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3.3 Contracts excluded from s. 23

It is worth noting that pursuant to s. 28 of the ACL, the unfair contract term provisions do not apply to a number of types of contracts.

 

Section 28 is as follows:

(1) This Part does not apply to:

(a) a contract of marine salvage or towage; or

(b) a charterparty of a ship; or

(c) a contract for the carriage of goods by ship.

(2) Without limiting subsection (1)(c), the reference in that subsection to a contract for the carriage of goods by ship includes a reference to any contract covered by a sea carriage document within the meaning of the amended Hague Rules referred to in section 7(1) of the Carriage of Goods by Sea Act 1991 .

(3) This Part does not apply to a contract that is the constitution (within the meaning of section 9 of the Corporations Act 2001 ) of a company, managed investment scheme or other kind of body.

(4) This Part does not apply to a small business contract to which a prescribed law of the Commonwealth, a State or a Territory applies.

These contracts have been excluded are they are subject to independent and overriding legislation. Shipping contracts are subject to the comprehensive legal framework (nationally and internationally) that deals with marine contracts.[1]  Insurance contracts are excluded as they are governed by the Insurance Contracts Act 1984 (Cth), that has the effect of negating the unfair contract provisions.[2]

 

It is worth noting, however, that private health insurance contracts, state and Commonwealth government insurance contracts and re-insurance contracts (among others) are not regulated by the Insurance Contracts Act and therefore will be subject to the unfair contract terms laws.[3]

  1. A guide to the unfair contract terms law (2010) [4] Victorian Consumer Affairs < http://www.consumer.vic.gov.au/CA256EB5000644CE/page/Listing-Utility+Buttons-Forms+and+publications?OpenDocument&1=10-Listing~&2=-Utility+Buttons~&3=17-Forms+and+publications~#unfair> at 21 July 2010, 7, 11. ↵
  2. Refer to Section 15 of the Insurance Contracts Act 1984 (Cth). ↵
  3. A guide to the unfair contract terms law (2010) [4] Victorian Consumer Affairs < http://www.consumer.vic.gov.au/CA256EB5000644CE/page/Listing-Utility+Buttons-Forms+and+publications?OpenDocument&1=10-Listing~&2=-Utility+Buttons~&3=17-Forms+and+publications~#unfair> at 21 July 2010, 7, 12. See section 9 of the Insurance Contracts Act 1984 (Cth). ↵

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