Projects per year
Abstract
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.
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.
Original language | English |
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Pages (from-to) | 63-91 |
Journal | Journal of Equity |
Volume | 15 |
Issue number | 1 |
Publication status | Published - 2021 |
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Unravelling Corporate Fraud: re-purposing ancient laws for modern times
8/05/20 → 12/05/24
Project: Research
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Developing a Rational Law of Misleading Conduct
Paterson, J. & Bant, E.
1/01/18 → 31/12/21
Project: Research
Activities
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Public Presentation on 'Systems Intentionality: Revolution and Evolution in Corporate Regulation'
Elise Bant (Speaker)
24 Mar 2022Activity: Service and engagement › Public lecture, debate or seminar
File -
Corporate Criminal Liability Options Paper
Elise Bant (Consultant)
10 Jun 2022Activity: Industry and government engagement/consultancy › Citation in Australian or overseas Parliamentary department, intergovernmental and NGO reports
File -
Conference of the Society of Corporate Law Academics
Elise Bant (Participant)
5 Jul 2022Activity: Conferences and workshops › Contribution or participation in a conference
File