Melbourne Law School - Research Publications
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ItemFinancial hardship assistance behind the scenes: Insights from financial counsellors(WILEY, 2017-09)Abstract Financial hardship, in a credit society such as Australia, can affect almost anyone. To protect consumers from the negative impacts of financial hardship—which can include the stresses of enforcement action and disconnection from essential services—legal protections have been incorporated into the regulatory frameworks for the consumer credit, energy, water and telecommunications sectors. In this article, we outline the findings of our study, which used a survey of financial counsellors around Australia and focus group interviews with Victorian financial counsellors to examine how these legal protections are being implemented by service providers in these four sectors. Our findings highlight a tendency on the part of service providers to take a generic, one‐size‐fits‐all approach to compliance with these legal protections that prevents them from effectively assisting consumers struggling with debt. We discuss the particular shortcomings of this approach in the context of consumers living on low incomes—especially Centrelink incomes—and outline the policy implications of our findings for assisting these vulnerable groups.
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ItemThe Proper Purpose Rule as a Constraint on Directors' Autonomy - Eclairs Group Limited v JKX Oil & Gas plc(WILEY, 2017-01)The recent case of Eclairs Group Limited v JKX Oil & Gas plc highlights the pressures faced by company directors in change of control situations, in which they may be tempted to take action to prevent or discourage such change. The Supreme Court decision provides important clarity on the scope of the proper purpose rule in these (and other) situations. We explore the implications of different judicial interpretations of the proper purpose rule for the autonomy of directors in their decision‐making. We do this by focusing on the scope of the proper purpose rule, whether a subjective or objective test is employed in the application of the rule and the test for causation where a director is motivated by mixed purposes.
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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)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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ItemLimitations of Australia's Legal Hardship Protections for Women with Debt Problems Caused by Economic Abuse(University of New South Wales, 2019)Research on economic abuse has identified multiple ways in which perpetrators use debt to exercise power and control over women in violent relationships. However, there have been few attempts to evaluate consumer credit law’s role in responding to perpetrators coercing or deceiving women into taking on debt in their own names or in joint names. At present, one option for women managing such debt is to negotiate payment arrangements with creditors under the legal protections for Australians in financial hardship. In this article, the authors draw upon focus groups with consumer advocates to examine the extent to which these protections and their implementation by creditors facilitate – or undermine – women’s financial recovery. The authors argue that these protections have limited capacity to assist victims of economic abuse, in the absence of provisions for severing liability for joint debt incurred in the context of gendered dynamics of power and control.
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ItemInsolvent Trading in Australia: A Study of Court Judgments from 2004 to 2017(Thomson Reuters, 2019)The duty imposed on company directors under Australian law to not have the company of which they are a director trade while it is insolvent is controversial. The recent introduction of a safe harbour for directors’ personal liability for breach of the duty to prevent insolvent trading highlights the ongoing controversy surrounding this duty. This article presents the findings from a study of judgments of courts which considered the duty to prevent insolvent trading from 2004 to 2017. Directors were found liable in 72% of the judgments but the success rate differed significantly depending on who was the plaintiff. In cases brought by liquidators, the plaintiff was successful in 84% of the cases. In cases brought by creditors, the plaintiff was successful in only 42% of the cases. Almost 60% of compensation orders made against directors were for less than $500,000, but about one third of judgments involved compensation orders of over $1,000,000. The study also found there was no judgment in which a director successfully argued one of the statutory defences to an insolvent trading claim.