In Productivity Partners Pty Ltd v Australian Competition and Consumer Commission; Wills v Australian Competition and Consumer Commission [2024] HCA 27 Gageler CJ and Jagot J state
These appeals concern the application of the proscription against unconscionable conduct in s 21 of the Australian Consumer Law ("the ACL") to a corporation offering and providing online vocational education and training ("VET") funded through a Commonwealth scheme known as the Vocational Education and Training Fee Higher Education Loan Program ("the VFH scheme"). Through the VFH scheme, the Commonwealth assisted people to fund their VET by paying an eligible person's tuition fees ("VET fees") directly to a registered training organisation which was a "VET provider" on the basis that the person would incur a debt to the Commonwealth, in the amount of the VET fees plus a 20% "loan fee" ("VFH debt"), which the person would be required to repay to the Commonwealth over time through the tax system once the person earned above a specified threshold.
Productivity Partners Pty Ltd trading as Captain Cook College ("the College") was a VET provider that offered, relevantly, online VET courses. Site Group International Ltd ("Site") acquired the College in 2014. Blake Wills was the Chief Operating Officer of Site and, between November 2015 and January 2016, acting Chief Executive Officer ("CEO") of the College.
The Australian Competition and Consumer Commission ("the ACCC") alleged that the College engaged in a system of conduct, or a pattern of behaviour, in respect of persons who enrolled in the College's online courses that was, in all the circumstances, unconscionable in contravention of s 21 of the ACL. The principally relevant conduct was that, during the period from 7 September 2015 to 18 December 2015 (called "the impugned enrolment period"), the College changed its process for enrolment by removing two system controls which had previously ameliorated known risks of unwitting or unsuitable persons becoming enrolled and remaining enrolled at the date on which VET fees became claimable by the College from the Commonwealth in respect of their enrolment under the VFH scheme. The principally relevant circumstances were that the College claimed VET fees from the Commonwealth under the VFH scheme in respect of people enrolled in the impugned enrolment period with the consequence that, given the structure of the VFH scheme, those people incurred a VFH debt to the Commonwealth in the amount of the VET fees paid plus the 20% "loan fee".
The ACCC further alleged that Mr Wills was knowingly concerned in the College's contravention of s 21 of the ACL by operation of s 224(1)(e) of the ACL (which relevantly enables a penalty for a contravention to be imposed on a person who "has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision") and that Site was in turn knowingly concerned in the College's contravention by operation of s 139B of the Competition and Consumer Act 2010 (Cth) (which provides for certain conduct of directors, employees or agents of bodies corporate to be taken to have been engaged in also by the body corporate).
Courts below
The primary judge in the Federal Court of Australia, Stewart J, found that the College had engaged in a system of conduct, or a pattern of behaviour, in respect of people who were enrolled in online courses in the impugned enrolment period which was, in all the circumstances, unconscionable in contravention of s 21 of the ACL and that Mr Wills, and through him Site, were knowingly concerned in the College's systemic unconscionable conduct and therefore also liable for that conduct.
On appeal to the Full Court of the Federal Court of Australia, the majority, Wigney and O'Bryan JJ, agreed with the primary judge and concluded that the appeals should be dismissed other than in one relevant respect concerning the date from which Mr Wills (and, through him, Site) was knowingly concerned in the College's contravention of s 21 of the ACL. The primary judge had found that date to be 7 September 2015. The majority in the Full Court found that date to be 20 November 2015, being the date on which Mr Wills became the acting CEO of the College. Downes J, in dissent in the appeals to the Full Court, would have allowed the appeals of the College and Site, and of Mr Wills. In these reasons, the majority in the Full Court will be referred to as the Full Court.
The appeals
This Court granted special leave to appeal both to the College and Site ("the Productivity Partners appeal") and separately to Mr Wills ("the Wills appeal"). In the Productivity Partners appeal, there are two principal grounds of appeal. The first is that the Full Court erred in upholding the finding of the primary judge that the College engaged in unconscionable conduct within the meaning of s 21 of the ACL without the primary judge having made adequate reference to matters listed in s 22 of the ACL, being matters to which s 22 provides a court "may have regard" for the purpose of determining whether a person has contravened s 21. The second is that the Full Court erred in holding that the College's conduct, in removing the two system controls and operating an enrolment system without those controls, constituted unconscionable conduct in contravention of s 21 of the ACL in the absence of an intention that the risks ameliorated by those controls eventuate. There is also a third ground of appeal in the Productivity Partners appeal relating to Site's liability (through Mr Wills) which is wholly consequential on the outcome of the Wills appeal.
In the Wills appeal, there are also two principal grounds of appeal. The first is that the Full Court erred in finding that Mr Wills had the requisite knowledge to be knowingly concerned in the College's contravention of s 21 of the ACL in the absence of any finding that Mr Wills knew that the College's conduct involved taking advantage of consumers or was otherwise against conscience. The second is that the Full Court erred in finding that Mr Wills satisfied the participation element for accessorial liability by his conduct before he had knowledge of the essential matters making up the contravention (being from 20 November 2015 as found by the Full Court) and by his continued holding of positions of authority, but no identified positive acts, after he had the requisite knowledge. Mr Wills also added a third, derivative, ground of appeal that he could not be liable if the College itself had not contravened s 21 of the ACL.
By notice of contention in each appeal, the ACCC contends that the Full Court erred in holding that Mr Wills (and through him, Site) was knowingly concerned in the College's contravention of s 21 from 20 November 2015 only, and not from the earlier date of 7 September 2015. It will be apparent that the second ground of appeal in the Wills appeal cannot be maintained if the ACCC succeeds in that contention.
Summary of conclusions
In respect of the Productivity Partners appeal, the findings of the primary judge either not challenged or undisturbed on appeal to the Full Court amply support the conclusion of the Full Court that the College had engaged in a system of conduct, or a pattern of behaviour, in respect of people who were enrolled in online courses in the impugned enrolment period that was, in all the circumstances, unconscionable in contravention of s 21 of the ACL throughout the impugned conduct period (the period from 7 September 2015 to September 2016, during which the College claimed and retained VFH revenue derived from students enrolled during the impugned enrolment period). Section 22 of the ACL does not require a court to evaluate the impugned conduct by reference to the presence or absence of the circumstances that provision specifies irrespective of the relevance of those circumstances to the impugned conduct or to the cases as put by the parties to the court. The second substantive ground of appeal, as will be explained, depends on an incomplete and therefore inaccurate characterisation of the salient facts.
In respect of the Wills appeal, it was not necessary for Mr Wills to know that the impugned conduct was unconscionable for him to be found to have been knowingly concerned in the College's contravention of s 21 of the ACL. The question whether conduct is unconscionable or not is one of characterisation, not fact. To be knowingly concerned in the contravention of s 21 of the ACL it was necessary only that it be proved that Mr Wills knew the essential matters which together made up the conduct ultimately characterised by the primary judge and the Full Court as unconscionable, not that he knew that the conduct could, let alone would, be so characterised.
As will also be explained, the only error by the Full Court was in overturning the primary judge's finding that Mr Wills was knowingly concerned in the contravention of s 21 of the ACL from 7 September 2015. There was no error in the primary judge's finding to that effect and, accordingly, no basis for the Full Court to overturn that finding.
Further
That the presence or absence of each matter in s 22(1) is not a mandatory relevant consideration to be weighed by a court in every case, irrespective of the circumstances, does not mean that the required evaluation involves nothing more than, as the College put it, an "instinctive reaction that the legislation sought to avoid". The normative standard set by s 21(1) is tethered to the statutory language of "unconscionability". While that term is not defined in the legislation and, in its statutory conception, is "more broad-ranging than the equitable principles", it expresses "a normative standard of conscience which is permeated with accepted and acceptable community standards",and conduct is not to be denounced by a court as unconscionable unless it is "outside societal norms of acceptable commercial behaviour [so] as to warrant condemnation as conduct that is offensive to conscience". The items listed in s 22(1)(a)‑(l) are matters that the legislation requires to be considered, in the overall evaluation of the totality of the circumstances to be undertaken for the purpose of s 21(1), if and to the extent those matters are applicable. This is why both "close attention to the statute and the values derived from it, as well as from the unwritten law" and "close consideration of the facts" are necessary. ...
As the Full Court said, the primary judge's reasons are "lengthy and careful". The primary judge closely considered the statutory provisions and the need for a "precise examination of the particular facts" on the basis that "unconscionability is a serious allegation; it is sufficient to warrant censure for the purposes of deterrence by the imposition of a civil penalty; and, being penal in character, tends against too loose or diffuse a construction". In undertaking the evaluation, the primary judge also recognised that "it is the system as a whole as constituted by, potentially, many inter‑related integers that is to be assessed".
Further, the primary judge was cognisant of and expressly referred to the College's submission that its conduct did not "have the requisite character of being unconscionable by reference to societal norms of acceptable commercial behaviour or the statutory criteria in s 22(1)". The primary judge rejected that submission, correctly explaining numerous factors directly relevant to the matters in s 21 and s 22(1)(a)‑(l) including: (1) While the fact that no dishonesty was alleged is a relevant factor, "the absence of dishonesty does not mean that the conduct was not unconscionable". (2) It was "not so easy to accept the notion that there was an absence of undue influence, pressure or unfair tactics" given that the College knew its agents "might use undue influence, pressure or unfair tactics on unsuspecting consumers, and indeed the evidence bore out that that form of CA misconduct risk materialised from time to time" and yet the College removed the two key safeguards in any event. (3) While "there is nothing inherently unconscionable about selling an online course by telephone", it was the College's system as a whole, in all of the known and reasonably foreseeable circumstances at the time of the impugned conduct, which was important. (4) It could not be inferred that the College's campus driven withdrawals policy was "consistent with the withdrawal policy of every other VET provider in Australia" and, in any event, "just because everyone is rorting a poorly designed and/or administered scheme does not mean that no one's rorting is unconscionable". (5) While the VET Guidelines did not mandate that each VET provider have a campus driven withdrawals policy, and "if particular conduct is not against the rules that may be relevant in the evaluative judgement with regard to unconscionability", it is not determinative. In any event, the VET Guidelines proscribed any "barriers to withdrawal" and abolishing campus driven withdrawals introduced a barrier to withdrawal in the sense that an absence of awareness by a person that they have been enrolled or that they can withdraw constitutes a barrier to withdrawal. In all probability, most persons who had not engaged with the College online and were uncontactable by the College (meaning "numerous telephone calls and emails go unanswered") were likely not to have been aware that they were enrolled. For these people, it is wrong to say that the abolition of campus driven withdrawals did not, in practice, introduce any barriers to withdrawal. (6) People's personal responsibility and autonomy must be recognised, as "we are indeed free to make our own bad decisions", but the conclusion of unconscionability in this case "no more undermines notions of personal responsibility and autonomy than what Parliament requires by way of offering protection against a particular type of conduct, namely that which is in all the circumstances unconscionable". (7) Given that "the pursuit ... for [one's] own advantage is an omnipresent feature of legitimate commerce", the profit-maximisation purpose of the College (and Site) said little about the quality of the conduct as unconscionable or not, but it was not irrelevant. For example, had the College acted intending to protect people from misconduct by agents, but misjudged how to do so leading to adverse effects, "the situation would have been quite different". (8) The College's systems included numerous elements that existed before and after the process changes, but the dichotomy between the period before and after 7 September 2015 was not false as the College undertook the changes specifically aimed at reversing the trend of declining market share, knowing "that there was a greater likelihood that unsuitable students would be enrolled and that they would progress to census without being withdrawn". (9) While there were contractual terms requiring the College's agents to act promptly and honestly, and they received training in that respect, "it was known that there was a risk that they would not act as required". (10) The case did not depend on a "false comparator" between the College's processes before and after 7 September 2015 (rather than, as the College argued was the correct approach, a consideration of the College's processes after 7 September 2015 evaluated against societal norms of acceptable commercial behaviour). Rather, the "fact that the system was changed in material respects and the reasons for those changes, as well as the knowledge and understanding of the [C]ollege as to their predicted and subsequently realised effects, are all part of the relevant circumstances to be taken into account when making the ultimate evaluation". (11) Knowledge, intention, and reasonable foreseeability of consequences are all relevant to the required evaluation of the conduct, and consideration of them does not "expand statutory unconscionability into the territory of tort and fiduciary duties".
These aspects of the primary judge's analysis expose his Honour's close attention to the values underlying the statutory provisions, including s 22(1)(b), (c), (d), (e), (g), (i), and (l) and the obligation to consider all of the relevant circumstances. The primary judge did not need to cross-refer to each paragraph of s 22(1) to demonstrate that the entirety of his reasons involved a careful application of the provisions to the relevant facts in a manner consistent with authority. The "subject-matter, scope and purpose"[51] of the statutory provisions do not support the contention that the primary judge had to state the matters in s 22(1)(a)‑(l) which were inapplicable and give weight to their absence. Further, and as the ACCC put it, the absence of a finding against the College (for example, no finding that it did not act in good faith), in the context of the case as put to the primary judge, cannot be converted into a default finding in favour of the College. For these reasons, the College's first ground of appeal must be rejected.
Mr Wills founded his argument for his first ground of appeal on the proposition that, for a person to be knowingly concerned in another person's contravention of s 21(1) of the ACL, the person must know that the other person's conduct has the character of being unconscionable. The proposition was said to derive from Giorgianni v The Queen and Yorke v Lucas. Mr Wills' argument was that, although the ACCC did not have to prove that Mr Wills subjectively believed the College's conduct was unconscionable, it had to prove that he knew that the conduct had "the character that means it is against conscience". This, Mr Wills said, the ACCC did not plead and made no attempt to prove.
Mr Wills' foundational proposition is irreconcilable with the reasoning in Giorgianni and Yorke v Lucas and is indistinguishable from a proposition rejected in Rural Press Ltd v Australian Competition and Consumer Commission, which was not sought to be re-opened.
In Giorgianni the offence was driving in a manner dangerous to the public. Section 351 of the Crimes Act 1900 (NSW) provided that a person who, relevantly, procured the commission of the offence may be indicted, convicted and punished as a principal offender. It was alleged that the defendant, Giorgianni, procured the driver to drive the truck with defective brakes and, thereby, to drive in a manner dangerous to the public.[59] The trial judge had summed up to the jury by reference to what the defendant knew or ought to have known.[60] Gibbs CJ concluded that:[61] "No one may be convicted of aiding, abetting, counselling or procuring the commission of an offence unless, knowing all the essential facts which made what was done a crime, he intentionally aided, abetted, counselled or procured the acts of the principal offender. Wilful blindness ... is treated as equivalent to knowledge but neither negligence nor recklessness is sufficient."
Mason J said that "knowledge of all the essential facts giving rise to the dangerous driving is necessary to constitute commission of the offence on the part of [the defendant]", wilful blindness being sufficient to constitute knowledge.
Wilson, Deane and Dawson JJ said that what was required was "knowledge of the essential matters which went to make up the offences of culpable driving on the occasion in question, whether or not [the defendant] knew that those matters amounted to a crime".[63] This is because "[i]ntent is required and it is an intent which must be based upon knowledge or belief of the necessary facts". Accordingly, it "is necessary to distinguish between knowledge of or belief in the existence of facts which constitute a criminal offence and knowledge or belief that those facts are made a criminal offence under the law", knowledge of the law never being required to establish liability under s 351 of the Crimes Act.
It followed that, for the defendant in Giorgianni to be liable as an accessory, it had to be proved that the defendant knew the brakes were defective and could fail in which event the driving of the vehicle would be dangerous and that the defendant procured his employee to drive the truck in that known defective condition. It did not have to be proved that the defendant knew that, if the brakes failed, the driving of the truck in that defective condition would be capable of being or in fact characterised as driving "in a manner dangerous to the public" (as per the offence provision).
This accorded with the approach in, amongst other cases, R v Robert Millar (Contractors) Ltd and R v Glennan,[67] both of which are referred to in Giorgianni. In Robert Millar the required knowledge to be guilty of procuring death by dangerous driving was knowledge that the tyre was dangerous and therefore created a serious risk to other road users.[69] In R v Glennan, to be an accessory to the commission of the offence of driving with more than the prescribed quantity of alcohol present in the blood, the defendant did not need to know the concentration of alcohol in the driver's blood. Rather, what had to be proved in that regard was that the defendant knew how much alcohol the driver had consumed and encouraged or permitted the person to drive in that known circumstance.
In Yorke v Lucas, the contravention was engaging in conduct that was misleading or deceptive or likely to mislead or deceive. In that case, the reasoning in Giorgianni was applied to the aiding and abetting provision. Mason A-CJ, Wilson, Deane and Dawson JJ said that Lucas, who had communicated the false statements about the business's turnover, "lacked the knowledge necessary to form the required intent".[71] The contravening conduct was the making of false representations, but the fact that Lucas had made the representations did not make him liable as "he had no knowledge of their falsity and could not for that reason be said to have intentionally participated in the contravention".[72] Their Honours confirmed further that there "can be no question that a person cannot be knowingly concerned in a contravention unless he has knowledge of the essential facts constituting the contravention".
The proposition rejected in Rural Press was that accessorial liability in respect of a contravention of a proscription of certain anti‑competitive conduct depended on proof of knowledge that the conduct was anti-competitive in the required sense.[74] Gummow, Hayne and Heydon JJ said that:[75] "In the end the argument was only that McAuliffe and Law [managers at Rural Press] 'did not know that the principal's conduct was engaged in for the purpose or had the likely effect of substantially lessening competition ... in the market as defined'. It is wholly unrealistic to seek to characterise knowledge of circumstances in that way. Only a handful of lawyers think or speak in that fashion, and then only at a late stage of analysis of any particular problem. In order to know the essential facts, and thus satisfy s 75B(1) of the [Trade Practices Act 1974 (Cth)] and like provisions, it is not necessary to know that those facts are capable of characterisation in the language of the statute."
