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.

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.

Bank guarantees and the reasonable expectations of beneficiaries

A bank guarantee has traditionally been viewed as a cash equivalent. This view is supported by the operation of the autonomy principle. However, the autonomy principle is subject to certain recognised exceptions both at common law and under statute. One of these exceptions is commonly referred to as the negative stipulation or underlying contract exception. In recent times the operation of this particular exception has given rise to a wealth of case law. This article examines whether this recent case law appropriately recognises the reasonable expectations of the beneficiary of a bank guarantee that a bank guarantee should function not only as a security but as a risk allocation device.

Accountability of insurers under s 54: Striking the balance between commerciality and consumer protection

Section 54 of the Insurance Contracts Act 1984 (Cth) continues to occupy a prominent position in insurance-related litigation. This section which imposes a concept of causation, or prejudice to the insurer, to restrict an insurer’s reliance upon contractual terms to avoid liability for particular claims, is often before the courts. This note focuses upon the recent High Court of Australia decision in Maxwell v Highway Hauliers Pty Ltd [2014] HCA 33.

Accountability 30 years on: Insurance Contracts Act Reform

The Insurance Contracts Act 1984 (Cth) since inception has effected major reform to the law in this field. One of Australia’s most frequently cited pieces of legislation, it has had a major impact upon the law and practice of insurance. Given the importance of insurance to domestic and commercial activity and its pivotal position as a mechanism to manage exposure to risk, it is not surprising that this legislation has been the subject of extensive analysis in the courts and in legal literature. Furthermore the Act has, arising out of a 2009 review, been significantly amended by the Insurance Contracts Amendment Act 2013 (Cth). The principal amendments introduced are: two-fold: the Insurance Contracts Act 1984 (Cth) has been amended so that a failure to comply with the duty of good faith is now a breach of the Act; and disclosure and misrepresentation provisions under the Insurance Contracts Act 1984 (Cth) are amended and clarified.

"Re-thinking" the influence of regulatory capture in the development of government regulation

On 30 March 2015 the Australian Federal Government launched its "Re-Think" initiative with the objective of achieving a better tax system which delivers taxes that are lower, simpler and fairer. The discussion paper released as part of the "Re:think" initiative is designed to start a national conversation on tax reform. However, inquiries into Australia's future tax system, subsequent reforms and the introduction of new taxes are nothing new. Unfortunately, recent history also demonstrates that reform initiatives arising from reviews of the Australian tax system are often deemed a failure. The most prominent of these failures in recent times is the Minerals Resource Rent Tax (MRRT), which lasted a mere 16 months before its announced repeal. Using the established theoretic framework of regulatory capture to interpret publically observable data, the purpose of this article is to explain the failure of this arguably sound tax. It concludes that the MRRT legislation itself, through the capture by the mining companies, provided internal subsidization in the form of reduced tax and minimal or no rents. In doing so, it offers an opportunity to understand and learn from past experiences to ensure that recommendations coming out of the Re:think initiative do not suffer the same fate.

Estrategias de tercerización en Colombia como centro de operaciones enfocado a los Call Centers en Barranquilla

El sector BPO&O es un sector con alto potencial en Colombia que aún se encuentra Incipiente. Dentro de este sector, los Call Centers juegan un papel importante para su desarrollo y Barranquilla posee grandes cualidades para permitir este crecimiento si se plantean las estrategias adecuadas.

Teamwork and assessment: a critique

Australian universities commonly cite "teamwork" as a graduate attribute and an integral part of their set of flexible and transferable skills suitable for different types of employment. This paper raises concerns as to whether teamwork as experienced in the university education system can claim to achieve the imparting of team skills. Pedagogically, learning through team work may be a useful educational tool however when the concept of 'teamwork' is explored a number of inconsistencies arise in the tertiary environment. The outcomes derived from team work do not generally satisfy the criteria for effective and efficient teamwork. However, it is suggested that to utilise teamwork as a learning tool for a graduate attribute the assessment criteria should take into consideration how the team worked together--the team dynamics.

Computer-mediated education : the relationship between computer access, tutorial attendance and student grades

One of the problems faced by Australian academics in the 21st century is to facilitate learning with a changing profile of students, in bigger and bigger classes. As educators at tertiary institutions, our environment is undergoing major changes as increasingly business and commerce programs are offering courses either partially (Web enabled) or totally (Web exclusive) online. This study has developed an important model allowing the prediction of students' overall results and indicates that a student's final grade is dependant, in part, on accessing the study materials and study tools available to them via WebCT and attending face-to-face tutorials.

