"Fair" government contracts for community service provision : time to curb unfettered executive freedom?

All Australian governments are significantly increasing the use of contracted community service provision through not for profit (NFP) organisations. These transactions occur through grant arrangements which take the form of standard contracts or deeds rather than drawing on statutory authority. Government inquiries bodies have consistently reported and raised concerns about the fairness of such standard grant contract terms, but failed to provide any mechanism whereby fairness can be assured. The Productivity Commission has suggested that the resulting poor relationship results in inappropriate risk transfer, micro-management, disincentives to innovate and poor service provision. This paper develops and tests a fairness measure based on the principles of the Australian Consumer Law which legislates fairness protections for standard consumer contracts.