Melbourne Law School - Theses
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ItemDo the ‘matter provisions’ really matter? Analysing trends in statutory unconscionability cases which apply s 22 of the Australian Consumer Law or s 12CC of the Australian Securities and Investments Commission Act 2001 (Cth)( 2023)This thesis considers and analyses trends in recent cases applying s 22 of the Australian Consumer Law1 (‘ACL’) or s 12CC of the Australian Securities and Investments Commission Act 2001 (Cth) (‘ASIC Act’) involving the statutory prohibitions on unconscionable conduct. It asks whether those trends reflect the form, structure and intended purpose of those provisions. It is fair to say that the concept of unconscionability wears many different hats under Australian law. Within the equitable jurisdiction alone it bears multiple layers of meaning, not to mention the various statutory adaptations to which the concept has been adopted by way of, among other provisions, s 21 of the ACL and s 12CB of the ASIC Act. In particular, these provisions are accompanied by what are referred to in this thesis as the ‘Matter Provisions’ (a more detailed definition of which appears at paragraph [15]), comprising s 22 of the ACL and s 12CC of the ASIC Act. Broadly speaking, these contain legislative guidance on various matters which inform the meaning of unconscionability for the respective provisions they regard. In light of these various uses of the term ‘unconscionable’, it is little wonder that commentators have expressed the view that ‘[a]bove all other concepts, unconscionability has emerged as an all-pervasive, yet persistently elusive, undercurrent in Australian contract law’. The premise of this thesis is to formulate a comprehensive overview of the practical application of cases concerning statutory unconscionability. This review is couched through the lens of applying the Matter Provisions, which, as this thesis will explain, are foundational to the proper application of statutory unconscionability. From this overview, various trends will be revealed that can be used to paint a portrait of how cases engaging with the Matter Provisions in statutory unconscionability claims are being applied, and the extent to which this application reflects substantive judicial engagement consistent with the structure and intended purpose of those provisions. This overview is founded on a comprehensive analysis of data collected from cases which have considered the Matter Provisions in recent years, enclosed at Appendix 1 to this paper (‘Case Review’). Lying at the heart of this paper, the Case Review is a systematic collation, review and coding of 252 cases which have considered the Matter Provisions from the period of 1 January 2010 to 6 September 2023. This data collection has been undertaken in accordance with the methodology outlined from paragraph [39]. While there may inevitably be some cases which were not captured, the vision for compiling the Case Review was that if a case grapples with the Matter Provisions, it was included, such that as exhaustive a list of cases as reasonably possible was considered. The Case Review takes the form of a spreadsheet with columns for various quantitative and qualitative data points extracted from an individual review of each case. That data is then applied to the statistical analyses outlined in this paper (including by way of graphs, charts and tables).
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ItemA Sword and a Shield": How Intersectionality in Federal Sexual Harassment Matters is Approached by Decision-Makers and Legal Practitioners( 2023)This thesis examines how intersectionality is approached in federal sexual harassment matters by decision-makers and legal practitioners. In particular, it explores the emergence and use of section 28A(1A) of the Sex Discrimination Act (1984) (Cth), which directs consideration of specific characteristics of applicants in determining whether a reasonable person, having regard to all the circumstances, would have anticipated the possibility that an applicant would be offended, humiliated, or intimidated by unwelcome sexual conduct. The key question assessed is whether the section has assisted applicants with arguing that sexual harassment has occurred through a consideration of their intersectional attributes, including how these may have placed them at greater risk of harm from unwelcome sexual conduct. The thesis explores this issue through an analysis of five federal sexual harassment decisions and 18 interviews with legal practitioners across Australia. The author then suggests some potential reform options to ensure that section 28A(1A) is more consistently applied with a greater focus on intersectional disadvantage.
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ItemJudicial, Administrative, or ‘Quasi-Judicial’?: Adjudicating Proofs of Debt in Liquidation( 2023)According to the High Court, when adjudicating proofs of debt, a liquidator acts quasi-judicially ‘according to the standards no less than the standards of a court or judge’. That is an onerous standard for a liquidator, who is not legally trained and invariably carries out their function in an environment hampered with severe financial constraints. This thesis seeks to unpack – and ultimately disprove – the characterisation of a liquidator’s function in adjudicating proofs as being ‘quasi-judicial’. It does so by conducting a review of the jurisprudence concerning the proof of debt procedure that applies in corporate insolvency. The review focusses on the doctrinal basis or character of the liquidator’s power, its origins in the Court of Chancery and development over the last three centuries, and the nature and extent of liquidators’ obligations when dealing with proofs. The thesis argues that, when adjudicating proofs of debt, liquidators exercise administrative power and that the function is not comparable to the adjudicative functions of courts nor administrative bodies that form part of executive government. Further, there can be no ‘one-size-fits-all’ approach when it comes to the obligations of liquidators, because their obligations are conditioned upon the financial circumstances of the particular liquidation. What is expected of liquidators will vary from appointment to appointment. The thesis concludes that the High Court’s description of the liquidator’s function in adjudicating proofs sets the bar too high and that courts have seized on the status of a liquidator as an officer of the court to describe their duties as ‘quasi-judicial’ or similar, which does not reflect contemporary standards or the fact-specific nature of liquidators’ obligations when dealing with proofs of debt.
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ItemAustralian Carbon Credit Units in the Blockchain Environment – Legal Issues in Collateralised Financing Transactions( 2023)The Australian voluntary carbon offset market and its native tradeable commodity, Australian Carbon Credit Units (‘ACCUs’), serve a critical role in the public and private sector’s emissions reduction strategies. This paper is not concerned with this role. Rather, it builds on the distilled view that ACCUs are a type of financial asset capable of being utilised in a variety of ways in the broader economy. After all, participants who engage with ACCUs or emissions units in general are not necessarily concerned with their carbon footprint, but in its value as an alternative investment vehicle. To date, ACCUs are not just traded on the Australian voluntary carbon offset market, but also through blockchain trading platforms, albeit in a tokenised form. This paper focuses on a particular transaction that has the potential for widespread deployment: transactions where lenders extend financing in exchange for a security interest in ACCUs or tokenised ACCUs.