1. Marco Polo and Rustichello of Pisa, Second Book, Part I, Chapter XXIV: ‘How the Great Kaan Causeth the Bark of Trees, Made into Something Like Paper, to Pass for Money over All His Country’, in The Book of Ser Marco Polo: The Venetian, Concerning Kingdoms and Marvels of the East, tr Colonel Sir Henry Yule, (London: John Murray, 1903) vol 1.

2. For example, on June 1, 2018, the Visa network experienced a significant outage that disrupted card transactions across various parts of the world. 5.2 million payments across Europe failed during the 10-hour outage: Finextra, ‘Visa Says 5.2m Payments Failed during 10 Hour Outage’, Finextra (online, 19 June 2018) <https://www.finextra.com/newsarticle/32277/visa-says-52m-payments-failed-during-10-hour-outage>.

3. Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) (‘AML/CTF Act’).

4. Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12, s 9. It is also surprising that the term ‘legal tender’ is not defined in the transnational guidelines published by the Bank for International Settlements, the Organization for Economic Cooperation and Development, the World Bank or the International Monetary Fund.

5. Watson v Lee 144 CLR 374, 398 (Stephen J). Followed in Travelex Ltd v Commissioner of Taxation [2008] FCA 1961 [27] (Emmett J) (‘Travelex’): ‘Legal tender is such money, in the legal sense, as the polity defines in legislation that organizes the monetary system’. Followed in Leask v Commonwealth of Australia (1996) 140 ALR 1 31 (Gummow J). In Skyring v Commissioner of Taxation (Cth) (2007) 244 ALR 505, Greenwood J said something similar at 511: Legal tender ‘is the act of tendering, in the performance of a contract, or in the satisfaction of a claim, that which the law prescribes or permits and at such time and place as the law prescribes or permits’.

6. The term ‘notes’, ‘banknotes’, ‘bills’ and ‘paper money’ are used interchangeably.

7. Although cash is the only form of legal tender currently recognized in Australia, the Commonwealth could amend the list in the future. For example, it may create a central bank digital currency.

8. Reserve Bank Act 1959 (Cth);Currency Act 1965 (Cth) (‘Currency Act’).

9. Nussbaum, Arthur, Money in the Law: National and International (Brooklyn: The Foundation Press, 1950) 45–46Google Scholar (emphasis added).

10. Travelex (n 5) [28] (Emmett J) (emphasis added).

11. ‘Legal Tender’, Reserve Bank of Australia Banknotes (Web Page) <https://banknotes.rba.gov.au/legal/legal-tender/> (emphasis added).

12. Currency Act (n 8) s 16(1)(a).

13. Daniel Piotrowski, ‘Adelaide Man Tries to Pay City Council Parking Fine with 5c Pieces’, news.com.au (online, 16 September 2013) <https://www.news.com.au/finance/money/adelaide-man-tries-to-pay-city-council-parking-fine-with-5c-pieces/news-story/d2fff183de9eb57b9e73e58db2d266cb>. Nevertheless, there may be situations where the parties decide to contract out of the limitation in s 16 of the Currency Act (n 8), as a creditor may want to receive more than $20 in coins, particularly if they want small change for their cash intensive business.

14. 31 US Code § 5103 (1982).

15. ‘US Man Pays Tax Bill Using Five Wheelbarrows of Coins’, BBC (online, 12 January 2017) <https://www.bbc.com/news/world-us-canada-38603615>.

16. For instance, Black’s Law Dictionary distinguishes between a ‘payment of debts’ from a ‘payment of goods [and services]’, which would cover situations where a debt has not been incurred. ‘Legal tender’ is ‘[t]he money (bills and coins) approved in a country for the payment of debts, the purchase of goods and other exchanges for value’: Garner, Bryan A (ed), Black’s Law Dictionary (Thomson Reuters, online 10^th ed, 2014)Google Scholar (emphasis added).