It followed that what had been proved sufficed. Law's and McAuliffe's knowledge that the circulation of the River News in the Mannum area competed with the circulation of the Standard in that area and their intention that this competition "should come to an end"[76] meant that each knew the essential elements constituting the contraventions whether or not they knew that "the purpose or effect of the arrangement was substantially to reduce competition in the market ultimately identified in the judgment".
The reasoning in Anchorage Capital Master Offshore Ltd v Sparkes does not advance the first ground of Mr Wills' appeal. In that case, in the context of the prohibition on conduct that is misleading or deceptive, the Court of Appeal of the Supreme Court of New South Wales (Ward P, Brereton JA and Griffiths A‑JA) referred to the "longstanding controversy as to whether, in order to incur liability as an accessory, knowledge that the representation is false is required (the narrow view), or knowledge of facts which would have falsified the representation if they had been adverted to suffices (the wider view)", noting "authorities supportive of both views". Their Honours held that, as the case of misleading or deceptive conduct involved a false representation, a person could not be knowingly concerned in that conduct without knowing that the representation was false. Knowledge of other facts from which it could be inferred or deduced that the representation was false, short of wilful blindness, did not suffice. The relevant distinction is not between facts and the law. Nor is it between objective facts and evaluative facts. It is between the essential matters constituting the contravention (be they facts, circumstances, or states of mind) and the character, quality, nature, or status of those matters for the purpose of the characterisation of the conduct the statute requires. For accessorial liability, knowledge of the former is required but knowledge of the latter is not.
This is why the Court of Appeal of the Supreme Court of New South Wales was right in Anchorage Capital to conclude that the alleged accessories had to know that the representation was false and the circumstances in which the representation was made. But in saying that "[w]here the contravention is the prohibition on engaging in misleading or deceptive conduct, one can be 'knowingly concerned' in it only if one knows that the conduct is misleading or deceptive",[ their Honours are not to be misunderstood as saying that the person had to know that the conduct (the false representation) was capable of being, or would be characterised as, misleading or deceptive or as conduct proscribed by s 18 of the ACL. In context, it is apparent that their Honours meant only that the person had to know the representation was false (mere knowledge of facts from which a person might have deduced or inferred falsity being insufficient) and the circumstances in which the representation was made. Knowledge of the potential or actual character, quality, nature, or status of the conduct as misleading or deceptive for the purposes of the statutory prohibitions against such conduct was not required. For these reasons, Mr Wills' first ground of appeal must be rejected. It also follows that the third consequential ground of appeal in the Productivity Partners appeal relating to Site's liability (through Mr Wills) must be rejected.
Mr Wills' second ground of appeal (which depends on the Full Court finding that Mr Wills only had the requisite knowledge to be knowingly concerned in the College's contravention from 20 November 2015 onwards) cannot be maintained if the ACCC's notice of contention (that the Full Court erred in so finding and that the primary judge was correct that Mr Wills had the requisite knowledge from 7 September 2015 onwards) is upheld. As such, the ACCC's notice of contention should be determined first. The Full Court correctly identified that the language used in s 224(1)(e) of the ACL, of a person "in any way, directly or indirectly, knowingly concerned in, or party to, the contravention" is "not confined to a person who physically or practically undertakes the unlawful conduct, but extends to a person who is in a position of authority and expressly or implicitly approves or assents to the unlawful conduct".[83] It also observed the relevant fact that Mr Wills chose not to give evidence and that the primary judge inferred as a result that Mr Wills' evidence would not have assisted his case.[84] ...
Gordon J stated
These appeals raise two important, and related, matters. The first addresses why the system of conduct or pattern of behaviour engaged in by Productivity Partners Pty Ltd ("the College") was in all the circumstances unconscionable contrary to s 21 of the Australian Consumer Law[100] ("the ACL"). The second addresses why Mr Wills – and, through him, Site Group International Limited ("Site") – was knowingly concerned in that contravention from 7 September 2015
Statutory framework
Section 21(1) of the ACL prohibits persons from engaging "in conduct that is, in all the circumstances, unconscionable", in connection with, relevantly, the supply of services to a person in trade or commerce. "Unconscionable" is not defined in the ACL. It is not limited by the unwritten law relating to unconscionable conduct,[101] a reference to the equitable doctrine of unconscionable conduct.[102] "The statutory conception of unconscionability is more broad-ranging than the equitable principles; it does something more".[103] So, for example, the prohibition can apply "to a system of conduct or pattern of behaviour, whether or not a particular individual is identified as having been disadvantaged by the conduct or behaviour".
"[T]he courts must give effect to what Parliament has enacted" in s 21(1).[105] That provision "prescribe[s] [the] normative standard of conduct" that "[t]he court needs to administer".[106] Section 21(1), like equity, directs courts to assess unconscionability – to administer a normative standard of conduct – "in all the circumstances".[107] The court "must not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention".[108] By implication, the court "may have regard to circumstances that were reasonably foreseeable" at the time.
Section 22(1) states that "[w]ithout limiting the matters to which the court may have regard for the purpose of determining whether a person ... has contravened section 21 ... the court may have regard to" various factors enumerated in that sub-section. While the s 22 factors are "mandatorily to be taken into account" when "determining the statutory question posed by" s 21(1),[110] that is only "if and to the extent that they apply in the circumstances".
The s 22 factors are non-exhaustive. They provide "express guidance as to the norms and values that are relevant" to, and inform the meaning of, "unconscionable" in s 21(1) and its practical operation.[112] These norms and values include "certainty in commercial transactions, honesty, the absence of trickery or sharp practice, fairness when dealing with customers, the faithful performance of bargains and promises freely made" and the protection of the vulnerable.
As was explained in Stubbings v Jams 2 Pty Ltd,[114] the s 22 factors "assist in 'setting a framework for the values that lie behind the notion of conscience identified in [s 21]'". The s 22 factors "assist in evaluating whether the conduct in question is 'outside societal norms of acceptable commercial behaviour [so] as to warrant condemnation as conduct that is offensive to conscience'". The ACL does not require a plaintiff in every case to "plead and adduce evidence of facts directed to" the factors in s 22(1). Nor is there warrant for construing the factors in s 22 as "statutory criteria" that set the metes and bounds within which the normative standard prescribed by s 21(1) is to be applied. Neither the text or context of ss 21 and 22 of the ACL, nor the authorities that have considered those provisions, provide any support for that approach.
To treat the matters in s 22 as a mandatory set of factors to be applied mechanistically when analysing whether s 21 has been contravened would be contrary to the text of the ACL. It would impermissibly limit the court's capacity to consider the totality of the circumstances that might render a particular person's conduct, system of conduct or pattern of behaviour unconscionable. Those circumstances "include", but are expressly not limited to, the s 22 factors. The appellants' construction of ss 21(1) and 22(1) is irreconcilable with the text of those sub‑sections.
Unconscionability has been described as "a normative standard of conscience which is permeated with accepted and acceptable community standards".[117] But, as we know, values, norms and community expectations can develop and change over time: "[c]ustomary morality develops 'silently and unconsciously from one age to another', shaping law and legal values".[118] Indeed, standards from earlier times can be, in some respects, rougher and, in other respects, more fastidious. Different standards of commercial morality apply in other lands.
The legal norm of conduct created by s 21 should not be confused with the factual evaluation of its satisfaction. The factual context – the totality of the circumstances – is vital to understand "what, in any case, is required to be done or not done to satisfy the normative standard".[120] The court makes an evaluative judgment as to whether conduct is, in all the circumstances, unconscionable. This evaluative judgment is not confined to or arrived at by the "mere balancing" of the factors identified in s 22(1).[121] Nor should it be approached mechanistically by way "of deductive reasoning predicated upon the presence or absence of fixed elements or fixed rules".[122] Such an approach is the antithesis of the mode of analysis engaged in by Courts of Equity,[123] which has been recognised as the appropriate mode of analysis where a court is performing the task of determining whether a statutory prohibition against unconscionable conduct has been contravened.[124] Assessing statutory unconscionability "calls for a precise examination of the particular facts".[125] It requires a comprehensive view that "looks to every connected circumstance that ought to influence [the court's] determination upon the real justice of the case".
Systemic unconscionability
Something more should be said about the fact that the prohibition can apply "to a system of conduct or pattern of behaviour, whether or not a particular individual is identified as having been disadvantaged by the conduct or behaviour".[127] Section 21(4)(b) makes clear that "the focus of the provisions is on conduct that may be said to offend against good conscience", rather than the specific "characteristics of any possible 'victim' of the conduct (though these may be relevant to the assessment of the conduct)".[128] Because a specific person need not be identified, "special disadvantage of an individual is not a necessary component of the prohibition".[129] Importantly, in "remov[ing] the necessity for revealed disadvantage to any particular individual",[130] the focus is less on a "particular event" or transaction, and more on "an abstraction o[r] a generalisation as to method or structure" of the contravener's activities.
As many of the s 22 factors presuppose the existence of a particular individual and transaction, the concept of systemic unconscionability in s 21(4)(b) invokes a de‑individualised mode of analysis.[132] The text of s 21(4)(b) reinforces the view that the s 22 factors provide a framework for the values that lie behind the notion of conscience identified in s 21 and not a mandatory set of factors to be applied in every case.
The focus on the "method or structure"[133] of the contravener's activities in addressing the statutory prohibition is important. Section 21(4)(b) refers to a "system of conduct" or "pattern of behaviour". A "system of conduct" connotes "an internal method of working" or a plan of procedure.[134] Such a system may develop organically as a practice, operate at a level of policy or be a combination of practice and policy.[135] Corporations "think" and act through systems. Systems are inherently purposive. Systems are objectively designed to achieve certain ends;[136] they coordinate and connect steps and processes to an end. Knowledge of certain matters is often implicit in a system – for example, that a predatory business model will only be profitable if a certain class of vulnerable customer exists and is successfully exploited.
As Professor Bant has explained, a corporate system can be understood as a manifestation of corporate intentionality.[138] That is, "corporations manifest their intentions through the systems of conduct that they adopt and operate, both in the sense that any system reveals the corporate intention and in the sense that it embodies or instantiates that intention".[139] And to better understand the characteristics of a system of conduct, it is often useful to reflect on related concepts such as practices, processes or methods, policies and patterns of behaviour. A "pattern of behaviour" or conduct has been said to connote the external, observable repetition of events.[140] It may signify a sequence of events on which a prediction of successive or future events may be based.[141] In the context of the ACL, that is unsurprising. As we have seen, the court may have regard to circumstances that were "reasonably foreseeable" at the time.
Evidence of a system of conduct can be both internal and external to the corporation. Internally it may include employee testimony, internal scripts, remuneration or promotion criteria, complaint processes and scripts, audit outcomes, and default settings on automated programs. Externally it may include patterns of harm to an identified class of customer, communications, incentives and disincentives provided to a target market, and user experiences. Those lists are not exhaustive. In determining whether an identified system of conduct is unconscionable contrary to s 21 of the ACL, identification, assessment and characterisation of the system of conduct is, by reference to the totality of the circumstances, both internal and external to the corporation.
As will be seen in this case, the College's system was designed (or rather a system of controls was dismantled) to achieve a particular end. The College dismantled a system of controls it knew minimised exploitation of students and did so to increase the College's profit. The Court can and should infer that the College intended this end from the design of its system. ...
Mr Wills' accessorial liability
The primary judge found that Mr Wills had knowledge from 7 September 2015 of the essential facts and circumstances that rendered the College's conduct unconscionable and thus found that Mr Wills was knowingly concerned in, or party to, the College's unconscionable conduct from 7 September 2015. As the primary judge stated:[184] "In short, the college ran a system of recruitment, enrolment and progression through census dates of students which enabled the college to pocket vast sums of money, effectively from students, via the VFH scheme, in return for which the college had to deliver nothing to very substantial numbers of students. That was well known to Mr Wills. Moreover, he was very much associated with it and was a participant in key aspects of it. On that basis, I am satisfied that Mr Wills was knowingly concerned in the unconscionable system or pattern of conduct of the college."
The majority of the Full Court identified four "essential matters" which together rendered the College's conduct unconscionable: (1) "the College knew of the risks of agent misconduct and unwitting and unsuitable students being enrolled"; (2) "the College knew that the outbound QA call procedure and the campus driven withdrawal process were important safeguards to protect the interests of students who were enrolled unwittingly or who were unsuitable for the course in which they were enrolled"; (3) "to counter declining enrolment and declining revenue, brought about by agents referring students to other VET providers, the College implemented the enrolment process changes (the so‑called profit maximising purpose) knowing that it increased the risk of the enrolment of unwitting and unsuitable students (which was already occurring regularly at the College)"; and (4) "the College knew, or ought to have been aware, of the immediate consequences of the changes, which was to escalate the numbers of students who were enrolled unwittingly or who were unsuitable for the course in which they were enrolled". ...
Mr Wills' involvement in the contravening conduct of the College may be considered under four sub-headings: his role in the College; his knowledge of the CA Misconduct Risk and the Unsuitable Enrolment Risk; his involvement in and knowledge of the enrolment process changes; and his knowledge of the effects of those changes. To explain Mr Wills' involvement in the College's contravening conduct from 7 September 2015, it is necessary to address the relevant facts in some detail. Except where noted, each fact is an unchallenged finding of the primary judge adopted by the majority of the Full Court.
Mr Wills' role in College
At all relevant times, Mr Wills had "considerable authority" over the College and its senior management and played "a significant role" in the College's decision-making.[190] Mr Wills was the Chief Operating Officer ("COO") of Site – the corporate owner of the College – and Mr Cook reported directly to him. In his capacity as COO, Mr Wills sat on the College's Advisory Board (established in May 2014 with the stated intention that it would meet monthly). The Advisory Board had oversight of and accountability for all key financial and operational aspects of the College's business, including VET FEE-HELP Reporting and "Student Grievances"; compliance, including VFH compliance and "Relevant Metrics (Completion Rates/Quality Indicators/Feedback)"; and sales and marketing, including "External Student Recruitment Performance" and "Sales Funnel (Client Contracts & Student Enrolments)". From July 2015, management meetings of the College ("Management Meetings") occurred monthly. The minutes disclose that they were typically chaired and "facilitated" by Mr Wills.
The College represented a substantial proportion of Site's revenue and profit (budgeted at 39 per cent and 61 per cent respectively in 2016), and its financial performance would have been of key concern to Mr Wills. In his capacity as COO, Mr Wills closely monitored the financial performance of each business unit, including the College, calling for reports from each within 48 hours of receipt of the monthly financial reports. From April 2015, Mr Wills received reports from Mr Cook and Mr Dawson, Site's Chief Financial Officer, showing a decline in enrolments and revenue at the College.
The close management supervision exercised by Mr Wills over the business of the College was acknowledged in two internal documents of Site. In late September 2015, Site's CEO reported to Site's board, including Mr Wills, that Site management had pressured the College into accepting changes to its enrolment process. On 26 October 2015, Mr Wills circulated his COO report for the November meeting to the Site board, recording that in August 2015, due to the College's perceived poor financial performance, Site's management had undertaken an "urgent review" of the College's business performance and had reduced its autonomy.
Mr Wills' knowledge of CA Misconduct Risk and Unsuitable Enrolment Risk
By September 2015, Mr Wills knew of the CA Misconduct Risk and the Unsuitable Enrolment Risk, and of the importance of the College's existing safeguards (in particular the campus driven withdrawal process) in mitigating those risks
An important source of Mr Wills' knowledge was the meetings on 15 and 17 December 2014 and 18 February 2015, at which the results of the Sero Audit were discussed. Mr Wills was the meeting facilitator at the second and third meetings.
At the 15 December 2014 meeting, Mr Cook explained that the Sero campus had not been doing campus driven withdrawals and had been "just processing through census regardless". He also pointed out that the College's own "rigorous QA process" with its "centralised QA point with the Admissions Team" meant that such students would never have been put through its enrolment process. A report on the Sero Audit, discussed at the second meeting two days later on 17 December 2014, identified that Sero had no campus driven withdrawal process and no mechanism for assessing whether course advisors were recruiting unwitting or unsuitable students; and further, that the proportion of Sero's students that passed their census date without ever accessing the online learning management system was four times higher than the College's (84 per cent vs 21 per cent).
Mr Wills also knew about the two risks because he sent or received regular communications relating to the two issues. Several examples were identified by the primary judge. On 26 February 2015, a Site employee sent an email to Mr Wills, amongst others, attaching a report about a VET provider (referred to as "CAG") on the 7.30 Report. Mr Wills replied to all the addressees saying that the report "emphasises the requirement to follow up any misdemeanours or indiscretions of CAs with rigour and haste".
Papers circulated on 12 May 2015 for a meeting of the Advisory Board the following day, which Mr Wills attended, reported that "one of our staff members" had made a submission to the Senate inquiry, but that the College was not mentioned or referred to in the submission. The minutes reflect that that issue was then discussed at the meeting. It is significant that on 16 June 2015, Mr Wills circulated a set of board papers for an Advisory Board meeting which attached the second interim report of the Senate inquiry, which documented "aggressive marketing techniques" used by VET providers and their "brokers". The primary judge found that this indicated that the attention of Mr Wills was being drawn to the problems and risks of course advisor misconduct. The primary judge also found that the Senate inquiry had been a topic of discussion at Advisory Board meetings prior to circulation of the second interim report.
