Robodebt showed us powerful organisations such as the government exploit and harm vulnerable people with impunity for some time before they are brought to account. Now, the Northern Territory and Queensland are revealed as sites of another case study in organisational exploitation - this time, by corporations.
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Here's what we know so far.
The consumer watchdog ACCC commenced proceedings in the Federal Court against Optus for unconscionable conduct. The ACCC alleges Optus deliberately targeted and exploited hundreds of vulnerable people, many of whom were First Nations Australians from regional and remote areas, and some of whom were low-income or disabled.
Other allegations include sales people pressuring consumers to buy large number of products, including expensive products such as phones that they did not need or want. In some instances those products could not be used because Optus didn't provide coverage for their area. Optus staff manipulated credit checks and sold people plans and phones that they knew they couldn't afford.
And more, there are allegations these consumers were pursued by debt-collectors, even when senior executives at Optus knew the sales contracts were fraudulent or inappropriate. The alleged conduct was carried out by sales staff but when senior managers became aware of it, they did nothing to stop it, so were also actively culpable.
As a result, hundreds of First Nations people suffered financial harm of up to thousands of dollars, as well emotional distress, fear and shame when they were pursued by debt collectors. The ACCC alleges Optus' conduct impacted 363 customers at two Darwin stores and 42 from the Mount Isa store - in Optus' words, "three licensee-operated" outlets. There were 24 customers impacted at other locations across Australia.
The ACCC is seeking a range of orders from the federal court, including penalties, costs and redress for customers. The ACCC chief Gina Cass-Gottlieb told a Sydney press conference on Thursday that the ACCC would seek a "very significant penalty" in the Federal Court.
However, it is unlikely that this will be enough to stop this kind of unconscionable conduct in the future.
Telcos have a track record of bad behaviour that seems impervious to penalties.
Telstra was fined $50 million by the Federal Court for similar conduct in 2021 for engaging in unconscionable conduct when it sold multiple post-paid mobile contracts to more than 100 First Nations consumers who did not understand the contracts and could not afford them.
This conduct also included manipulating credit assessments and misrepresenting products as free, as well as targeting and exploiting vulnerable consumers. Similar to the Optus case, Telstra's board and senior executives failed to stop the illegal practices once they were made aware of them.
The Consumer Law that is the focus of the ACCC addresses only one aspect of the conduct, and arguably the consequences (eg penalties, remediation) that can be imposed through Consumer Law don't reflect the extent of the harm caused, nor do they reflect the egregious culpability of telcos' conduct in taking advantage of vulnerable communities. The lack of action from the telco regulator, the Australian Communications and Media Authority (ACMA), shows that there needs to be significant reforms to strengthen its enforcement powers and penalties.
Access to communication and connection is essential, especially in remote places where phone access is essential for access to health, social security and employment services.
More widely, the corporate sector has a bad track record in its treatment of First Nations consumers. In its 2021-25 corporate plan, ASIC noted a need to prioritise reducing financial harm to Aboriginal and Torres Strait Islander communities, who often face limited access and choice in financial products.
The plan highlights issues including high-interest debt traps (such as payday loans), limited culturally appropriate products (especially for funeral costs), and barriers like geographic isolation and language.
ASIC also expresses concern over exploitative sales practices including pressure selling where people are pushed into unfair and unaffordable contracts. First Nations people are being exploited through the basic goods and services we all need-financial services, funeral services, and communication.
Corporate responsibility is failing. And government needs to do more. We must have swift and direct action on the predatory conduct towards vulnerable people by corporations.
Too often, corporate harm is seen as exceptional, caused by one-off "bad actors". These are not one-offs. There is a pattern to these harms, which are enabled by existing structures and systems.
The recurring nature of these harms against First Nations people reveals corporations are enmeshed in systemic racism. When it comes to justice for First Nations people, there has rightly been a focus on government and judicial institutions (policing, criminal law, incarceration, family services) but corporations have escaped scrutiny.
Optus puts a spotlight on the problem. It's not a one-off bad behaviour either. It continues the practices of Telstra before it - and that was just three years ago. Penalties imposed in the past have not worked. It turns out exploitative conduct is more profitable than any fines, which means they do not act as disincentives.
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One solution could be swift consequences for corporations that do impact their bottom line. For example - barring corporations from operating in regions where they have behaved badly, within the Northern Territory, Queensland or Western Australia where harm has been done.
Such a zero-tolerance approach is much more likely to deter harmful conduct than penalties.
Much more use should be made of criminal law regarding this exploitative conduct-criminal law is important in setting the norms for conduct and it needs to play a greater role in curbing corporate harm. It is ironic that the NT government is lowering the age of criminal responsibility of children from 12 to 10 (to our national shame and international horror), corporate actors can cause harm to hundreds of people without their actions being subject to criminal law at all.
What would address a bigger picture? A royal commission or inquiry to dig into the harms caused by corporations to First Nations people, especially those in remote and regional areas, and the aspects of corporations law that enable this.
- Dr Honni van Rijswijk is a senior lecturer at the University of Technology Sydney faculty of law.