17. ‘Legal Tender’ (n 11) (emphasis added). This rule has also been confirmed by Professor Benjamin Geva, who has said that: ‘While Nussbaum overlooks the creditor’s right to stipulate in advance, expressly or by implication, a mode of discharge that excludes payment by legal tender’: Geva, Benjamin, ‘Legal Aspects Relating to Payment by E-Money: Review of Retail Payment System Fundamentals’ (2000–2001) 5 Yearbook of International Financial and Economic Law 255, 261 (emphasis added).Google Scholar

18. The term ‘unbanked’ pertains to adults who either lack access to or choose not to utilize conventional financial services such as savings accounts, credit cards or personal checks: Allie Grace Garnett ‘What It Means to Be Unbanked or Underbanked’, Encyclopedia Britannica (online, 3 March 2023) <https://www.britannica.com/money/unbanked-and-underbanked>.

19. The term ‘underbanked’ describes individuals or families who possess a bank account but frequently depend on alternative financial services, such as money orders, check-cashing services and payday loans, instead of traditional loans and credit cards, to handle their finances and make purchases. This reliance on alternatives may stem from limited access to accessible and affordable banking services or a personal preference or necessity to utilize non-traditional financial options: ibid.

20. Grainger & Sons v Gough [1896] AC 325; Fisher v Bell [1961] 1 QB 394; Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd [1953] 1 QB 401; Partridge v Crittenden [1968] 2 All ER 421.

21. Proctor, Charles, ‘Legal Tender under English Law’ in Freitag, Robert and Omlor, Sebastian (eds), The Euro as Legal Tender: A Comparative Approach to a Uniform Concept (Walter de Gruyter GmbH, Berlin/Boston, 2020) 91, 93 (emphasis in original).CrossRefGoogle Scholar

22. This is also the law in the UK and in most parts of the US: ‘What is Legal Tender?’, Bank of England Knowledge Bank (Web Page) <https://edu.bankofengland.co.uk/knowledgebank/what-is-legal-tender/>.

23. ‘Internal Theft’, National Retail Association (Web Page) <https://www.nra.net.au/policy-advocacy/safe-retail/internal-theft/>.

24. Trevor Moore, ‘Employee Statistics’ MoneyAustralia (Web Page, 11 August 2023) <https://www.moneyaustralia.net/employee-statistics/>. Although it is unclear what percentage of this figure is actual cash that is being stolen by employees.

25. Erlanger, Samuel, ‘A Cashless Economy: How to Protect the Low-Income’ (2019) Cardozo Law. Review De-Novo 166, 173–174.Google Scholar

26. ‘Smart contracts are coded programs that are used to automate pre-specified transactional events based on agreed upon contractual terms’. Mills, David, Kathy Wang, Brendan Malone, Anjana Ravi, Jeff Marquardt, Clinton Chen, Anton Badev, Timothy Brezinski, Linda Fahy, Kimberley Liao, Vanessa Kargenian, Max Ellithorpe, Wendy Ng and Maria Baird, ‘Distributed Ledger Technology in Payments, Clearing and Settlement’ (Finance and Economics Discussion Series No 2016–095, Board of Governors of the Federal Reserve System) 14.

27. ‘Legal Tender’ (n 11).

28. Erlanger (n 25) 174.

29. Many retailers pass these costs onto their customers (known as a ‘surcharge’), thus resulting in higher transactions costs for consumers: ACCC, ‘Card Surcharges’ (Web Page) <https://www.accc.gov.au/consumers/pricing/card-surcharges>.

30. ‘One reason for this dramatic shift in payment preferences and behaviour is community concern about transmission of the virus via banknotes’: Guttmann et al, ‘Cash Demand During COVID-19’ (Reserve Bank of Australia Bulletin, March 2021) <https://www.rba.gov.au/publications/bulletin/2021/mar/cash-demand-during-covid-19.html>; see further Raphael Auer, Giulio Cornelli and Jon Frost, COVID-19, Cash, and the Future of Payments (BIS Bulletin, 3 April 2020) <https://www.bis.org/publ/bisbull03.pdf>.

