Australian Securities and Investments Commission v Kobelt: Evaluating Statutory Unconscionability in the Cultural Context of an Indigenous Community

Abstract

The concept of ‘unconscionable dealing’ in statutory consumer protection provisions, such as s 12CB of the Australian Securities and Investments Commission Act 2001 (Cth), has been the subject of extensive consideration in the Federal Court of Australia and the superior courts of the states. The evaluative approach taken by the courts is emerging as a principled approach in its own right, although informed by equity’s jurisdiction. The upcoming appeal in Australian Securities and Investments Commission v Kobelt provides the High Court of Australia with the opportunity to further articulate the application of the evaluative approach to be undertaken by Australian courts. The factual matrix provides a unique impetus for the High Court to do so, involving the intersection of national financial services laws with the cultural norms and practices of the residents of the Anangu Pitjantjatjara Yankunytjatjara Lands in South Australia when purchasing daily necessities from a remote general store. This column argues that the Full Court of the Federal Court erred in its use of the cultural norms and practices of the Anangu community to conclude that conduct, which would otherwise be unconscionable dealing, is not so. The High Court is expected to elucidate the correct application of the evaluative process in assessing statutory unconscionability where the cultural norms and practices of the consumer differ from that of the broader Australian community.