On 20 July 2015, Mr Wills' COO report to the Site board recorded, in relation to the College, that the Assistant Minister had continued "to introduce a number of changes to the operation of the VFH industry including improved student disclosure and capability to withdraw prior to census (which some providers hinder)". On 20 August 2015, an internal report sent by Mr Cook to Mr Wills, amongst others, noted "intense media scrutiny of the [VET] sector" in late 2014 and early 2015 and that "unscrupulous behaviour" by co-providers and course advisors had required a focus on "consumer protection, quality control and identity verification". In August 2015, Mr Wills reported on a review of the College's competitors, and in relation to the issue of "Strong Sales Culture" concluded: "Current State: Underperforming. While a strong sales culture exists within our Internal Sales Team, 3rd Party Agents, and our most profitable campuses, there remains some sections of the business where a strong sales culture is lacking. This can be attributed in part to the events of 2014/early 2015 where additional controls where [sic] mandated by the regulator, intense media scrutiny of the sector was occurring, and unscrupulous behaviour by 3rd party co-providers and sales agents required a focus on consumer protection, quality control and identity verification."
Mr Wills was a "key driver" of the changes to the College's enrolment process. He was the chair and "facilitator" of the Management Meeting on 19 August 2015 at which the proposed changes were discussed. ...
Mr Wills was therefore aware of the "essential elements" of the enrolment process changes – being the shift from outbound QA calls to inbound QA calls in the presence of a course advisor, and the abolition of the campus driven withdrawal process – and of the financial drivers behind those changes. Indeed, on 20 August 2015, Mr Cook circulated a further report to Mr Wills reiterating the same points made in the August meeting papers and confirming that the "[r]evised enrolment process" would commence on 4 September 2015. The report identified that in July 2015 the College had recorded a profit of only 14 per cent of the budgeted amount and that that "situation has prompted Productivity Partners Management to undertake an urgent review of our operations in an attempt to turn around the developing trend of underperformance". The report also referred to Mr Wills' August 2015 review of the College's competitors[192] and recorded, in relation to the theme of "Excellent Sales/Admission Process", that "[c]urrent review of enrolment process underway to ensure we are competitive in marketplace yet remain compliant". Further, from 20 to 24 August 2015, Mr Wills was copied in on discussions about the details of changes to the enrolment portal and the pre‑enrolment quiz.
Not only did he know of the changes being proposed, and the reasons why, but Mr Wills "supported the changes that were being proposed".[193] As the majority of the Full Court stated in relation to the Management Meeting held on 19 August 2015 and surrounding events: "While the primary judge found that no decision was taken at the [19 August 2015] meeting to adopt the enrolment process changes, his Honour also found that there was a common understanding, or expectation, of the attendees at the meeting that, subject to further details still to be worked on, the enrolment process changes would be implemented (PJ [259]). In our view, the evidence as a whole, including particularly the minutes concerning Mr Wills's COO Report, show that Mr Wills supported the changes that were being proposed. That is highly significant given Mr Wills's role in the organisation, described earlier, whereby Mr Cook reported to Mr Wills." Mr Wills also knew that the changes were meant "to enable consumers to be enrolled as students more quickly and easily" at the time that they were recruited by course advisors, and to "ensure that they passed through census in greater numbers by abolishing a significant contribution to attrition, namely campus driven withdrawals". The history of the events since June 2015 were set out in a report Mr Wills circulated to the Site board on 26 October 2015. Mr Wills stated that there had been "substantially more active management involvement and practices in [the] College since June this year when business performance had commenced deteriorating", which was "driving performance for a strong second‑quarter". Mr Wills referred to the urgent review that had been undertaken in August 2015,[195] as a result of which "the degree of autonomy in this business unit [ie, the College] [from Site] has been reduced and integration prioritised".
Mr Wills' knowledge of effects of changes
On 13 September 2015, Mr Wills stated that he was putting the enrolment process changes "under the microscope". In advance of taking over as acting CEO, he said he would exercise a "continued watchful eye over [the College's] operations".
By no later than 14 September 2015, Mr Wills was aware that the enrolment process changes had been implemented by the College on 7 September 2015, and, soon after, learnt that those changes were having a net positive impact on "sales volumes" and enrolments. On 15 September 2015, Mr Cook reported to Mr Wills that applications for enrolment in the week 7-13 September 2015 had increased dramatically, "showing early signs of recovery". In his CEO report for the Management Meeting on 16 September 2015, which Mr Wills attended, Mr Cook reported that "the new enrolment process along with the update to the withdrawal policy should see CA numbers and student numbers increase". The minutes of the meeting recorded that Mr Cook advised that "the new enrolment system is working well, it presents well, increased headcount and have re-recruited old CAs" and that he believed that the financial position was "about to pick up, with Khaled [the College's Partnerships Manager] talking with our agents".
Mr Wills was aware of the "dramatic turnaround" in the College's financial position, which resulted from equally dramatic enrolment increases (and corresponding increases in disengaged students). On 14 October 2015, Mr Dawson circulated the College's September financial results to Mr Cook and Mr Wills, which showed that the online campus VFH income exceeded the budget by 133 per cent and EBITDA (that is, earnings before interest, taxes, depreciation and amortization, which is a proxy for profit) exceeded the budget by 137 per cent.
Mr Wills received the papers for and attended the Management Meetings on 21 October 2015 and 18 November 2015. At each of those meetings, the changes to the enrolment process, and the effect of those changes on numbers of course advisors and students (and the resulting increase in VFH revenue) were the subject of reporting. Further, other employees at the 21 October 2015 meeting raised the fact that many students were not engaging with the online learning management system.
On 3 November 2015, the Site board considered a report prepared by, amongst others, Mr Wills, which recorded that the conversion rate had significantly improved and reported that the College's budgeted revenue for the second quarter was $10 million, notwithstanding that the actual revenue in the first quarter had been only $3.257 million. The primary judge held that this reflected "the confidence that there was that the changed enrolment and withdrawal processes would bring about vastly improved financial performance".
Documents sent to, and prepared at the request of, Mr Wills in November 2015 indicated that the College expected significant numbers of enrolled students to remain uncontactable and estimated that only 20 per cent of students would engage. By that time, Mr Wills was aware that the conversion rate had increased from about 50 per cent before the enrolment process changes to about 76 per cent in October. This implied "that increased numbers of unsuitable students were being enrolled". He also knew from his own figures that less than 20 per cent of students logged in to the online learning management system by week seven.
Mr Wills' involvement in College's unconscionable conduct
In summary, Mr Wills was involved in the unconscionable conduct of the College through his management and oversight of the College at all material times, particularly his roles on the Advisory Board and in the Management Meetings, and as acting CEO from 20 November 2015 to 20 January 2016. During 2015, Mr Wills had increasing involvement in the College's affairs. He was a "key driver" of changes at the College to improve its financial performance and while he was not the architect of the enrolment process changes, the relevant decisions were reported to him and he oversaw their implementation; he was associated with the decisions and was a participant in key aspects of the changes. Prior to the impugned conduct period, Mr Wills was aware of the plan to implement the enrolment process changes (the removal of the outbound QA call and the campus driven withdrawal process) and then the implementation of those changes. He was aware of the profit maximising purpose in respect of those changes. He was also aware of the CA Misconduct Risk and the Unsuitable Enrolment Risk, and that the outbound QA call and the campus driven withdrawal process provided means by which the College could mitigate these risks, such that the changes (abolishing those mechanisms) would necessarily reduce the College's ability to mitigate those risks.
In September 2015, during the impugned enrolment period, Mr Wills was putting the changes that had been introduced "under the microscope", he was aware that increased enrolments and hence revenue were beginning to show, and the ongoing risk of course advisor misconduct had been brought to his attention. In October 2015, Mr Wills continued to be "involved across all areas of the [C]ollege's operation", the dramatic increase in enrolments and hence income had become apparent, and he became aware that the Department had published a guideline stating the Department's expectation that, if students could not be contacted and/or they had not participated in the unit before the census date, a VET provider would cancel the enrolment to avoid the student incurring a VFH debt. By November 2015, Mr Wills had such confidence in the improved enrolment and financial position of the College that he (with others at Site) set the College's budgeted revenue for the second quarter at $10 million, notwithstanding that revenue in the first quarter had been only $3.257 million. He was also aware that the conversion rate had increased from a little over 50 per cent to about 76 per cent in October, and he knew that the ratio of active students might be as low as 20 per cent of the total number of students and that less than 20 per cent of students logged in to the online learning management system by week seven.
As acting CEO of the College from 20 November 2015 to 20 January 2016, Mr Wills knew that the College ceased enrolling students for 2016 but continued to claim VFH revenue in respect of students who had enrolled during the impugned enrolment period. By February 2016, Mr Wills was aware that as many as 55 per cent of students who had passed through the first census and incurred a VFH debt were uncontactable and had not engaged with the College. By May 2016, Mr Wills knew that more than 50 per cent of students were not contactable, only seven per cent of students were logging in to the online learning management system and 77 per cent of students were not engaging with their courses. The primary judge was correct to find that Mr Wills had knowledge from 7 September 2015 of the essential facts and circumstances that rendered the College's conduct unconscionable and thus that Mr Wills was knowingly concerned in, or party to, the College's unconscionable conduct from 7 September 2015.
Site's involvement
By reason of Mr Wills' knowledge and conduct being attributable to Site, Site was knowingly concerned in, or a party to, the College's contravention of s 21, pursuant to s 139B of the Competition and Consumer Act 2010 (Cth). Site did not challenge the factual findings by which the primary judge concluded, for the purposes of s 139B of the Competition and Consumer Act, that Mr Wills' state of mind and conduct was attributable to Site. The College's third appeal ground fails. Conclusion and orders I agree with Gageler CJ and Jagot J that both appeals should be dismissed with costs.
Edelman J states
... Before the primary judge in the Federal Court of Australia, whose decision was largely upheld by a majority of the Full Court, the Australian Competition and Consumer Commission ("the ACCC") established that the College had engaged in conduct which was unconscionable contrary to s 21 of the Australian Consumer Law. The essence of the College's unconscionable conduct was that in supplying vocational education and training courses, the College removed two system controls which protected students from misconduct by agents of the College and from enrolment in courses for which the students were unsuitable. The removal of these system controls meant that many students incurred substantial debts for courses which they would never even commence. That outcome was a means to the College's end of increasing profitability.
The appellant in the other appeal before this Court ("the Wills appeal") is Mr Wills, the Chief Operating Officer of Site and Acting Chief Executive Officer of the College for part of the relevant period after the system controls were removed. The primary judge and the majority of the Full Court found that Mr Wills was, in broad terms, knowingly concerned in the College's contravention and an accessory to that contravention.
These two appeals raise fundamental issues concerning: (i) the scope of a corporation's liability based upon its systems rather than attribution of the actions or mental states of any natural person to the corporation; and (ii) the nature and principles concerning accessory liability. These are civil appeals. But the principles concerned have far-reaching consequences through both civil and criminal law in these two areas.
As to systems liability, one of the traditional means of holding a corporation liable has been based on the attribution to the corporation of the actions of the natural persons that are its agents. But the heuristic of the "actions" and "intentions" of a corporation is not confined to the attributed actions of natural persons. A corporation might also be treated as having acted or as having an intention based upon its systems, that is, its policies, procedures or patterns of conduct.
The novelty of corporate systems liability is that a corporation can be treated as having acted, and as having intentions, without those actions having been taken, or those intentions held, by any individual natural person. The primary judge, and the majority of the Full Court, were correct to conclude that the College had acted unconscionably based upon its systems, in particular the removal of two system controls which protected students from misconduct by agents of the College and from enrolment in courses for which the students were unsuitable. The removal of those two system controls adapted the College's system of enrolments for what can be taken to be the purpose, or end, of increased profitability. The College, by that adaptation of its system of enrolments, can be taken to have intended to achieve its purpose by an increase in agent misconduct leading to student enrolments and an increase in the enrolment of "unsuitable" students. That system was unconscionable conduct within s 21 of the Australian Consumer Law. As to accessory liability, an intention to participate in the conduct that amounts to the essence of a primary offence or contravention is a central requirement that must be satisfied before liability for one person's offence or contravention can be attributed to another as accessory. Without a requirement of intention, manufacturers of kitchen knives could generally be liable for murder and manufacturers of ski masks could generally be liable for burglary. The requirement of intention requires knowledge of the relevant facts needed to establish that intention. But what facts or circumstances must be known?
Consider an example adapted from the facts of Giorgianni v The Queen. An employee drives a truck with the brakes improperly secured. Earlier that day, the employer had noticed wiring holding together the components of the brake system but, thinking the wire to be irregular but having little mechanical knowledge, the employer thought nothing more of it and directed the employee to drive the truck. The employee is involved in an accident where a number of people are killed, and the employer is charged with being an accessory to the crime of causing death by driving a vehicle in a "manner dangerous to the public". Is it sufficient, in ascending degrees of knowledge and belief: (i) That the employer noticed the wiring on the brakes? (ii) That the employer knew that the wiring on the brakes was irregular? (iii) That the employer knew that the wiring on the brakes was irregular and that "the brakes on the vehicle were probably (or possibly) defective"[199] but did not know of a real risk of harm to the public from that probable defect? (iv) That the employer knew that the wiring of the brakes was irregular and believed that the irregularity presented a real risk of harm to the public if the truck was driven? (v) That the employer knew that the wiring of the brakes was irregular and believed that the irregularity presented a real risk of harm to the public if the truck was driven, and subjectively considered this risk to be "dangerous" either by reference to the employer's own system of values or beliefs or by reference to what the employer considered to be the social norms of dangerousness?
Although this Court did not need to take the step of clarifying that dangerous driving involves driving that, in short, presents a real risk of harm to the public beyond the ordinary driving risk,[200] the unequivocal answer given in the dispositive reasoning of at least three of the five members of this Court in Giorgianni was that the minimum sufficient degree of knowledge and belief is (iv).[201] No application was made in the Wills appeal to reopen that reasoning or the cases which have since followed it. None should be entertained. The submissions of Mr Wills asserting that he should not have been held to be an accessory because he did not know that the College's conduct was unconscionable must be rejected. From the matters known to Mr Wills, and from his involvement with the removal of the two system controls, Mr Wills intended to participate in the essential conduct that was the unconscionable conduct of the College. The primary judge was correct to conclude that Mr Wills was an accessory to the College's unconscionable conduct and, for the reasons that follow, the Full Court was correct to affirm this finding.
The facts and background in outline
Dramatis personae
The College carried on a business supplying its customers, who were students, with vocational education and training courses. The courses with which these appeals are concerned were online courses offered by the College. Site is the parent company of the College, having acquired the College in 2014.
The appellant in the Wills appeal is Mr Wills. From around November 2010 until October 2017, Mr Wills was the Chief Operating Officer of Site. From May 2014, Mr Wills was a member of an advisory board for the College which had oversight over and accountability for all key financial and operational aspects of the College's business. From July 2015, Mr Wills typically chaired and facilitated management meetings which were attended by senior management of the College. From November 2015 until January 2016, Mr Wills was the Acting Chief Executive Officer of the College. When Mr Wills took on the position of Acting Chief Executive Officer of the College in November 2015, that was done as a "means of asserting Site's oversight of the College".
Mr Cook was the Chief Executive Officer of the College from 1 May 2014 until February 2017 and had overall responsibility for the management and operations of the College. Mr Cook reported to Mr Wills. Although Mr Cook was central to the litigation, he was not a party because, shortly before trial, he admitted the allegations of the ACCC that the College had engaged in a system of conduct in the relevant period in respect of persons enrolled in online courses that was unconscionable in contravention of s 21 of the Australian Consumer Law, and that he was knowingly concerned in that contravening conduct.
The impugned conduct of the College
From 2012, the College was authorised to provide its courses, including the online courses which are the subject of these appeals, under a Commonwealth scheme described as the VFH Scheme (the Vocational Education and Training Fee Higher Education Loan Program). Under the VFH Scheme, the Commonwealth paid the College the fee for any student who met the eligibility criteria for entitlement to VFH assistance, which included completing a request for Commonwealth assistance form. In turn, those students incurred a debt to the Commonwealth, repayable through the taxation system, of 120 per cent of the fee paid to the College by the Commonwealth. The debt was incurred immediately after the "census date" for a unit of study. The census date was the last date that a student could withdraw from a unit of study without incurring a debt to the Commonwealth. For the units of study that comprised the online courses that are the subject of these appeals, the College set that date at two weeks after the commencement of the unit of study. The payments by students to the Commonwealth, and by the Commonwealth to the College, were not conditional upon completion of the course by the students. Nor were they even conditional upon engagement by the students with the course. Issues of potential adverse selection arose because the College was in a position of having access to greater information than the students. And the VFH Scheme also gave rise to a moral hazard.[203] A provider like the College would receive the fee for provision of the service to a student from the Commonwealth, provided that certain enrolment paperwork was completed by or on behalf of the student. From the perspective of the financial interests of the College, this reduced the need to take measures to ensure that funded students were committed to the course, understood the obligation to pay fees, and therefore were less likely to default.
The moral hazard was enhanced by the role of agents of the College, described as "course advisers", some of whom were engaged by external marketing agencies. After 31 July 2014, the College entered agreements with marketing agencies by which the agents of the College were paid commission for students who were recruited to courses supplied by the College, provided that the students passed the census date and incurred VFH debts.
In its pleading, the ACCC identified two overlapping types of risk that arose from the College's business model. The first, described as "agent misconduct risk", was the risk of unethical actions by agents in the recruitment process such as pressuring students to enrol, making false or misleading statements, offering inducements (such as free laptops), and completing documents and answering questions on behalf of an applicant. The second, described as "unsuitable enrolment risk", was the risk of persons being enrolled despite a lack of willingness or ability (due to insufficient language, literacy or numeracy skills) to undertake the course.
