Tip top result goes stale: ACCC-v- Australian Safeway Stores Pty Ltd(No 2)

Bread, its constituents, its methods of manufacture and its price and availability to consumers can claim to be the leitmotiv of competition law, both ancient and modern. The inelasticity of demand for such a staple food explains laws against monopolies being included in the eighteenth century BC Code of Hammurabi, why corn laws exercised the minds of the Gracchi brothers in second century B.C. Rome, and why ineffective regulation of the price of bread was seen as an important precipitator of revolutions in Europe in the eighteenth and nineteenth centuries. In the common law the early restraint of trade case, Mitchell v Reynolds saw a parish wide five year non-competition clause in a contract for the sale of a bakery upheld as reasonable. In the post-Shennan Anti-Trust Act (1890) United States, attempts by manufacturers of macaroni to change its constituents because of the prevailing high price of durm wheat were held in National Macaroni Manufacturers Association v FCT) to constitute price-fixing, an offence illegal per se under American anti-trust law.

The nuclear exclusion : what does it mean and who has been tampering with it?

A nuclear exclusion appears in all general insurance policies. Since its introduction to Australia and New Zealand in the 1960s this exclusion has seen almost no change. So what are the reasons for this article? There are two reasons. First, there has been a misunderstanding on the part of some in the industry about the scope of this exclusion. This results in unnecessary alterations to the policy. The other is that a new wording is emerging some sections of the market which could be tar-reaching in its effect. The purpose of this article is to examine several aspects related to the exclusion. The first section examines the nature and extent of exposures in relation to radiation and nuclear energy and serves as background to under standing the exclusion wording. Section two provides the reasons for the inclusion of the clause and its historical origins. Section three addresses the intended scope of the current exclusion and the final section examines the scope of a new wording that is appearing and the possible implications that may result.

Board structure and firm performance : evidence from India's top companies

Manuscript Type: Empirical

Research Question/Issue: This paper investigates the relationship between internal governance structures and financial performance of Indian companies. The effectiveness of boards of directors, including board composition, board size, and aspects of board leadership including duality and board busyness are addressed in the Indian context using two theories of corporate governance: agency theory and resource dependency theory.

Research Findings/Insights: The study used a sample of top Indian companies taking into account the endogeneity of the relationships among corporate governance, corporate performance, and corporate capital structure. The study provides some support for aspects of agency theory as a greater proportion of outside directors on boards were associated with improved firm performance. The notion of separating leadership roles in a manner consistent with agency theory was not supported. For instance, the notion that powerful CEOs (duality role, CEO being the promoter, and CEO being the only board manager) have a detrimental effect on performance was not supported. There was some support for resource dependency theory. The findings suggest that larger board size has a positive impact on performance thus supporting the view that greater exposure to the external environment improves access to various resources and thus positively impacts on performance. The study however failed to support the resource dependency theory in terms of the association between frequency of board meetings and performance. Similarly the results showed that outside directors with multiple appointments appeared to have a negative effect on performance, suggesting that "busyness" did not add value in terms of networks and enhancement of resource accessibility.

Theoretical/Academic Implications: The two theories of corporate governance, namely agency and resource dependence theory, were each only partially supported, by the findings of this study. The findings add further to the view that no single theory explains the nexus between corporate governance and performance.

Practitioner/Policy Implications: This study demonstrates that corporate governance measures utilized in developed economies related to boards of directors have some synergies and relevance to emerging economies, such as India. However, the nature of business structures in India, for example the large number of family businesses, may limit the generalizability of the findings and signals the need for further investigation of these businesses. The evidence related to multiple appointments of directors suggests that there may be support for restricting the number of directorships held by any one individual in emerging economies, given that the "busyness" of directors was negatively associated with firm performance.

Technology licensing and grantbacks under hidden information

This paper explores technological transfer via licensing under hidden information. The transaction features a quality choice of technology to be transferred between a licensor and a licensee that has private information about its ability to implement and refine the technology. The model accounts for the possible damage that drastic refinements and reverse licensing can do to the licensor's market position, and makes predictions on the structure of licensing contracts. We show under what conditions a licensing contract will include a further contractual provision such as a grantback clause. Finally, the welfare implications of grantback inclusion are assessed.

