¹ This is the general definition employed in Australia in the context of consumer credit: see, eg, Australian Bankers’ Association (‘ABA’), ‘Industry Guideline: Promoting Understanding About Banks’ Financial Hardship Programs’ (March 2015) 1–2. In other jurisdictions, different terms — for example, ‘financial difficulty’, ‘debt entanglement’ and ‘overindebtedness’ — are used more commonly than ‘hardship’, and demonstrate that there are many ways of conceptualising this phenomenon. Overindebtedness — the preferred term in the United Kingdom — is defined as ‘debt which has become a major burden for the borrower’, or circumstances where the consumer cannot meet their existing credit obligations without ‘reducing other expenditure below normal minimum levels’: Department of Trade and Industry and Department for Work and Pensions (UK), ‘Tackling Over-Indebtedness: Action Plan 2004’ (Report, Ministerial Group on Over-Indebtedness, 2004) 9.

² The difficulty of defining the ‘middle class’ in Australia is acknowledged in Ramsay, Ian and Sim, Cameron, ‘Personal Insolvency in Australia: An Increasingly Middle Class Phenomenon’ (2010) 38 Federal Law Review 283, 284, 291–3CrossRefGoogle Scholar. They define the ‘middle class’ by reference to characteristics such as property ownership; being in a higher status profession; and having a higher household and personal income.

³ The Australian Council of Social Service defines poverty by looking at the proportion of the Australian population that is living below a ‘poverty line’ of 50 per cent of the median household income. This is an internationally recognised measure of poverty that is used by the Organisation for Economic Co-operation and Development. In 2012, the proportion of Australians living in poverty reached 13.9 per cent: Australian Council of Social Service, ‘Poverty in Australia 2014’ (Report, 2014) 7, 8, 12.

⁴ Australian Bureau of Statistics, Australian Social Trends (6 May 2014) <http://www.abs.gov.au/ausstats/abs@.nsf/lookup/4102.0main+features202014>.

⁵ Dun & Bradstreet, ‘Consumer Financial Stress Index: Stress Forecast to Rise’ (Media Release, 22 September 2014) <http://dnb.com.au/article-confidex-financial-stress-forecast-to-rise.html#.VYz89_mqpHx>.

⁶ National Consumer Credit Protection Act 2009 (Cth) sch 1 cl 72(1) (‘NCC’).

⁷ NCC s 89A(1).

⁸ Ibid s 72(4)–(5).

⁹ Ibid s 73.

¹⁰ Ibid s 72(4).

¹¹ See note to ibid s 72(3).

¹² Ibid s 74(1).

¹³ Membership of an external dispute resolution scheme approved by the Australian Securities and Investments Commission (‘ASIC’) is compulsory under s 47(1) of the National Consumer Credit Protection Act 2009 (Cth) (‘NCCP Act’). If a credit provider refuses an application for a hardship variation under s 72, they are required to notify the consumer of the name and contact details of the external dispute resolution scheme of which they are a member, and outline the consumer's rights under that scheme: NCC s 72(4)(b).

¹⁴ Until November 2014, the Credit and Investments Ombudsman (‘CIO’) was known as the Credit Ombudsman Service Limited.

¹⁵ Financial Ombudsman Service (‘FOS’), ‘Annual Review 2013–14’ (Annual Report, 2014) 44, 79.

¹⁶ Ibid 79–80.

¹⁷ The number of financial hardship or ‘financial difficulty’ disputes received by FOS rose by 130 per cent to 6,102 between 2009–10 and 2010–11, before increasing by a further 42 per cent to 8,659 in 2011–12: FOS, ‘2010–2011 Annual Review’ (Annual Report, 2011) 48; FOS, ‘Building Service Excellence: 2011–2012 Annual Review’ (Annual Report, 2012) 51. Similarly, financial hardship disputes received by the CIO more than doubled between 2009–10 and 2010–11 and rose substantially again in 2011–12: Credit Ombudsman Service Limited, ‘Annual Report on Operations 2011’ (Annual Report, 2011) 23; Credit Ombudsman Service Limited, ‘Annual Report on Operations 2012’ (Annual Report, 2012) 26.

¹⁸ Goode, R M, ‘A Perspective of Consumer Credit’ in Goode, R M (ed), Consumer Credit (A W Sijthoff, 1978) 3, 3–4CrossRefGoogle Scholar; see also Ramsay, Iain, ‘Consumer Credit Law, Distributive Justice and the Welfare State’ (1992) 15 Oxford Journal of Legal Studies 177, 181.CrossRefGoogle Scholar

¹⁹ See Ramsay, ‘Consumer Credit Law, Distributive Justice and the Welfare State’, above n 18.

²⁰ See Cavanagh, Stephen W and Barnes, Shenagh, Consumer Credit Law in Australia: a Commentary on the New Credit Legislation (Butterworths, 1988) 1–2.Google Scholar

²¹ See Department of Parliamentary Services, Bills Digest, No 30 of 2009–10, 15 September 2009, 2; Goode, R M, ‘The Scope and Structure of Consumer Credit Legislation’ in Goode, R M (ed), Consumer Credit (A W Sijthoff, 1978) 26, 29.CrossRefGoogle Scholar

²² These statutes are described in detail in Cavanagh and Barnes, above n 20, 7–12.

