that they are unfair.
For instance, many of the examples below are
terms that allow a business to make changes to a
contract on a unilateral basis, but these are not
prohibited or presumed to be unfair. Parts 4 and
5 of the Uniform Consumer Credit Code include
specific instances where contract terms may be
unilaterally varied.
Any consideration of a contract term is subject
to the test set out in section 24 of the ACL and
section 12BG(1) of the ASIC Act. For instance, a
term may be reasonably necessary to protect a
business’s legitimate interests.
ACL reference: section
ASIC Act reference: BG ()
A term that effectively permits one party (but not
another party) to avoid or limit performance of
the contract
Terms that permit a business to avoid or limit
meeting its obligations under a contract, such as
an exclusion clause, have the potential to cause
a significant imbalance in the parties’ rights and
obligations under the contract.
Terms may be less likely to be considered unfair
if they are qualified in such a way that consumers
understand when and how they are likely to be
affected, or if the terms outline reimbursements
available to the consumer when such terms
are relied upon by the business. For example,
an exclusion clause may not be unfair where a
consumer understands the effect of the term or is
given reasonable notice of its effect.
ACL reference: section ()(a)
ASIC Act reference: section BH ()(a)
There are many instances where limitations
of liability are expressly permitted by
Commonwealth, state or territory legislation for
public policy reasons—for example, terms that
allow a business to limit its liability under the
CCA for recreational services.
CCA reference: section A
14 Unfair contract terms
Examples of the types of terms in a standard form consumer contract that may be unfair continued
CASE STUDIES
The following terms and conditions for a
car parking site would be considered to be
seeking to limit the company’s liability:
Subject to any statutory rights which
cannot be varied or exempted. You
agree that the Operator shall not in any
circumstances whatsoever be liable for
any loss of or damage to your vehicle
whether or not such loss or damage
is caused by negligence or actions
constituting fundamental breach of
contract or the misdelivery of your vehicle
to an unauthorised person or theft or
vandalism or trickery and you further
agree that if this exemption of liability
does not apply then to the extent that
you may lawfully do so you agree to limit
the liability of the operator to pay you for
the loss and damage to an amount not
exceeding $300.
The car parking sites involved acknowledged
the terms were unfair and agreed with the
consumer protection agency to change them
accordingly.
A review of a motor vehicle repairer’s
contracts found a number of terms and
conditions regarding limitation of liability—
I agree that you shall not be liable for fire,
loss or damage to the vehicle whilst under
your control or the loss of my contents
thereof, equipment radio, tolls etc.
This limitation of liability was considered
too broad and would potentially leave the
consumer out of pocket even if the repairer
drove the vehicle negligently and damaged it.
A term that allows one party (but not another
party) to terminate the contract
Terms that allow a business to cancel a contract
at will, without it being reasonably necessary to
protect the business’s legitimate interests or,
for example, in response to an inconsequential
breach of contract by the consumer, may be
considered unfair by a court or tribunal.
ACL reference: section ()(b)
ASIC Act reference: section BH(a)(b)
CASE STUDY
A mobile phone contract that had an
immediate termination clause for any breach
potentially had an application so broad that
it was considered unfair. VCAT found:
A customer may have breached the
agreement in a manner which is
inconsequential, yet faces the prospect of
having the service terminated. Further, if
the customer changes his or her address
(which will not necessarily be the address
for receipt of billing information) this
will also provide a ground to AAPT to
terminate the Agreement. Because these
provisions are so broadly drawn, and are
one–sided in their operation, they are
unfair terms within the meaning of the
FTA.
Legal reference: Director of Consumer Affairs
Victoria v AAPT Limited [] VCAT at []
Terms may also be considered unfair if they
undermine the consumer’s right to terminate
the contract. Terms that state or imply that the
consumer cannot cancel the contract under
any circumstances or only with the business’s
agreement, regardless of the business’s
action or omission under the contract, may be
considered unfair.
CASE STUDY
A telecommunications service provider’s
standard form consumer contracts contained
a provision for the provider to cancel or
suspend services in the event of ‘excessive
or unusual use’.
