Constitutional Law

"This book systematically explores and clarifies the complexities of Austrealian Constitutional law and provides valuable critical analysis suitable for students, academics and government departments." -- book cover "Constitutional Law examines the foundational principles and concepts of this area of law. Written by practicing lawyers and lecturers in the subject, this book aims to provide an accessible yet comprehensive introductory text for Australian students. In eight parts this book systematically explores and clarifies the complexities of Australian Constitutional law and provides valuable critical analysis suitable for students, academics and government departments. An excellent resource for law students, Constitutional Law provides visual summaries in the form of flow charts, and each chapter includes key concepts and end-of-chapter discussion questions, further reading and useful websites and links. It also introduces students to key examinable areas, legal style essays, problems and assessment." -- publisher website

Agents as intermediaries : when do they compete with their suppliers?

In cases involving allegations of price fixing under the former s 45A of the Trade Practices Act 1974 (Cth), it was necessary to prove that at least two parties to the arrangement or understanding at issue were “in competition with each other”. The same requirement is contained in the cartel provisions of the Competition and Consumer Act 2010 (Cth) (CCA) that replaced s 45A. The so-called “competition condition” is set out in s 44ZZRD (4) of the CCA. Where a supplier enters into vertical supply arrangements with agents or brokers, problems can arise if the supplier also has a downstream presence. At that functional level there may be a horizontal and therefore competitive dimension, and the competition condition may be satisfied. In such circumstances, great care will need to be taken in any discussions between the supplier and its downstream agents or distributors about the prices, discounts, allowances, rebates or credits that the agent or distributor may charge. Whether agents or brokers competed with their suppliers in vertical supply arrangements arose for consideration in two decisions handed down by the Federal Court in Brisbane...

When should private property rights give way to the public interest?

Since Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd (1989) 167 CLR 177 it has been recognised that corporations with substantial market power are subject to special responsibilities and restraints that corporations without market power are not. In NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90 McHugh A-CJ, Gummow, Callinan and Heydon JJ in their joint reasons stated (at [76]), that s 46 of the Competition and Consumer Act 2010 (Cth) (CCA) can operate not only to prevent firms with substantial market power from doing prohibited things, but also compel them positively to do things they do not want to do. Their Honours also stated (at [126]) that the proposition that a private property owner who declines to permit competitors to use the property is immune from s 46 is “intrinsically unsound”. However, the circumstances in which a firm with substantial power must accommodate competitors, and private property rights give way to the public interest are uncertain. The purpose of this Note is to consider recent developments in two areas of the CCA where the law requires private property rights to give way to the public interest. The first part of the Note considers two recent cases which clarify the circumstances in which s 46 of the CCA can be used to compel a firm with substantial market power to accommodate a competitor and allow the competitor to make use of private property rights in the public interest. Secondly, on 12 February 2014 the Minister for Small Business, the Hon Bruce Billson,released the Productivity Commission’s Final Report, on the National Access Regime in Pt IIIA of the CCA (National Access Regime, Inquiry Report No 66, Canberra). Pt IIIA provides for the processes by which third parties may obtain access to infrastructure owned by others in the public interest. The Report recommends that Pt IIIA be retained but makes a number of suggestions for its reform, some of which will be briefly considered.

Strategic entry deterrence : does it constitute a misuse of market power?

A challenge for regulators and the courts has been establishing the boundary between behaviour is exclusionary and should be condemned under s 46 of the then Trade Practices Act 1974 (Cth) (TPA), now s 46 of the Competition and Consumer Act 2010 (Cth) (CCA), and behaviour that is not exclusionary and might even be pro-competitive. This boundary can be especially difficult to draw in the case of entry deterring strategies. Section 46(1) prohibits corporations with a substantial degree of market power from taking advantage of that market power for one of the statutorily proscribed purposes which include preventing the entry of a person into that or any other market. Section 45(2) separately prohibits corporations from making and giving effect to contracts arrangements and understandings that have the purpose, effect or likely effect of substantially lessening competition in a market. The latest case in which the ACCC has failed to satisfy the s 46 criteria is the decision of Greenwood J in ACCC v Cement Australia Pty Ltd [2013] FCA 909 (Cement Australia case). Final orders were published in a separate judgment, in ACCC v Cement Australia Pty Ltd [2014] FCA 148 (28 February 2014). The case concerned an entry deterring strategy, namely the pre-emptive buying of input factors in an upstream market to protect an incumbent with substantial market power in a downstream market and to prevent new entry in the downstream market. Greenwood J found that while Cement Australia Pty Ltd, formerly known as Queensland Cement Ltd (QCL), had substantial market power, its conduct in entering into the pre-emptive contracts was not a contravention of s 46, because Cement Australia had not “taken advantage” of its market power. However, since Cement Australia’s purpose in entering into the pre-emptive contracts was anti-competitive, they were held to contravene s 45(2) of the TPA. The purpose of this Note is to consider only the reasons for judgment in the Cement Australia case in relation to the “taking advantage” element. The judgment was handed down on 10 September 2013. The final hearing date was 15 July 2011, so it was long-awaited. At 714 pages, it is carefully drafted.

