Beyond Unconscionability: Exploring the Case for a New Prohibition on Unfair Conduct

27 Pages Posted: 11 May 2022

Date Written: April 21, 2022

Abstract

Consumer Affairs Australia and New Zealand conducted a wholesale review of the Australian Consumer Law in 2017. Despite calls for the introduction of an ‘unfair conduct’ prohibition, the review found that a change to the current prohibition on ‘unconscionable conduct’ was unnecessary in light of the statutory prohibition evolving from its equitable origins. The recent High Court decision in Australian Securities and Investments Commission v Kobelt (2019) 267 CLR 1 has stifled this development and realigned statutory unconscionability with the restrictive equitable doctrine. In light of curial and extracurial comments from senior members of the judiciary, regulators and commentators, it is appropriate to reconsider the merits of a prohibition on unfair conduct. This article argues that this reform will better promote community understanding, lead to greater certainty in commerce and fulfil the role of a ‘safety net’ provision in the Australian Consumer Law.

Keywords: Unconscionability, unconscionable conduct, consumer protection, consumer law, equity, fairness, judicial role

JEL Classification: K

Suggested Citation

Felstead, Nicholas, Beyond Unconscionability: Exploring the Case for a New Prohibition on Unfair Conduct (April 21, 2022). University of New South Wales Law Journal, Vol. 45, No. 1, 2022, Available at SSRN: https://ssrn.com/abstract=4089225

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