Doctrine, Policy, Culture and Choice in Assessing Unconscionable Conduct under Statute: ASIC v Kobelt

Abstract

In Australian Securities and Investments Commission v Kobelt the High Court of Australia held by a narrow majority that an informal and largely undocumented credit scheme known as ‘book-up’ provided by Mr Kobelt to the indigenous residents of the remote South Australian APY Lands, the Anangu people, was not unconscionable under the Australian Securities and Investments Commission Act 2001 (Cth). This article analyses the use of legal principle, concepts of voluntariness and benefit, and evidence about culture by the High Court in this decision. It argues that in terms of both legal doctrine and policy outcomes, the approach of the minority judges is to be preferred.