All the key personnel at the College were aware of both types of risk. The agent misconduct risk "regularly materialised".[204] The complaints register at the College recorded numerous instances of agent misconduct. Internal College documents described media reporting of unethical behaviour of agents in the industry and referred to particular agent misconduct issues for the online courses as "blatant", or described the main reason for 50 per cent attrition rates as "[m]isleading info—most thought course was 12 months". In the period leading up to September 2015, the College mitigated the two types of risk by two system controls. The first system control was an outbound quality assurance call. The College would make an outbound call in the absence of the agent in which the College would seek to ensure that: (i) the student was "genuine"; (ii) the student understood their obligations under the VFH Scheme; and (iii) the student was suitable for enrolment in their nominated course.
The second system control was a campus-led withdrawal process by which students would be withdrawn prior to the census date if they did not attend the first week online and were not contactable by the College after at least nine attempts in three weeks. The campus-led withdrawal control was an important protection. As at May 2015, 50 per cent of students were withdrawn prior to the census date, with a significant proportion of withdrawals occurring via the campus-led withdrawal process.
Around 27 November 2014, a report into the College's online courses was prepared by a co-provider of those courses, Sero Learning Pty Ltd ("the Sero report"). The Sero report identified issues for Sero including: the need for Sero to monitor its marketing agents concerning the information that they provided to potential students; that Sero was progressing students past their first census date without proper contact; and that 84.7 per cent of Sero's students had passed the first census date but never accessed the online learning management system. The Sero report was discussed in meetings of senior College staff in December 2014 and February 2015 and the College and advisory board were aware of the importance of the two College system controls (which Sero did not have) in ensuring that unsuitable students were not enrolled or, if enrolled, were withdrawn prior to incurring a VFH debt.
By around August 2015, internal College documents showed that the key officers at the College, including Mr Wills, had become aware that College agents were unhappy with the College's enrolment process and that College revenue had declined. The two system controls were known to be "impediments to a prospective student being enrolled and passing [the] first census [date]".[205] The removal of those impediments was understood to increase the likelihood of agents receiving their commission, increase the enrolment of students, and therefore improve the profitability of the College.
On 7 September 2015, the College abolished both system controls. The outbound quality assurance call, made in the absence of the agent to mitigate effects of agent misconduct, was replaced by an "inbound" call (generally in the presence of the agent) which consisted principally of closed ("yes/no") questions and reading scripted information without analysis of any enrolment documents in advance. And the campus-led withdrawal process was removed and was not replaced with any other control. The system controls had protected students but also reduced the commission of agents and the revenue received from the VFH Scheme. The system controls were removed for sales and marketing reasons. As the majority of the Full Court concluded, the protections were removed "for the purpose of profit maximisation substantially driven by budget expectations set by Site".[206] The abolition of the two system controls did not remove all protection from the students. The inbound call provided some transparency about fees. And the College retained processes to investigate allegations of agent misconduct. But, as the College properly acknowledged in oral submissions in this Court, those reduced protections exposed unsuitable students to enrolment and exposed students to agent misconduct, as occurred in the five examples—"Customers A through E"—provided by the ACCC at trial. Following the 7 September 2015 changes, the income earned by the College from the VFH Scheme increased from $326,125 in August 2015 to approximately $18.9 million in December 2015. Consistently with this increase in income, withdrawals prior to census date declined from around 50 per cent of enrolled students between January and August 2015 to 29 per cent of enrolled students in September 2015 and 24 per cent in October 2015.
That decrease in online course withdrawals was directly correlated with the increased enrolment of unsuitable students. The percentage of students who had passed the census date but did not complete a single unit of study increased from 81.9 per cent prior to 7 September 2015 to 98.9 per cent subsequently. Between October 2015 and January 2016, a student support officer was only able to contact about 10 per cent of approximately 400 to 500 students allocated to her: telephone calls were not answered; emails bounced back; one email address was used for multiple students; and she was told not to contact a significant number of students who were enrolled from the town of Mullumbimby.
The College's impugned conduct comes to an end
On 1 December 2015, the Commonwealth government announced that a cap would be imposed on the total loans to students that a provider would be able to create in 2016 under the VFH Scheme. On 18 December 2015, the College was informed of its cap for 2016. The College had already exceeded that cap. Consequently, on 18 December 2015, the College ceased enrolling students for its online courses.
Although the College did not enrol any further students, the College continued to claim VFH revenue from the Commonwealth up to and including September 2016 in respect of students who had been enrolled between 7 September 2015 and 18 December 2015.
The allegations and the decisions of the primary judge and the Full Court
The ACCC brought proceedings alleging that the College had engaged in a system of conduct which was unconscionable in contravention of s 21 of the Australian Consumer Law. The ACCC also alleged that Mr Cook, Mr Wills and Site were knowingly concerned in, or parties to, the College's contravention within the meaning of s 224(1)(e) and s 2 of the Australian Consumer Law.
The conduct of the College was divided by the ACCC into two periods. The first period, "the impugned enrolment period", was between 7 September 2015 and 18 December 2015. The second period, "the impugned conduct period", was between 7 September 2015 and September 2016. The difference between the periods was that although the College stopped enrolling students on 18 December 2015, it continued to receive revenue from the Commonwealth, with respect to students who were enrolled during the impugned enrolment period, until September 2016. The ACCC alleged that this amounted to continuing unconscionable conduct.
In the Federal Court of Australia, the primary judge found, in a conclusion upheld by the Full Court, that the College had acted unconscionably within the application of "unconscionable conduct" in s 21 of the Australian Consumer Law. The College "took advantage" of students who had enrolled as a result of agent misconduct or who were unsuitable for their chosen course of study. The College: "well knew that its dramatic increase in revenue and turnaround in profits was substantially built on VFH revenue in respect of students who may have been the victims of [agent] misconduct, were unsuitable for enrolment, should not have been enrolled and who would gain no benefit whatsoever from their enrolment, yet who incurred very substantial debts to the Commonwealth as a result of their enrolment".
The primary judge held, again in a conclusion upheld by the Full Court, that Mr Wills was knowingly concerned in the College's unconscionable conduct. As the majority of the Full Court explained, Mr Wills "was a key driver of changes at the College to improve its financial performance and while he was not the architect of the enrolment process changes, the relevant decisions were reported to him and he oversaw their implementation".
Mr Wills' responsibility, his role and his awareness of the system changes is explained in more detail later in these reasons. But perhaps the single most important finding of fact by the primary judge in this respect is that Mr Wills chaired and facilitated the management meeting on 19 August 2015 where the common understanding emerged that the enrolment changes would be implemented. Mr Wills was aware of the detail and effect of the changes, and participated in them, before 20 November 2015, which was the date from which he became Acting Chief Executive Officer of the College, and the date from which the majority of the Full Court (incorrectly) held that Mr Wills was knowingly concerned with the unconscionable conduct of the College.
The primary judge concluded that Mr Wills' knowledge and conduct could be attributed to Site under s 139B of the Competition and Consumer Act 2010 (Cth). There was no challenge to that conclusion on appeal to the Full Court, or in this Court. Site's liability is therefore wholly dependent upon Mr Wills' liability.
Unconscionable conduct and systems liability: the College's appeal
The College's grounds of appeal The College's appeal to this Court was essentially based upon two related arguments. First, it was submitted that the primary judge and the majority of the Full Court considered the proscription on unconscionable conduct in s 21 of the Australian Consumer Law without express reference to the presence or absence of all the relevant factors in s 22. Secondly, it was submitted that the removal by the College of the two system controls was not unconscionable conduct. The College submitted that "[u]nconscionability may be a standard associated with a reckless disregard for likely (or sometimes foreseeable) consequences but is not a standard attracted by imperfect systems or carelessness" and that, at least absent intention that the risk will occur, the "[p]rotection of potential customers from risk is not the type of conception to which ss 21 and ... 22 are directed". The first argument requires explanation of the operation of s 21 and its relationship with s 22. The second argument requires consideration of the nature of liability based on the operation of a system and the risks that it creates.
Unconscionable conduct under s 21 of the Australian Consumer Law
Section 21(1) of the Australian Consumer Law relevantly provides that "[a] person must not, in trade or commerce, in connection with: (a) the supply or possible supply of goods or services to a person ... engage in conduct that is, in all the circumstances, unconscionable".
As the College correctly submitted in oral submissions, and as s 21(4)(a) provides, the concept of unconscionable conduct in s 21 goes beyond the equitable concept of unconscionable conduct which is applied in s 20. The legislative history of s 21 (and its predecessor in the Trade Practices Act 1974 (Cth)) reveals an intention to remove the equitable requirements of special disadvantage and a taking advantage of that special disadvantage.
The legislative proscription by reference to "conscience" contains layers of uncertainty. Conscience, from the Latin conscientia, denoting a holding of knowledge,[211] has shades of meaning generally related to a subjective recognition of the moral and ethical qualities of action. Locke described conscience as "nothing else but our own opinion ... of our own actions".[212] But Parliament must be taken to have contemplated an assessment of whether conduct is unconscionable by reference to objective standards rather than to a judge's personal or subjective opinions. Nor is there any indication that the objective standard of assessment should involve a judge's best guess, or a survey of the empirical evidence, as to the standards of a community, even if such monolithic standards can be taken to exist in a plural society. "Compassion will not, on the one hand, nor inconvenience on the other, be to decide; but the law".
The assessment of an objective standard of conscience must instead import an evaluation of the extent of departure from principles of interpersonal morality as reflected in the values of Australian common law and statute. It is only in that sense that those values are the values of the Australian community. The cornucopia of values in Australian common law and statute was expressed extrajudicially by Allsop CJ as including: "[T]he deep and abiding requirement of honesty in behaviour; a rejection of trickery or sharp practice; fairness when dealing with consumers; the central importance of the faithful performance of bargains and promises freely made; the protection of those whose vulnerability as to the protection of their own interests places them in a position that calls for a just legal system to respond for their protection, especially from those who would victimise, predate or take advantage; a recognition that inequality of bargaining power can (but not always) be used in a way that is contrary to fair dealing or conscience; the importance of a reasonable degree of certainty in commercial transactions; the reversibility of enrichments unjustly received; the importance of behaviour in a business and consumer context that exhibits good faith and fair dealing; and the conduct of an equitable and certain judicial system that is not a harbour for idiosyncratic or personal moral judgment and exercise of power and discretion based thereon."
The difficulty with the application of the values of Australian common law and statute is that they apply at such a high level of generality, and can point in so many different directions, that the concept of unconscionability has been said to be no more useful than the category of "small brown bird" to an ornithologist.[215] In one recent case,[216] three members of this Court considered conduct to be unconscionable where it involved a system of exploitation of illiterate and innumerate Aboriginal customers involving sales on credit at up to three times market value, without any proper accounting, with requirements of tied purchasing and the surrender of the customer's bank card and personal identification number.[217] But four members of this Court considered that this exploitation of vulnerable persons from another culture took on a different perspective of conscience because, among other things, it was said that the conduct: was "appropriate" according to other cultures and values;[218] was "a convenient way of managing money";[219] "suited the interests" of those vulnerable persons "and their families having regard to their own preferences and distinctive cultural practices";[220] and took place in a remote Aboriginal community where onerous terms were more "acceptable".
Section 22 of the Australian Consumer Law does not codify the values of Australian statute and common law, nor does it resolve such difficulties in application. Rather, it articulates a list of wide-ranging matters to consider when applying these values, including: the terms and conditions of the supply (ss 22(1)(b), 22(1)(e), 22(1)(j), 22(1)(k)); discrimination, undue influence, pressure, unfair tactics and the extent of good faith towards customers by the supplier (ss 22(1)(d), 22(1)(f), 22(1)(l)); conduct of the parties in connection with their relationship, difference in bargaining power and ability to negotiate (ss 22(1)(a), 22(1)(j)); the contents of any industry code (ss 22(1)(g), 22(1)(h)); and the ability of a customer to understand documents and the extent of any unreasonable failure of the supplier to disclose (ss 22(1)(c), 22(1)(i)). In applying the relevant values of Australian common law and statute, all matters and circumstances enunciated in s 22 that are potentially relevant must be considered.[222] So too must any other circumstance that potentially bears upon standards of trade and commerce be considered.[223] Otherwise, the assessment of conscience will have proceeded by reference only to a subset of the relevant values. However, contrary to the submissions of the College, the need for all relevant matters to be considered does not require an assumption that all matters weigh in favour of a supplier unless shown otherwise.
Systems liability
A corporation is a construct. It does not have a natural existence in the real world. The notion of a company "doing something" is a heuristic which helps to understand legal rules for corporate liability. Usually, the description of a company as having performed some act, or having held some intention, means that there is someone whose act or intention, under the legal rules of attribution, would count as the act or intention of the company. These legal rules depend upon context or statutory interpretation but they generally require the identification of a person whose act or intention will count as the act or intention of the company.
But not always. There is an alternative path to treating a corporation as having performed an action or having an intention which does not involve attribution of the action or intention of a single natural person. That alternative path recognises a corporation as having "acted" or as having an "intention" where a system has been built with the authority of senior persons controlling the company such that the actions of automated processes, or of one or more natural persons, can be properly attributed to the corporation to the extent that they arise out of that system.[226] The point is that actions and intentions are attributed to the corporation directly from its systems rather than from any natural person.
This concept of systems liability is recognised by s 21(4)(b) of the Australian Consumer Law, which has the effect that statutory unconscionable conduct can apply "to a system of conduct or pattern of behaviour". As Professor Bant has explained of legislative innovations akin to s 21(4)(b), "corporations develop their own character and values and should be treated as actors in our society in their own right". Their intentions "may be identified from decisions and choices that are communicated through corporate policy".
The concept of systems liability, such as that in s 21(4)(b), has been described as group agency.[228] Dr Leow has rightly observed that group agency is a concept that "has intuitive appeal. In law and in ordinary life, it is observable that statements about groups are often not straightforwardly reducible to statements about the aggregate of their members."[229] Just as a team playing a game "cannot be reduced to the personal acts of the players"[230]—a behind can be scored by the Fremantle Dockers if the ball was rushed through the goal by the opposition rather than being kicked by any of the Dockers' great players—so too legal rules can provide that a corporation acted even if the action cannot be attributed to the corporation from a single individual.
There are good reasons for the treatment of a corporation as capable of having actions and intentions without the necessity for attribution of the actions or intentions of a particular person. One reason is that the dynamics of group behaviour might not be reducible into the behaviour of any individual unit. This is the problem of "diffused responsibility".[231] Another reason is that the focus on the group avoids any discounting of the potentially pernicious effect of group dynamics on individual moral and ethical judgment. A group can be treated as having intended a result even if its members blindly defer to a policy or to other persons, without having any positive intention of their own as to the result: "The interaction with other people shapes how humans act. 'Group think' can cause individuals to disengage their own judgement. 'Group loyalty' can lead members to continue with practices that have proven to be ineffective. Organizations have a way of overriding individual judgement and attitudes."
The concept of intention should be applied to a system as though the system, as a construct, were a natural person. Intention is everything that is a "reason for behaving as one does", whether as an end in itself or as a means to an end.[233] Intention therefore involves a volitional choice of ends or means, not merely a foresight of consequences. Foresight of consequences, even to the extent of a belief that consequences are inevitable, is merely a means of proving that those consequences were chosen as an end in themselves or as a means to an end.
Intention, as a chosen end or a chosen means to an end, must be separated from emotional desire. Two examples can be reiterated which illustrate the difference.[235] A person who boards a plane from London to Manchester to escape pursuit has an intention to travel to Manchester even if that is the last place that they seek to be. A person who sets fire to their enemy's house out of spite commits the act of arson intentionally even if they regret the destruction of the house as a masterpiece of period architecture. The travel to Manchester or the setting fire to the house are chosen as means to the end of escaping pursuit or injuring the enemy, even if those means are not emotionally desired.
The majority of the Full Court correctly addressed the ACCC systems case
As s 21(4)(b) of the Australian Consumer Law implicitly recognises, proof of a corporate system might occur either by proof of a pattern of behaviour or by "direct evidence as to the internal structure and elements of the system".[236] In the present case, the "system" implemented by the College was proved by the latter means: direct evidence of the system controls that existed prior to 7 September 2015 and the abolition on that date of two crucial system controls which existed for the protection of students. This conduct of the College in removing two core system protections was the central focus of the ACCC case of unconscionable conduct.
The College submitted that it was not unconscionable for it to increase or transfer risk to students in circumstances where the College did "not intend that risk to come home" and had other "systems ... to investigate agents where that allegation [of procuring enrolment] was made". The College relied upon the reasoning of the majority of the Full Court that the College "was not seeking agent misconduct".
The ACCC systems case alleged that the College had removed the two system controls for the purpose or end of maximising profit. The ACCC alleged that the College pursued this end with the knowledge or means of knowledge that the removal of the two system controls would reduce its ability to mitigate agent misconduct risk and unsuitable enrolment risk. In short, revenue and profit would increase with the increased enrolment of unsuitable students and students who were enrolled as a result of misconduct. The removal of the two system controls was the means adopted for the end of maximising profits. That means involved unsuitable, misled, or misguided students contributing to the College's increased revenue.
It can be accepted, as the majority of the Full Court concluded, that the College was not "seeking" agent misconduct or unsuitable enrolments in the sense of desiring those consequences as an end in themselves. At the very least, the existence of some remaining system controls, including the "inbound call" and procedures permitting complaints to be made about agents, shows that agent misconduct or unsuitable enrolments were not an end in themselves. But it was not necessary that agent misconduct or unsuitable enrolments be proved to be ends in themselves before the College could be said to intend those outcomes. It was sufficient that those outcomes were chosen means to the end of maximising profits.
By focusing its case against the College at the level of the system, it was unnecessary for the ACCC to establish that any individual person chose agent misconduct or unsuitable enrolments as a means to maximising profit. It was enough that the College employed a system which adopted, as its means to increased profitability, an increase in unsuitably enrolled students or students whose enrolment was the subject of agent misconduct. For example, prior to the removal of the system controls, 50 per cent of students had been withdrawn by the campus-led withdrawal process. The removal of that system control would mean that the system would achieve increased profitability at the expense of enrolment of disengaged students.
