Catching up with consumer realities: the need for legislation prohibiting unfair terms in consumer contracts

In the policy debate about the need for legislation to prohibit the use of unfair terms in consumer contracts, substantive unfairness is often distinguished from procedural unfairness. Current consumer protection laws appear to offer the potential for relief on substantive unfairness grounds alone. However, a review of cases involving credit contracts shows this potential is rarely realised. This reluctance to provide relief for substantive injustice reflects a preoccupation with freedom and certainty of contract, the notions underpinning classical contract theories. As a class, consumers are vulnerable in the marketplace, and they do need protection from substantively unfair terms. A new framework for regulating consumer contracts is needed, one that relies less on classical contract theories and takes the reality of consumer contracting and consumer behavior as its starting point. Unfair contract terms legislation will be a step on the path towards this new framework.

Can governments use their construction contracts to improve training outcomes?

This paper explores the likely efficacy of government agencies using their contracting relationships with private firms to affect training outcomes in the construction industry. Specifically, it reports on the results of a study of two training policies of theWestern Australian government. Empirical data is drawn from the government’s Tender Registration System between 1997 and 2006. The main finding of the quantitative analysis is that in the absence of strong industry commitment to policy objectives, the contracting approach is likely to result in high levels of avoidance activity and generate very few benefits. The results of a qualitative investigation also support these findings.

Respecting contractual intentions : balancing consumer expectations with the sanctity of contract in the context of standard form insurance contracts

It is the purpose of this article to examine the means curently available to judges to achieve a workable balance between providing appropriate consumer protection to signatories of standard form contractors while still retaining adequate respect for the sanctity of contract, and, based on this analysis, to determine whether a significantly greater scope of contract (re)construction is likely to become the norm in most common law jurisdictions in the coming decades.

Disclosure under the prescribed insurance contracts regime : Section 35 of the Insurance Contracts Act 1984 and consumer protection revisited

Section 35 of the Insurance Contracts Act 1984 requires insurers offering insurance policies in six prescribed areas "to clearly inform" prospective insureds of any departure their policies may constitute from the standard covers established by the Act and its accompanying Regulations. This prescribed insurance contracts regime was designed to remedy comprehension problems generated by the length and complexity of insurance documents and to alleviate misunderstanding over the terms and conditions of individual policies. This article examines the rationale underpinning s 35 and the prescribed insurance contracts regime and looks at the operation of the legislation with particular reference to home contents insurance in Australia. It is argued that the means whereby disclosure of derogation from standard cover may be effected largely negates the thrust of the prescribed insurance contract reform. Recommendations to address these operational deficiencies are made.

The insured's non-disclosure in the formation of insurance contracts : a comparative perspective

The requirements that an insured disclose all facts material to a transaction as well as not misrepresent material facts in the formation of an insurance contract are universal requirements of insurance law. The nature and extent of these obligations varies from one jurisdiction to the next. Disclosure in the insurance context is distinct from the general approach in commercial contracts, and in others between persons dealing at arm's length. It is the purpose of this article therefore to examine, on a comparative basis, the approaches adopted in the Anglo-Commonwealth context of England, Australia New Zealand and Singapore to the resolution of disclose issues in the formation of insurance contracts. Particular attention is focused on the Insurance Contracts Act 1984 (Australia) as this statue effects the most significant overhaul of the common law and the National Consumer Council in the United Kingdom has advocated that similar reforms be adopted.

Disclosure and concealment in consumer insurance contracts

This book provides an in-depth examination of the theoretical,legal, social and economic foundations to disclosure and concealment of information in relation to the formation of consumer insurance contracts. A comparative treatment of this issue is undertaken with particular attention given to the judicial and legislative approaches adopted in the United Kingdom, the United States of America, Australia and New Zealand.