31. Tanya Livermore et al, ‘The Evolution of Consumer Payments in Australia: Results from the 2022 Consumer Payments Survey’ (Research Discussion Paper, Reserve Bank of Australia, November 2023) 6.

32. ‘[C]ash is being squeezed out so quickly-with half the nation’s retailers predicting they will stop accepting bills before 2025 that the government is recalculating the societal costs of a cash-free future’: Erlanger (n 25) 180 at fn 105; Ryan Browne, ‘People in Sweden Barely Use Cash-and That’s Sounding Alarm Bells for the Country’s Central Bank’, CNBC (Online, 3 May 2018) <https://www.cnbc.com/2018/05/03/sweden-cashless-future-sounds-alarm-bells-for-the-central-bank.html>.

33. The central bank of Kenya conducted a survey in 2016 estimating that 41 per cent of the Kenyan population had a bank account: George Obulutsa and Jan Harvey, ‘M-Pesa Helps Drives Up Kenyans’ Access to Financial Services — Study’, Reuters (Online, 3 April 2019) <https://www.reuters.com/article/kenya-banking-idUSL8N21L2HK>. Nevertheless, there is also evidence that cash is still widely used in Kenya. ‘During the first year of the COVID-19 pandemic, Kenya experienced an increase in the precautionary demand for cash as a store of value amid a crisis… Currency in circulation in Kenya went from KES246.78 billion (USD2.19 billion) in March 2020 to KES281.586 billion (USD2.49 billion) in March 2021, an increase of 14.1 per cent’: Manuel Bautista-González, ‘Cash in Kenya During the First Year of the Pandemic’, Cash Essentials (Online, 17 December 2021) <https://cashessentials.org/cash-in-kenya-during-the-first-year-of-the-covid-19-pandemic/>. Furthermore, a survey conducted by Visa ‘showed that an estimated (71 per cent) of businesses in Kenya use cash as a means of payment’: Victor Oluwole, ‘Kenya Ranks First in the Use of Digital Payments Across Africa, According to VISA’, Business Insider Africa (Online, 4 September 2022) <https://africa.businessinsider.com/local/markets/kenya-ranks-first-in-the-use-of-digital-payments-across-africa-ahead-of-south-africa/pm35j1e>.

34. A basic mobile phone, as opposed to a smart phone, permits a user to transfer digital value over a basic phone connection (eg, by sending an SMS), as opposed to requiring a more sophisticated and expensive 3G, 4G or 5G connection. ‘Kenya has a population of about 50 million which means nearly the entire adult population operates on Safaricom’s mobile money platform M-Pesa’: ‘Safaricom Crosses 30 Million Monthly Active M-PESA Customers’, Safaricom (Online, 10 March 2022) <https://www.theeastafrican.co.ke/tea/business/safaricom-m-pesa-crosses-30-million-active-users-in-kenya-3743258>.

35. Livermore et al (n 31) 6.

36. Ibid 7.

37. ‘The number of ATM withdrawals fell by around 50 per cent in the first 2 months of the pandemic in Australia. By the end of the year, withdrawals were still 20 per cent lower than before the pandemic in February 2020. The average withdrawal size increased at a slightly faster pace than its trend increase, which points to some demand for cash as a store of wealth. Access to cash also declined due to closures of ATMs and bank branches’: Guttman (n 30) 3 <https://www.rba.gov.au/publications/bulletin/2021/mar/cash-demand-during-covid-19.html>. The Senate launched an inquiry into bank branch closures in regional Australia in 2023: ‘Bank Closures in Regional Australia’, Parliament of Australia (Web Page) <https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Rural_and_Regional_Affairs_and_Transport/BankClosures>.

38. Livermore et al (n 31) 9.

39. Guttman et al (n 30) 4 citing Luc Delaney, Nina McClure and Richard Finlay, ‘Cash Use in Australia: Results from the 2019 Consumer Payments Survey’ (Reserve Bank of Australia Bulletin, June 2020) <https://www.rba.gov.au/publications/bulletin/2020/jun/pdf/cash-use-in-australia-results-from-the-2019-consumer-payments-survey.pdf>.