²³ Llewellyn, J O, ‘Consumer Protection — Challenges of Change’ in Baxt, R and Cullen, A C (eds), Consumer Credit: The Challenges of Change (CCH Australia, 1972) 27, 30–2Google Scholar; Tearle, William J, ‘Consumers in Debt: The Reform of Debt Recovery Procedures in Australia’ in Ramsay, Iain (ed), Debtors and Creditors: A Socio-Legal Perspective (Professional Books Limited, 1986) 241, 241.Google Scholar

²⁴ The hire-purchase legislation was based upon the Hire-Purchase Agreements Act 1941 (NSW). See Cavanagh and Barnes, above n 20, 11; Duggan, Anthony and Lanyon, Elizabeth, Consumer Credit Law (Butterworths, 1999) 9, 18.Google Scholar

²⁵ The Rogerson Committee proposed that the existing distinctions between different types of credit transactions be replaced by two types of transaction — a ‘consumer credit sale’, where credit was provided by the retailer of goods, and a ‘consumer loan’, where credit was obtained from a third party. See The Law School, University of Adelaide, Submission to the Standing Committee of State and Commonwealth Attorneys-General, Report to the Standing Committee of State and Commonwealth Attorneys-General on the Law Relating to Consumer Credit and Moneylending (1969) 12–14 (‘Rogerson Report’).

²⁶ Ibid 7.

²⁷ Ibid 7, 26–7.

²⁸ Ibid 7, 14, 20, 26, 28–9, 31, 42, 52, 61, 72. Drafted over five years by the National Conference of Commissioners on Uniform State Laws, the Uniform Consumer Credit Code of 1968 was an attempt to unify the multiplicity of state laws on consumer credit in the United States. The attempt was unsuccessful; the Code and its 1974 revised version were in the end adopted by just twelve states. See Felsenfeld, Carl, ‘The United States’ in Goode, R M (ed), Consumer Credit (A W Sijthoff, 1978) 313, 330–1Google Scholar; Moo, Paul R, ‘Legislative Control of Consumer Credit Transactions’ in Havighurst, Clark C (ed), Consumer Credit Reform (Oceana Publications, 1970) 18, 24–5.Google Scholar

²⁹ Rogerson Report, above n 25, 20, 25–30, 70–1.

³⁰ Law Council of Australia, Submission to the Attorney-General for the State of Victoria, Report to the Attorney-General for the State of Victoria on Fair Consumer Credit Laws (1972) [1.1.3] (‘Molomby Report’).

³¹ Ibid [1.1.3].

³² United Kingdom, Report of the Committee on Consumer Credit, Cmnd 4596 (1971) [4.2.1]–[4.2.16] (‘Crowther Report’); Molomby Report, above n 30, [1.1.4]–[1.1.5].

³³ Crowther Report, above n 32, [4.2.1].

³⁴ United Kingdom, Parliamentary Debates, House of Lords, 28 June 1972, vol 332, col 960 (Earl Pery).

³⁵ This was the Consumer Credit Act 1974 (UK). It reduced the two statutes proposed by the Crowther Committee to a single law: see Crowther Report, above n 32, [1.3.10], [5.2.19]; United Kingdom, Parliamentary Debates, House of Commons, 14 November 1973, vol 864, col 538 (Mr Darling).

³⁶ Crowther Report, above n 32, [3.8.3], [6.5.16], [9.2.3]–[9.2.14], [9.4.2].

³⁷ The Crowther Committee's consideration of what could be done to assist consumers experiencing financial difficulty was limited to the role played by credit unions; the need for local bureaux and advice centres; and access to legal aid: ibid [9.3].

³⁸ Rogerson Report, above n 25, 50.

³⁹ Ibid.

⁴⁰ Molomby Report, above n 30, [1.5.63], [5.7.13].

⁴¹ First, a consumer who was refused an extension by their credit provider would be able to apply to the Commissioner of Consumer Affairs. Even if the grounds for an extension were made out, the Commissioner would only be able to negotiate with the credit provider and, if the latter persisted in refusing an extension, refer the matter to a Consumer Credit Tribunal. See ibid [3.2], [3.4], [5.7.13].

⁴² Ibid.

⁴³ Ibid [5.7.13].

⁴⁴ Ibid. The Molomby Committee's decision to confine the proposed right to secured debt was influenced by submissions from the Australian Finance Conference and the Retail Traders Association: see Llewellyn, above n 23, 57–8.

⁴⁵ Molomby Report, above n 30, [5.7.13].

⁴⁶ Goode, ‘A Perspective of Consumer Credit’, above n 18, 3; Ramsay, ‘Consumer Credit Law, Distributive Justice and the Welfare State’, above n 18, 181.

⁴⁷ Molomby Report, above n 30, [5.7.13].

⁴⁸ Ibid [9.1.1], [12.1.1]–[12.1.2].

⁴⁹ This was the Consumer Credit Act 1972 (SA) and the Consumer Transactions Act 1972 (SA). See South Australia, Parliamentary Debates, House of Assembly, 31 October 1972, 2562 (C J King); see also Llewellyn, above n 23, 32–3; Cavanagh and Barnes, above n 20, 13–14.

⁵⁰ Consumer Transactions Act 1972 (SA) s 38(1), (3).

⁵¹ Ibid s 38(4).

⁵² Ibid s 38(5), (7).

⁵³ This requirement was later described as difficult to interpret and unnecessarily restrictive: see Law Reform Commission, Insolvency: The Regular Payment of Debts, Report No 6 (1977) 8 [15].

⁵⁴ Commission of Inquiry into Poverty, Law and Poverty in Australia, Second Main Report (1975) 118.

⁵⁵ See Cavanagh and Barnes, above n 20, 15; Victoria, Parliamentary Debates, Legislative Assembly, 22 March 1984, 3402–4 (Peter Spyker); New South Wales, Parliamentary Debates, Legislative Assembly, 3 May 1984, 171–2 (George Paciullo).

⁵⁶ Western Australia had already introduced a far more limited right to seek relief from the consequences of breach into its existing hire-purchase legislation. This provision was expressly confined to cases of temporary inability to pay caused by illness or unemployment that was ‘not reasonably foreseeable’ at the time of entering the contract. See Hire-Purchase Act 1959 (WA) s 36A; introduced by the Hire-Purchase Amendment Act 1973 (WA) s 25.