A principles-based Anglo governance system is not a science but an art

Anglo governance systems rely of a number of controls to align shareholder and boards of director’s interests. In general they are referred to as market control, regulatory control, and political and cultural control. Agency theory proposes that these control mechanisms are necessary as human nature is such that directors and managers act in a self-interested and boundedly rational manner in decision-making that can result in sub optimality. Notwithstanding that each country within the Anglo system accepts such controls are necessary they have their own foci and priorities, being a product of their own system’s characteristics. This paper through interviewing a number of Australian business executives adds to the academic literature by providing evidence from the field of the important characteristics of the Australian governance system, the drivers of change and the effectiveness of the principles-based approach. It argues that debate needs to move beyond the principles versus rules approach to look at how firms can be provided with more guidance in operationalising some of the principles that appear to be key to governance effectiveness. It concludes that there is a need for a holistic model of governance that is broader than that focusing on the control/legalistic approach; that top management is important in setting and driving the in-firm governance agenda; that the public needs to be informed and educated about governance and its importance; and that disclosure still requires an improvement in quality.

Australia's strengths and weaknesses in technology transfer and R&D exploitation : GEM survey "experts" views compared with public policy and other published data

There has been increasing public debate in Australia in recent years about research culture in universities and other publicly funded research agencies such as CSIRO and its impact on Australia's performance in generating economic, social and environmental benefits to the Australian community from the large amount of public funding for R&D. This is the supply side issue. On the demand side there is equally concern about the technology absorptive capacity of Australian. business as illustrated by the low proportion of gross business research expenditure (GERD) spent by business (BERD). Against this background, this paper has explored the views of abut 100 "experts" interviewed in the Australian Global Entrepreneurship Monitor (GEM) studies in the years 2000, 2001, 2002 and 2003 on the issues, strengths and weaknesses of Australia's technology transfer performance as it applies to new technology small firms. The paper has also explored evidence for any longitudinal change over this period.

Pocket books of engagement : a 'just-in- time' framework for a high quality first year student experience

This paper describes a 'just-in-time' engagement framework for a high quality first year experience ('FYE'). The concept 'just-in-time' refers to a student-centered timeline for a managed learning environment based on the week-to-week experiences faced by a first year student in an Australian University semester. The engagement framework detailed in this paper consists of a series of teaching strategies embedded as part of a designed, integrated and co-ordinated first year program, expanding on the transition blueprint of Nelson, Kift, Humphreys & Harper (2006), working within a transition pedagogy (Kift, 2008) and implementing an institutional-wide program of collaborative engagement. This paper discusses the application of this framework to a first year foundational unit in the Bachelor of Laws degree at Deakin University, Victoria, Australia, implemented as part of an embedded institutional-wide transition program.

Australia's informal venture capitalists : an exploratory profile

In Australia, as elsewhere, finding and acquiring equity capital is one of the major problems facing start-up or growing entrepreneurial ventures. The informal venture capital market, comprising high net worth non-institutional private equity investors (or 'business angels') provides risk capital directly to new and growing businesses and has been shown to be considerably more significant than institutional providers as a source of finance for entrepreneurial businesses. Building upon research undertaken internationally, this study generated and evaluated data resulting from an investigation of 36 carefully screened Australian business angels. It focused upon three primary research questions: (i) Who are Australia's informal venture capitalists (business angels)? (ii) How do they behave? (iii) What are their investment criteria? The study initiates Australian angel research into the developing international continuum of informal venture capital research and can serve as the generator of empirically testable hypotheses for future research and theory development.

An exploratory survey of Australia's informal venture capitalists : a predicate to theory building in the context of international angel research

In Australia, as it is all over the world, finding and acquiring equity capital is one of the major problems facing entrepreneurs who are starting or growing entrepreneurial ventures. The informal venture capital market, made up of high net worth non-institutional private equity investors (or ‘business Angels’) provides risk capital directly to new and growing businesses and has been shown to be considerably more significant than institutional providers as a source of finance for entrepreneurial businesses. Building upon and comporting with Angel research undertaken overseas, this study generated and evaluated data resulting from an investigation of Australian business Angels which focused upon three primary research questions: (i) Who are Australia's Informal Venture Capitalists (Business Angels)? (ii) How do they behave? (iii) What are their investment criteria? Analysis of answers resulting from a survey of 36 carefully screened respondents produced a descriptive profile, depicted in twelve key graphs, of Australian Angels' identifying characteristics, patterns of investment behaviour and investment criteria. The study initiates Australian Angel research into the developing international continuum of formal Angel research and can serve as the generator of empirically sensible hypotheses for future research and theory development.