The submission of the College that it did not intend the risks to eventuate must be rejected. The removal of the two system controls meant that the College, by its revised system, intended that the end of increasing profitability be achieved by an increase in unsuitably enrolled students or students whose enrolment was the subject of agent misconduct.
The majority of the Full Court properly applied s 22
The College submitted that the majority of the Full Court erred by failing to consider the absence of any inequality of bargaining power between the College and the students. But there was no evidence at trial, and no issue raised by the parties at trial, about any equality or inequality of bargaining power. There was no basis for the Full Court to make assumptions in favour of the College that were not based on the evidence and submissions. As the majority of the Full Court correctly observed, "[t]he court determines the proceeding on the evidence adduced by the parties, not speculation as to matters not addressed by the evidence. Nor does the court initiate its own investigations in relation to matters not raised on the evidence adduced by the parties."
Nor, contrary to the College's submissions, does the requirement for consideration of all potentially relevant matters mean that a judge is required to articulate a laundry list of the absence of each and every potentially relevant matter and value in the precise terms set out in s 22. No inference will be drawn of a failure to consider a potentially relevant matter if that matter is not given any real focus in the submissions of the parties and has no real impact upon the assessment. To give a simple example, if a judge reached the conclusion that a vulnerable customer had been deliberately deceived by a supplier's pre-contractual statement, the judge would not be required to record that the customer had understood the written contract or that the supplier had otherwise complied with an industry code, unless there were real dispute about these issues between the parties. Dishonest conduct does not cease to be unconscionable because a supplier has been transparent or honest in other respects.
The same reasoning applies to the numerous circumstances that were not expressly considered by the majority of the Full Court, but which the College submitted had infected the reasoning of the majority. For instance, there was no allegation and no case that the College used any undue influence, pressure or unfair tactics. But in a case where the central issue was whether it was unconscionable for the College to remove the system controls, there was no obligation upon the primary judge or the Full Court expressly to record that there was no allegation of undue influence, pressure or unfair tactics. As the majority of the Full Court correctly concluded: "[T]he reasons of the primary judge demonstrate that his Honour had regard to the matters enumerated in s 22(1) to the extent that the parties relied on those matters. It may be accepted that the primary judge did not always identify the matters using the paragraph numbers in s 22(1). There is no legal requirement to identify the matters in that way. The relevant question is whether his Honour took the matters into account to the extent the parties relied upon them."
For the reasons given by the majority of the Full Court that then followed this correct statement of principle, the primary judge did take into account all relevant matters in s 22.
Accessory liability: the Wills appeal
The ACCC case against Mr Wills and Mr Wills' grounds of appeal
The ACCC case of accessory liability against Mr Wills alleged that he was an accessory to the College's unconscionable conduct and liable for a pecuniary penalty under s 224(1)(e) of the Australian Consumer Law and for disqualification from managing corporations under s 248.
Section 224(1)(e) of the Australian Consumer Law provides for pecuniary penalties where any person "has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person" of a provision including s 21. Section 248 of the Australian Consumer Law provides for disqualification from managing corporations in circumstances including where a person has been involved in unconscionable conduct under s 21. Section 2(1) of the Australian Consumer Law defines "involved" in terms that include: "(a) has aided, abetted, counselled or procured the contravention" or "(c) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention".
Mr Wills' notice of appeal contained essentially two grounds for challenging the conclusion of the majority of the Full Court, in upholding the decision of the primary judge, that he was an accessory to the College's unconscionable conduct. His first ground was essentially that the majority of the Full Court erred by concluding that he was an accessory to unconscionable conduct under s 21 of the Australian Consumer Law because it was not established that he knew that the College's conduct "involved taking advantage of consumers or was otherwise against conscience". His second ground of challenge was essentially that the majority of the Full Court erred by concluding that he was an accessory from 20 November 2015 in circumstances in which Mr Wills was found not to have knowledge of the essential matters making the College's conduct unconscionable until 20 November 2015, and there was "no positive conduct" on the part of Mr Wills after that date.
The ACCC filed a notice of contention in this Court asserting that the majority of the Full Court erred in concluding that Mr Wills did not have sufficient knowledge of the essential matters that rendered the College's conduct unconscionable as at 7 September 2015. The ACCC's notice of contention is logically anterior to Mr Wills' second ground of appeal. The success of the notice of contention, for reasons explained below, means that Mr Wills' second ground of appeal need not be considered.
The assumptions in the Wills appeal
In the period shortly after Federation, Commonwealth legislation began to be drafted so as to extend accessory liability beyond the traditional common law formulation, which imposed liability on a person who aided, abetted, counselled, or procured the commission of an offence. Liability was extended to circumstances where the person was "in any way directly or indirectly knowingly concerned in" the commission of an offence against an Act.[240] The assumption of all the parties to the Wills appeal was that the principles concerning the traditional formulation of the common law were the same as those concerning persons who are "in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person". It is unnecessary to consider the correctness of that assumption in this case. It suffices to address the issue, as the parties did, by reference to the established principles of accessory liability.
The nature of accessory liability
An accessory is a person to whom the liability of a principal for a crime or civil wrong is attributed. The accessory did not commit the crime or other wrong but will have attributed to them the liability of the person who did. Since the focus is upon attribution of liability for a wrong found to have been committed by another, it has rightly been said that "[t]he very basis of secondary liability is different from that of a principal".
As will be explained below, the basis for attribution to the accessory of liability for an offence or contravention is that the accessory must have intended to be involved with the essence of the primary offence or contravention. There are three steps: (i) identification of the essence of the primary offence or contravention; (ii) identification of the acts of the accessory that amount to involvement in the essence of the primary offence or contravention; and (iii) identification of the intention of the accessory to be involved in the essence of the primary offence or contravention. The third matter is often the central issue, as it is in this case. Intent is important because, as Learned Hand J put it, accessory or derivative liability requires that the accessory: show a "purposive attitude" towards the venture; "associate [themself] with the venture"; "participate in it as in something that [they wish] to bring about"; and "seek by [their] action to make it succeed".
The focus on the Wills appeal was upon the knowledge or belief that Mr Wills was required to have. In short, was Mr Wills required to know or believe that the College's system was unconscionable? But, as explained below, knowledge is not, independently, a criterion for accessory liability. Instead, it is a prerequisite for the required intention. Intention is the reason for requiring knowledge of the "essential facts"
In Giorgianni, Mr Giorgianni was charged with an offence of culpable driving causing death following an accident involving the failure of the brakes of a truck that was being driven by his employee. The elements of the relevant offence included death or grievous bodily harm being occasioned through the motor vehicle, at the time of impact, "being driven by another person ... at a speed or in a manner dangerous to the public". Mr Giorgianni's conviction was quashed because the direction of the trial judge did not require that the jury be satisfied that Mr Giorgianni had "knowledge of all essential facts"[244] or had knowledge of "the facts which went to make up the offence",[245] where "knowledge" of a fact might be inferred from wilful blindness about that fact.
As Wilson, Deane and Dawson JJ explained, the facts that must be known by the alleged accessory are those facts necessary to establish intention: "a person cannot aid, abet, counsel or procure the commission of an offence ... without intent based upon knowledge of the essential facts which constitute the offence" (emphasis added).[247] In other words: "[i]ntent is an ingredient of the offence of aiding and abetting or counselling and procuring and knowledge of the essential facts of the principal offence is necessary before there can be intent".
The centrality of intention to accessory liability was reiterated by every member of this Court in Yorke v Lucas.[249] In that case, representations about turnover had been made by a company of which Mr Lucas was the managing director. The company's representations were found to be misleading or deceptive or likely to mislead or deceive within the proscription in s 52 of the Trade Practices Act 1974 (Cth). In upholding a finding that Mr Lucas was not an accessory to the misleading or deceptive conduct of his company, every member of this Court in Yorke v Lucas reiterated the point that the relevance of an accessory's knowledge was that it was used to establish intent: "[t]o form the requisite intent [an accessory] must have knowledge of the essential matters which go to make up the offence".[250] Since the conduct relied upon as misleading or deceptive was a false statement which Mr Lucas did not know to be false, it was held that Mr Lucas "lacked the knowledge necessary to form the required intent".
An accessory must intentionally participate in the essence of the conduct comprising the contravention
Perhaps the single greatest difficulty in the area of accessory liability lies in identifying the essence of the alleged conduct that a person must intend to participate in, and therefore the associated facts that must be known to form that intent, before that person can be an accessory. This intention, and the associated knowledge, is to be identified from the allegations made in the indictment or pleadings read in light of the offence or contravention provision.
In Giorgianni, in the context of alleged offences of manslaughter, the joint judgment approved cases that had held that there was sufficient intent for accessory liability for manslaughter if the accessory counselled or procured an intended act that carelessly caused death.[252] Similarly, in R v Salmon,[253] where charges for manslaughter were brought in circumstances where it was not known which of three men had fired the fatal shot, the negligence of three men collectively engaged in rifle firing practice was sufficient for each of them to be accessories to the manslaughter. By contrast, in Giorgianni, Gibbs CJ approved a decision, Callow v Tillstone,[254] which held that there was insufficient intent for accessory liability for exposing unsound meat for sale when Mr Callow, a veterinary surgeon, carelessly provided a certificate which procured the act of exposing unsound meat for sale.
The decisions are not easy to reconcile. As Glanville Williams said: "Callow did not know that the meat was unfit; Salmon, who took part in the shooting practice, did not know the boy was there. Both were negligent. Salmon was convicted, Callow was not. Why the difference?"[256] Ultimately, the intention that must be held by an accessory is best expressed as an intention to participate in the essence of the conduct comprising the offence or contravention. That requires characterisation of the acts, state of mind, circumstances or result that amount to the essence of the alleged conduct that comprises the primary offence or contravention. For instance: dangerous driving in Giorgianni; a misleading or deceptive statement in Yorke v Lucas; exposing unsound meat for sale in Callow v Tillstone; and careless shooting in Salmon.
Before the accessory can intend to participate in the essence of the alleged conduct comprising the primary offence or contravention, the accessory must know all the facts that are necessary to form their intention. Necessarily, this does not require knowledge of every fact required for proof of the primary offence or contravention: only those facts necessary to intend to participate in the essence of the offence or contravention. For instance, in Giorgianni it was held that Mr Giorgianni did not need to know, and indeed could not have known beforehand, of the death or grievous bodily harm that resulted: that was held not to be one of the "essential facts".[257] But Mr Giorgianni did need to know, in order to intend to participate in the offence, the essence of the alleged driving that was "dangerous to the public", namely that there was a defect in the brakes of the truck that created a real risk of harm to the public beyond that ordinarily associated with driving.
Proving intention about evaluative matters
Sometimes the essence of the alleged conduct is expressed as an evaluative concept. Although evaluation might be involved in determining what is required for the essence of the alleged conduct, it is irrelevant what the accessory understands the concept to mean. What the accessory must intend, and consequently the matters that must be known, will depend upon the essence of the alleged conduct.
For instance, although the concept of "dangerousness" involves an evaluative judgment about when a real risk of harm to the public arises, whether Mr Giorgianni intended to be involved in his employee driving dangerously would not depend upon what Mr Giorgianni thought that "dangerous" meant. That is a question of law. As explained at the outset of these reasons, in broad terms, dangerous driving is driving which involves a real risk of harm to the public beyond that ordinarily associated with driving. With the essence of the alleged conduct being driving in circumstances where a real risk of harm to the public arises, it would be enough that Mr Giorgianni knew that there was a defect in the brakes of the truck that created a real risk of harm to the public and intended that the truck be driven. It would not be sufficient merely that Mr Giorgianni knew that the brakes of the truck were irregular. Nor, as the joint judgment of Wilson, Deane and Dawson JJ held in their dispositive reasoning, would it be enough that he knew "the brakes on the vehicle were probably (or possibly) defective".[258] Actual knowledge of the defect leading to an actual belief in the real risk of harm to the public was required. The same is true of an intention to be involved in misleading or deceptive conduct, considered in Yorke v Lucas.[259] Again, the evaluation of what is misleading or deceptive would not depend upon what Mr Lucas considered to be the meaning of "misleading" or "deceptive". For Mr Lucas to have intended to be involved in the making of a statement that is likely to mislead or deceive required him to know of the statement that was made and of a tendency of the statement to lead others into error.[260] A knowledge of that tendency or likelihood would be inferred if Mr Lucas knew that the statement was false. Hence, accessory liability for misleading or deceptive conduct requires knowledge that the conduct would, or was likely to, lead others into error. As the New South Wales Court of Appeal held in Anchorage Capital Master Offshore Ltd v Sparkes,[261] this generally requires knowledge of falsity.
The same is again true of an intention to be involved in a substantial lessening of competition, considered in Rural Press Ltd v Australian Competition and Consumer Commission.[262] The concept of a "substantial lessening of competition" does not mean whatever the accessories, Messrs McAuliffe and Law, thought that it meant. Nor did they need to have even considered the legal concept in those terms. Indeed, "[o]nly a handful of lawyers think or speak in that fashion ... [I]t is not necessary to know that those facts [essential to the contravention] are capable of characterisation in the language of the statute".[263] The sufficient finding of the primary judge, reiterated on appeal, was that each of Mr Law and Mr McAuliffe intended to procure a result whereby competition from a rival newspaper in a duopoly "should be brought to an end".[264] On the allegations in the cases discussed above, the necessary intention and underlying knowledge concerning the essence of the conduct constituting the primary offence or contravention was: a real risk of harm to the public arising from defective brakes for the offence of "dangerous" driving; a likelihood that others will be led into error from the relevant conduct for the contravention involving the misleading or deceptive statement; and a likelihood that competition would be brought to an end for the contravention involving a "substantial lessening" of competition.
The same principles apply to accessory liability based upon a primary contravention of a broad or open-textured provision, such as for accessory liability under s 224(1)(e) for unconscionable conduct pursuant to s 21 of the Australian Consumer Law. Once the primary contravention is found, the essence of the alleged conduct constituting that contravention must be intended, and therefore known or believed, by the accessory.
Mr Wills and Site intended to be involved with the College's unconscionable conduct from 7 September 2015
The matters that the ACCC proved as the conduct that constituted the essence of the contravention of s 21 were the removal by the College of two important system controls against unsuitable enrolment risk and agent misconduct risk, with the expected consequence of more unsuitable students and more agent misconduct as a means to the end of increasing profitability.
The majority of the Full Court held that Mr Wills was knowingly concerned in the College's unconscionable conduct from 20 November 2015 rather than from the inception of that unconscionable conduct on 7 September 2015. The majority considered that until 20 November 2015, Mr Wills did not have "sufficient awareness of the extent to which the [two system controls] were important safeguards to protect the interests of students who were enrolled unwittingly or who were unsuitable for the course in which they were enrolled".
Contrary to the reasoning of the majority of the Full Court, there was a powerful foundation for the conclusion of the primary judge that Mr Wills had knowledge of the essence of the College's contravening conduct as at 7 September 2015. In particular: From around November 2010 until October 2017, Mr Wills was the Chief Operating Officer of Site, which had been the parent company of the College since 2014. The College's business was a substantial part of Site's consolidated revenue and profits and the primary judge found that this business would have been of key concern to Mr Wills. On 15 and 17 December 2014 and 18 February 2015, Mr Wills attended a series of meetings which discussed the Sero report (which, as explained earlier in these reasons, had identified issues including the need to monitor the information provided by agents to potential students and that 84.7 per cent of Sero's students had passed a first census date without ever accessing the learning management system). The minutes of the 15 December meeting record that Mr Cook, who was the Chief Executive Officer of the College, contrasted the operation of the College with the operation of Sero. Mr Cook specifically mentioned the two system controls of the College, observing that Sero was "not doing campus driven withdrawals and just processing through census regardless" and that the College had a "rigorous" outbound call process which would have ensured that Sero students who never accessed the learning management system "would never have been put through".
From at least July 2014, Mr Wills was a member of an advisory board for the College which had oversight over all key financial and operational aspects of the College's business. On 12 May 2015, papers were circulated for a meeting of the advisory board that reported a submission made by a College staff member to the Senate Education and Employment References Committee inquiry into the "Operation, regulation and funding of private vocational education and training (VET) providers in Australia". That issue was then discussed at the advisory board meeting.
On 16 June 2015, Mr Wills circulated papers for a meeting of the advisory board which included a report of the Senate Education and Employment References Committee which documented "aggressive marketing techniques" used by agents including misconduct involving incentives, misrepresentations and failures to disclose that debt would be incurred. The report also raised the risk of unsuitable enrolments, identifying issues regarding: insufficient provision of information to students affecting their ability to make fully informed decisions prior to enrolment; language and/or literacy barriers that led to students enrolling in courses for which they were unsuitable or in circumstances where they did not properly understand the terms and conditions; and inadequate screening processes for students.
On 26 June 2015, Mr Wills circulated an email attaching the business unit report for the College for May 2015. The report recorded that revenue was below expectations and attributed this to a failure by external agents to perform to expectations.
From July 2015, Mr Wills chaired and facilitated management meetings which were attended by senior management of the College.
In August 2015, the quality and compliance manager at Site, Mr Coward, sent an email to people including Mr Wills addressing issues that had arisen from a need to make a test for language, literacy and numeracy "agent proof". The email stated that the test "must be used in conjunction with the Pre-Enrolment Evaluation for the relevant course. It is the combination of both tools that will guide advice to the applicants as to their suitability or capacity and capability to undertake the relevant Diploma." On 18 August 2015, in preparation for a management meeting the following day, Mr Wills received several documents including Mr Cook's Chief Executive Officer report, which noted that the College had "been receiving feedback from our agents regarding our enrolment process" and stated that Mr Cook and the College's partnership manager had "met with marketing to finalise a new enrolment process". Mr Cook recorded that "conversion rate is low due to the enrolment process" and his report stated that "[r]ollout of the new enrolment process will commence 4th September". The report referenced, and the primary judge concluded that Mr Wills received, a flowchart that set out the changes to the enrolment process, including the shift to an inbound call procedure and the abolition of campus-led withdrawals.