40. Rochelle Guttmann, Tanya Livermore and Zhan Zhang, ‘The Cash use Cycle in Australia’ (Reserve Bank of Australia Bulletin, March 2023) 47.

41. Livermore et al (n 31) 10.

42. Ibid 10.

43. Livermore et al (n 31) 11.

44. Nicola Heath, Lara Heaton and Marc Fennell, ‘Australia’s Transition to a Cashless Society Raises Concerns About Financial Exclusion, Privacy and Safety’, ABC News (Online, 23 August 2023) <https://www.abc.net.au/news/2023-08-23/cashless-society-financial-exclusion-safety-privacy-concerns/102706718>; Reserve Bank of Australia, Reserve Bank of Australia Annual Report — 2022 (Report, 2022) <https://www.rba.gov.au/publications/annual-reports/rba/2022/banknotes.html>.

45. ‘This figure comprises 1 per cent of adults who were fully excluded (they had no financial services products) and 15.9 per cent of adults who were severely excluded (they only had one financial services product)’: Centre for Social Impact for National Australia Bank, Measuring Financial Exclusion in Australia (Report, April 2014) <https://www.nab.com.au/content/dam/nabrwd/documents/reports/financial/2014-measuring-financial-exclusion-in-australia.pdf>.

46. Sonia Hickey, ‘Government’s Plan to Criminalize Cash Payments Has Been Defeated’ Sydney Criminal Lawyers (Online, 7 December 2020) <https://www.sydneycriminallawyers.com.au/blog/governments-plan-to-criminalise-cash-payments-has-been-defeated/>.

47. Peter Davidson, Bruce Bradbury and Melissa Wong, Poverty in Australia 2022: A Snapshot (ACOSS/UNSW Partnership Report, October 2022) 9 (‘ACOSS/UNSW Report’).

48. Dean Foley, ‘The Reserve Bank of Australia Has No Real Solutions to Solve First Nations Access to Capital’, National Indigenous Times (Online, 13 June 2022) <https://nit.com.au/13-06-2022/3258/the-reserve-bank-of-australia-has-no-real-solutions-to-solve-first-nations-access-to-capital>.

49. However, according to the economist’s definition, cash would not be classified as a ‘public good’, as economists define a public good as something that is ‘non-rivalrous’ and ‘non-excludable’. Thus, the benefits that the public receive from, for example, national defence and public health initiatives are regarded as public goods because an individual cannot exclude other members of the public from receiving their benefits. On the other hand, cash can be exclusively possessed by the owner of specific notes and coins: ‘Public Goods’, Standford Encyclopedia of Philosophy (Web Page, 21 2 July0211) <https://plato.stanford.edu/entries/public-goods/#ExamPublGood>.

50. Maynard Keynes, John, A Treatise on Money. The Pure Theory of Money (Basingstoke: Macmillan, 1971) 4Google Scholar (emphasis added).

51. ‘Paper money that, in contrast to hard currency, is not backed by reserves [of gold and silver] but instead derives its value from government regulation or law declaring it legal tender’: ‘Fiat Money’, Black’s Law Dictionary (Web Page) <https://thelawdictionary.org/fiat/>. ‘Fiat’ translates from Latin as ‘let it be done’.

52. Thomson Reuters, Law Relating to Banker and Customer (31 May 2022) [4.3235], Law Relating to Banker and Customer, Commentary, Payment, Credit and Exchange Mechanisms, Payment and Payment Systems, Particular Payment Systems, Digital Currency, Currency: Fiat and Representative, Last Review: 31/05/2022 (online). Conversely, ‘[r]epresentative currency represents a claim on a commodity…’.

53. Gillette, Clayton P, ‘American Legal Tender Rules and Risk Allocation’ in Freitag, Robert and Omlor, Sebastian (eds), The Euro as Legal Tender (Walter de Gruyter GmbH, Berlin/Boston, 2020) 106Google Scholar.

