Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Hansard source

Senator Xenophon, I think it is best summed up like this: we agree with you on one out of two. As I understand it, the government amendments will pick up removing ‘detriment’ from the bill. It will remove ‘detriment’ as something the court deals with. That is picked up by our amendments (8) to (10) and (44) to (46), which I think come up next. The unfairness test in the bill will be amended, hopefully, by those government amendments. That requires the court to consider the balance of the parties’ relative positions, the legitimate interests of the party advantaged by the term—usually the business—and whether application of, or reliance on, the term would cause detriment to the party disadvantaged by the term if it were to be applied or relied upon.

In determining whether a term is unfair under this test, the court may have regard to any relevant matter. However, the bill makes it clear that, in undertaking this assessment, the court must have regard to the transparency of a term and the contract as a whole. The concept of detriment, financial or otherwise, is relevant to the determination of whether a remedy could be applied under the unfair contract terms law. However, while the extent to which a term is disclosed clearly to a consumer is an important consideration to which the court should be directed, the existence of transparency in relation to a particular term is not a determinant of its unfairness.