Also on 18 August 2015, Mr Wills received the College's monthly report for July 2015. The report recorded that revenue was below expectations due to a lack of enrolment from agents, that agents had provided feedback regarding the College's current enrolment process, and that the feedback was being used to inform a revised enrolment process that was scheduled to be implemented from 4 September 2015. The report described the revised enrolment process as a strategy to increase revenue and mitigate the risk to revenue. On 19 August 2015, Mr Wills chaired and facilitated a monthly management meeting, at which the Chief Executive Officer report produced by Mr Cook and a Chief Operating Officer report produced by Mr Wills were discussed. The minutes record that Mr Cook "advised we are getting feedback from agents that our enrolment process is too complex and slowing down conversions significantly. Currently in the process to streamline the process with a rollout date of 4th September." With respect to Mr Wills' report, the minutes note that Mr Wills discussed that the College's competitors had, amongst other listed advantages, a "better admissions process". Also under Mr Wills' Chief Operating Officer report, the minutes record the following action item: "Project Plan in place by end of the week". Although there was no conscious resolution to implement those changes on that date, the primary judge found "that there was a common understanding, or expectation, of the attendees at the meeting that subject to further details still to be worked on the enrolment changes would be implemented".
On 20 August 2015, Mr Cook sent a report to Mr Wills and others observing that there had been "intense media scrutiny of the sector" and that "unscrupulous behaviour" by agents had required a focus on "consumer protection, quality control and identity verification". Mr Cook said that there was a need to ensure that "the appropriate measures are in place to ensure the quality of our services, and the protection of our customers".
Also on 20 August 2015, Mr Wills received an email from Mr Cook completing an "action item from yesterday's leadership meeting", to circulate a report "outlining the actions underway to address the underperformance of [the College] in July [2015]". The report stated that the financial situation of the College "has prompted Productivity Partners Management to undertake an urgent review of our operations in an attempt to turn around the developing trend of underperformance". The report referenced a review of the College's competitors conducted by Mr Wills which described several common themes within organisations that were identified as outperforming the College. One of those themes was "Excellent Sales/Admission Process". Under this heading, the report stated "[c]urrent review of enrolment process underway to ensure we are competitive in marketplace yet remain compliant. Revised enrolment process scheduled for [sic] go live on 4th September in conjunction with new website."
Mr Wills did not give evidence. None of these matters was contradicted by him and it can be inferred that he could not have said anything that would have assisted his case.[267] Before the primary judge, Mr Wills also attempted to rely on a lack of evidence regarding his practice of reading emails sent to him, or which he was copied into, for the apparent purpose of suggesting that while the evidence established that he had sent or received emails, it did not establish that he had read them. This submission was properly rejected by the primary judge.
Mr Wills may not have known of the operation and effect of the two system controls with precision. For instance, the primary judge concluded that it was not established that Mr Wills was aware of the proportion of students who avoided enrolment past the census date (and therefore incurring a VFH debt) due to the campus-led withdrawal process.[269] But, in light of the matters set out above, there was ample evidence to support the conclusion of the primary judge that prior to 7 September 2015, Mr Wills knew: "that there was an ongoing risk of [agent] misconduct and that that misconduct could significantly harm the interests of substantial numbers of [students]. The harm included that [students] might be enrolled ... even though they were unsuitable or not genuinely interested in doing the course for which they were enrolled, or had in some way been tricked, deceived or confused into enrolling"; that there was a "risk of unsuitable students being enrolled in their courses, and the need to take steps to mitigate that risk";[271] and that the abolition of campus-led "withdrawals would remove an important safeguard against" the two types of risk to students, "with the result that increased numbers and proportion of [students] would be enrolled and incur a VFH debt who would get no benefit from their enrolment".
The documentary evidence also supported the primary judge's conclusion that Mr Wills was aware in August 2015 that College revenue was below expectations due to lack of enrolment of students by College agents and that a strategy to address that was changes to the system for student enrolments, including abolishing campus-led withdrawals to ensure that students passed through the census in greater numbers. The primary judge properly concluded that Mr Wills believed that this strategy would motivate College agents to increase recruitment for the College, increase student numbers passing through the census and increase College revenue and profitability. In other words, "Mr Wills was a key driver of change to the [C]ollege's enrolment and withdrawal processes because of the [C]ollege's worsening financial position".[273] Although he probably did not emotionally desire an increase in unsuitable students or an increase in agent misconduct, he was aware that the changes to the College's system would involve these outcomes as a necessary means of achieving the end of increased profitability. Mr Wills intended this means to achieve the end of increased profitability for the College. He thus intended to be involved with the essence of the conduct that constituted the unconscionable conduct of the College and the College's contravention of s 21 of the Australian Consumer Law.
As explained earlier in these reasons, there was no dispute in this Court that Mr Wills' conduct and knowledge could be attributed to Site under s 139B of the Competition and Consumer Act 2010 (Cth). Since the majority of the Full Court was correct to conclude that Mr Wills was liable as an accessory, it follows that the majority was also correct to conclude that Site was liable as an accessory.
Conclusion
The ACCC did not bring any cross-appeal seeking to vary the orders of the Full Court so as to amend the declarations of the primary judge to provide expressly for Mr Wills' or Site's accessory liability having commenced on 7 September 2015. In those circumstances, each appeal should be dismissed with costs.
Steward J referred to a normative standard of conscience which is permeated with accepted and acceptable community standards before stating
As a general expression of principle, the foregoing is plainly correct. But there is presently a need for it to be unpacked. In particular, it does not answer the question as to whether unconscionable conduct, both as an equitable doctrine and as a statutory concept, must still involve serious "moral obloquy". For the reasons which follow, and with very great respect, the concept of moral obloquy, or a form of moral turpitude, endures as an essential attribute of unconscionable conduct. To explain why this is so requires an examination of our legal heritage.
The reference in Stubbings to recognised "values and norms" is reflective of what Allsop CJ had earlier said in a number of judgments, but in particular in Paciocco v Australia and New Zealand Banking Group Ltd.[276] There Allsop CJ observed that in applying a law, like s 21 of the Australian Consumer Law,[277] which requires a court to determine whether conduct is "in all the circumstances" unconscionable, the task does not involve "the choice of synonyms" but rather: "[I]t is to identify and apply the values and norms that Parliament must be taken to have considered relevant to the assessment of unconscionability: being the values and norms from the text and structure of the Act, and from the context of the provision. Parliament has given some guidance to its proper application (and to its meaning) by identifying in s 12CC certain non-exhaustive factors that may be taken into account by a court in deciding whether conduct was unconscionable. Given the value-laden character of the word, it is necessary to ascertain and organise the relevant values and norms by reference to which the meaning of the word is to be ascertained, and by reference to which the application of the section is to be undertaken (the two tasks being distinct). It must, however, be emphasised at the outset that the values and norms that are relevant are those that Parliament has considered, or must be taken to have considered, as relevant."
Earlier in his reasons Allsop CJ referred to the judgment of Spigelman CJ in Attorney General (NSW) v World Best Holdings Ltd. In that case, Spigelman CJ said that unconscionability "is a concept which requires a high level of moral obloquy".[279] Thus in Paciocco, Allsop CJ emphasised: "In particular, the phrase 'moral obloquy' and a 'high level of moral obloquy' has been used to identify a feature of unconscionability".
Referring to The Shorter Oxford English Dictionary on Historical Principles,[281] Allsop CJ said that obloquy involves a "deviation from moral rectitude, sound thinking or right practice".[282] In Kobelt[283] Keane J also stressed that, even with statutory rules against unconscionable conduct, the presence of some "high level" form of "moral obloquy" remained important. The term is useful in making it clear that the doctrine of unconscionable conduct is not merely about characterising commercial behaviour as "unfair" or "unjust".[284] Keane J thus said the following (in the context of s 12CB of the Australian Securities and Investments Commission Act 2001 (Cth)): "The use of the word 'unconscionable' in s 12CB – rather than terms such as 'unjust', 'unfair' or 'unreasonable' which are familiar in consumer protection legislation – reflects a deliberate legislative choice to proscribe a particular type of conduct. In its ordinary meaning, the term 'unconscionable' requires an element of exploitation. The term imports the 'high level of moral obloquy' associated with the victimisation of the vulnerable."
For that last proposition Keane J cited the following long list of authorities: Paciocco v Australia & New Zealand Banking Group Ltd;[286] Attorney General (NSW) v World Best Holdings Ltd;[287] Earl of Chesterfield v Janssen;[288] Commercial Bank of Australia Ltd v Amadio;[289] Louth v Diprose;[290] and Kakavas v Crown Melbourne Ltd.[291] However, the relevance of the concept of "moral obloquy" to the determination of unconscionable conduct has also recently been doubted. In Kobelt, Gageler J rejected it as a measure of such behaviour. He said: "In Paciocco v Australia & New Zealand Banking Group Ltd, I referred to unconscionable conduct within the meaning of s 12CB as requiring 'a "high level of moral obloquy" on the part of the person said to have acted unconscionably'. 'Moral obloquy' is arcane terminology. Without unpacking what a high level of moral obloquy means in a contemporary context, using that arcane terminology does nothing to elucidate the normative standard embedded in the section. The terminology also has the potential to be misleading to the extent that it might be taken to suggest a requirement for conscious wrongdoing. My adoption of it has been criticised judicially and academically. The criticism is justified. I regret having mentioned it."
Gageler J went on to observe that unconscionable conduct should be seen as behaviour "that is so far outside societal norms of acceptable commercial behaviour as to warrant condemnation as conduct that is offensive to conscience".[293] The rejection of moral obloquy as a measure to test the presence of unconscionable conduct appears to divorce or detach from the concept of good conscience any societal moral principle and replaces it with something called a "normative standard" of commercial behaviour. This analysis dismisses the term "moral obloquy" as "arcane".
It is unclear what is meant by a "normative standard"; by "societal norms" of commercial behaviour; or by "generally accepted" "values and norms". These somewhat anaemic concepts appear to mask, or skate over, necessary analysis in accordance with a known methodology. To borrow the words of Professor Birks, it looks like an attempt to "clothe" equitable principle "in more grown-up words".
In that respect, the required "normative standard" cannot be that of Australia's judiciary; it is not what each judge subjectively, and perhaps collectively, believes to be an acceptable standard of commercial behaviour. If it meant that, commercial life really would be subject to judicial caprice or, worse, mere fashion. It should not, with very great respect, be a "free-form choice".
Nor should recourse to generally accepted "values and norms" be seen as a reference to some form of empirical enquiry into what most Australians might think is a normative standard of behaviour.[296] If it was, how would a judge discern it? Would it be a matter for expert evidence of some kind? Would it be a matter of judicial notice? What if many standards exist: a possibility which is real enough in a multicultural society which may no longer exhibit "monolithic moral solidarity".[297] And what if the standards themselves are offensive or become so? It was undoubtedly the case that some Australian "values and norms" held before the Second World War would now be considered entirely repulsive. That includes standards about racial bigotry.
Prior to the introduction of the concept of statutory unconscionability, with its command that it not be "limited by the unwritten law relating to unconscionable conduct",[298] equity preferred to confine the concept of unconscionable conduct to clearly articulated rules and principles. This avoided any recourse to judicial whim. In Tanwar Enterprises Pty Ltd v Cauchi a majority of this Court said: "The terms 'unconscientious' and 'unconscionable' are, as was emphasised in Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd, used across a broad range of the equity jurisdiction. They describe in their various applications the formation and instruction of conscience by reference to well developed principles."
Kirby J also observed: "The purchaser accepted that 'unconscionability' in this context was not synonymous with a generalised sense of fairness as between the parties or with undefined notions of justice. In order to tame the elements of unpredictability introduced into legal relationships by the imposition of equitable principles, controls upon what might otherwise become a purely discretionary assessment are accepted. They include respect for the particular categories that have emerged in equitable jurisdiction, such that it is not taken to be at large."
But the statutory command applicable here – that s 21 of the Australian Consumer Law is not "limited by the unwritten law relating to unconscionable conduct" – might be thought to preclude the same faithful and complete adherence to the "well developed" principles of equity. However, that acknowledgement does not liberate the judge from underlying principle. Instead, it makes an understanding of underlying principle all the more important. As Keane J has reminded us all, Parliament chose the word "unconscionable" for a reason.[301] When considering the essential "values" which inform statutory unconscionability, Allsop CJ has observed: "The first group of values are the enduring historical (and contemporary) norms and values that are recognised in the unwritten law referred to in s 12CA, and that are embedded within the conception of unconscionable conduct as referred to in s 12CB. These are the norms and values in the law, especially, but not limited to, Equity, that bear upon the notion of conscience, in this context the conception of a business conscience – one attending conduct in trade or commerce."
But even the foregoing observation begs the question: what are the "enduring historical (and contemporary) norms and values ... recognised in the unwritten law"? The historical foundation of equity and its concern with standards of conscience is "ecclesiastical natural law"[303] or perhaps more accurately just "ecclesiastical law". In that respect, judges often refer to the "ecclesiastical" or even the "religious"[304] foundations of equity, without any more elaboration, and may do so in fear of using that one word which more accurately characterises the origins of equity, the doctrine of unconscionable conduct, and the society from which these laws historically emerged: Christianity.
The foregoing historical foundation was recently surveyed with his customary learning by Nettle J, writing extra-judicially, as follows: "Although Chancellors were chosen primarily for their learning and administrative skill, the majority of Chancellors of the Middle Ages were either bishops or archbishops. Thus, as Professor Tim Haskett observes in his summaries of their backgrounds: 'Even a cursory assessment of the curricula vitae of these men, from the beginning of the chancellorship of Edmund Stafford in 1396 to the end of Thomas More's tenure in 1532, is telling.' Of the 18 men who held the office over those 136 years, almost all were bishops or archbishops, and several were cardinals, well versed in ecclesiastical administration. The educational background of them was also significant: at university 4 had studied theology, 5 civil law, and 4 civil and canon law. It is not at all surprising, therefore, that they derived their ideas from the canonists: that the law of God governs the universe, and hence God's law, and the law of nature and reason, predominate over the laws of the state. As Plucknett reasoned, 'it must have been a perfectly natural instinct ... for a bishop, when faced by a conflict between law and morals, to decide upon lines of morality rather than technical law'. Each of those early Chancellors arrogated to himself the right to interfere in the course of law in particular instances, though they might be regarded as just according to law, if, according to conscience, they worked against the law of God."
Associate Professor Havelock has written that, according to Barton, the first known reference to "conscience" appeared in 1391, and that appeals to conscience became more frequent in the fifteenth century.[307] Fortescue CJ (ca 1394-1476) said that the word "conscience": "comes of con and scioscis. And so together they make 'to know with God' to wit: to know the will of God as near as one reasonably can."
As Keane J has pointed out, "too much should not be made of the influence of medieval Catholic moral philosophy on the Chancellors and their clerical staff".[309] Equity was also influenced by other sources, such as mercantile law, and, as both Keane J and Professor Birks have pointed out, by the need for "legal certainty".[310] There seem to have been no clerical Lords Chancellor since St Thomas More,[311] and as Campbell J, writing extra-judicially, has observed, religious-based concepts of conscience have since the seventeenth century been replaced with particular written rules, based on precedent. He said: "By the end of the seventeenth century, rules and principles already established were enough to provide a fair measure of certainty of the outcome of most litigious disputes in the Chancery."
Now of course, as Allsop CJ emphasised in Paciocco, the ultimate task "is to identify and apply the values and norms that Parliament must be taken to have considered relevant to the assessment of unconscionability" for the purposes, here, of s 21.[313] That is consistent with the observation of Sir Gerard Brennan, who, writing extra-judicially, observed: "The coercive power of the State must be reserved to the enforcement of those moral principles which, by a broad community consensus, enjoy recognition and acceptance and which need to be expressed as universal binding rules in order to facilitate a peaceful, ordered, just but free society."
But with those qualifications, the better view remains that "moral obloquy", or some form of moral turpitude, remains an important measure of unconscionable conduct. The medieval origins of conscience have emerged and developed over the centuries to refer to a more general moral and cultural standard by which commercial behaviour is to be judged as unconscionable or not. That longstanding and enduring moral standard is now juristically to be seen as a societal or community standard and it must be taken to have been included in Parliament's choice to use the word "unconscionable". In that respect, even though the statutory concept of unconscionable conduct cannot be confined to its meaning in equity (by reason of s 21(4)(a) of the Australian Consumer Law), it must nonetheless have a meaning; s 21 does not authorise a judge to undertake some enquiry into what is "fair" liberated from past precedent. Rather, the meaning of what is unconscionable conduct remains anchored in, and illuminated by, past case law, which well reflects those traditional concepts of morality which have developed over time.
The continuing utility and relevance of the concept of moral obloquy is evident when the "values and norms" come to be fleshed out. Thus, in Paciocco, Allsop CJ rightly rejected any application of "personal intuitive assertion" in determining what is and what is not unconscionable conduct and said that what is required: "is an evaluation which must be reasoned and enunciated by reference to the values and norms recognised by the text, structure and context of the legislation, and made against an assessment of all connected circumstances. The evaluation includes a recognition of the deep and abiding requirement of honesty in behaviour; a rejection of trickery or sharp practice; fairness when dealing with consumers; the central importance of the faithful performance of bargains and promises freely made; the protection of those whose vulnerability as to the protection of their own interests places them in a position that calls for a just legal system to respond for their protection, especially from those who would victimise, predate or take advantage; a recognition that inequality of bargaining power can (but not always) be used in a way that is contrary to fair dealing or conscience; the importance of a reasonable degree of certainty in commercial transactions; the reversibility of enrichments unjustly received; the importance of behaviour in a business and consumer context that exhibits good faith and fair dealing; and the conduct of an equitable and certain judicial system that is not a harbour for idiosyncratic or personal moral judgment and exercise of power and discretion based thereon."