A regulator raised concerns with the provider,
and subsequently the contracts were
amended to provide a definition of excessive
and unusual use, which satisfactorily
addressed the regulator’s concerns
about this clause, and provided greater
transparency to the consumer about when
the provider’s rights would be exercised to
cancel or suspend the services.
A guide for businesses and legal practitioners 15
A term that penalises one party (but not another
party) for a breach or termination of the contract
Terms imposing penalties for trivial breaches of a
contract by consumers may be unfair.
A term may also be considered unfair if it
threatens sanctions over and above those that
can be imposed by law. A penalty imposed by a
contract should bear a reasonable relationship
to the loss likely to be suffered by the business
as a result of the breach or early termination, and
should not be an arbitrary sum.
A term that imposes a penalty on a consumer
for terminating a contract because the business
has not complied with its obligations under
the contract is likely to be considered unfair.
An example of this may be where a business
is unable to supply a product ordered by a
consumer by the date specified in the contract,
but also refuses to refund any money paid by
the consumer if they attempt to terminate the
contract due to the non–delivery.
ACL reference: section ()(c)
ASIC Act reference: section BH()(c)
A term that allows one party (but not another
party) to vary the terms of the contract
A contract term that allows the business to
alter the terms of the contract after it has been
agreed may be unfair. This may operate similarly
to a term that permits the business (but not the
consumer) to avoid or limit performance of the
contract. For example, if a term could require a
consumer to accept increased costs or penalties,
new requirements or reduced benefits, it may be
considered unfair.
ACL reference: section ()(d)
ASIC Act reference: section BH()(d)
CASE STUDY
A clause in a consumer contract allowing a
health club operator to unilaterally change
the location of the club within a 12 kilometre
radius of the club’s original location, among
other things, was found to be unfair because
‘it is a term to which the consumers’ attention
is not specifically drawn, and which may
operate in a way in which the consumer may
not expect and to his or her disadvantage’.
Legal reference: Director of Consumer Affairs
Victoria v Trainstation Health Clubs Pty Ltd (Civil
Claims) [] VCAT
A unilateral variation clause may cause a
significant imbalance in the rights of the parties
to the contract.
CASE STUDY
A review of the terms and conditions of major
stadiums was conducted in Queensland. The
terms that were considered unfair included:
Items may be confiscated at the discretion
of management as per the ‘Confiscated
Items Policy’.
Certain items, such as cameras with lenses
over 200 millimetres, were prohibited as a
condition of entry. The ‘confiscated items
policy’ sought to give management the right
to confiscate a person’s property without
returning it or compensating the consumer
for taking it.
The trader changed the term to request
the consumer to ‘check’ the item for return
upon exit or request the consumer to leave
for breaching a condition of entry (that is,
bringing in the prohibited item).
Any recordings or recording devices which
are confiscated will become the property of
the owner.
The legitimate interests of stadium
management may have been to protect
intellectual property rights. However,
confiscating and taking ownership of
recording devices such as phones and
cameras was not seen as reasonably
necessary to protect those interests.
Entrants voluntarily assume all risk of
damage and loss, personal injury (fatal and
non–fatal)… whatsoever and however arising
(including by negligence).
This term seeks to limit liability for any loss
or damage caused to consumers, even in
the event of negligence of the stadium or its
employees. Stadium management agreed
this term needed to be changed.
16 Unfair contract terms
Examples of the types of terms in a standard form consumer contract that may be unfair continued
A variation clause may be more likely to be
acceptable if it permits either party to vary the
contract and only for legitimate reasons stated in
the contract which are clear and specific enough
to ensure the power to vary cannot be used by
the business at will to suit its interests, or in a
manner that would be detrimental to consumers.
For example, a unilateral variation clause may be
acceptable where:
• the circumstances are clearly expressed in the
contract
• it is reasonably necessary to protect the
legitimate interests of the business, such as
managing costs or risk; or
• where the consumer has a right to cancel the
contract, without penalty, if the change is
detrimental to the consumer.