⁵⁷ The resulting scheme comprised the Credit Act 1984 (Vic); Credit Act 1984 (NSW); Credit Act 1984 (WA); Credit Act 1985 (ACT); and Credit Act 1987 (Qld). The reform package in Victoria and New South Wales also included other legislation that was not uniform: see Credit (Administration) Act 1984 (Vic); Credit (Administration) Act 1984 (NSW); Credit (Finance Brokers) Act 1984 (NSW); Credit (Home Finance) Contracts Act 1984 (NSW); Commercial Tribunal Act 1984 (NSW).

⁵⁸ Victoria, Parliamentary Debates, Legislative Assembly, 22 March 1984, 3404 (Peter Spyker); New South Wales, Parliamentary Debates, Legislative Assembly, 3 May 1984, 171–7 (George Paciullo); Queensland, Parliamentary Debates, Legislative Assembly, 19 March 1987, 948–51 (P J Clauson); Western Australia, Parliamentary Debates, Legislative Assembly, 7 November 1984, 3643–6 (Arthur Tonkin).

⁵⁹ In Victoria, the major modification to the 1981 provision was that it would now apply to continuing credit contracts: Victoria, Parliamentary Debates, Legislative Assembly, 22 March 1984, 3406 (Peter Spyker).

⁶⁰ Credit Act 1981 (Vic) s 79. This provision was not included in the Queensland Credit Act.

⁶¹ Credit Act 1984 (Vic) s 74(1). It should be noted that if a variation was refused and the application is referred to the Tribunal under s 74(3), the Tribunal would not be limited to these two types of variations: Wicks v Wicks [1987] ASC 55–547.

⁶² Credit Act 1984 (Vic) s 74(1).

⁶³ See Duggan and Lanyon, above n 24, 204.

⁶⁴ Credit Act 1984 (Vic) s 74(2).

⁶⁵ Ibid s 74(3). In Victoria, this was the Victorian Civil and Administrative Tribunal. A similar process was prescribed in the South Australian legislation: see Consumer Transactions Act 1972 (SA) ss 38(3)–(7).

⁶⁶ Credit Act 1984 (Vic) s 74(7).

⁶⁷ Victoria, Parliamentary Debates, Legislative Assembly, 22 March 1984, 3407 (Peter Spyker); see also Queensland, Parliamentary Debates, Legislative Assembly, 19 March 1987, 949 (P J Clauson); Western Australia, Parliamentary Debates, Legislative Assembly, 7 November 1984, 3644 (Arthur Tonkin).

⁶⁸ See the second reading speech for the introduction of the Consumer Credit (Queensland) Bill 1994 (Qld) at Queensland, Parliamentary Debates, Legislative Assembly, 4 August 1994, 8828 (T J Burns). An attempt to address the drafting issue was made in 1989, with the proposal of a plain English draft Credit Bill by the Victorian Law Reform Commission. This initiative, however, was rejected by industry and consumer groups as an inadequate response to the need for reform: see Duggan and Lanyon, above n 24, 22.

⁶⁹ Queensland, Parliamentary Debates, Legislative Assembly, 4 August 1994, 8828 (T J Burns); Victoria, Parliamentary Debates, Legislative Council, 30 May 1995, 920 (Haddon Storey); Robert Troedson (Publications and Resources Section, Queensland Parliamentary Library), Legislation Bulletin, No 8 of 1996, 7 August 1996, 3–4; Duggan and Lanyon, above n 24, 22.

⁷⁰ Queensland, Parliamentary Debates, Legislative Assembly, 4 August 1994, 8828 (T J Burns); Explanatory Memorandum, Consumer Credit Bill 1995 (ACT) 2.

⁷¹ Queensland, Parliamentary Debates, Legislative Assembly, 4 August 1994, 8828 (T J Burns); Duggan and Lanyon, above n 24, 22.

⁷² In all participating jurisdictions other than Queensland, the Credit Acts applied to loans valued up to $20 000, while in Queensland, the Credit Act 1987 (Qld) had a maximum loan threshold of up to $40 000. Queensland also had a ‘negative licensing scheme’ whereby only credit providers found to have engaged in unjust conduct were placed under supervision. See Troedson, above n 69, 3; Duggan and Lanyon, above n 24, 20–2.

⁷³ See Ministerial Council on Consumer Affairs, Australian Uniform Credit Laws Agreement (1993) recitals A–C; see also Troedson, above n 69, 4–5.

⁷⁴ See Consumer Credit (New South Wales) Act 1995 (NSW); Consumer Credit Act 1995 (ACT); Consumer Credit (Northern Territory) Act 1995 (NT); Consumer Credit (South Australia) Act 1995 (SA); Consumer Credit (Tasmania) Act 1996 (Tas); Consumer Credit (Victoria) Act 1995 (Vic); Consumer Credit (Western Australia) 1996 (WA).

⁷⁵ See, eg, Consumer Credit (Queensland) Act 1994 (Qld) s 4.

⁷⁶ Explanatory Memorandum, Consumer Credit Bill 1995 (ACT) 3; see also Explanatory Notes, Consumer Credit (Queensland) Bill 1994 (Qld) [1]; New South Wales, Parliamentary Debates, Legislative Assembly, 27 October 1994, 4821, 4936 (Wendy Machin).

⁷⁷ Quirey, Malcolm M, ‘The Consumer Credit Code: A New Era of Consumer Regulation’ (1995) 25 Queensland Law Society Journal 165, 167–72, 182.Google Scholar

⁷⁸ Consumer Credit (Queensland) Act 1994 (Qld) appendix s 66(1), (2) (‘UCCC’). See also Permanent Custodians Ltd v Upston [2007] NSWSC 223, [161].

⁷⁹ UCCC s 66(1).