All of the foregoing is consistent with a need for a grave level of moral obloquy to exist if a finding of unconscionable conduct is to be made.
Most, if not all, of the statutory factors set out in s 22 of the Australian Consumer Law, to the extent relevant in a given case, also bear out the traditional societal moral values and norms which underpin our understanding of what constitutes unconscionable conduct. Many of those factors are concerned to protect the vulnerable and the weak; examples include s 22(1)(a), (b) and (c). Others are concerned with "undue influence" and "unfair tactics" and with "good faith": see, for example, s 22(1)(d) and (l). These factors are directed at immoral behaviour in trade or commerce or behaviour constituting a high level of moral obloquy.
Moreover, without some form of a central organising philosophy based on history and precedent, it may in the future also be difficult to apply s 21 with certainty even with the assistance of the s 22 factors. That is because the "written" law of unconscionable conduct found in the Australian Consumer Law applies only a label and then highly generalised language in describing the factors to be considered. As Bathurst CJ observed, writing extra-judicially: "It would be difficult to find a statutory provision which is more general than a prohibition on 'conduct that is, in all the circumstances, unconscionable'. As I have already noted, it provides no guidance about what values, 'norms of society', or 'accepted community standards' might be relevant to a particular type of conduct, and this is largely the source of its problems. The checklist of matters in, for example, s 22 of the Australian Consumer Law (schedule 2, Competition and Consumer Act 2010 (Cth)) provides some assistance to the Court in reaching this conclusion. However, it does not provide certainty except in the most obvious of cases. It would be better for the legislature to take a more active role in prescribing the standards of conduct which it expects individuals to meet. This could well avoid many of the difficulties I see with the general prohibition on unconscionable conduct."
For the reasons given by Gordon J, I respectfully agree that the conduct of Productivity Partners Pty Ltd constituted unconscionable conduct for the purposes of s 21. The removal of the two safeguards was sharp practice and involved the requisite degree of moral obloquy. The majority of the Full Federal Court were correct to so conclude. ...
Gleeson J comments
...the content of the statutory standard of unconscionability is not obvious because Parliament has appropriated, without definition, the terminology of "unconscionability". Under the general law, "unconscionability" is a value-laden concept by which a person's conduct is judged against "standards of personal conduct compendiously described as the conscience of equity".[320] Since s 21(1) is "shorn of the constraints of the unwritten law",[321] it may apply in a case that involves a departure from "societal norms of acceptable commercial behaviour" that would not ground a claim for relief under the general law.
The terms "norm" and "value" are overlapping. Generally, a norm is a standard of conduct, such as a standard set by an industry code.[323] A value, which could encompass a norm, is a quality that is desirable. In these reasons, I will refer simply to standards.
Secondly, s 22 provides relevant guidance by "setting a framework for the values that lie behind the notion of conscience"[324] in s 21(1). Section 22 facilitates the identification of "the circumstances", within the meaning of s 21(1), in which allegedly unconscionable conduct must be assessed by listing, non-exhaustively, "matters" to which the court "may have regard" in deciding whether the conduct has contravened s 21(1).
The first function: identifying relevant standards
The role of s 22 in establishing a framework for analysing conduct alleged to be "unconscionable" arises: (1) in the absence of any statutory definition of the term; (2) in the context of, but without being limited by, the "unwritten law relating to unconscionable conduct";[325] (3) where contravening conduct may comprise a "system of conduct or pattern of behaviour" in the absence of proof that a particular individual has been disadvantaged by the conduct or behaviour;[326] and (4) where the relevant conduct may be assessed by reference to circumstances occurring after the formation of any relevant contract.
It is well established that, in s 21, "unconscionable" is a legal term that derives its meaning from principles of law and equity.[328] Further, to the extent that s 21 encompasses unconscionable conduct according to the unwritten law, that conduct falls within specific categories of cases. One such category invokes the principle expounded in Commercial Bank of Australia Ltd v Amadio, which "may be invoked whenever one party by reason of some condition [or] circumstance is placed at a special disadvantage vis-Ã -vis another and unfair or unconscientious advantage is then taken of the opportunity thereby created".[329] Under the general law, that principle may be invoked to protect the plaintiff from "victimisation" or "exploitation".[330] It has also been said that "mere inadvertence, or even indifference, to the circumstances of the other party to an arm's length commercial transaction" does not engage the principle, so as to deprive a party of the benefit of its bargain.
While s 21(1) is not limited by the unwritten law, it is important to recognise that it is not untethered from that law. By invoking the unwritten law but without being limited by it, s 21 requires some justification for its extension to a case or category of case that would not attract an equitable remedy pursuant to the unwritten law. By way of example, a principled extension, based upon the express provision for application of s 21(1) to systems of conduct, might concern a system that is designed to take unfair or unconscientious advantage of a consumer who is likely to be at a special disadvantage in relation to a supplier of goods or services. Such an extension would recognise the significance of special disadvantage, and the unconscientious taking advantage of that special disadvantage, for characterising conduct as unconscionable under the general law, in applying s 21(1) to a system as contemplated by s 21(4)(b).
Section 22 also provides for the principled extension of the scope of statutory unconscionable conduct, beyond its general law origins, by identifying relevant matters that may support a conclusion that conduct was, in all the circumstances, unconscionable under s 21. For example, s 22(1)(b) implies a standard of fair dealing that suppliers should not require customers to comply with conditions that are not reasonably necessary for the protection of the legitimate interests of the supplier; s 22(1)(g) implies a standard that suppliers should comply with the requirements of any applicable industry code; and s 22(1)(l) implies a standard that suppliers and customers should deal with each other in good faith. As has been observed by Paterson, Bant, Felstead and Twomey, the language of the statute offers a "secure way of understanding what it means for the statutory prohibition not to be 'limited by the unwritten law on unconscionable conduct'".
Whether a breach of the standards implicit in s 22(1) contravenes s 21(1) will require an evaluation of all the relevant circumstances, to determine whether the breach is sufficiently serious to warrant a conclusion of unconscionability. As more cases come before the courts alleging contraventions of s 21(1), principles governing what a particular standard requires and whether such a standard has been breached will be developed over time. This process of incremental development is nothing new. It is consistent with standard precedent-based legal reasoning by analogy that has been, and is still being, employed by Australian courts to develop and refine the existing common law and equitable causes of action.
If a plaintiff were to contend that the unconscionable character of the defendant's conduct is demonstrated by reference to standards that are not derived from the unwritten law of unconscionable conduct or the terms of s 22, it would be necessary to explain how the relevant standards are enforced by s 21 as an aspect of statutory unconscionability. In Paciocco v Australia and New Zealand Banking Group Ltd, Allsop CJ identified several standards against which conduct may be evaluated to determine whether it is, in all the circumstances, unconscionable.[333] Given the non-exhaustive language of s 22, it is conceivable that other standards might be drawn from the text, structure and context of the regime established by the ACL and the objects of consumer protection, or from other legislation that applies to the conduct in question....
.The primary judge summarised the ACCC's case in the following way:[336] "The ACCC's case is that the college changed its enrolment and withdrawal processes when it knew, or ought to have known, that the changes would significantly reduce protections for consumers and would lead to a materially increased risk of both unsuitable consumers being enrolled in its online courses and of misconduct by its sales agents ... and would materially diminish the prospect of this being identified. It says that the changes were calculated to increase the college's profits by increasing the number and proportion of consumers enrolled by the college and who passed a census date. It says that as a consequence of the changes, the college claimed and retained very significant increased revenue from the Commonwealth, and that the vast majority of consumers did not receive any vocational benefit despite incurring a substantial debt."
The majority in the Full Court concluded that the second element, that is, claiming and retaining VFH revenue, "completed" the unconscionable conduct and was significant because, by maintaining student enrolments and claiming VFH revenue from the Commonwealth, "the College took advantage of the students who were enrolled as a result of agent misconduct or who were unsuitable for enrolment".[337] This reasoning reflects the notions of vulnerability and taking advantage of vulnerability that are essential to the principle expounded in Amadio.
As described by the primary judge, the ACCC's case did not clearly identify why it contended that the College's system of enrolment was unconscionable. The ACCC appears to have made a forensic choice not to plead its case by reference to the matters listed in s 22(1). Nor did it articulate in its pleading a case that the College took advantage of vulnerable students which might have drawn on the unwritten law about unconscionability. Rather, the ACCC's pleading identified the impugned conduct and alleged that the conduct was unconscionable because it occurred in specified circumstances, which were, in summary, that: (1) the College had a profit maximising purpose; (2) the College was aware, or ought to have been aware, of the risk of agent misconduct, of the risk of unsuitable students being enrolled into courses offered by the College, and of the fact that the process changes would reduce the College's ability to mitigate those risks; (3) the implementation of the changes to the College's student enrolment processes resulted in certain consequences; (4) the College knew or ought to have known of those consequences; and (5) when the changes to its enrolment processes were implemented, the College knew or ought to have known that the process changes were likely to lead to the relevant consequences.
Based on this description, and having regard to the primary judge's findings, the ACCC's case was that the directing mind or minds of the College knew or ought to have known that the College's changed enrolment and withdrawal processes would result in certain consequences, which would be detrimental to an unknown proportion of consumers who acquired its services. One detrimental consequence was the materially increased risk (better described as an incidence) of enrolment of unsuitable consumers (that is, consumers with characteristics that meant they would receive little or no benefit from their enrolment and consequential debt). Another detrimental consequence was the materially increased incidence of misconduct by sales agents, with the result that consumers would be tricked into enrolling and would receive little or no benefit from their enrolment and consequential debt. The ACCC also emphasised the financial benefit of the changed processes for the College in the absence of any vocational benefit for the vast majority of consumers who enrolled in the College's courses, in the context of the financial cost to the consumers in the form of debt to the Commonwealth.
By expressing the ACCC's case in this way, it is possible to see what standards the ACCC might have relied on to illuminate more clearly the pathway from the impugned conduct to a conclusion of unconscionability. Articulating the standard or standards against which conduct is to be judged exposes for debate whether the asserted standard is an "accepted and acceptable community standard[]",[340] the deviation from which may be so significant in a particular case (or, even, in all cases) as to justify a conclusion of unconscionability that is in contravention of s 21(1).
A standard that the ACCC might have identified, based on s 22(1)(b), is that a supplier, through a system of conduct, should not impose conditions on consumers that are not reasonably necessary to protect the legitimate interests of the supplier. A standard to that effect was applied by the majority in the Full Court in concluding that the College's enrolment process during the relevant period was not reasonably necessary for the protection of the College's legitimate interests.
Another standard that the ACCC might have identified, based on s 22(1)(d), is that a supplier should not weaken systemic protections against the use of unfair tactics to enrol students, and thereby generate substantial revenue, at the expense of consumers who would suffer financial harm as a result of the likely increased incidence of such tactics. A third standard, which would be based on s 22(1)(l), is that a supplier should not weaken systemic protections against the use of bad faith conduct, in the form of dishonesty by the supplier's agents, to enrol students, and thereby generate substantial revenue, at the expense of consumers who suffer financial harm as a result of the likely increased incidence of such bad faith conduct. A final standard, not derived from the text of s 22, but implicit in the primary judge's findings, is that a supplier of education services should not disadvantage vulnerable consumers, driven by avarice and without regard to the consumers' interests.
The second function: identifying the "circumstances" of the conduct
In assessing conduct for the purposes of determining whether there has been a breach of s 21(1), the court must identify "all the circumstances" relevant to whether the conduct is unconscionable within the meaning of s 21(1). Matters specified in s 22(1) must be applied "if and to the extent that they apply in the circumstances".[343] Where evidence is adduced by either party about a matter specified in s 22(1), that matter will be part of the "circumstances" of the alleged conduct within the meaning of s 21(1) and, consequently, a mandatory relevant consideration in the sense that s 21(1) requires the court to consider "all the circumstances" in which the alleged conduct occurred. It is in this sense that the word "may" in s 22(1) is a "conditional" and not a "permissive" expression.
Where evidence is not adduced about a matter in s 22(1), the absence of evidence may still be relevant to an assessment of whether the conduct is, "in all the circumstances", unconscionable. In particular, "the relative strengths of the bargaining positions of the supplier and the customer" (s 22(1)(a)) and "the amount for which, and the circumstances under which, the customer could have acquired identical or equivalent goods or services from a person other than the supplier" (s 22(1)(e)) are matters that will always form part of the circumstances of the supply or possible supply of goods or services to a person, or the acquisition or possible acquisition of goods or services from a person. Section 22(1)(a) reflects the original and primary concern of statutory prohibitions against unconscionable conduct to protect consumers by addressing the harmful effects of disparities of bargaining power between supplier and consumer.[345] Section 22(1)(e) is a materiality consideration, suggesting a measure (although not the only measure) by which the harmful effects of the impugned conduct may be evaluated.
Accordingly, s 22(1)(a) and (e) are mandatory relevant considerations as a matter of construction of s 21(1) when read with s 22(1). In the absence of evidence about s 22(1)(a), a court may infer that the relative strengths of the bargaining positions of the supplier and the customer do not materially affect the characterisation of the alleged conduct as unconscionable. In the absence of evidence about s 22(1)(e), a court may infer that there is no material difference in the amount for which, or the circumstances under which, the customer could have acquired identical or equivalent goods or services from a person other than the supplier, or that the relevant services could not have been acquired on more advantageous terms. Such an inference may tend against a contravention of s 21(1), depending upon why the impugned conduct is said to be unconscionable.[346] Section 22(1) also includes several matters that will or will not form part of the "circumstances" of relevant conduct, namely, s 22(1)(b), (c), (d) and (k). If no evidence is adduced about one of these circumstances, the court should infer that the unconscionability of the alleged conduct does not depend upon that circumstance and therefore that the alleged conduct does not offend the standard entailed in that circumstance, a breach of which may support a finding of unconscionability. Those standards are that a supplier should not: require a customer to comply with conditions that were not reasonably necessary for the protection of the supplier's legitimate interests (s 22(1)(b)); engage in relevant conduct where the customer is unable to understand any documents relating to the supply or possible supply of the goods or services (s 22(1)(c)); exert undue influence or pressure on, or use unfair tactics against, the customer or a person acting on behalf of the customer in relation to the supply or possible supply of the goods or services (s 22(1)(d)); or secure a contractual right to vary unilaterally a term or condition of a contract between the supplier and the customer for the acquisition of the goods or services (s 22(1)(k)).
While s 22(1) is explicitly non-exhaustive of the matters that may support a finding of unconscionability within the meaning of s 21(1), a finding that the circumstances of the alleged conduct do not include a breach of one of the standards that is implicit in s 22(1) may tend to suggest that the conduct is not unconscionable. Thus, in Australian Securities and Investments Commission v Kobelt, Kiefel CJ and Bell J observed that "[t]he absence of the exertion of undue influence, pressure or unfair tactics bears on the assessment of whether the commercial advantage obtained by the supplier in connection with the supply of the financial service is an unconscientious advantage".[347] Similarly, in Paciocco v Australia & New Zealand Banking Group Ltd, Gageler J reasoned that it was not permissible for a party alleging statutory unconscionability to "ignore" matters identified in the relevant statute as circumstances bearing upon a finding of unconscionability.[348] While the non-existence of a matter in s 22(1) might be inconclusive (or even irrelevant) in a given case, this will depend upon the other circumstances that are said to support a conclusion of unconscionability, and the standards by reference to which that conclusion may be drawn. Non-existence of a matter may raise doubt as to what standards, not found in s 22(1) but said to be offended, are alleged to be protected by s 21(1), having regard to the terms of s 22(1).
A third category of "circumstances" specified in s 22(1) comprises matters of degree, found in s 22(1)(f), (i), (j)(i) and (l). If no evidence is adduced about one of these matters, the court may infer that that matter gives rise to no relevant circumstance within the meaning of s 21(1). The matters of degree are, broadly: (1) consistency of conduct in similar transactions; (2) unreasonable failure to disclose facts or risks to the customer; (3) the extent to which the supplier was willing to negotiate the terms and conditions of the contract with the customer; and (4) the extent to which the supplier and the customer acted in good faith. The matters of degree identify types of conduct, including conduct of the customer, that may contribute to a finding of unconscionability. Again, the absence of relevant matters may raise a doubt as to whether the alleged conduct is, in all the circumstances, unconscionable.
The fourth and final category of "circumstances" specified in s 22(1) comprises facts that may or may not exist in relation to the alleged conduct. The relevant provisions are s 22(1)(g) and (h) (requirements of industry codes) and s 22(1)(j)(ii)-(iv) (terms and conditions of any contract, and certain conduct in connection with any contract). If no evidence is adduced about one of these matters, the court may infer that that matter gives rise to no relevant circumstance within the meaning of s 21(1). While they do not exhaust the universe of factors that may render conduct unconscionable within the meaning of s 21(1), the matters listed in s 22(1) are of salience in determining whether a supplier has contravened s 21(1). In my view, the requirement that the impugned conduct be evaluated "in all the circumstances" points strongly to the general utility of a systematic analysis by reference to the matters listed in s 22(1) in any case alleging contravention of s 21(1).