CASE STUDY
In 2013, following action by the ACCC, the
Federal Court declared that four clauses in
ByteCard’s standard form consumer contract
were unfair contract terms and therefore
void. ByteCard Pty Ltd is a business that
provides internet and fixed–line telephony
and web design services.
The clauses that were declared unfair
enabled ByteCard to:
>> unilaterally vary the price under an
existing contract without also providing
the customer with a right to terminate
>> exclude liability, while providing
ByteCard with virtually unlimited
indemnity
>> unilaterally terminate the contract at any
time with or without cause or reason.
The court declared that the clauses were
unfair because they:
>> created a significant imbalance in the
parties’ rights and obligations
>> were not reasonably necessary to protect
ByteCard’s legitimate interests; and
>> if applied or relied upon, would cause
financial detriment to a consumer.
Legal reference: Australian Competition and
Consumer Commission v Bytecard Pty Limited
(Federal Court of Australia, Jessup J, unreported,
orders made July )
A term that allows one party (but not another
party) to renew or not renew the contract
If a term of a standard form consumer contract
only allows a business, and not the consumer,
the right of renewal (or not), the business may be
unfairly advantaged. The consumer may suffer
detriment, including delay or distress, where
a contract is not renewed or is automatically
renewed without their consent.
For example, where the contract involved is a
continuing contract and the business unilaterally
decides not to renew the agreement without
providing adequate notice to the consumer, the
consumer may be caught unawares and suffer
detriment because of the sudden absence of
the product or service and the need to find a
replacement. Likewise, the consumer could
suffer detriment with the automatic renewal of a
contract without their consent.
However, there may be instances where the
automatic renewal of a contract is reasonably
necessary and does not cause a significant
imbalance between the parties. Automatic
renewal for a reasonably short period is common
practice in some industries and can benefit the
consumer.
For example, ongoing service contracts, such as
some utilities contracts, may benefit consumers
with the business having a limited ability to
renew a contract and continue supply. Provided
that the consumer, prior to the expiration of
the contract, is given the right not to have the
contract renewed or is not required to pay a fee
if they wish to withdraw from the agreement
following the automatic renewal, the term may
not be considered unfair.
ACL reference: section ()(e)
ASIC Act reference: section BH()(e)
A guide for businesses and legal practitioners 17
A term that allows one party to vary the upfront
price payable under the contract without the
right of another party to terminate the contract
In the ordinary course of business, a consumer
would expect to receive the goods or services
they were promised in exchange for providing
the agreed price. A term allowing the business
to unilaterally increase the price—varying one of
the most important terms in the contract—has
significant potential for unfairness.
In some cases, there may be a legitimate interest
for including the term. An example of this may be
a domestic building contract where the business
is able to vary the up–front price based on the
consumer opting to use a more expensive type
of material or furnishing after the contract has
been entered into. This term would need to
be transparent and adequately drawn to the
consumer’s attention prior to entering into the
contract.
In some circumstances, a term that allows the
business to set or vary a price after the consumer
has agreed to an amount may be unfair, even
if there is a right to cancel. For example, a term
allowing the business to charge a price on
delivery of goods or services different from the
price quoted to the consumer when ordering
those goods or services may be unfair.
In some cases, a variation clause relating to the
up–front price payable under the contract is
less likely to be considered unfair if consumers
are able to end the contract if they do not agree
to the variation. To be genuinely free to end the
contract, the consumer should not be worse off
for having entered into the contract—for example,
by experiencing financial loss such as forfeiting
a prepayment. In most cases, however, the
consumer should be entitled to receive the goods
or services at the agreed price.
As always, whether or not a term that allows
one party to vary the up–front price without the
right of another party to terminate the contract is
unfair will be subject to the court’s application of
the test for unfairness.
ACL reference: section ()(f)
ASIC Act reference: section BH()(f)
CASE STUDY
A review by the ACCC of standard form
contracts used by businesses trading online
identified problematic terms allowing the
business to alter the terms and conditions
during the life of the contract. For example,
the following term was identified as a
concern in the standard form consumer
contracts used by a major online retailer:
We may change or update this website
and the terms and conditions at any time
without providing you with prior notice.
