Financial literacy continues to receive attention in analyses of the drivers of noninsurance in Australia. Government advertising campaigns have been launched seeking to address an alleged lack of awareness of the benefits of building, home contents and comprehensive car insurance in the community. Yet there is inadequate research connecting insurance uptake decisions with financial literacy levels. In this article, we address this research gap by drawing upon surveys of ‘insured’ Australians with building, home contents and comprehensive car insurance; and ‘uninsured’ Australians without any of these insurance products. While our findings do not indicate a clear-cut relationship between financial literacy and noninsurance, they do show somewhat lower financial literacy and confidence levels among those who forego coverage. However, the question of whether investment in generalised financial literacy education would result in greater insurance uptake remains open. Ultimately, more information does not address the ‘primary problem’ of affordability, which renders insurance inaccessible to many Australians, particularly those on low incomes, despite their acknowledgment of its importance.

Financial product design and distribution obligations commenced in Australia in October 2021. These obligations require issuers to design financial products that meet the needs of an identified target market and to take reasonable steps to ensure that the product is distributed to that target market. The obligations have been described as requiring financial products to be designed and distributed in a way that meets the needs of consumers. Enforcement of the obligations is undertaken by the Australian Securities and Investments Commission (ASIC). ASIC has a wide range of enforcement powers in relation to the obligations, including issuing stop orders, accepting enforceable undertakings and commencing civil or criminal litigation. The authors examine all ASIC enforcement actions relating to the obligations from October 2021 to June 2024. The issues discussed by the authors include which enforcement actions are prioritised by ASIC and the types of financial products that are the subject of this enforcement action. The authors argue that this is an area of ASIC's responsibilities in which it has demonstrated effective enforcement capabilities.

Civil penalties were introduced into the corporations legislation in 1993. They were seldom used initially. Only 14 civil penalty actions were commenced by the corporate regulator in the first six years. Over the past three decades, the civil penalty regimes which the Australian Securities and Investments Commission (‘ASIC’) enforces have significantly expanded. To understand the impact of these changes, the authors analyse a dataset of all ASIC’s civil penalty actions that were finalised for the 10-year period from 2013 to 2022. Based on this analysis, the authors argue that civil penalty actions have now become a very significant part of ASIC’s enforcement strategy. The authors also discuss other aspects of ASIC’s use of civil penalties, including ASIC’s success rate in this type of litigation, the characteristics of the defendants, the most common claims made by ASIC in civil penalty proceedings and the orders most often imposed by the courts. The authors identify possible reasons for their findings.

The statutory duties and obligations owed by directors and officers of Australian companies under the Australian corporations legislation are enforced by the Australian Securities and Investments Commission (ASIC). There has been recent debate regarding whether ASIC is commencing enough enforcement actions against company directors and officers. The authors examine enforcement action brought by ASIC against directors and officers in which ASIC was successful for the three years from 2021 to 2023. The findings include: (1) of the 203 successful outcomes, 42 were criminal outcomes, 22 were civil outcomes, 136 were administrative outcomes, two were enforceable undertakings and one was a public warning notice; (2) nearly all ASIC enforcement outcomes (196 of 203) were against directors and only seven were against officers; (3) while 95 percent of the administrative outcomes and 83 percent of the criminal outcomes were against directors or officers of private companies, only 50 percent of the civil enforcement outcomes were against directors or officers of private companies; (4) the most common statutory offence, by a significant margin, was s 184(2) of the Corporations Act, which is a prohibition on misuse of position; and (5) banning or disqualification orders were the most common enforcement outcome (134 of 203 total outcomes). The authors discuss possible explanations for these findings. An edited and shorter version of this research report was published as Ian Ramsay and Miranda Webster, 'Enforcement Action Against Company Directors and Officers by the Australian Securities and Investments Commission' (2024) 45 Company Lawyer 399-406.

Multiple inquiries have recently been conducted in relation to whether the operators of casinos in Australia are suitable to hold a casino license. The recommendations of these inquiries have resulted in significant legislative changes. However, what has been less explored is the failings by casino regulators to identify and act on the misconduct by casino operators that was identified by the inquiries. The authors discuss how the regulatory framework for casinos changed in a way that facilitated the misconduct. They then consider the responsibilities and powers of the casino regulators and argue that the regulators had the power to detect and act on the misconduct. They also argue that the effectiveness of the reforms that have resulted from the casino inquiries depends on enhanced enforcement by the casino regulators and that more attention must be paid to how casino regulators should be held to account for the performance of their responsibilities.