54. Ibid 118.

55. ‘Internal Theft’, National Retail Association (Web Page) <https://www.nra.net.au/policy-advocacy/safe-retail/internal-theft/>.

56. The government also needs to ensure that SCVs are not being used for money laundering and tax evasion purposes, as it is easier to transport $100,000 on an SVC than the equivalent in cash. In 2016, AUSTRAC published a report that there were 10 million active SVCs with a stored value of $1.5 billion; Australian Transaction Reports and Analysis Centre (AUSTRAC), Stored Value Cards: Money Laundering and Terrorism Financing Risk Assessment (Report, 2017) <https://www.austrac.gov.au/sites/default/files/2019-06/stored-value-cards-risk-assessment.pdf>. Under the current AML/CTF Act (n 3), entities that issue SVCs have a legal obligation to submit a Transaction Threshold Report (AML/CTF Act (n 3) s43) for amounts over $10,000, and a Suspicious Matter Report (SMR) (AML/CTF Act (n 3) s41) if there is a reasonable suspicion of money laundering, terrorist financing or tax evasion. The same report found that 17 entities submitted 916 SMRs with a total value of $72.3 million in 2016: 7. Although this is encouraging, it is unclear whether entities are reporting all suspicious transactions. In the aftermath of the Wirecard scandal in Germany in 2020, it was reported that criminals were able to launder money using SVCs that could store hundreds of thousands of euros on a single card. ‘The Netflix documentary of the Wirecard SKANDAL!’, FT Professional (Web Page) <https://enterprise.ft.com/en-gb/blog/the-netflix-documentary-on-the-wirecard-scandal/>. Therefore, AUSTRAC will need to keep monitoring that retailers are complying with the AML/CTF laws.

57. ‘Central Bank Digital Currency’ Reserve Bank of Australia (Web Page) <https://www.rba.gov.au/payments-and-infrastructure/central-bank-digital-currency/>. A CBDC is a digital form of a national currency issued by a country’s central bank. Unlike physical banknotes and coins, CBDCs exist exclusively in digital format, often stored in electronic wallets or accounts. The RBA has recently published a report concluding that: ‘There is no clear public interest case to issue retail CBDC in Australia as yet…’, and they will revisit the issue of creating a rCBDC in 2025. Reserve Bank of Australia and Department of the Treasury, Central Bank Digital Currency and the Future of Digital Money in Australia (Report, September 2024), 3. A discussion of CBDCs is outside of the scope of this article.

58. SMS stands for ‘Short Message Service’. It is a text messaging service that allows short messages, typically up to 160 characters, to be sent between mobile devices. SMS has been a widely used communication method for sending brief messages quickly and efficiently.

59. Roy Morgan, ‘Australians are bringing their own phone to new mobile plans’, (Press Release 8032, 1 July 2019) <https://www.roymorgan.com/findings/australians-are-bringing-their-own-phone-to-new-mobile-plans>.

60. Galvin, Andrew, ‘The Legal Nature of Stored Value Card Transactions’ (1999) 10(1) Journal of Banking and Finance Law and Practice 54, 54–55Google Scholar.

61. Dan Freed and Olivia Oran, ‘Hauling cash, replacing cards, fixing ATMs: the stubborn costs banks can’t erase’ Reuters (Web Page, 19 July 2019) <https://www.reuters.com/article/us-usa-banks-expenses-idUSKCN0ZZ0AO>.

62. Josh Taylor, ‘Australian banks hit with payment transfer outage as RBA blames technical error’, The Guardian (online, 13 October 2022) <https://www.theguardian.com/australia-news/2022/oct/13/australia-banks-osko-fast-payment-transfer-outage-reserve-bank-rba-technical-error>.

63. Sveriges Riksbank (Central Bank of Sweden), Petition to the Riksdag, The State’s Role on the Payment Market 2018/19:RB3 (16 April 2019) 11.