⁸⁰ Before they could begin enforcement proceedings in relation to a default under a credit contract, the credit provider did need to give the consumer a default notice, followed by a 30 day period to remedy the default: UCCC s 80.

⁸¹ Ibid s 86.

⁸² Ibid s 68(3).

⁸³ Ibid s 67.

⁸⁴ Ibid s 66(3). In 2004–5, this was amended to become a floating threshold linked to 110 per cent of the average loan size for the purchase of new owner occupied dwellings in New South Wales: Explanatory Memorandum, Consumer Credit Legislation Amendment (Enhancements) Bill 2012 (NSW) [9.171].

⁸⁵ Genevieve Sheehan, Therese Wilson and Nicola Howell, ‘Coming to Grips with Credit Contracts: Steps to Protect Vulnerable Borrowers’ (Report, Brotherhood of St Laurence and Griffith University, November 2008) 4.

⁸⁶ House of Representatives Standing Committee on Economics, Finance and Public Administration, Parliament of Australia, Inquiry into Home Loan Lending Practices and Processes (2007) 36–7.

⁸⁷ This was the Consumer Credit (Western Australia) Act 1996 (WA).

⁸⁸ Ministerial Council on Consumer Affairs, Australian Uniform Credit Laws Agreement (1993) 6. Under the UCCC, Queensland continued with its ‘negative licensing’ scheme, with similar approaches adopted in New South Wales, South Australia and the Northern Territory. Victoria and the Australian Capital Territory also had negative licensing schemes in place, but required the registration of credit providers, while Tasmania did not have any licensing or registration system in place at all: Duggan and Lanyon, above n 24, 450–1.

⁸⁹ See, eg, Annabel Stafford and Marc Moncrieff, ‘Rein in Brokers – Or Else’, Sydney Morning Herald (online), 19 August 2007 <http://www.smh.com.au/small-business/rein-in-brokers--or-else-20070819-cnvq>; ‘Victims of Finance Brokers Get Payout’, The Age (online), 16 July 2007 <http://www.theage.com.au/national/victims-of-finance-brokers-get-payout-20070715-nxv>.

⁹⁰ Department of Parliamentary Services, above n 21, 4–5. The Australian Capital Territory and Western Australia were the only jurisdictions where finance brokers were subject to licensing or registration requirements: Malbon, Justin, ‘Responsible Lending, Unjust Terms and Hardship’ in Justin Malbon and Luke Nottage (eds), Consumer Law & Policy in Australia & New Zealand (Federation Press, 2013) 241, 243.Google Scholar

⁹¹ Colin Brinsden, ‘High Mortgage Rates “Scare” Home Buyers’, The Age (online), 14 April 2008 <http://www.theage.com.au//business/high-mortgage-rates-scare-home-buyers-20080414-25z4.html>; Ross Kelly, ‘Mortgage Stress to Hit 300,000: Report’, The Age (online), 13 March 2008 <http://www.theage.com.au//business/mortgage-stress-to-hit-300000-report-20080313-1z7q.html>. For more information on developments in the Australian housing market in particular, see House of Representatives Standing Committee on Economics, Finance and Public Administration, above n 86, 3–4, 11.

⁹² See House of Representatives Standing Committee on Economics, Finance and Public Administration, above n 86; Productivity Commission, Review of Australia's Consumer Policy Framework, Inquiry Report No 45 (2008) vols 1–2; The Treasury, Financial Services and Credit Reform: Improving, Simplifying and Standardising Financial Services and Credit Regulation, Green Paper (June 2008).

⁹³ House of Representatives Standing Committee on Economics, Finance and Public Administration, above n 86, 35–7, 43–4, 47.

⁹⁴ Ibid 36–7, 44–6.

⁹⁵ Ibid 40–9; Productivity Commission, above n 92, vol 2, 98–102, 107–8; The Treasury, above n 92, 8–9.

⁹⁶ COAG had already agreed ‘in principle’ to the transfer of regulatory responsibility for consumer credit to the federal government at a meeting on 26 March 2008.

⁹⁷ Also included in the reform package were the National Consumer Credit Protection (Fees) Act 2009 (Cth) and the National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 (Cth).

⁹⁸ Revised Explanatory Memorandum, National Consumer Credit Protection Bill 2009 (Cth).

⁹⁹ Ibid [2.4]–[2.14]; see also the list of credit activities regulated by the Act in NCCP Act s 6(1).

¹⁰⁰ See NCC ss 4–6.

¹⁰¹ The Treasury, National Credit Reform: Enhancing Confidence and Fairness in Australia's Credit Law, Green Paper (July 2010) 81.

¹⁰² Revised Explanatory Memorandum, National Consumer Credit Protection Amendment (Home Loans and Credit Cards) Bill 2011 (Cth). For more detail on the impact of the 2011 amendments, see Ali, Paul, McRae, Cosima and Ramsay, Ian, ‘Consumer Credit Reform and Behavioural Economics: Regulating Australia's Credit Card Industry’ (2012) 40 Australian Business Law Review 126, 131–3.Google Scholar

¹⁰³ For more detail, see Ali, Paul et al, ‘Consumer Leases and Consumer Protection: Regulatory Arbitrage and Consumer Harm’ (2013) 41 Australian Business Law Review 240, 241, 255–6.Google Scholar

¹⁰⁴ While this is no longer a threshold requirement, it is stipulated in the note to s 72(3) that a credit provider may be especially entitled to refuse a hardship application if these circumstances are not made out.

¹⁰⁵ The original version of s 72 of the NCC allowed a consumer to seek the same three types of variation that had previously been available under s 74 of the Credit Acts and s 66 of the UCCC.

¹⁰⁶ Explanatory Memorandum, Consumer Credit Legislation Amendment (Enhancements) Bill 2012 (Cth) [9.136], [9.140]. For examples of cases where this was an issue, see Westpac Banking Corporation v Tesoro [2012] VSC 182, [57].