Financial product design and distribution obligations commenced in October 2021. These obligations require issuers to design financial products that meet the needs of an identified target market and to take reasonable steps to ensure that the product is distributed to that target market. Enforcement of the obligations is undertaken by the Australian Securities and Investments Commission (ASIC). ASIC has a wide range of enforcement powers in relation to the obligations, including issuing stop orders, accepting enforceable undertakings and commencing civil or criminal litigation. The authors examine all ASIC enforcement actions relating to the obligations from October 2021 to June 2024. The issues discussed by the authors include which enforcement actions are prioritised by ASIC and the types of financial products that are the subject of this enforcement action. The authors argue that this is an area of ASIC's responsibilities in which it has demonstrated effective enforcement capabilities.

In Australia, building, home contents, and comprehensive car insurance facilitate the accumulation of assets associated with rational, responsible citizenship while promising protection in case of events such as fire, flooding, car accident, or theft. Yet many Australians lack these insurance products, risking exposure to devastating financial losses when disaster strikes. This article compares the findings of online surveys of insured and uninsured Australians and explores the factors driving some to forego insurance coverage. Our findings show that inability to afford premiums is a major driver of noninsurance in Australia, particularly for people with low levels of disposable income and assets, or those living in areas affected by rising disaster risk. Yet the decision to forego insurance is also influenced by attitudes to financial matters. Australians who forego insurance have lower levels of trust in insurance and are less likely to consider themselves under a social obligation to be insured. However, contrary to portrayals of the uninsured as risk-takers, the decision to forego coverage does not appear to be driven by lesser risk aversion among uninsured Australians relative to those who do purchase building, home contents, and comprehensive car insurance policies.

Home contents and comprehensive car insurance are not legally mandated in Australia. With the exception of strata title properties, there is also no legal requirement for homeowners to purchase building insurance. While these insurance products are widely regarded as ‘essential’ for managing the risk of disasters and other unexpected events causing property damage, significant proportions of Australians lack these types of coverage. In this article, we examine the extent of unmet need for insurance among this group, who remain vulnerable to devastating financial losses despite the availability of social security and other safety nets in the disaster context and beyond. In doing so, we draw upon the findings of a survey of uninsured Australians whose limited financial resources indicate a high level of exposure to financial loss in case of emergencies causing severe property damage. By contrast to industry assumptions of limited interest in insurance among those without coverage, our findings suggest most uninsured Australians would prefer to have some cover if it was affordable. We examine law and policy reforms that could address such unmet need, arguing that direct subsidies for Australians on low incomes, perhaps supported by statutory recognition of insurance as an ‘essential’ service, would be the most effective means of improving premium affordability for this group.

In Australia, pawnbrokers are largely exempt from national consumer credit legislation. They are instead governed by state legislation, which affords very limited protection to consumers. This study outlines the current regulation of pawn lending and presents a qualitative profile of consumers who use pawn loans. In the absence of reliable industry data, it draws on case law, media reports, law reform submissions, previous qualitative studies and an online survey of consumers, conducted by the authors. The study argues that the light regulation of pawn lending creates a high risk of consumer harm and regulatory arbitrage by unscrupulous providers. It proposes law reforms and policy measures to address these risks and to provide more effective protection to consumers.

There were originally eight civil penalty provisions enforced by the Australian Securities Commission. Now there are 436 civil penalty provisions enforced by the Australian Securities and Investments Commission (ASIC). Given this very substantial increase, the authors analyse the reasons for the introduction and expansion of ASIC's civil penalty regimes. In addition, the authors consider several issues relating to the merits of civil penalties. The authors argue that (1) the significant increase in the number of civil penalty provisions, as well as the expansion of accessorial liability under all of ASIC's civil penalty regimes, means that debates about the merits of civil penalty proceedings assume more importance; and (2) the recent significant increase in the maximum civil pecuniary penalties that apply to the civil penalty regimes administered by ASIC means that courts are likely to increasingly focus on whether penalties are oppressive.

Public warning notices are issued by regulators with the objective of preventing harm to the public. They do this by identifying conduct that is causing harm or may cause harm. The Australian Securities and Investments Commission (ASIC) has published only 12 public warning notices since it was given the power to publish these notices in 2010. The authors explore the use of public warning notices by ASIC and the Australian Competition and Consumer Commission and consider why public warning notices have been little used by these regulators. Other issues discussed by the authors include the benefits and concerns associated with these notices, factors that may be considered in the making of notices and the form of notices, and whether ASIC's public warning notices power should be broadened, as recommended in a 2022 report of the Senate Economics References Committee.

