Problems in interpreting the unfair contract terms provisions of the Australian Consumer Law

There are a number of ambiguities in the unfair contract terms provisions in Pt 2-3 of the Australian Consumer Law. The key concepts ‘consumer contract’, ‘standard form contract’ and ‘upfront price’ are not defined in an unequivocal manner. Part 2-3 obliges the court to consider a term’s transparency when determining its fairness, but fails to specify the precise requirement(s) of unfairness for which transparency is to be relevant. Part 2-3 fails to expressly address whether a term otherwise unfair may be rendered fair by a price reduction, whether an unfair term can be enforced to the extent to which it is fair, and whether the contra proferentem rule applies in the context of Pt 2-3. This article tackles the uncertainties mentioned and examines how the relevant provisions could be interpreted, considering their language, purpose and context. It also makes suggestions for clarifying amendments