¹⁰⁷ Explanatory Memorandum, Consumer Credit Legislation Amendment (Enhancements) Bill 2012 (Cth) [9.136].

¹⁰⁸ Ibid [9.161]. The self-regulatory codes did not limit the types of variation that a consumer could seek from the credit provider: see The Treasury, above n 101, 83–4.

¹⁰⁹ House of Representatives Standing Committee on Economics, Finance and Public Administration, above n 86, 35.

¹¹⁰ NCC s 89A(2); Explanatory Memorandum, Consumer Credit Legislation Amendment (Enhancements) Act 2012 (Cth) [9.225]–[9.237].

¹¹¹ NCC ss 72(2)–(5). The 2009 version of the NCC already contained a requirement for the lender to respond within 21 days; however, this process now had to be completed before enforcement could commence: Commonwealth, Parliamentary Debates, House of Representatives, 25 June 2009, 7147 (Chris Bowen).

¹¹² NCC s 74(2)(a); see, eg, Schafer v RHG Mortgage Corporation Ltd [2015] WASCA 11, [18].

¹¹³ This is even though requests for a hardship variation under ss 72 and 74 are eligible for streamlined small claims court proceedings, and there is a presumption that an adverse costs order will not be made against an applicant in such a proceeding: Revised Explanatory Memorandum, National Consumer Credit Protection Bill 2009 (Cth) [4.172], [4.180]–[4.184].

¹¹⁴ See the discussion on Michel Foucault and other perspectives on the subject of the law in Duncan, Sheila, ‘The Mirror Tells its Tale: Constructions of Gender in Criminal Law’ in Bottomley, Anne (ed), Feminist Perspectives on the Foundational Subjects of Law (Cavendish Publishing, 1996) 173, 176–7Google Scholar. In the context of credit and finance, Libby Assassi also traces the evolution of the gendered subject of credit and property laws from the sixteenth century onwards: see especially Assassi, Libby, The Gendering of Global Finance (Palgrave MacMillan, 2009) 74–5, 92–6.CrossRefGoogle Scholar

¹¹⁵ Iain Ramsay, Consumer Law and Policy: Text and Materials on Regulating Consumer Markets (Hart Publishing, 3rd ed, 2012) 20; see also Hilton, Matthew, ‘Consumer Politics in Post-War Britain’, in Daunton, Martin J and Hilton, Matthe (eds), Politics of Consumption: Material Culture and Citizenship in Europe and America (Berg Publishers, 2001) 242, 256.Google Scholar

¹¹⁶ Assassi, above n 114, 92.

¹¹⁷ Supriya Singh and Anuja Cabraal, ‘Women, Money and the Bank’ (Paper presented at the Financial Literacy, Banking and Identity Conference, RMIT University, Melbourne, 25–26 October 2006) 5; Assassi, above n 114, 135.

¹¹⁸ Rogerson Report, above n 25, 8, 50; Molomby Report, above n 30, [5.7.13].

¹¹⁹ Rogerson Report, above n 25, 50; Molomby Report, above n 30, [1.2.7], [5.7.13]. See also Llewellyn, above n 23, 58; Ramsay, Iain, ‘“Wannabe WAGS” and “Credit Binges”: The Construction of Overindebtedness in the UK’ in Niemi, Johanna, Ramsay, Iain and Whitford, William C (eds), Consumer Credit, Debt and Bankruptcy (Hart Publishing, 2009) 75, 83.Google Scholar

¹²⁰ Rogerson Report, above n 25, 50.

¹²¹ Commission of Inquiry into Poverty, above n 54, 118.

¹²² Ramsay, ‘“Wannabe WAGS” and “Credit Binges”’, above n 119, 83.

¹²³ Ramsay, Iain, Debtors and Creditors: A Socio-Legal Perspective (Butterworths Law, 1986) 2–3.Google Scholar

¹²⁴ Molomby Report, above n 30, [5.7.13].

¹²⁵ Ramsay, Debtors and Creditors, above n 123, 3–4. See, eg, Caplovitz, David, Consumers in Trouble: A Study of Debtors in Default (The Free Press, 1974) 57–64Google Scholar; M Adler and E Wozniak, ‘The Origins and Consequences of Default — An Examination of the Impact of Diligence’ (Research Report No 5, Department of Social Administration, University of Edinburgh, 1980).

¹²⁶ See, eg, Sullivan, Teresa A, Warren, Elizabeth and Westbrook, Jay Lawrence, As We Forgive Our Debtors: Bankruptcy and Consumer Credit in America (Oxford University Press, 1989) 8–9Google Scholar; Nicola Dominy and Elaine Kempson, ‘Can't Pay or Won't Pay? A Review of Creditor and Debtor Approaches to the Non-Payment of Bills’ (Research Report, No 4/03, Department for Constitutional Affairs, March 2003).

¹²⁷ Dominy and Kempson, above n 126, v, vi, 5.

¹²⁸ Lauren Levin and Fiona Guthrie, ‘Hardship Policies in Practice: A Comparative Study’ (Report, Financial Counselling Australia and Australian Communications Consumer Action Network, 2014) 14; Wilhelmsson, Thomas, Critical Studies in Private Law (Kluwer, 1992) 181–2.CrossRefGoogle Scholar

¹²⁹ Ramsay and Sim, above n 2, 293–8.

¹³⁰ The cost of living increased by 34 per cent between 2000 and 2011 when measured by the Consumer Price Index: Australian Council of Social Service, ‘Indicators of Inequality Factsheet’ (Factsheet, April 2011) 4.

¹³¹ Managing Justice, ‘Long Term Financial Hardship’ (Discussion Paper, November 2013) 8, 14; Levin and Guthrie, above n 128, 14–16.