Behaviour v structure : Tribunal’s AGL Energy merger authorisation

Section 95AT of the Competition and Consumer Act 2010 (Cth) (CCA) provides that the Tribunal may grant an authorisation to acquire shares or assets that would otherwise contravene s 50. Section 95AT was inserted by the Trade Practices Legislation Amendment Act 2006 (Cth) and commenced on 1 January 2007. In Application for Authorisation of Macquarie Generation by AGL Energy Limited, (AGL Energy) the Tribunal has for the first time granted AGL Energy Limited (AGL) a conditional authorisation to acquire the assets of Macquarie Generation from the NSW Government.

Disability Standards For Education 2005 (Cth): sword or shield for Australian students with disability?

This article explains the scope and effect of the Disability Standards for Education 2005 (Cth) (the ‘Standards’) and considers whether they operate as a legislative sword or shield in respect of the battle to protect the education rights of people with disabilities in Australia. Evidence suggests that the Standards would be a more effective weapon if there were greater understanding of how they oblige education providers to make reasonable adjustments to their policies and practices to support access for and participation by students with disabilities.

Competition Law in Australia [6th ed.]

Competition Law in Australia, 6th edition provides a comprehensive discussion of the provisions of the Competition and Consumer Act 2010 (Cth) (CCA) dealing with the regulation of competition and markets in Australia. This book covers disparate topics, such as restrictions in horizontal and vertical agreements, horizontal mergers and acquisitions, misuse of market power, and access to services necessary to compete in upstream or downstream markets. However, the unifying theme of this text is that it is not possible to use a formalistic approach in applying the CCA. The decisions of the courts, and the competition authorities responsible for implementing and enforcing the CCA, underline the need to undertake a detailed substantive economic analysis of the effect of the agreement or conduct at issue on competition, efficiency and consumer welfare.

Competition policy review : draft recommendations on competition laws

On 4 December 2013, the Prime Minister and the Minister for Small Business announced a “root and branch” review of Australia’s competition policy. The Minister for Small Business released the final Terms of Reference for the competition policy review on 27 March 2014, following consultation with the States and Territories, and announced the Review Panel headed by Professor Ian Harper. Under the terms of reference the Competition Policy Review Committee (the Harper Committee) is required to focus on three broad areas: •examining what can be done to create more competition in service areas such as health, education and intellectual property; •considering whether the structure and powers of the competition institutions (the ACCC , the NCC, the Tribunal and the AER) remain appropriate; and •examining the effectiveness of the competition provisions of the Competition and Consumer Act 2010 (Cth) (CCA) and laying down a broad framework through which the law can be streamlined and reformed over time.

Insurance and transport law : controlling insurance contract terms : Section 54 of the Insurance Contracts Act – compliance, recovery and accountability

Commonwealth legislation covering insurance contracts contains numerous provisions designed to control the operation and effect of terms in life and general insurance contracts. For example, the Life Insurance Act 1995 (Cth) contains provisions regulating the consequences attendant upon incorrect statements in proposals [1] and non-payment of premiums, [2] provides that an insurer may only exclude liability in the case of suicide if it has made express provision for such contingency in its policy, [3] and severely restricts the efficacy of conditions as to war risks. [4] The Insurance Contracts Act 1984 (Cth) is even more intrusive and has a major impact upon contractual provisions in the general insurance field. It is beyond the scope of this note to explore all of these provisions in any detail but examples of controls and constraints imposed upon the operation and effect of contractual provisions include the following. A party is precluded from relying upon a provision in a contract of insurance if such reliance would amount to a failure to act with the utmost good faith. [5] Similarly, a policy provision which requires differences or disputes arising out of the insurance to be submitted to arbitration is void, [6] unless the insurance is a genuine cover for excess of loss over and above another specified insurance. [7] Similarly clause such as conciliation clauses, [8] average clauses, [9] and unusual terms [10] are given qualified operation. [11] However the provision in the Insurance Contracts Act that has the greatest impact upon, and application to, a wide range of insurance clauses and claims is s 54. This section has already generated a significant volume of case law and is the focus of this note. In particular this note examines two recent cases. The first, Johnson v Triple C Furniture and Electrical Pty Ltd [2012] 2 Qd R 337, (hereafter the Triple C case), is a decision of the Queensland Court of Appeal; and the second, Matthew Maxwell v Highway Hauliers Pty Ltd [2013] WASCA 115, (hereafter the Highway Hauliers case), is a decision of the Court of Appeal in Western Australia. This latter decision is on appeal to the High Court of Australia. The note considers too the decision of the New South Wales Court of Appeal in Prepaid Services Pty Ltd v Atradius Credit Insurance NV [2013] NSWCA 252 (hereafter the Prepaid Services case).These cases serve to highlight the complex nature of s 54 and its application, as well as the difficulty in achieving a balance between an insurer and an insured's reasonable expectations.