The retailer amended this provision providing
for due notice to be given to consumers;
however, those amendments did not resolve
the ACCC’s concern in relation to changes
being made to the terms and conditions after
the sale is concluded:
We may change or update this website
and the terms and conditions at any time
by giving you notice as outlined below (by
email, conventional mail or by posting it
on the retailer’s website).
When similar concerns were raised with other
online businesses, their general approach
was to resolve these concerns by amending
such terms to provide balance to the
contract, as follows:
For future orders, these terms may be
different and so we recommend you read
these terms carefully each time you agree
to them during the ordering process.
We will not change any terms and
conditions for an existing order that
has been accepted by us; the terms and
conditions that will apply to the order are
the terms and conditions that applied at
the time you placed the order.
18 Unfair contract terms
Examples of the types of terms in a standard form consumer contract that may be unfair continued
A term that allows one party unilaterally to vary
the characteristics of the goods or services to
be supplied, or the interest in land to be sold or
granted, or the financial goods or services to be
supplied under the contract
A unilateral variation clause may allow a business
to substitute a different product or service than
the business originally agreed to supply to the
consumer. This may conflict with the consumer’s
expectation of receiving a product or service that
they agreed to purchase, not merely something
similar or equivalent.
ACL reference: section ()(g)
ASIC Act reference: section BH()(g)
CASE STUDY
A term in a contract for mobile phone
services allowed one party to ‘vary a
Supplier or its products, or vary charges
from time to time without notice to you [the
consumer]’. VCAT found:
This term causes a significant imbalance
in the parties’ rights and obligations
arising under the contract, to the
detriment of the consumer. For example,
it would enable AAPT to reduce the
number of calls that a person could make
pursuant to a prepaid mobile phone
service which the person had entered
into in good faith. This term was an
unfair term.
Legal reference: Director of Consumer Affairs
Victoria v AAPT Limited [] VCAT at []
If the intention of a unilateral variation clause is
to permit changes that are limited in scope and
the consumer understands and agrees to the
changes in advance, it may be less likely to be
considered unfair. This may involve:
• setting out clearly the variation that might be
made and in what circumstances
• defining how far the variation can extend; or
• providing the consumer with the right to
terminate the contract without penalty if the
business cannot supply the product or service
agreed to in the contract.
The ability to unilaterally vary the characteristics
of the goods or services to be supplied may
not be unfair where notice of such variation is
given and the consumer is offered the option of
terminating the contract for a period after the
notice is given.
In some circumstances, there may be a legitimate
interest for including the term. An example of this
may be a provisional sum clause in a domestic
building contract, where the consumer requests
variations to the furnishing or material that is
used.
A term that allows one party unilaterally to
determine whether the contract has been
breached or to interpret its meaning
A term that allows a business to reserve the
right to determine whether it has performed
its contractual obligations properly may be
considered unfair. Such a term would allow the
business to unfairly refuse to acknowledge that
it has breached its obligations, thereby denying
redress to the consumer. An example might be
a term that limits any testing or inspection of an
alleged faulty product to testing or inspection
by the business. In this situation, it may be
considered fairer for the term to provide for the
product or service to be independently assessed.
Also, a term of a standard form consumer
contract may be unfair where it allows a business
to reserve the right to decide the meaning
or interpretation of a contractual term. The
business is effectively able to manipulate the
contract to its best advantage in a way that may
disadvantage a consumer. Such a term gives rise
to the same objections as a unilateral right to
vary terms.
ACL reference: section ()(h)
ASIC Act reference: section BH()(h)
A guide for businesses and legal practitioners 19
A term that limits one party’s vicarious liability
for its agents
Consumers often rely on what is said to them
by a sales representative, employee or agent
of a business before or when they are entering
into a contract. A contractual term that seeks
to disclaim the business’s responsibility or
liability for representations made to prospective
consumers by its agents at the point of sale may
be unfair.
