Advocacy Arena - Divided by Doublespeak
This simulation takes you inside the frontline decision making machinery of the backbone of the Australian banking industry - home lending, where template terms become financial and regulatory risk.
Credit contracts designed for home loans attempt to simultaneously speak several languages. One that conforms to the consumer law, another that is unbridled by its constraints. One that is clear to the consumer, another that is intelligible to the courts.
As a regulator, lender, borrower, investor, lawyer, or advocate, players will navigate the pressure points from realistic positions in the transaction cycle. Everyone has responsibilities, blind spots and opportunities to influence decisions. The arena is where judgments about consumer protection, legal defensibility and operational convenience are made.
Across four scenes, governance intent is transformed into legal exposure, and operational risks ripple through the market. Is the fine-print harmless boilerplate or a quiet shift in power? Is compliance a box-ticking burden or a bedrock of trust? When people rely on others for accountability, where does responsibility reside?
You might not look at a governing law clause the same way again.
- Characters
- 12
- Scenes
- 4
- Preparation time
- 2 hours
- Play time
- 1.5 hours
- In collaboration with
- Notwithstanding The Aforesaid
The characters
Each character sits at a different position in the home lending cycle: writing the terms, approving them, enforcing them, or living with their consequences. Their perspectives and points of influence diverge. Together they shape how power is allocated in practice.
Players step into these roles to examine doctrine. They respond to incentives: political wins, operational efficiency, clean transactions, frictionless investments, or managing the distress that rides alongside disputes.
Trust, accountability and legal nuance are all in play, as are deadlines, margins and career stakes.
Across four scenes, you will negotiate, delay, escalate or downplay the issues that emerge from a single clause. Some choices shore up the status quo; others dissipate risk into the market. And many feel justifiable… until assumptions masquerading as neutrality are recognised as policy decisions in disguise.
Governance isn’t an abstract principle. It is the sum of decisions made by these characters, including the ones they quietly ignore.
Casey Kimpton
CEO at Mortgages R Us
Taylor Vasser
Portfolio Manager at The Yield Fandango
Introduction
Background & Context
Fifteen years have passed since national consumer credit laws were introduced and five years have passed since the Banking Royal Commission exposed failures in banking culture and conduct. Since then, reforms, enforcement and evolving market practice have steadily adjusted the information and power asymmetry between lenders and borrowers.
Disclosure is mandated down to font size, but some aspects of contractual freedom remain in the hands of the credit provider who holds the drafting pen. In those regulatory corners where rules are less prescriptive, the dominant market participants set the tone. Their approach reveals governance intent.
When lenders use similar boilerplate, criticism dissolves into collective ambivalence. Standardisation becomes a form of insulation. If the people who routinely produce these documents rely on what the market does, and no one is complaining, or there are more pressing regulatory oversight concerns, what incentives guide the approach?
In Divided by Doublespeak, competing objectives collide. Lenders seek consistency and operational efficiency. One template for all customers reduces friction. Consumers expect fairness, and the law protects that expectation. If the contract language must be construed to operate differently when the National Credit Code applies, what influences decisions that pit convenience against fairness?
As lenders and lawmakers debate how much bureaucracy can be rationalised and whether innovation justifies a more agile approach to self-regulation, this scenario invites participants to consider how governance intent translates into practice.
This is not a morality tale. Most borrowers never read these terms, and most disputes are resolved long before reaching a courtroom. However, leverage can be found in the record-setting penalties and the public parliamentary hearings that surface value judgments and incentive misalignment. The question is not whether harm is rampant, but whether integrity is visible in the parts of the bargain where the law does not dictate the details.
Through the lens of a single clause the trade-offs between lender convenience and consumer rights are tested. Viewed systemically, the capacity for credible self-regulation and its downstream impact on the debt markets comes into focus.
Outline
The game
The situation
The consequences reach beyond one clause not working as expected. Confidence in the system depends on trusted decision-makers meeting common expectations. What if no one has actually done the work to establish that commonality?
- Riley's curveball
Riley Rivers bought a first home in Berowra, NSW with Ellis as guarantor, offering a mortgage over her investment property in Brisbane. A standard loan. A standard guarantee. Two standard mortgages. The broker that recommended Mortages R Us and Quinn at Greyshingle both said the documents were routine.