64. Competition and Consumer Act 2010 (Cth) sch 2 (‘Australian Consumer Law’ or ‘ACL’).

65. ACCC v Radio Rentals Ltd (2005) 146 FCR 292 at [24].

66. ACL (n 64) s 23(3): ‘A consumer contract is a contract for: (a) a supply of goods or services…’.

67. Commonwealth of Australia, ‘Unfair Contract Terms: A Guide for Businesses and Legal Practitioners’ (2016) 8.

68. ACL (n 64) s 23(2).

69. See, eg, Undertaking to the Australian Competition and Consumer Commission from Fowler Homes Pty Ltd to ACCC, 13 December 2022.

70. ACL (n 64) ss 23(1)–(2).

71. Ibid s 224(1)(a)(i).

72. Australia’s anti-discrimination laws are contained in the following legislation: Australian Human Rights Commission Act 1986 (Cth); Age Discrimination Act 2004 (Cth); Disability Discrimination Act 1992 (Cth); Racial Discrimination Act 1975 (Cth); Sex Discrimination Act 1984 (Cth). See ‘Australia’s anti-discrimination law’, Attorney-General’s Department (Web Page) <https://www.ag.gov.au/rights-and-protections/human-rights-and-anti-discrimination/australias-anti-discrimination-law>.

73. ‘However, in certain circumstances, refusing to take cash in a store may actually violate provincial human rights codes. Michael Bryant, executive director of the Canadian Civil Liberties Association (CCLA), warns that a store’s no cash policy could inadvertently discriminate against seniors, people who are disabled, impoverished or people who just don’t have credit or debit cards’: Lisa Mayor, Andrew Culbert and Saman Malik, ‘Can stores refuse my money? Your COVID-19 questions answered’ CBC (online, 13 June 2020) <https://www.cbc.ca/news/health/cash-coronavirus-questions-answered-1.5609691>.

74. Dean Foley, ‘The Reserve Bank of Australia has no real solutions to solve First Nations access to capital’, National Indigenous Times (online, 13 June 2022) <https://nit.com.au/13-06-2022/3258/the-reserve-bank-of-australia-has-no-real-solutions-to-solve-first-nations-access-to-capital>.

75. Gillette, Clayton P., ‘American Legal Tender Rules and Risk Allocation’ in Freitag, Robert & Omlor, Sebastian (eds), The Euro as Legal Tender (De Gruyter, 2020) 105Google Scholar.

76. ‘FAQs: Is It Legal for a Business in the United States to Refuse Cash as a Form of Payment?’, Board of Governors of the Federal Reserve System (Web Page, 21 July 2020) <https://www.federalreserve.gov/faqs/currency_12772.htm>.

77. In 1978, Massachusetts enacted a statute providing that: ‘No retail establishment offering goods and services for sale shall discriminate against a cash buyer by requiring the use of credit by a buyer in order to purchase such goods and services. All such retail establishments must accept legal tender when offered as payment by the buyer’. Mass Gen Laws ch 255D § 10A (West 2017). Although the goal of this legislative provision is well-intentioned, it remains vague: (1) it does not define the term ‘retail establishment’; (2) it does not place any restrictions on the amounts that can be paid in coins and notes, thereby permitting revenge payments and increasing the risk of money laundering and (3) it does not provide an exemption for online businesses.

78. In 2019, New Jersey enacted a statute providing that: ‘A person selling or offering for sale goods or services at retail shall not require a buyer to pay using credit or to prohibit cash as payment in order to purchase the goods or services. A person selling or offering for sale goods or services at retail shall accept legal tender when offered by the buyer as payment’: NJ Stat Ann § 56:8-2.33 (2021), amending NJ Law Pub L 2019, ch 50, § 1(a). Discrimination against cash-paying customers prohibited; violations, penalties; exceptions. It defines ‘at retail’ to include any retail transaction conducted in person and exclude any telephone, mail or internet-based transaction: § 1(d). The legislation imposes a fine of $2500 for the first violation, a fine of $5000 for the second violation and climbing fines for each violation thereafter: § 1(b). The legislation also exempts some retailers from its requirements, such as those in airports, certain parking facilities, certain sports venues and car rental businesses: § 1(c).

