The Test for Lawful But Illegitimate Pressure

William Garske
(2026) 49(1) University of New South Wales Law Journal 165

William Garske, ‘The Test for Lawful But Illegitimate Pressure’ (2026) 49(1) University of New South Wales Law Journal 165

Abstract

Although the High Court of Australia is yet to recognise a doctrine of lawful act duress, this development appears likely to be only a matter of time. This article looks to the future and seeks to determine the appropriate lens through which cases of lawful act duress should be analysed, considering three models recently proposed by distinguished judges: disproportionality (Edelman J writing extra-curially with Elise Bant), bad faith (Lord Burrows), and unconscionability (Lord Hodge). It is submitted that, if lawful act duress is recognised in Australia, the test for lawful but illegitimate pressure should be whether the threatening party’s conduct was so morally reprehensible that it renders enforcement of the transaction unconscionable. Unlike the alternatives, that standard reflects the law’s approach to related doctrines and provides a unifying explanation for the recognised circumstances of lawful act duress.