Beech-Jones J stated
I write separately on the state of mind that a party must possess to be "involved" or "knowingly concerned" in a principal's contravention of the proscription on engaging in unconscionable conduct in connection with, inter alia, the supply of services found in s 21 of the Australian Consumer Law ("the ACL"). Such a party must have knowledge of the "essential facts" that constitute the contravention by the principal but need not know that the principal's conduct constitutes unconscionable conduct or otherwise have knowledge of the legal characterisation or complexion of those essential facts, including that the conduct is contrary to a particular standard that embodies what is meant by unconscionable. What constitutes the "essential facts" of a contravention of which the party must have knowledge will depend on what conduct the principal's contravention consists of in a particular case. The party that is involved or knowingly concerned in the principal's contravention may, but not necessarily will, possess knowledge of a particular matter or have a particular intent that the principal does not.
Background
The circumstances of, and issues arising in, these appeals are set out in the judgment of Gageler CJ and Jagot J. I agree with their Honours' reasons for rejecting the first two grounds of Productivity Partners Pty Ltd's ("the College") appeal, which challenged the finding of the majority of the Full Court of the Federal Court of Australia that it had engaged in unconscionable conduct. It follows that I would also reject ground three of Mr Wills' appeal, which contended that, if the College's appeal was successful, then he could not be liable as an accessory. I also agree with that part of Gordon J's judgment that addresses the meaning of "unconscionable conduct" in s 21(1) and the relationship between ss 21 and 22 of the ACL.
I also agree with the reasons of Gageler CJ and Jagot J for upholding the Australian Competition and Consumer Commission's ("the ACCC") notice of contention in each appeal, which challenged the finding of the majority of the Full Court that there was "an insufficient basis to infer that Mr Wills had a real appreciation, as at 7 September 2015, of the full consequences of the changes" to the College's enrolment and withdrawal procedures that came into effect on that day.[351] This also disposes of ground two of Mr Wills' appeal.
There remains to be considered ground one of Mr Wills' appeal (and ground three of the College's appeal, which challenges the finding that Site Group International Limited was knowingly concerned in or party to the College's unconscionable conduct through Mr Wills and which depends on ground one of Mr Wills' appeal). With ground one of his appeal, Mr Wills contends that the majority of the Full Court erred in finding that he had the requisite knowledge to be liable as an accessory to a contravention of s 21 of the ACL. As the ACCC's notices of contention should be upheld, the relevant findings about Mr Wills' knowledge that must be considered are those of the primary judge.
Accessorial liability under the Australian Consumer Law
Within Pt 2-2 of Ch 2 of the ACL, s 21(1) relevantly proscribes a person, in trade or commerce, in connection with the supply (or possible supply) of services to another person from engaging in conduct that is, in all the circumstances, unconscionable. Within Pt 5-2 of Ch 5 of the ACL, s 224(1) confers on a court power to impose a pecuniary penalty on a person who the court is satisfied has contravened various provisions of the ACL,[352] including s 21(1), or has attempted to contravene those provisions,[353] as well as any person who the court is satisfied: "(c) has aided, abetted, counselled or procured a person to contravene such a provision; or (d) has induced, or attempted to induce, a person, whether by threats or promises or otherwise, to contravene such a provision; or (e) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or (f) has conspired with others to contravene such a provision".
Relevantly the same wording as s 224(1)(c)-(f) is used in the definition of "involved" in the ACL.[355] The significance of that definition is that a claimant who suffers loss or damage because of conduct that contravenes a provision of Ch 2 or 3 of the ACL may recover the amount of the loss or damage from the contravener or any person "involved" in the contravention.[356] This includes a contravention of s 21(1), as well as s 18(1) of the ACL, which proscribes a person, in trade or commerce, from engaging in conduct that is "misleading or deceptive or is likely to mislead or deceive". The ACL also extends the power to grant injunctive relief for breaches of s 21(1) and other provisions of the ACL to persons who fall within the above categories (ie, aider, abettor etc).
A variety of Commonwealth legislation adopts the above language in similar contexts.[358] The references to aiding, abetting, counselling, procuring or being directly or indirectly knowingly concerned in or a party to a contravention appear to have their statutory origins in former s 5 of the Crimes Act 1914 (Cth).
Giorgianni and Yorke v Lucas
In Yorke v Lucas, this Court construed the provision of the (former) Trade Practices Act 1974 (Cth)[359] that was materially identical to s 224(1)(c)-(f) and the definition of "involved" in the ACL as requiring an intentional participation in the relevant contravention on the part of an accessory.[360] An accessory, including a party said to be knowingly concerned in the contravention, must have knowledge of the "essential matters",[361] the "essential facts"[362] or the "essential elements"[363] of the contravention. This conclusion was derived from applying the understanding of the words "aided, abetted, counselled or procured" to "designate participation in a crime as a principal in the second degree or as an accessory before the fact" in criminal law as explained in Giorgianni v The Queen.
Giorgianni confirmed that, even where an offence committed by a principal is one of strict liability, an accessory to that offence must have some form of guilty knowledge.[365] In Giorgianni, the appellant was convicted of procuring an offence under (former) s 52A of the Crimes Act 1900 (NSW) of driving a motor vehicle at a speed or in a manner dangerous to the public where death or grievous bodily harm is occasioned through the impact of that vehicle with any vehicle or other object.[366] The appellant's employee drove a truck with defective brakes, which failed, and the truck struck several vehicles of which some passengers were killed or injured.[367] There was evidence from which it could be concluded that the appellant was, or ought to have been, aware that the brakes were defective.[368] The offence under s 52A was strict in the sense that, although the driving must have been conscious and voluntary, to be culpable a driver of the vehicle need not have known of the dangerous condition of the vehicle.
The trial judge in Giorgianni directed the jury that the Crown had to prove that the appellant "knew or ought to have known" of the defect with the brakes and "the danger thereby to the public".[370] This Court held that the trial judge's summing up was defective insofar as it permitted the jury to convict the appellant based on imputed knowledge (ie, "ought to have known") as opposed to actual knowledge (or what might be inferred from "wilful blindness").[371] Using similar language to Yorke v Lucas, the Court referred to the necessity to establish that the accessory had knowledge of what was variously referred to as the "essential circumstances",[372] the "essential matters"[373] or the "essential facts"[374] of the offence, even though the principal offender could be convicted "in the absence of [such] knowledge".
Two related limitations on the breadth of the proposition in Giorgianni that the accessory must have knowledge of the essential circumstances, matters or facts of the principal's offence, even though the principal offence is of strict liability, should be noted.
First, the accessory's knowledge must concern the relevant nature, character and circumstances of the principal's unlawful act, but does not necessarily extend to knowledge of an element of the contravention that is a consequence of that act.[376] Thus, in Giorgianni, it was an element of an offence under s 52A of the Crimes Act 1900 (NSW) that death or grievous bodily harm was occasioned to a person through impact with a vehicle being driven in a manner dangerous to the public. Each member of this Court held that to be an accessory, it is not necessary to have any knowledge or intention concerning the impact of the vehicle or the occasioning of death or grievous bodily harm.[377] Second, the accessory's knowledge of the essential circumstances, matters or facts that constitute the offence does not extend to knowledge that those circumstances, matters or facts constitute an offence.[378] Further, the requisite knowledge of the accessory does not extend to knowledge of the legal characterisation or complexion of the essential circumstances, matters or facts of the offence.[379] Thus, in Rural Press Ltd v Australian Competition and Consumer Commission, this Court rejected a contention that to be an accessory to a contravention of former s 45 of the Trade Practices Act, the accessory must have knowledge that the principal's conduct "was engaged in for the purpose or had the likely effect of substantially lessening competition ... in the market", that being the language of the statutory provision applicable to the principal.[380] It was observed that it was necessary to know the "essential facts" but not that those facts were "capable of characterisation in the language of the statute".[381] In Rural Press, the facts found against the accessories included that they intended that competition in a particular market and area "should be brought to an end".
The conclusion in Rural Press that the characterisation of the market effect of the principal's conduct was not an "essential fact" of which they needed to have knowledge is consistent with Toohey and Gaudron JJ's analysis of the meaning of "dishonesty" in Peters v The Queen[383] (which was later endorsed in Macleod v The Queen[384]). In Peters, Toohey and Gaudron JJ held that where "dishonesty" is not used in legislation in a "special sense", it is established by first demonstrating that a person had some particular knowledge, belief or intent at the time they committed the relevant act and then demonstrating that engaging in the act with that state of mind was dishonest "by the standards of ordinary, decent people".[385] Their Honours added that whether or not the means employed were contrary to those standards was not a "question of fact", but a "question of characterisation".[386] As such, it was not a matter for evidence even though, if there is a dispute about whether the means employed were dishonest according to the standards of "ordinary, decent people", the issue is left to the jury.
In some contexts, the difference between an accessory having knowledge of the essential circumstances, matters or facts (or, to use the language in Yorke v Lucas, the essential matters, facts or elements) concerning the acts of the principal, on the one hand, and the legal characterisation or complexion of those circumstances, matters or facts, on the other hand, can be fine. Many of the dangerous driving cases involving accessories state or imply that an accessory must have knowledge that the relevant defect, manner of driving or condition of the driver was "dangerous" or represented a "danger".[388] While the word "dangerous" was used in the statutory provisions creating the offences in such cases,[389] requiring such knowledge on the part of an accessory is not necessarily the same as attributing to the accessory knowledge that the vehicle was driven in a manner dangerous to the public. In any event, the operative principle was articulated in Rural Press. As explained next, Rural Press reflected what was decided in Yorke v Lucas in relation to accessorial liability for misleading or deceptive conduct.
Accessorial liability for misleading or deceptive conduct
The statutory provision contravened by the principal in Yorke v Lucas was the previous equivalent of s 18 of the ACL.[390] Like s 18, that provision imposed a form of strict liability on a principal that engaged in conduct that was misleading or deceptive or likely to mislead or deceive.[391] In Yorke v Lucas, a corporate land agent representing the vendor of a business was found to have contravened that provision by unwittingly but falsely representing the average weekly turnover of the business to a proposed purchaser. The director of the land agent who made the representation (Mr Lucas) was found not to be involved in the contravention in circumstances where he was "not aware and had no reason to suspect" that the information provided concerning the turnover was incorrect.[392] In concluding that the director had to have knowledge of the falsity of the representation to be involved in the contravention, Mason A-CJ, Wilson, Deane and Dawson JJ observed: "A contravention of s 52 involves conduct which is misleading or deceptive or likely to mislead or deceive and the conduct relied upon in this case consisted of the making of false representations. Whilst Lucas was aware of the representations – indeed they were made by him – he had no knowledge of their falsity and could not for that reason be said to have intentionally participated in the contravention." (emphasis added)
Brennan J also held that to be knowingly involved in the contravention, the director must have had "knowledge of the acts constituting the contravention and of the circumstances which give those acts the character which s 52 defines" (ie, the falsity of the representation).
However, consistent with what was later decided in Rural Press, knowledge of the falsity of the principal's representation is not to be equated with knowledge that the principal has engaged in conduct that was misleading or deceptive (or likely to mislead or deceive) contrary to the statute. Knowledge of the falsity of the representation was necessary in Yorke v Lucas because the misleading conduct in that case "consisted" of the making of a false representation (to a particular recipient).[395] However, the conduct referred to in s 18 of the ACL is not confined to representations,[396] and not all cases where the conduct can be characterised as the making of a representation are as straightforward as those considered in Yorke v Lucas. An identification of the requisite knowledge that an accessory must possess will depend on the nature of the conduct of the principal that contravenes the statutory provision.
For example, in some contexts, the failure to disclose some relevant fact or matter may amount to misleading or deceptive conduct where the circumstances are such that there is a reasonable expectation that the fact or matter would be disclosed.[397] Although it is neither possible nor necessary to exhaustively state in the abstract the requisite knowledge an accessory must possess to be liable for such misleading or deceptive conduct, in broad terms an accessory would have to be aware of the non‑disclosure and that disclosure was required. Such knowledge is different to being aware that the principal's conduct was misleading or deceptive within the meaning of the statute. Similarly, where the conduct is directed towards a large class of persons or the public in general, a conclusion that the principal has engaged in conduct that is misleading or deceptive contrary to the statute will, at least in part, require an attribution of certain characteristics to the "ordinary" or "reasonable" members of that class of persons (or the public in general) to whom the conduct is directed to determine whether the conduct has a tendency to lead into error.[398] The precise state of mind required to establish accessorial liability for such conduct will depend on how the case is framed but it may not necessarily require that an accessory have knowledge of, say, the characteristics of the "ordinary" or "reasonable" members of the class of persons (or the public in general) to whom the conduct is directed.
In Anchorage Capital Master Offshore Ltd v Sparkes,[399] the New South Wales Court of Appeal (Ward P, Brereton JA and Griffiths A-JA) noted the existence of a longstanding difference of opinion in the decisions of intermediate courts of appeal as to whether, to be liable as an accessory in circumstances like those considered in Yorke v Lucas, an accessory had to have knowledge of the falsity of the representation[400] or if mere knowledge of the facts that rendered the representation false was sufficient.[401] In this case, the majority of the Full Court of the Federal Court took the latter view.[402] That approach is contrary to Yorke v Lucas and Giorgianni. In Anchorage Capital, the Court of Appeal was correct in adopting the former view, although the Court also erred in equating that knowledge with knowledge that the principal's conduct was misleading or deceptive.
Accessorial liability for unconscionable conduct
In this Court, there were several different formulations of the state of mind Mr Wills contended had to be established before it could be concluded that he was involved in the College's contravention of s 21 of the ACL. Thus, Mr Wills contended that to be liable as an accessory, it had to be established that he knew that the College's conduct "involve[d] predation, exploitation, or lack of good faith, or otherwise [bore] the character that render[ed] it against conscience". The difficulty with this contention is that conduct need not be characterised as predatory, exploitative or lacking in good faith to be unconscionable, and to say that an accessory must know that the principal's conduct "bears the character that renders it against conscience" is just a different way of stating that the accessory must know that the principal's conduct was unconscionable. It was also contended that, consistent with Gordon J's analysis of the meaning of "unconscionable" in Stubbings v Jams 2 Pty Ltd,[404] it had to be alleged and found that Mr Wills knew that the relevant conduct of the College was "offensive to a conscience informed by a sense of what is right and proper according to values which can be recognised by the court to prevail within contemporary Australian society".
This submission should also be rejected. The description of unconscionability in Stubbings and the cases to which it refers were not identifying some essential matter, fact or element of a contravention of s 21(1) of the ACL of which an accessory must have knowledge. To require that an accessory appreciate that the conduct of the principal contravened a community standard identified as part of a judicial exposition of the meaning of unconscionability is no different in substance to requiring that the accessory know the legal complexion or characterisation of the principal's conduct
To be liable as an accessory, a party such as Mr Wills must, inter alia, have knowledge of the essential facts concerning the conduct of the principal that was said to amount to unconscionable conduct contrary to s 21(1) of the ACL. It follows from the above that this requires a close analysis of what the principal's contravention of s 21(1) "consisted" of. If, in a simple case, the unconscionable conduct was found to consist of the principal, being a supplier, engaging in conduct requiring a customer to comply with a condition that was not reasonably necessary for the protection of the supplier's legitimate interests,[407] then the accessory would have to be aware that the condition was imposed and that it was not necessary to protect the supplier's legitimate interests, even if the supplier did not have knowledge of the latter.
However, the analysis of the knowledge an accessory must possess can become more complex depending on the nature of the unconscionable conduct alleged and found against the principal. With unconscionability, the conduct alleged against the principal often involves the attribution of some form of intention or knowledge of at least some conduct, circumstance, consequence of conduct or likely result of conduct to the principal. In such a case, to be liable, the accessory will also have to possess that intention or knowledge. Thus, while a party "involved" or "knowingly concerned" in a contravention of s 21 must possess knowledge of the essential facts of the principal's contravention, even if in some cases the principal did not, that does not mean that in all cases the intention or knowledge of the accessory will differ from that of the principal.
Mr Wills was involved in the College's unconscionable conduct
The primary judge's findings of knowledge and intention against Mr Wills included that, from no later than 7 September 2015, he was aware of the proposed enrolment and withdrawal process changes at the College,[408] that the changes were being made to maximise or increase the College's profits,[409] that there were risks of agents engaging in misconduct in the recruitment of students (ie, the "CA misconduct risk")[410] and unsuitable students being enrolled (ie, the "unsuitable enrolment risk"),[411] that the process changes would remove mechanisms that mitigated those risks,[412] and that the result of the process changes would be (and over time was) a substantial increase in the number of students who enrolled in the College's online courses. The primary judge also found that by the time Mr Wills commenced as acting Chief Executive Officer of the College in November 2015, he "knew that substantial numbers and proportion of students were getting nothing from the college yet they were incurring very substantial debts to the Commonwealth".[414] Lastly, the primary judge found that Mr Wills knew that "the college ran a system of recruitment, enrolment and progression through census dates of students which enabled the college to pocket vast sums of money, effectively from students, via the [FEE-HELP] scheme, in return for which the college had to deliver nothing to very substantial numbers of students".
The effect of the primary judge's findings was that, from no later than 7 September 2015, Mr Wills knew that the process changes would lead to the CA misconduct risk and the unsuitable enrolment risk materialising and that as a consequence substantial numbers of students would incur debts for courses that they did not properly appreciate they had enrolled in and in respect of which they would not receive any benefit,[416] and knew and intended that the College would derive substantial revenue (and profits) as a consequence. After 7 September 2015, Mr Wills' belief and expectation that these matters would ensue from the enrolment and withdrawal process changes gave way to knowledge that they had come to pass.
As noted, with some contraventions of s 21 of the ACL, the accessory need not possess any greater intention or knowledge than that of the principal. This is such a case. The essence of the unconscionability alleged and found against the College was that it knew of the likelihood that the process changes would lead to misconduct of the agents in enrolling students and that the College intended to take advantage of that likelihood to increase profits.[417] The findings made against Mr Wills were to the effect that he shared that knowledge and intention. Those findings were sufficient to establish that he had the requisite state of mind to be involved or knowingly concerned in the College's unconscionable conduct.