¹³² Levin and Guthrie, above n 128, 14–15; Benno Engels, Rivkah Nissim and Kathy Landvogt, ‘Under Pressure: Costs of Living, Financial Hardship and Emergency Relief in Victoria’ (Report, Victorian Council of Social Service and ER Victoria, May 2009) 13–14; Jude Lobo, ‘The Wesley Report — Financial Stress — The Human Cost’ (Report No 5, The Wesley Mission, 2009) 47–53; Australian Council of Social Service, above n 3, 20.

¹³³ Victoria Johnson, Said Dileri and Naw Eh Ywa, ‘Financial Life in a New Setting: Experiences of Afghan and Burmese (Chin and Karen) Communities in Melbourne, Australia’ (Report, Brotherhood of St Laurence, 2012) 26; Australian Council of Social Service, above n 3, 23–4.

¹³⁴ Balmer, Nigel, Pleasence, Pascoe, Buck, Alexy and Walker, Heather C., ‘Worried Sick: The Experience of Debt Problems and their Relationship with Health, Illness and Disability’ (2006) 5 Social Policy & Society 39CrossRefGoogle Scholar; Managing Justice, above n 131, 8, 14; Martin Ryan, Beverley Kliger and Bill Healy, ‘Smiling for the First Time: Bankruptcy for People with a Mental Illness. What Happens When Credit Code Remedies Fail?’ (Report, Good Shepherd Youth and Family Service, September 2010) 29–35.

¹³⁵ Ramsay, ‘“Wannabe WAGS and Credit Binges”’, above n 119, 80, 83.

¹³⁶ Recent case law has indicated that these words are to be interpreted broadly, in accordance with their ordinary meaning. See Permanent Custodians Ltd v Upston [2007] NSWSC 223 (16 March 2007), [156].

¹³⁷ McNally v Australia and New Zealand Banking Group Ltd (2001) ASC, 155–047.

¹³⁸ Garner v Capital Finance Australia Ltd [2003] VCAT 1171 (12 June 2003), [28].

¹³⁹ Permanent Custodians Ltd v Upston [2007] NSWSC 223 (16 March 2007), [152], [156]–[158].

¹⁴⁰ These include ‘unexpected changes in income and/or expenditure’; ‘changes in employment status’ (which can include a reduction in work hours or a pay cut); and ‘significant life events’ (such as a relationship breakdown or a death in the family). See, eg, ABA, above n 1, 2. These widely defined circumstances are reflected on the websites of the following banks: Commonwealth Bank of Australia, Assistance and Approach: Customer Assist <https://www.commbank.com.au/about-us/who-we-are/customer-commitment/financial-hardship.html>. Other banks do not define the circumstances in which a customer may be eligible to apply for hardship assistance, referring only to unexpected events or changes in circumstances. See, eg, National Australia Bank, Financial Hardship <http://www.nab.com.au/personal/help-and-guidance/financial-hardship>.

¹⁴¹ The 2009 agreement between the Big Four Banks suggests that this period is 12 months: The Hon Wayne Swan MP, ‘Relieving Mortgage Stress — The Principles: A Common Approach for Assisting Borrowers Facing Financial Hardship’ (Media Release, 5 April 2009).

¹⁴² See Denis Nelthorpe and Kate Digney, ‘The Bulk Debt Negotiation Project: Client Profiles and Project Outcomes’ (Report, West Heidelberg Community Legal Centre, 2011) 2, 18. This report suggests that the ABA Code of Banking Practice is similarly geared towards short-term financial problems: at 19–20.

¹⁴³ Wilson, Therese, ‘Vulnerable and Disadvantaged Consumers’, in Malbon, Justin and Nottage, Luke (eds), Consumer Law & Policy in Australia & New Zealand (The Federation Press, 2013) 302–3.Google Scholar

¹⁴⁴ See, eg, Consumer Credit Legal Centre and Consumer Action Law Centre, Joint Submission to the Independent Review of the Financial Ombudsman Service, 25 October 2013, 29; Sheehan, Wilson and Howell, above n 85, 12–13, 15.

¹⁴⁵ See, eg, Tanya Corrie and Magdalena McGuire, ‘Economic Abuse: Searching for Solutions’ (Research Report, Good Shepherd Youth and Family Service and Kildonan UnitingCare, May 2013) 33, 37.

¹⁴⁶ See Tatiana Corrales and Sarah Wise, ‘Mothers on the Margins: Income Restrictions, Deprivation of Needs and Barriers to Employment’ (Report, Anglicare Victoria, 2013).

¹⁴⁷ Economic abuse is a form of family violence characterised by controlling behaviours that seek to undermine a (usually female) partner's financial autonomy. For a further definition and examples of economic abuse, see Fiona MacDonald, ‘Credit, Debt and Economic Abuse’ (Catalyst Paper 2, Good Shepherd Youth & Family Service and Kildonan UnitingCare, November 2012); Corrie and McGuire, above n 145, 1–2, 8.

¹⁴⁸ Corrales and Wise, above n 146, 10; see also Prue Cameron, ‘Relationship Problems and Money: Women Talk About Financial Abuse’ (Report, WIRE Women's Information, 2014) v, 27–30.

¹⁴⁹ ‘Relationship debt’ — also referred to as ‘sexually transmitted debt’ — is where a person (usually a woman) is left liable for debt incurred by a former partner, or jointly with a former partner. Relationship debt can include third party guarantees that leave women liable for loans taken out by their former partners; utility bills for what was formerly a joint residence; items purchased by the former partner using the woman's credit card; and items acquired through consumer lease or deferred payment arrangements in the woman's name.

¹⁵⁰ Corrie and McGuire, above n 145, 11, 39; MacDonald, above n 147, 1–2; see also Kathy Landvogt, ‘Money, Dignity and Inclusion: The Role of Financial Capability’ (Research Report, Good Shepherd Youth and Family Service, June 2008).

