Systems of misconduct: Corporate culpability and statutory unconscionability

This article considers the role of intentionality in establishing unconscionable
conduct contrary to statute. Sections 21 and 22 of the Australian Consumer
Law do not expressly require proof of predatory intention, deliberate
advantage-taking or knowledge of disadvantage. Nonetheless, courts tend to
treat such markers of culpability as inherent in the idea of behaving
‘unconscionably’. These concepts have proved difficult to apply when the
misconduct involves the business system of a corporation, as opposed to a
‘rogue’ trader or individual ‘snake oil merchant’. We argue that courts
applying the statutory prohibition have begun to develop a powerful concept
of ‘systems unconscionability’, which recognises intentionality, and thus
culpability, expressed through purposive systems. This profound insight has
significance not only for statutory unconscionability, and its equitable relation,
but for the effective regulation of broader corporate and commercial
misconduct.