Systems of misconduct: Corporate culpability and statutory unconscionability

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’, wh..