The applicability of unfair contract terms legislation to franchise contracts

In 2010, the Commonwealth Parliament implemented a new Australian Consumer Law (ACL). This law, for the first time in Australia, regulates unfair terms in standard form contracts, but is limited to contracts classed as consumer contracts. This article argues that it is appropriate to extend the unfair contract terms (UCT) provisions of the ACL beyond the definition of consumer under the ACL to encompass franchisees as consumers in a business context, and it explains the flaws in the principal arguments against the protection of franchisees under the UCT legislation. As discussion of the scope of UCT often centres on the 'business' versus 'consumer' distinction, this article explains why this distinction detracts from the proper focus of analysis, a focus that consists of the two principal elements of the UCT provisions: unfair terms and standard-form contracts.