Since then storms battered Berowra and burst a pipe beneath Riley's house. Insurance failed. Repairs stalled. Council has a role to play in the rectification works. Riley has relocated to Darwin for work and now faces the consequences of long-term loan arrears.
A tiny detail buried in the standard terms will determine how disruptive enforcement becomes for the Rivers family.
- Political influence
Alex and Kendall often cross paths at industry events. Their banter about deregulation and market power is usually performative. The last conversation took a more spicy tone. Alex implied that any major reform push is paused until confidence in consumer protection stabilises. The string of recent public missteps by the banks cannot be ignored.
Alex wants innovation headlines that rise to ASIC's innovation agenda, without triggering memories of the misconduct exposed by the Royal Commission. Kendall insists recent issues are isolated anomalies and reminds Alex that voters also want growth and that the crypto-kings are marching on territory that was once the stronghold of the comparatively sage banks.
Alex asks Morgan and Cameron to find tangible examples of structural disadvantage that could justify legislative caution. Morgan reads the templates being used by industry leaders. Cameron looks for patterns in complaints. Together, they notice dual-use approach, the latent uncertainty in the governing law clause and its dependence on awkward features and acrobatic interpretation for substantive meaning.
Kendall quietly alerts Banking Association members to the rumbling.
- The investment risk
Leaks on both sides of Alex and Kendall's discussion have made it to the financial press. Taylor reads it and recognises that regulatory scrutiny may reach the debt investment market. Unlike the banks, funds operate without deep political insulation. If enforceability servicing is mispriced or hampered for by opaque administrative history, or compliance infractions are exposed to penalties, the risk lands on investors.
- Mortgages R Us contract terms
For the purpose of this scenario, key terms from Mortgages R Us' standard credit contract are extracted below. Shae engaged Avery to prepare them.
Cover letter: This contract is made up of this cover letter (setting out your important loan information), and the attached loan terms and conditions, the mortgage terms and conditions and the guarantee terms and conditions. Together, these documents form your credit contract with Mortgages R Us. Please read them carefully and keep them in a safe place for future reference.
If more than one person countersigns this letter, then you means each of you jointly and separately, unless a clause specifically refers to one or more of you specifically.
Loan: This contract is governed by the law of the State or Territory in which you reside as at the date the contract is made and the courts there have jurisdiction over any matters relating to it, except that if more than one you are party to this contract, then this contract is governed by the law of the State or Territory in which the loan agreement was made. The courts there and any other courts with proper jurisdiction, have jurisdiction over any matters relating to this contract.
Mortgage: This contract is governed by the law of the State or Territory in which the property is located and the courts there have jurisdiction over any matters relating to it.
Guarantee: This contract is governed by the law of the State or Territory in which you reside as at the date the contract is made and the courts there have jurisdiction over any matters relating to it, except that if more than one you is party to this contract, then this contract is governed by the law of the State or Territory in which the guarantee was made and the courts there have jurisdiction over any matters relating to it.
Severance: Unlawful terms are severed and have no effect.
Each set of standard terms is printed in a booklet that has a message on the front page. Inspired by ME Bank, Mortgages R Us strikes a relatable tone with its customers, by recognising the unappealing but important task of understanding the terms (which should be possible by going through the booklet). It reads:
We’re pretty straight up and we keep things real. We also know you’ve got better things to do than go through this booklet with a fine-tooth comb and you’d rather be sipping lattés or heading to the footy and we get that. However, it’s really important you understand the small print that applies to your home loan. That way there are no surprises.
- Mortgages R Us asset opinion
For the purpose of this scenario, key elements of the Dustygrey asset opinion on the Mortgages R Us' standard home loan terms are extracted below.
legality: the terms are legal, valid, binding and enforceable.
choice of law: the courts of the nominated jurisdiction will recognise the choice of law made in the terms.
forum: the courts of the nominated jurisdiction will recognise the choice of forum made in the terms.
This opinion is qualified to acknowledge that courts may consider equities or non-contractual interests that prevail over the standard contractual forum elections. No qualifications or assumptions about Regulation 36(3) are expressly made.
The opinion does not recognise that the contract incorporates more than one set of terms, with each set of terms using a separate governing law clause.
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