The advent of the Australian Consumer Law (ACL) as a law having uniform application throughout Australia will have a significant impact upon some areas of contract law. Most notably, the ACL will impact upon statutory unconscionability, implied terms in the form of consumer guarantees, misleading or deceptive conduct (the statutory corollary to the common law doctrine of misrepresentation) and unfair contract terms. The last topic is the focus of this chapter: the unfair contract terms regime of the ACL, as provided for in ss 23–28, sets up a mechanism for determining whether terms in standard form consumer or small business contracts are unfair.

This chapter explores the themes of procedural and substantive fairness in regulating consumer contracts in ASEAN member states. Most member states have regimes that address conduct by traders that impinges upon consumers’ ability to make free and informed decision about the contracts they enter, with prohibitions on misrepresentation and undue pressure. The treatment of unfair contract terms is less even across the region. Equally, in many circumstances the law that exists ‘on the books’ is not backed up by regulatory oversight. Consumers often lack the recourses to pursue claims of unfair conduct or terms and so an active and responsive regulator is essential to the vitality and effectiveness of the consumer protection regime. Nonetheless, it does not seem overly optimistic to suggest a growing awareness of the relevance of consumer protection in a thriving market economy, including prohibitions on substantive unfairness, or the possibility of a more unified approach consistent with the ASEAN way.