Melbourne Law School - Research Publications
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ItemNo Preview AvailableThe arduous work of making claims in the wake of disaster: Perspectives from policyholders(WILEY, 2022-11-01)With its promise of protection and peace of mind, insurance ownership is a key component of Australia’s national strategy to manage and spread costs of disaster recovery. We argue that an arduous and confusing claims process can have profound impacts on policyholders’ capacities to live safely in their homes as well as on their physical and mental health, finances, and levels of trust in insurers. Yet there has been little empirical research on policyholders’ experiences of putting this promise to the test by claiming on policies in the wake of disaster. In this article, we analyse interviews with policyholders who faced problems when making a building or home contents insurance claim following bushfire, flood, or storm. Evidence shows that aspects of claims processes place significant demands on policyholders’ financial and emotional resources, often in the aftermath of deeply traumatic and destabilising events. Our findings raise questions about the extent to which insurers’ claims handling processes and outcomes are consistent with requirements that call on insurers to respond efficiently, professionally, practically, and compassionately when and after disaster strikes.
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Item'Honest, Fair, Transparent and Timely’? Experiences of Australians who make Claims on their Building, Home Contents or Comprehensive Car Insurance Policies(Monash University, 2021)In Australia, building, home contents and comprehensive car insurance are regarded as ‘essential’ financial products. Yet the limited research on the experiences of consumers who claim against these policies highlights problems with claims handling by insurers, who are required under the General Insurance Code of Practice (2014) to decide claims in an ‘honest, fair, transparent and timely manner’. These problems are especially apparent in the aftermath of natural disasters, and include inappropriate investigation practices and delays that exacerbate financial hardship for policyholders. In this article, we analyse the findings of our survey of policyholders who recently made claims on building, home contents or comprehensive car insurance policies. We show that while most claims are accepted, excessive resolution times, poor communication and problematic investigation practices by insurers make the claims process burdensome and overwhelming for a significant minority of policyholders. Our findings indicate substantial levels of exposure to financial loss for policyholders who accept cash settlements and problems with transparency surrounding withdrawn or cancelled claims. Our findings highlight issues with compliance with the legal frameworks governing insurance claims, as well as gaps in consumer protection that should be addressed in expectation of more frequent extreme weather events in the coming decades.
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ItemAustralia's Financial Ombudsman Service: An Analysis of Its Role in the Resolution of Financial Hardship Disputes(WILEY PERIODICALS, INC, 2016-12-01)The Financial Ombudsman Service (FOS) was established in 2008 to resolve disputes between Australian consumers and financial service providers. This article outlines the role of FOS in resolving disputes under the statutory protections for Australians in financial hardship. This article also sets out the results of a study of data collected by FOS in relation to financial hardship disputes resolved between 2010 and 2014. This data highlights the importance of FOS in a context where most disputes are resolved outside the courts, particularly in the aftermath of the global financial crisis, when the number of financial hardship disputes rose significantly.
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ItemThe Distinctive Features of Women in the Australian Bankruptcy System: An Empirical Study(Wiley-Blackwell Publishing, 2019)According to data published by Australian Financial Security Authority (AFSA), Australian women and men offer strikingly similar reasons for their entry into bankruptcy. Yet a more detailed analysis of AFSA’s data indicates that women and men often go bankrupt in very different social and economic circumstances. This empirical study draws upon a unique dataset, obtained from AFSA, containing the de-identified records of more than 28,000 individuals. It also draws upon a series of focus groups with the staff of three nonprofit organisations, including financial counsellors and consumer solicitors. It finds that, in general, women in bankruptcy are likely to be economically disadvantaged, relative to men, as measured by income, access to wages, reliance on government benefits, real estate ownership and utilities debt. It also finds that women in bankruptcy are much more likely than men to be single with dependants and that these women experience a greater degree of gendered disadvantage than other women in the bankruptcy system.
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ItemMore to Lose: The Attributes of Involuntary Bankruptcy(WILEY, 2019-03-01)While the majority of those who declare bankruptcy do so voluntarily, a significant proportion are forced into bankruptcy as a result of legal action. This paper interrogates data obtained from the Australian Financial Security Authority to explore the attributes of debtors who go bankrupt involuntarily. Based on this analysis, the authors hypothesise that people who go bankrupt involuntarily are those who have more to lose by going bankrupt – such as a family home, a business venture or a managerial or professional occupation – meaning that they are more likely to resist bankruptcy until they are forced into it by their creditors.
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ItemInsolvency Law Reform in Australia and Singapore: Directors' Liability for Insolvent Trading and Wrongful Trading(Wiley, 2019)This article compares reforms to directors’ liability for insolvent trading in Singapore and in Australia. The authors analyse the law in these two countries because they are important Asia-Pacific trading partners and their laws were originally largely the same – Singapore’s law on insolvent trading reflected the law in Australia from the 1960s. However, the law in the two countries has now diverged substantially. The comparison of these two countries therefore represents an interesting case study in how countries differ in their approaches to balancing the competing interests evident in laws that impose personal liability on company directors for insolvent trading. Reform of the prohibition against insolvent trading was a focus of Australia’s insolvency law reforms in 2017 which led to the introduction of a safe harbour for directors from liability. Singapore’s omnibus insolvency law reforms of 2018-19 include amendments to update Singapore’s fraudulent and insolvent trading provisions by introducing a concept of ‘wrongful trading’. The article finds that there are some areas of convergence between these two jurisdictions when it comes to debates about such provisions, but concludes that the different contemporary legislative histories in Australia and Singapore have affected their approaches to reform. Reformers in both jurisdictions have attempted to find an appropriate balance between protecting creditors, discouraging director misconduct and encouraging entrepreneurship and innovation; however, this comparison suggests that the weight that reformers place on creditor protection compared to the concern that excessive personal liability can make directors unduly risk-averse is influenced by their existing legislative framework and experience of those laws. Although Australia has shifted away from a strict focus on creditor protection, to give directors more opportunities to engage in restructuring, Singapore’s amendments may provide a more creditor-friendly regime.
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Item‘Contrary to the Spirit of the Age’: Imprisonment for Debt in Colonial Victoria, 1857-1890(Melbourne University, Law Review Association, 2019)The reintroduction in 1857 of imprisonment for debt in colonial Victoria flew in the face of international momentum for its abolition. In its criminalisation of debt and poverty, the Fellows Act 1857 (Vic) (21 Vict, No 29) also defied the rapid advancement of democratic and egalitarian principles in the fledgling colony. Frequently referred to as ‘gross class legislation’, the law was used unabashedly to target poor small debtors, leaving ‘mercantile men’ with significant debt untroubled by the prospect of a debtors’ gaol. Despite consistent and broad opposition to the Fellows Act 1857 (Vic) (21 Vict, No 29), its advocates resisted repeated attempts to abolish or meaningfully amend it. It is argued here that the law, and its survival against the ‘spirit of the age’, can be understood as part of a broader story of conservative resistance to the democratic innovations that threatened the power of the Victorian mercantilist establishment.
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