Where limited liability terms are required
or expressly permitted by a law of the
Commonwealth or a state or territory, such terms
will not come within the ambit of the unfair
contract terms provisions.
ACL reference: section ()(i)
ASIC Act reference: section BH()(i)
A term that allows one party to assign the
contract to the detriment of another party
without that other party’s consent
If a business is sold, its contractual relationships
with its customers are often ‘assigned’ to
the purchaser of the business. In certain
circumstances, this may be considered unfair
if the assignment detrimentally affects a
consumer’s rights under those contracts.
ACL reference: section ()(j)
ASIC Act reference: section BH()(i)
CASE STUDY
A term in a removalist contract that allowed
the removalist company to ‘assign its rights
and the rights of any persons on behalf of
whom it is acting, to collect all charges and
payments from Clients to the Contractor’ was
unfair for the purposes of the Fair Trading Act
1999 (Vic). VCAT stated that the term was
unfair because it:
‘has the object or effect of assigning
rights in respect of the contract to an
unidentified non–party’ and because
it ‘creates uncertainty for the consumer
because the ‘Contractor’ is not a party to
the removalist services contract’.
Legal reference: Director of Consumer Affairs
Victoria v Backloads.com Pty Ltd (Civil Claims)
[] VCAT at []
Alternatively, an assignment clause may be less
likely to be considered unfair if it operates in
circumstances where a consumer’s rights under
the contract will not be detrimentally affected
by the assignment. For example, with respect
to credit agreements, many lenders have a
legitimate interest in assigning contracts under
securitisation arrangements.
Where assignment clauses are required
or expressly permitted by a law of the
Commonwealth or a state or territory, such terms
will not come within the ambit of the unfair
contract terms provisions.
A term that limits one party’s right to sue
another party
A term which could be used—even if that is not
the intention—to prevent or hinder a consumer
from enforcing his or her rights against the
business when the business has breached the
contract may place the consumer at a significant
disadvantage and may be considered unfair.
Excluding or limiting a party’s right to sue the
business under a contract may in effect allow
the business to act unreasonably or negligently
towards the consumer without any legal
consequences. This may be unfair. Terms that
require a consumer to bring legal proceedings in
a foreign court may also be unfair.
ACL reference: section ()(k)
ASIC Act reference: section BH()(k)
A term that limits the evidence one party can
present if taking legal action
Including a term in a contract that limits the
evidence that a consumer can present in
proceedings against the business may be unfair
because it limits the consumer’s legal rights
or their perception of their legal rights in court
proceedings. An example may be a term that
limits presentable evidence to the contract itself
and excludes any evidence on pre–contractual
negotiations. While court rules may allow
the presentation of such evidence in certain
circumstances, consumers may not be aware of
the rules of evidence and may be deterred from
taking action against the business, including
seeking legal advice, because of the term.
ACL reference: section ()(l)
ASIC Act reference: section BH()(l)
20 Unfair contract terms
Examples of the types of terms in a standard form consumer contract that may be unfair continued
CASE STUDY
A telecommunications business had the
following term in its standard form consumer
contract:
You acknowledge that you enter into this
agreement entirely as a result of your own
enquiries and that you do not rely on any
statement, representation or promise by
us or on our behalf not expressly set out
in this agreement.
A regulator considered that this clause
demonstrated significant non–compliance
with the law. Following discussions with the
regulator, the telecommunications business
deleted the term from its standard form
contract.
A term that imposes the burden of proof on
one party
The effect of this provision is similar to that of
restricting the evidence that a consumer could
rely on in court proceedings—it creates the
potential for a consumer to be deterred from
taking action against a business. For example,
a term that requires a consumer to prove
unreasonable or potentially unprovable elements
of a dispute, such as the authority of a staff
member of the business to make representations
where such information is in the hands of the
business and not the consumer, may be unfair.
ACL reference: section ()(m)
ASIC Act reference: section BH()(m)
A term prescribed by the regulations
The Governor–General may make regulations
setting out types of terms or terms that
have a certain effect that may be unfair.