A crowning glory: Patent law and public health

Australian patent law reforms are critical to ensuring Australians have access to vital health-care services and technologies and that people in developing countries have access to affordable, life-saving medicines...

Robbery under arms: Copyright law and the Australia-United States free trade agreement

TThis article considers the radical, sweeping changes to Australian copyright law wrought by the Australia–United States Free Trade Agreement 2004 (AUSFTA). It contends that the agreement will result in a “piracy of the public domain”. Under this new regime, copyright owners will be able to obtain greater monopoly profits at the expense of Australian consumers, libraries and research institutions, as well as intermediaries, such as Internet service providers. Part One observes that the copyright term extension in Australia to life of the author plus 70 years for works will have a negative economic and cultural impact — with Australia’s net royalty payments estimated to be up to $88 million higher per year. Part Two argues that the adoption of stronger protection of technological protection measures modelled upon the Digital Millennium Copyright Act 1998 (U.S.) will override domestic policy–making processes, such as the Phillips Fox Digital Agenda Review, and judicial pronouncements such as the Stevens v Sony litigation. Part Three questions whether the new safe harbours protection for Internet service providers will adversely affect the sale of Telstra. This article concludes that there is a need for judicial restraint in interpreting the AUSFTA. There is an urgent call for the Federal Government to pass ameliorating reforms — such as an open–ended defence of fair use and a mechanism for orphan works. There is a need for caution in negotiating future bilateral trade agreements — lest the multinational system for the protection of copyright law be undermined.

The Pirate Bazaar: The Social Life of Copyright Law

This thesis provides a cultural history of Australian copyright law and related artistic controversies. It examines a number of disputes over authorship, collaboration, and appropriation across a variety of cultural fields. It considers legal controversies over the plagiarism of texts, the defacing of paintings, the sampling of musical works, the ownership of plays, the co-operation between film-makers, the sharing of MP3 files on the Internet, and the appropriation of Indigenous culture. Such narratives and stories relate to a broad range of works and subject matter that are protected by copyright law. This study offers an archive of oral histories and narratives of artistic creators about copyright law. It is founded upon interviews with creative artists and activists who have been involved in copyright litigation and policy disputes. This dialogical research provides an insight into the material and social effects of copyright law. This thesis concludes that copyright law is not just a ‘creature of statute’, but it is also a social and imaginative construct. In the lived experience of the law, questions of aesthetics and ethics are extremely important. Industry agreements are quite influential. Contracts play an important part in the operation of copyright law. The media profile of personalities involved in litigation and policy debates is pertinent. This thesis claims that copyright law can be explained by a mix of social factors such as ethical standards, legal regulations, market forces, and computer code. It can also be understood in terms of the personal stories and narratives that people tell about litigation and copyright law reform. Table of Contents Prologue 1 Introduction A Creature of Statute: Copyright Law and Legal Formalism 6 Chapter One The Demidenko Affair: Copyright Law and Literary Works 33 Chapter Two Daubism: Copyright Law and Artistic Works 67 Chapter Three The ABCs of Anarchism: Copyright Law and Musical Works 105 Chapter Four Heretic: Copyright Law and Dramatic Works 146 Chapter Five Shine: Copyright Law and Film 186 Chapter Six Napster: Infinite Digital Jukebox or Pirate Bazaar? Copyright Law and Digital Works 232 Chapter Seven Bangarra Dance Theatre: Copyright Law and Indigenous Culture 275 Chapter Eight The Cathedral and the Bazaar: The Future of Copyright Law 319

Regulating unilateral supermarket misconduct as customer/acquirer of goods and services

Supermarkets in Australia may have substantial market power as buyers in wholesale markets for grocery products. They may also have substantial bargaining power in negotiating contracts with their suppliers of grocery products. The Competition and Consumer Act 2010 (Cth) (CCA) regulates misconduct by supermarkets as customer/acquirers in three ways. First, s 46(1) of the CCA prohibits the ‘taking advantage’ of buyer power for the purpose of damaging a competitor, preventing entry or deterring or preventing competitive conduct. Secondly, s 21 of the ACL prohibits unconscionable conduct in business–to–business transactions. Thirdly, Pt IVB of the CCA provides for the promulgation of mandatory and voluntary industry codes of conduct. Since 1 July 2015 the conduct of supermarkets as customer/acquirers has been regulated by the Food and Grocery Industry Code of Conduct. This article examines these three different approaches. It considers them against the background of the misconduct at issue in ACCC v Coles Supermarkets Australia Pty Ltd which the ACCC chose to litigate as an unconscionable conduct case, rather than a misuse of market power case. The article also considers the strengths and weaknesses of each of the three approaches and concludes that while the three approaches address different problems there is scope for overlap and all three should be retained for compete coverage.