Social identities and law students' writing

This paper argues that social identities, discursively speaking, consist of ‘positions’ that are individuated by distinctive linguistic features. These include distinctive patterns of representation indicated by clause structure and type, a set of priorities for attending to what is important indicated by thematic structure, and an orientation to the represented world and to self as indicated by modality, propositional attitudes and tense. A social identity comprises an array of these often contradictory ‘positions’ associated with a social or professional role. A person’s identity is constituted dynamically by the way they ‘reconcile’ the various positions that make up the social identity, and also, as Archer and Ivanic argue, by the way they reconcile a social with a personal or autobiographical identity. It is argued that this process of reconciliation gives clues about identity formation in the traces it leaves in grammatical texture.

This paper uses a simulated letter of advice to a client written by a group of first year law students to explore the discursive construction of social or professional identity. This letter is poorly written and full of grammatical mistakes and infelicities. It is argued that the mistakes provide a linguistic trace of the students’ struggle to reconcile the conflicting roles and positions they occupy as authors of the letter. In particular the students’ problems result from a struggle to reconcile their multiple positions as: students writing for assessment by a tutor about a legal problem, as a simulated firm of solicitors advising to a client, and as potential litigators anticipating the future course of events in their simulated moot court appearance.

Devaluation of a constitutional guarantee : the history of section 51(xxiiiA) of the Commonwealth Constitution

This article describes constitutional and socio-historical background to the referendum that led to the inserrion of s 51(xxiijA) into the Commonwealth Constitution. It traces judicial interpretations of the clause 'but not so as to authorise any fonn of civil conscription' through the major cases, including British Medical Association v Commonwealth, General Practitioners Society v Commonwealth, and Alexandra Private Geriatric Hospital Pty Ud v Commonwealth. The issue of the powers of the Commonwealth to regulate private medical practice without infringing the constitutional guarantee against civil conscription is analysed in the context of the development of National Health Care Schemes for financing medical benefits (Health Insurance Commission v Peverill). Constitutional aspects of the 1995 legislation enabling the introduction into Australia of purchaser-provider agreements ('managed care ') are also examined. Finally, the article questions the constitutionality of the Australian Competition and Consumer Commission s powers to regulate the essential elements of the patient-doctor relationship.

Sui Generis protection for plant varieties and traditional knowledge in biodiversity and agriculture : the international framework and national approaches in the Philippines and India

The so-called ‘biotechnology clause’ of Article 27.3(b) of the WTO-TRIPS Agreement requires from member states protection for plant varieties either via the patent system or via an ‘effective sui generis system’ or by a combination of the two. Many developing countries prefer forms of sui generis protection, which allow them to include exceptions and protection measures for traditional agricultural practices and the traditional knowledge of farmers and local communities. However, ‘traditional knowledge’ remains a vaguely defined term. Its extension to biodiversity has brought a diffusion of the previously clearer link between protected subject matter, intellectual property and potential beneficiaries. The Philippine legislation attempts a ‘bottom-up’ approach focusing on the holistic perceptions of indigenous communities, whereas national economic interests thus far receive priority in India’s more centralist approach. Administrative decentralisation, recognition of customary rights, disclosure requirements, registers of landraces and geographical indications are discussed as additional measures, but their implementation is equally challenging. The article concludes that many of the concepts remain contested and that governments have to balance the new commercial incentives with the biodiversity considerations that led to their introduction, so that the system can be made sufficiently attractive for both knowledge holders and potential users of the knowledge.

Consciousness-raising tasks versus deductive approach : two form-focused instruction types in teaching grammar to Iranian high school EFL learners

Consciousness-raising (CR) task is a new way of teaching grammar developed in communicative contexts although little has been written on the effectiveness of CR tasks in EFL setting. The present study is an attempt to investigate the impact of CR tasks in Iranian EFL setting by comparing them with deductive, grammar lessons common in the Iranian schools. The subjects of this study were 80 EFL pre-university male students who were randomly assigned to an experimental group and a control one. The control group received three ordinary teacher-fronted, deductive lessons, a common way of teaching methodology in Iran, on three grammatical structures (adverb placement, indirect object placement and the use of relative clause). The experimental group, however, was treated with three ‘consciousness-raising’ (CR) tasks dealing with the same target structures. The results showed that in the short-run, CR tasks were as effective as deductive approach in promoting the learners’ grammatical knowledge while in the long-run, the CR group maintained their gains more effectively than the deductive group. The conclusion is that CR tasks can function more effectively than deductive approach if the following conditions are met: (a) performing the consciousness-raising tasks in learners’ L1; (b) providing the learners with feedback whenever they encounter a problem in solving the tasks; (c) grouping the learners in such a way that at least one learner in each group would be more proficient than the other members to help the less proficient ones understand and discover the rules more effectively.