¹⁵¹ See, eg, Cameron, above n 148, 25–30, 40.

¹⁵² Corrie and McGuire, above n 145, 28, 37.

¹⁵³ Ibid 30, 45.

¹⁵⁴ Niemi, Johanna, Ramsay, Iain and Whitford, William C, ‘Introduction’ in Niemi, Johanna, Ramsay, Iain and Whitford, William C (eds), Consumer Credit, Debt and Bankruptcy (Hart Publishing, 2009) 1, 3–4.Google Scholar

¹⁵⁵ Howell, Nicola, ‘Developing a Consumer Policy for the 21st Century’ (2008) 33 Alternative Law Journal 80, 81–2CrossRefGoogle Scholar; see also Pearson, Gail, ‘Risk and the Consumer in Australian Financial Services Reform’ (2006) 28 Sydney Law Review 99, 119.Google Scholar

¹⁵⁶ Niemi, Ramsay and Whitford, above n 154, 3–4. See also Howell, above n 155, 82–3; Sheehan, Wilson and Howell, above n 85, 17.

¹⁵⁷ Niemi, Ramsay and Whitford, above n 154, 3–4.

¹⁵⁸ Ramsay, ‘Consumer Credit Law, Distributive Justice and the Welfare State’, above n 18, 178.

¹⁵⁹ See, eg, Pearson, above n 155, 99.

¹⁶⁰ See, eg, Rogerson Report, above n 25, 8; Molomby Report, above n 30, [5.7.13]; Commission of Inquiry into Poverty, above n 54, 104. This particular view is explored in more detail in Ramsay, ‘Consumer Credit Law, Distributive Justice and the Welfare State’, above n 18, 182–3.

¹⁶¹ Rogerson Report, above n 25, 50; Commission of Inquiry into Poverty, above n 54, 118–19. The proposal was seen as having potential to increase the costs of borrowing.

¹⁶² Molomby Report, above n 30, [5.7.13].

¹⁶³ Rogerson Report, above n 25, 50; Molomby Report, above n 30, [5.7.13].

¹⁶⁴ Goode, above n 18, 98–100.

¹⁶⁵ Ibid.

¹⁶⁶ See Ramsay, ‘Consumer Credit Law, Distributive Justice and the Welfare State’, above n 18, 178.

¹⁶⁷ Goode, above n 18, 99.

¹⁶⁸ Howell, above n 155, 80; see also Wilson, Therese, ‘Banks Behaving Badly’ (2004) 29 Alternative Law Journal 294, 295.CrossRefGoogle Scholar

¹⁶⁹ See, eg, Parliament of Victoria, Credit Bill 1984 (Peter Spyker) 22 March 1984, 3402–3.

¹⁷⁰ Wilson, above n 168, 294.

¹⁷¹ Ramsay, ‘Consumer Credit Law, Distributive Justice and the Welfare State’, above n 18, 181.

¹⁷² Australian Bureau of Statistics, ‘Trends in Household Debt’, Australian Social Trends (6 May 2014) <http://www.abs.gov.au/ausstats/abs@.nsf/lookup/4102.0main+features202014>; Dun & Bradstreet, ‘Consumer Financial Stress Index: Stress Forecast to Rise’ (Media Release, 22 September 2014) <http://dnb.com.au/article-confidex-financial-stress-forecast-to-rise.html#.VYz89_mqpHx>.

¹⁷³ Chris Connolly, ‘Measuring Financial Exclusion in Australia’ (Report, Centre for Social Impact, 2014) 8.

¹⁷⁴ Wilson, Therese, ‘Consumer Credit Regulation and Rights-Based Social Justice: Addressing Financial Exclusion and Meeting the Credit Needs of Low-Income Australians’ (2012) 35 University of New South Wales Law Journal 501, 506–7.Google Scholar

¹⁷⁵ Marcus Banks et al, ‘Caught Short: Exploring the Role of Small, Short-Term Loans in the Lives of Australians’ (Final Report, Social Policy Unit, The University of Queensland, 2012) vi, 32–4; Wilson, above n 168, 294; Ali, Paul, McRae, Cosima and Ramsay, Ian, ‘The Politics of Payday Lending Regulation in Australia’ (2013) 39 Monash University Law Review 411, 420.Google Scholar

¹⁷⁶ Reifner, Udo, ‘Regulation of Consumer Lending’ in Niemi, Johanna, Ramsay, Iain and Whitford, William C (eds), Consumer Credit, Debt and Bankruptcy (Hart Publishing, 2009) 105, 107.Google Scholar

¹⁷⁷ Burns, Fiona, ‘The Evolving Statutory Regulation of Reverse Mortgages in Australia's “Risk Society”’ (2013) 39 Monash University Law Review 612.Google Scholar

¹⁷⁸ The risks associated with reverse mortgages are summarised at ibid 614.

¹⁷⁹ Ibid 615.

¹⁸⁰ Ibid 648.

¹⁸¹ Ali, McRae and Ramsay, above n 175, 428–32, 434–7, 439–43, 450–1.

¹⁸² See, eg, Explanatory Memorandum, Consumer Credit Legislation Amendment (Enhancements) Bill 2012 (Cth) [2.6], [2.11].

¹⁸³ See, eg, FOS, ‘Building Service Excellence: 2011–2012 Annual Review’, above n 17, 51.

¹⁸⁴ Howell, above n 155, 81; see, eg, Productivity Commission, above n 95, 85.