The formation of, and change in, the psychological contracts of graduates entering the Queensland public sector

The workplace is evolving and the predicted impact of demographic changes (Salt, 2009; Taylor, 2005) has seen organisations focus on strategic workforce planning. As part of this, many organisations have established or expanded formalised graduate programs to attract graduates and transition them effectively into organisations (McDermott, Mangan, & O'Connor, 2005; Terjesen, Freeman, & Vinnicombe, 2007). The workplace context is also argued to be changing because of the divergence in preferences and priorities across the different generations in the workplace - a topic which is prolific in the popular culture media but is yet to be fully developed in the academic literature (Jorgenson, 2003). The public sector recruits large numbers of graduates and maintains well established graduate programs. Like the workplace context, the public sector is seen to be undergoing a transition to more closely align its practices and processes with that of the private sector (Haynes & Melville Jones, 1999; N. Preston, 1995). Consequently, questions have been raised as to how new workforce entrants see the public sector and its associated attractiveness as an employment option. This research draws together these issues and reviews the formation of, and change in, the psychological contracts of graduates across ten Queensland public sector graduate programs. To understand the employment relationship, the theories of psychological contract and public service motivation are utilised. Specifically, this research focuses on graduates' and managers' expectations over time, the organisational perspective of the employment relationship and how ideology influences graduates' psychological contract. A longitudinal mixed method design, involving individual interviews and surveys, is employed along with significant researcher-practitioner collaboration throughout the research process. A number of important qualitative and quantitative findings arose from this study and there was strong triangulation between results from the two methods. Prior to starting with the organisation, graduates found it difficult to articulate their expectations; however, organisational experience rapidly brought these to the fore. Of the expectations that became salient, most centred on their relationship with their supervisor. Without experience and quality information on which to base their expectations, graduates tended to over-rely on sectoral stereotypes which negatively impacted their psychological contracts. Socialisation only limited affected graduates' psychological contracts and public service motivation. The graduate survey, measured thrice throughout the first 12 months of the graduate program, revealed that the psychological contract and public service motivation results followed a similar trajectory of beginning at mediocre levels, declining between times one and two and increasing between times two and three (although this is not back to original levels). Graduates attributed these to a number of sectoral, organisational, team, supervisory and individual factors. On a theoretical level, this research provides support for the notion of ideology within the psychological contract although it raises some important questions about how it is conceptualised. Additionally, support is given for the manager to be seen as the primary organisational counterpart to the employee in future theoretical and practical work. The research also argues to extend current notions of time within the psychological contract as this seems to be the most divergent and combustible issue across the generations in terms of how the workplace is perceived. A number of practical implications also transpire from the study and the collaborative foundation was highly successful. It is anticipated that this research will make a meaningful contribution to both the theory and practice of the employment relationship with particular regard to graduates entering the public sector.

Land Contracts in Queensland

This book provides a systematic and comprehensive account of the law relating to buyers and sellers of freehold land in Queensland. It analyses relevant clauses of the standard contracts in common use and the plethora of court decisions relating to the area.Its contents comprise a full transactional analysis of a conveyance from negotiation by a real estate agent through to completion. In addition, it contains chapters on special conditions, remedies, GST and stamp duty provisions.

The source of the good faith obligation in the performance and enforcement of commercial contracts

There are many issues associated with good faith that will ultimately confront the Australian High Court and a number of these have been well canvassed. However, one significant issue has attracted relatively little comment. To date, a number of Australian courts (lower in the judicial hierarchy) have been prepared to hold directly, tacitly accept or assume (without making a final determination) that good faith is implied (as a matter of law) in the performance and enforcement of a very broad class of contract, namely commercial contracts per se. This broad approach is demonstrated in decisions from the Federal Court, the New South Wales Court of Appeal, the Supreme Courts of Victoria and Western Australia and has crept into pleadings in commercial matters in Queensland

Land Contracts in Queensland [3rd ed]

Land Contracts in Queensland provides a thorough, user-friendly account of the law relating to buying and selling freehold land in Queensland. The authors analyse the substance of the transaction through the medium of standard contracts, and draw on a comprehensive range of court decisions relating to the area. There are chapters covering the role of the real estate agent, the disclosure regime for sellers and agents, the inclusion of special conditions, and stamp duty and GST implications.

Government community service contracts : restraining abuse of power

The use of grant contracts to deliver community services is now a significant feature of all Australian government administrations. These contracts are the primary instrument governing the provision of such services to citizens and are largely outside the usual parliamentary review mechanisms and constraints. This article examines the extent of the erosion of fundamental constitutional principles facilitated by the use of private contracts, by applying the principles used in scrutiny of delegated legislation to standard form federal and State community service contracts. It reveals extensive executive power which, if the relationship were founded in legislative instruments rather than in private contract, would have to be justified to Parliament at least and possibly not tolerated.