79. ‘A person selling or offering for sale consumer goods or services at retail is prohibited from refusing to accept cash as a form of payment to purchase goods or services. A person selling or offering for sale goods or services at retail shall not: (a) Refuse to accept cash as a form of payment; (b) Post signs on the premises that cash payment is not accepted [and] (c) Charge a higher price to customers who pay cash than they would pay using any other form of payment’: Philadelphia, PA., Code, § 9-1132, s 1.

80. In May 2019, San Francisco banned brick-and-mortar retail businesses from rejecting cash, with some exception. San Francisco, Cal., Police Code, art 55, § 5500–5506 (2019), added by Ord 100-19, File No 190164, App 5/24/2019, Eff 6/24/2019, Oper 8/23/2019 (‘San Francisco Ordinance’).

81. New York City, NY, Admin Code § 20-840 (2020) (‘NY City Council Bill’).

82. New York City, ‘Where Are the Unbanked and Underbanked in NYC? Updated Findings (2017 Data)’ (Web Page, August 2021) <https://www1.nyc.gov/assets/dca/downloads/pdf/partners/Research-UnAndUnderbankedNewYorkers.pdf>. This figure fell slightly in July 2021. However, it is still estimated that ‘301,700 NYC households (9.4 percent) have no bank account, which is slightly lower than previous years but still considerably higher than the national average of 5.4 percent’. Department of Consumer and Worker Protection Research Finds 301,700 NYC Households Are Unbanked, 9 July 2021, <https://www.nyc.gov/site/dca/media/pr070921-DCWP-Research-Finds-301700-NYC-Households-Are-Unbanked.page>.

83. Dean Balsamini and Conor Skelding, ‘NYC businesses told to pay up after not accepting cash’, New York Post (online, 4 December 2021) <https://nypost.com/2021/12/04/nyc-businesses-told-to-pay-up-after-not-accepting-cash/>.

84. Federal Reserve Bank of San Francisco, ‘Fed report shows consumers are keeping more cash during the COVID-19 pandemic’ (Press release, 4 August 2020) <https://www.frbsf.org/our-district/press/news-releases/2020/fed-report-shows-consumers-are-keeping-more-cash-on-hand-during-the-covid-19-pandemic/> (4 August 2020).

85. Ibid.

86. NY City Council Bill (n 81).

87. Cash Should Always be Honored (CASH) Act, HR 2630, 116^th Congress (2019).

88. Payment Choice Act of 2019, HR 2650, 116^th Congress (2019).

89. The Commerce Clause gives Congress the power ‘to regulate commerce with foreign nations, and among the several states, and with the Indian tribes’: United States Constitution art 1 § 8 cl 3. (‘Commerce Clause’).

90. Erlanger (n 25) 204–205.

91. Federal Deposit Insurance Corporation, FDIC National Survey of Unbanked and Underbanked Households (Report, 2017), 1 <https://www.fdic.gov/householdsurvey/2017/2017report.pdf> 1.

92. Judgement of 26 January 2021 in Joined Cases C-422/19 and C-423/19, Dietrich and Haring (EU:C:2021:63).

93. Proposal For A Regulation Of The European Parliament And Of The Council On The Legal Tender Of Euro Banknotes And Coins (European Union) COM/2023/364, 1.

94. The eurozone is an area of 20 countries in the European Union that have officially adopted the euro as the official currency: Trading Economics, Euro Area Population (Webpage) <https://tradingeconomics.com/euro-area/population>. This mandate would impact a market with an estimated population of 342.9 million people.