¹⁸⁵ Howell, Nicola J, ‘Revisiting the Australian Code of Banking Practice: Is Self-Regulation Still Relevant for Improving Consumer Protection Standards?’ (2015) 38 University of New South Wales Law Journal 544, 557.Google Scholar

¹⁸⁶ ABA, Code of Banking Practice (at 31 January 2013) cls 28.4, 28.11; see also Ali, Paul, Bourova, Evgenia and Ramsay, Ian, ‘Responding to Consumers’ Financial Hardship: An Evaluation of the Legal Frameworks and Company Policies’ (2015) 23 Competition and Consumer Law Journal 29, 34.Google Scholar

¹⁸⁷ See, eg, ABA, Code of Banking Practice (at 31 January 2013) cl 28; Mortgage and Finance Association of Australia, MFAA Code of Practice (at 12 March 2014) cl 13; Customer Owned Banking Association, Customer Owned Banking Code of Practice (at 1 January 2014) cl 24; Insurance Council of Australia, General Insurance Code of Practice (at 2012) cls 3.8, 3.12. See also ABA, above n 1, 2, 5.

¹⁸⁸ For example, principles adopted by Australia's four major banks in 2009 as part of an agreement with the federal government required the banks to offer a range of other options to customers in hardship. These options could include a postponement of mortgage repayments for up to 12 months; interest-only repayments on a loan; loan freezes; and the waiver of fees. See The Hon Wayne Swan MP, ‘Relieving Mortgage Stress — The Principles: A Common Approach for Assisting Borrowers Facing Financial Hardship’ (Media Release, 5 April 2009); ASIC, Helping Home Borrowers in Financial Hardship, Report No 152 (2009) 26.

¹⁸⁹ See Managing Justice, above n 131, 11–15; ABA, above n 1, 5–6.

¹⁹⁰ ABA, Code of Banking Practice (at 31 January 2013) cl 28.2; Mortgage and Finance Association of Australia, MFAA Code of Practice (at 12 March 2014) cl 13.1; Customer Owned Banking Association, Customer Owned Banking Code of Practice (at 1 January 2014) cl 24.1.

¹⁹¹ Howell, above n 185, 572–4.

¹⁹² Ibid 573.

¹⁹³ Ibid 574, 578–82.

¹⁹⁴ Levin and Guthrie, above n 128, 26–7.

¹⁹⁵ See also Howell, above n 155, 81.

¹⁹⁶ See, eg, National Energy Retail Law (South Australia) Act 2011 (SA) sch 1 cls 45, 47; Electricity Industry Act 2000 (Vic) s 45; Gas Industry Act 2001 (Vic) s 48I; Economic Regulation Authority (WA), Financial Hardship Guidelines: Electricity and Gas Licenses (at October 2013) 3.

¹⁹⁷ For a full comparative outline of all these frameworks in different Australian jurisdictions, see Ali, Bourova and Ramsay, above n 186, 34–40.

¹⁹⁸ National Energy Retail Law (South Australia) Act 2011 (SA) sch 1 cls 44(c), 50(1); National Energy Retail Rules r 72(1). Similar provisions are in place in Victoria, which is in the process of a gradual transition to the national framework for energy regulation: see Electricity Industry Act 2000 (Vic) ss 43, 46A(1); Gas Industry Act 2001 (Vic) ss 48G, 48K. In Western Australia, which will not be adopting the national framework, there is an equivalent provision, as well as an additional obligation to give reasonable consideration to a request to reduce fees, charges or the total debt of a consumer in hardship: ‘Code of Conduct for the Supply of Electricity to Small Use Customers 2012’ in Western Australia, Western Australian Government Gazette, No 205, 9 November 2012, cls 6.1, 6.3, 6.4, 6.10; Economic Regulation Authority (WA), Schedule 2 of the Compendium of Gas Customer License Obligations, 1 January 2013, cls 6.1, 6.3, 6.4, 6.10.

¹⁹⁹ See Water Services Code of Conduct (Customer Service Standards) 2013 (WA); Tasmanian Water and Sewerage Industry Customer Service Code (Tas) cls 6.2–6.4; Customer Service Code – Urban Water Businesses 2013 (Vic) cl 5.4; Department for Communities and Social Inclusion (SA), Hardship Policy for Residential Customers of Major Water Industry Retailers, February 2013, cls 13, 26–30.

²⁰⁰ See, eg, National Energy Retail Law (South Australia) Act 2011 (SA) sch 1 cl 51.

²⁰¹ Australian Energy Regulator, ‘Review of Energy Retailers’ Customer Hardship Policies and Practices’ (Report, January 2015) 11–12; Financial and Consumer Rights Council, Rank the Energy Retailer, Report (2014) 16.

²⁰² Levin and Guthrie, above n 128, 23; Australian Energy Regulator, above n 201, 11.

²⁰³ See Jason Dowling and Aisha Dow, ‘Soaring Power Costs Leads to Record Number of Disconnections in Victoria’, The Age (online), 18 February 2015 <http://www.theage.com.au/victoria/soaring-power-costs-leads-to-record-number-of-disconnections-in-victoria-20150218-13i4lt.html>.

²⁰⁴ Many of the hardship provisions that apply to the energy and water sectors explicitly refer to both short-term and long-term (and sometimes ongoing) hardship. See, eg, Tasmanian Water and Sewerage Industry Customer Service Code (Tas) cl 6.4.2; Essential Services Commission (Vic), Guideline 21: Energy Retailers’ Financial Hardship Policies, April 2014, cl 2.2(b)(i); Department for Communities and Social Inclusion (SA), Hardship Policy for Residential Customers of Major Water Industry Retailers, February 2013, cl 5.

²⁰⁵ Ali, Bourova and Ramsay, above n 186, 48.

²⁰⁶ See generally Ramsay, ‘Consumer Credit Law, Distributive Justice and the Welfare State’, above n 18.

²⁰⁷ Ibid 186.

²⁰⁸ See, eg, Managing Justice, above n 131; Nelthorpe and Digney, above n 142.

²⁰⁹ See especially Corrales and Wise, above n 146; Engels, Nissim and Landvogt, above n 132, 41–2.