Protecting consumers from unfair contract terms: Australian comparisons

The consumer movement in the 1960s was the first step towards creating community demand for laws to protect consumers. Australia responded with consumer protection laws in the 1970s, and with unfair contract laws in the 1980s at the State level, since replaced by Commonwealth provisions in the Australian Consumer Law and the cognate Australian Securities and Investments Commission Act. The European Union (EU) drafted and adopted in 1993 the Unfair Terms in Consumer Contracts Directive to provide protection from unfair contract terms. The Directive has now resulted in consumer contract laws in Europe ranging from prohibition in some EU jurisdictions to the low impact approach of rendering unfair terms void or non-existent in some other EU jurisdictions. The latest European legislation is now to be found in the new unfair contract amendments in the United Kingdom in the Consumer Rights Act 2015 (UK), which has replaced earlier UK legislation from the 1970s. In proscribing unfair contract terms, the UK Act carries forward and updates the current fairness test, and includes a grey list of consumer contract terms which may be regarded as unfair. This article reviews the operation of laws dealing with unfair contract terms from an Australian comparative perspective. It includes developments in the UK with some parallel developments from the EU and the Asia-Pacific area to demonstrate law making in response to consumer demands in different jurisdictions and to show that cultural difficulties can be overcome to ensure an adequate response to unfair contract terms for the benefit of consumers.