Before recommending such regulations, the
Commonwealth Minister (responsible for
competition policy and consumer affairs) must
take into consideration:
• the detriment that a term of that kind would
cause to consumers
• the impact on business generally of
prescribing that kind of term or effect
• the public interest.
No such regulations have been made as at the
date of this publication.
ACL reference: sections ()(m) and ()
ASIC Act reference: sections BH()(n) and BH ()
A guide for businesses and legal practitioners 21
Enforcement of the law
Summary
Enforcement of the unfair contract terms laws
is shared between the ACCC, ASIC and the state
and territory consumer protection agencies. The
agencies work together to ensure a consistent
approach to compliance and enforcement.
Individual consumers can also seek to enforce
their rights under the law.
Unfair terms in contracts for
consumer goods and services
The unfair contract terms laws for consumer
goods and services are enforced by both
Commonwealth and state and territory consumer
protection agencies.
At the Commonwealth level, the ACCC has
responsibility for enforcing the unfair contract
terms laws by taking action in the Federal Court
(except in relation to financial services and
products—see below). The states and territories
also enforce these laws in their respective
jurisdictions and can also take action in the
Federal Court. The agencies work together to
ensure a consistent approach to compliance and
enforcement.
Unfair terms in contracts for financial
products and financial services
ASIC is the Commonwealth regulator of financial
products and services. ASIC has responsibility
for enforcing the consumer protection provisions,
including the unfair contract terms laws, in the
ASIC Act in relation to financial products and
services.
ASIC has released guidance for mortgage
lenders that sets out how the National Credit
Code and unfair contract terms provisions apply
to mortgage early termination fees (exit fees).
Regulatory Guide 220 Early termination fees for
residential loans: unconscionable fees and unfair
contract terms is available at www.asic.gov.au
From time to time, enforcement matters involve
both general issues and issues relating to
financial products and services. Functions can
be delegated to the most appropriate agency to
deal with a particular matter.
The role of the courts
The role of the courts is to determine whether
a term in a standard form consumer contract is
unfair. Once a term is declared by the court to be
unfair, the term is void.
Regulatory agencies and individual consumers
can apply to a court for a declaration that a term
of a standard form contract is void.
Although regulators will ask businesses to
co–operate by removing terms considered to
be unfair, it is not the role of any regulator to
endorse contract terms or to state categorically
that they are unfair. Only a court can determine
whether a term of a standard form consumer
contract is unfair.
The court to which an enforcement action may be
brought by a regulator or a consumer may differ
depending on which agency takes action, or
where the consumer and/or business are based.
Some state and territory consumer protection
legislation also allows action to be brought in a
tribunal rather than a court.
22 Unfair contract terms
Enforcement of the law continued
Remedies that may be sought
The inclusion of a term in a standard form
contract that is declared to be unfair does not
attract a pecuniary penalty.
However, a business that asserts that a term
is legitimate or seeks to enforce or rely on it
when it has been declared unfair by a court
may be misrepresenting the true position to the
consumer. This could be false or misleading
conduct, in breach of section 29(1)(m) of the
ACL. If so, the usual remedies, which include
pecuniary penalties, would apply.
The first step for a regulator or a party to the
contract in enforcing the unfair contract terms
laws is to seek a declaration under s250 of
the ACL that the contract term is unfair. If the
contract can operate without the unfair term, the
remainder of it will still be binding.
If a party to a contract seeks to apply or rely upon
a term that a court has declared unfair, the court
may grant:
• an injunction restraining the other party from
acting upon the term
• compensation
• an order to provide redress to non–party
consumers
• any other orders the court thinks appropriate.
Non–party consumer redress
The ACCC, state and territory regulators and
ASIC have power under the ACL and the ASIC Act
respectively to apply to the court to seek certain
orders for the benefit of persons that are not
parties to proceedings where:
• the respondent is a party to a consumer
contract and is advantaged by a term of the
contract that the court has declared to be an
unfair term
• the declared term has caused or is likely
to cause a class of people to suffer loss or
damage
• the class includes people who have not been
a party to enforcement action in relation to
the declared term.
