The Unfair Contract Term Provisions: What's Transparency Got to do with it?

Provisions in the Australian Consumer Law allow a court to declare an ‘unfair’ term in a ‘consumer contract’ or a ‘small business contract’ void. When determining whether a term is unfair, a court must consider the extent to which it is transparent. Transparency is important since it is one of only two factors that a court must consider when making this determination. This article will examine whether transparency is logically relevant to the legislative test for whether a term is unfair. It will argue that it is of limited relevance and hence should not be a mandatory consideration for determining unfairness. It will then consider several alternatives to making transparency a mandatory consideration.