Facilitating a no-blame culture through project alliancing

Innovation occurs within the safety of a no-blame culture yet we see surprisingly scant literature on how this is facilitated within a construction project management context. The purpose of this paper is to demonstrate how innovation and promotion of innovative thinking in action is enabled through a no-blame culture in project alliances in Australia. We argue that innovation is dependent upon collaboration and true collaboration is inextricable linked to behavioural drivers. Foremost of these is a culture of openness and willingness to share the pain and gain from experimentation. Further, this culture requires that collaborators be protected from the threat of being blamed and held accountable for experimental failure. We draw upon theory and data gathered over several recent research studies on the experience of project alliances in Australia. The project alliance procurement form has a unique ‘no-blame’ behavioural contract clause that is crucial in developing a collaborative culture where innovation can evolve through a process of trial and error.

A cross-disciplinary analysis of rhetorical structure of dissertation abstracts

The teaching rhetorical structure of various academic genres has been recognized as a practical, pedagogical tool in both ESL and EFL academic settings. However, assigning a unitary structure for different fields of study might poses problems for novice writers. In this study, the rhetorical structure of 120 abstracts (ninety ‘masters’ theses and thirty ‘doctoral’ dissertations) from six disciplines were investigated. In this exploratory study, four rhetorical structures were found: IMRC/D, CARS, Mixed, and None (which means the texts lack any rhetorical structure). The conclusion is that nonnative speakers require more than grammatical knowledge at the clause level. They need to be familiarized with the discourse grammar with the functional tokens attached to it in order to be successful in their academic writing.

Enabling construction innovation : The role of a no-blame culture as a collaboration behavioural driver in project alliances

A no-blame culture is widely accepted as a collaboration driver yet we see surprisingly scant literature on the theoretical underpinnings for the construction and project management context. A no-blame culture in project alliances, as conducted in Australasia, promotes innovative thinking in action. Innovation is dependent upon collaboration and true collaboration is inextricably linked with behavioural drivers. Foremost of these is a culture of openness and willingness to share the pain and gain from experimentation, one that requires that collaborators be protected from the threat of being blamed and held accountable for experimental failure. The Australasian project alliance procurement form has a unique 'no-blame' behavioural contract clause that can result in the type of breakthrough thinking crucial in developing a collaborative culture where innovation can evolve through a process of trial and error. © 2014 Taylor & Francis.

Abortion and conscientious objection: the new battleground

This paper examines the vexed issue of conscientious objection and abortion. It begins by outlining the increasing claims to conscientious objection invoked by physicians in reproductive health services. After an examination of developments overseas, the paper turns to the acrimonious debate in Victoria concerning the conscience clause and the 'obligation to refer' contained in the Abortion Law Reform Act 2008 (Vic) ('ALRA'). This paper questions the interpretation by the Catholic Church that the clause breaches its right to freedom of conscience and freedom of religion. We argue that the unregulated use of conscientious objection impedes women's rights to access safe lawful medical procedures. As such, we contend that a physician's withdrawal from patient care on the basis of conscience must be limited to certain circumstances. The paper then examines international and national guidelines, international treaties and recommendations of treaty monitoring bodies, laws in other jurisdictions, and trends in case law. The purpose of this examination is to show that the conscientious objection clause and the 'obligation to refer' in ALRA is consistent with international practice and laws in other jurisdictions. Finally, the paper turns to the problematic interpretation of conscience and moral responsibility in the context of abortion. We believe that narrow interpretations of conscience must be challenged, in order to incorporate patients' rights to include the choice of abortion and other lawful treatments according to their conscience. We conclude that the conscientious objection provisions in ALRA have achieved the right balance and that there is no justifiable legal reason upon which opponents can challenge the law.