Building, home contents and comprehensive car insurance promise protection against loss or damage from fire, flooding, accident and theft. In Australia, young people aged 18–24 are among the groups most likely to forego these insurance products. Yet research on the reasons for this remains limited, as noninsurance among young people is attributed to their dependent or “fledgling” life stage, with minimal income and assets warranting protection. In this article, the authors argue that noninsurance may have serious consequences for young people, particularly if they have limited savings and cannot count on financial assistance from their families. Drawing upon survey findings, the authors undertake an in-depth investigation into the role of asset levels, affordability and attitudes in driving young people to forego insurance. Their findings suggest that young people are not especially predisposed to distrust insurers, to consider insurance inessential or to oppose insurance on principle. However, other attitudes — including lesser risk aversion, higher confidence in their capacity to mitigate risks, and perceptions of insurance as irrelevant to their circumstances or “not for them” — may be more prevalent in this age group, driving them to remain uninsured even when they have assets warranting protection and sufficient income to offset affordability concerns.

In recent decades, Australian public agencies have increasingly adopted the practices of the private sector when recovering debts and have outsourced part or all of their debt collection to private firms. This practice gained notoriety during the Royal Commission into the Robodebt Scheme, which identified "disastrous" failures in the Commonwealth Government's collection of social security debts, both directly and through private agents. These failures caused serious harm to thousands of people, including vulnerable low income earners. This article highlights significant gaps in the legal frameworks concerning debt collection by government agencies and firms acting on their behalf. It outlines law and policy reforms which would address the current lack of consistency and transparency in government debt collection practices, and offer greater protection to individuals when they are pursued for debts by government agencies. It argues that such reforms are vital to ensuring that the mistakes of Robodebt are not repeated

‘Buy now pay later’ (‘BNPL’) has been described as ‘an Australian fintech growth story’, an innovative and disruptive financial product that has fundamentally changed the global market for consumer credit. Providers assert that BNPL promotes financial inclusion, allowing consumers to avoid the fees and interest associated with other, more expensive financial products. Yet critics maintain that BNPL is too readily accessible and that it can cause serious hardship, particularly for low income earners. This article is the first scholarly empirical study to focus on low income earners’ use of BNPL. It draws on a series of focus groups with consumer advocates and an online survey of consumers who have used BNPL, either alone or in conjunction with payday loans or pawn loans. Drawing on this data, the authors evaluate the Commonwealth Government’s current proposal to regulate BNPL more stringently, under the National Consumer Credit Protection Act 2009 (Cth).

The test of whether an entity is carrying on business in Australia is an important threshold for the application of many Australian laws. The meaning of this test in the context of the application of the Privacy Act 1988 (Cth) to a multinational corporation that operates an internet-based business has recently been considered by the Full Federal Court of Australia in Facebook Inc v Australian Information Commissioner. The authors analyse the case, evaluate its merits and identify several important implications. The implications include: (1) the court was able to find a prima facie case that Facebook Inc carried on business in Australia even though the company did not have a physical presence in Australia and the traditional indicia used by courts, such as whether there are employees and a fixed place of business, were absent; (2) the judgments show that in answering the question whether a company such as Facebook Inc is carrying on business in Australia it is a mistake to focus on the technological steps involved in modern business activity instead of viewing digital-based activities within the broader context of the relevant business; and (3) the decision has the benefit that multinational internet-based businesses are placed on the same footing, in relation to the application of national laws, as other types of multinational businesses.

Negotiation is one of the key strategies that regulators in Australia and other jurisdictions adopt as they apply their available resources to meet their regulatory responsibilities and enforce the laws for which they are responsible. However, the extent, prominence and intensity that regulators may accord to negotiated enforcement not only varies between different regulators, which is to be expected, but also may vary for the same regulator over time, as it reacts to a range of influences. This article explores the use of negotiated enforcement by Australia’s primary corporate regulator, the Australian Securities and Investments Commission (ASIC). The article discusses how negotiation has been an integral element of ASIC’s regulatory approach, by using as a lens, ASIC’s application of a high-profile mode of negotiated enforcement, enforceable undertakings, which have been available to ASIC since July 1998. An enforceable undertaking is an administrative remedy that contains one or more undertakings provided by a corporation or individual where ASIC believes there has been a contravention of the law for which ASIC is responsible. The types of undertakings that may be given include correcting misleading disclosure, introducing or improving compliance systems, improving a corporation's corporate governance, compensating consumers for loss, and refraining from managing specified corporations for a period of time. The authors review all enforceable undertakings accepted by ASIC between July 1998 and December 2021, they discuss reasons why the use of enforceable undertakings has varied over time, and identify limitations in the use of enforceable undertakings, including the difficulty of assessing the effectiveness of enforceable undertakings.