95. Proposal For A Regulation Of The European Parliament And Of The Council On The Legal Tender Of Euro Banknotes And Coins (n 93) 1. The relevant provisions of the legislation are Article 2(1): To ensure the effectiveness of the legal tender of cash, this Regulation applies also to ex ante unilateral exclusion of payments in cash and to the access to cash, Article 3(4): ‘ex ante unilateral exclusions of cash’ means a situation when a retailer or service provider unilaterally excludes cash as a payment method for example by introducing a ‘no cash’ sign. In this case, the payer and payee do not freely agree to a means of payment for a purchase, Article 4(1): The legal tender status of euro banknotes and coins shall entail their mandatory acceptance, at full face value, with the power to discharge from a payment obligation, Article 4(2): In accordance with the mandatory acceptance of cash, the payee shall not refuse euro banknotes and/or coins tendered in payment to comply with that obligation. Furthermore, there are already some EU Member States that have implemented domestic legislation to ban ‘no cash’ policies at retailers; for example, Spain: see Artículo 47 (ñ). Infracciones en materia de defensa de los consumidores y usuarios, Real Decreto Legislativo 1/2007, de 16 de noviembre, por el que se aprueba el texto refundido de la Ley General para la Defensa de los Consumidores y Usuarios y otras leyes complementarias. Publicado en: «BOE» núm. 287, de 30/11/2007.

96. Currently, Australia’s list of DNFBPs does not include retailers; it is limited to casinos, real estate agents, dealers in precious metals and stones, lawyers, notaries, other independent legal professionals, accountants and trust and company service providers. AML/CTF Act (n 3). Financial Action Task Force (FATF), Glossary of the FATF Recommendations, 2022.

97. AML/CTF Act (n 3) s 43.

98. Financial Transaction Reports Act 1988 (Cth) s 3(1).

99. AML/CTF Act (n 3) s 41.

100. Ibid.

101. Australian Taxation Office, Whole-of-government shadow economy action plan (Webpage) <https://www.ato.gov.au/General/Shadow-economy/The-whole-of-government-shadow-economy-action-plan/>.

102. Saranga Sudarshan and Sophie Wallis, ‘Australian Household Spending Statistics’ (28 August 2024) Finder.com <https://www.finder.com.au/australian-household-spending-statistics>. The Australian Bureau of Statistics reported in the ‘Household Expenditure Survey, Australia’ that ‘[o]n average, Australian households spent $1,425 per week on goods and services in the 12 months to June 2016’. Since then, average spending has increased with inflation. <https://www.abs.gov.au/statistics/economy/finance/household-expenditure-survey-australia-summary-results/latest-release>.

103. Davidson, Bradbury and Wong note ‘The poverty line (based on 50 per cent of median household after-tax income) is $489 a week for a single adult and $1,027 a week for a couple with two children, based on the latest data from the ABS’. ACOSS/UNSW Report (n 47) 9.

104. San Francisco Ordinance (n 80) s 5504(c).

105. Australian Constitution (n 4).

106. AML/CTF Act (n 3).

107. Thomson Reuters, Law Relating to Banker and Customer (31 May 2022) [4.110], Payment, Credit and Exchange Mechanisms, The Australian Currency: Notes and Coin, Legal tender, Last Review: 31/05/2022 (online, Westlaw AU).

108. Saunders v Graham (1819) 171 ER 858; Dean v James (1833) 110 ER 561; Polglass v Oliver (1831) 149 ER 7; Bevans v Rees (1839) 151 ER 130 [131–132] (Maule B): ‘No doubt, a tender must be of a specific sum, on a specific account’.

109. Other countries that impose fines include Nigeria and China. The Central Bank of Nigeria Act punishes criminally a ‘person who refuses to accept the Naira as a means of payment’: at s 19 (5). China’s central bank issued a circular stating that cash payments must not be refused in regular transactions: The People’s Bank of China, Announcement No.10 [2018] of the People’s Bank of China-Announcement on Cracking down on the Act of Refusing to Accept Cash Payments (Regulations) <https://www.pbc.gov.cn/english/130733/3779837/index.html>.

110. See, eg, Amazon and Uber.

111. There is a carve-out in the San Francisco Ordinance (n 80) s 5502 for retailers using an electronic agent via the internet, who do not have a physical presence or who operate from a vehicle or mobile space. There is also a carve-out for online businesses in the NY City Council Bill (n 81).