ACL reference: section
ASIC Act reference: section GNB
The orders that the court can make to redress the
loss or damage suffered by non–party consumers
include all or any of the following:
• declaring all or part of a contract to be void
(either before or after the date that the order
is made, including from its very beginning)
• varying a contract or arrangement as the
court sees fit (either before or after the date
that the order is made)
• refusing to enforce all or any of the terms of a
contract or arrangement
• directing the respondent to refund money or
return property to a non–party consumer
• directing the respondent, at their expense, to
repair or provide parts for a product provided
under a contract
• directing the respondent, at their expense, to
provide specified services to the non–party
consumer
• directing the respondent to terminate or
vary an interest in land that was created or
transferred by the contract.
State and territory consumer protection agencies
may be able to take similar proceedings under
the relevant legislation.
ACL reference: section
ASIC Act reference: section GNC
Can consumers take action?
The ACL and the ASIC Act both provide for
consumers to commence private actions to
enforce their rights or to recover loss or damage
incurred for specific breaches of each Act.
Under the ACL and the ASIC Act, a party to a
standard form consumer contract can apply to
the court for a declaration that a term is unfair. If
the court finds the term to be unfair, it can make
a declaration that the term is void.
Ultimately, only a court can determine whether
a term to a standard form consumer contract is
unfair.
In some instances, unfair contract term disputes
may be able to be resolved through external
dispute resolution schemes.
ACL reference: section
ASIC Act reference: section GND
A guide for businesses and legal practitioners 23
Glossary and abbreviations
TERM DEFINITION
claimant A person who brings a claim in court proceedings. Generally this will be a
consumer or regulator.
Commonwealth
minister (or
minister)
The Commonwealth minister responsible for competition policy and
consumer affairs.
injunction An order by the court for a party to do, or to refrain from doing, certain acts.
non-party Persons that are not parties to proceedings.
respondent A person who refutes a claim brought in court proceedings. Generally this
will be a business.
VCAT Victorian Civil and Administrative Tribunal
Abbreviations
ACCC Australian Competition and Consumer Commission
ACL Australian Consumer Law
ASIC Australian Securities and Investments Commission
ASIC Act Australian Securities and Investments Commission Act 2001 (Cth)
CCA Competition and Consumer Act 2010 (Cth)
VCAT Victorian Civil and Administrative Tribunal
24 Unfair contract terms
Contacts
Australian Competition and
Consumer Commission
GPO Box 3131
Canberra ACT 2601
T. 1300 302 502
www.accc.gov.au
Australian Capital Territory
Access Canberra
GPO Box 158
Canberra ACT 2601
T. 13 22 81
www.act.gov.au/accessCBR
New South Wales
NSW Fair Trading
PO Box 972
Parramatta NSW 2124
T. 13 32 20
www.fairtrading.nsw.gov.au
Northern Territory
Northern Territory Consumer Affairs
PO Box 40946
Casuarina NT 0811
T. 1800 019 319
www.consumeraffairs.nt.gov.au
Queensland
Office of Fair Trading
GPO Box 3111
Brisbane QLD 4001
T. 13 QGOV (13 74 68)
www.qld.gov.au/fairtrading
A guide for businesses and legal practitioners 25
South Australia
Consumer and Business Services
GPO Box 1719
Adelaide SA 5001
T. 131 882
www.cbs.sa.gov.au
Tasmania
Consumer Building and
Occupational Services
PO Box 56
Rosny Park TAS 7018
T. 1300 654 499
www.consumer.tas.gov.au
Victoria
Consumer Affairs Victoria
GPO Box 123
Melbourne 3001
T. 1300 55 81 81
www.consumer.vic.gov.au
Western Australia
Department of Commerce
Locked Bag 14
Cloisters Square WA 6850
T. 1300 30 40 54
www.commerce.wa.gov.au
Australian Securities and
Investments Commission
PO Box 9827 (in your capital city)
T. 1300 300 630
www.asic.gov.au
Government of Western Australia
Department of Commerce
Consumer Protection
