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.

Legislative impact on the mortgagee’s exercise of power of sale : the need for rationalisation

Throughout Australia, regulation of the power of sale is highly inconsistent. In response to the uncertain nature of the mortgagee’s duty at common law, many legislatures have intervened. As a result, there has been a proliferation of statutory formula conferring varying degrees of protection on mortgagors. The differences in approach indicate a lack of consensus as to the best method of regulation. This article exposes the extent of the inconsistency and provides a comparative assessment of the various provisions with reference to the policy concerns that underpin legislative intervention. The article identifies a number of deficiencies associated with existing provisions and concludes that mortgagees and mortgagors alike would benefit from improved clarity and consistency. To that end, the article proposes a model provision that seeks to address the deficiencies identified.

A digital airport experience : design-led innovation in support of airport strategy

The digital era is proving to be one of disruption, where new technologies matched with innovative business models can be harnessed to attack even the most established of companies. For businesses with the relative certainty of captive customer bases, such as airports, the ability to digitally diversify offers the opportunity to venture into new modes of operation. For an airport, this opportunity can also be leveraged to sustain superior customer support regardless of a customer’s location in the world. This research paper presents a case study of the development of an Australian Airport Corporation’s mobile application as part of a greater digital strategy initiative using a design-led approach to innovate. An action research method provides the platform for an intensive embedded practice and study of design-led innovation within the major Australian Airport Corporation. The findings reveal design-led innovation to be a crucial in-house idea generation and concept development capability enabling the bridging of distinct corporate domains associated with commercialisation, operations and customer experience. A Digital Innovation Checklist is presented as an output of this research which structures an organizational approach toward digital channel innovation. The practitioner’s checklist is designed to aid in the future development of digital channels within the broader spectrum of strategy by addressing business assumptions.

The 1989 Comprehensive Plan of Action (CPA) and refugee policy in Southeast Asia : twenty years forward what has changed?

In 2012, the only South East Asian countries that have ratified the 1951 Convention relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees (hereafter referred to as the 1951 Convention and 1967 Protocol) is Philippines (signed 1954), Cambodia (signed 1995) and Timor Leste (signed 2001). Countries such as Indonesia, Malaysia and Thailand have annual asylum seeking populations from Myanmar, South Asia and Middle East, that are estimated to be at 15 000-20 000 per country (UNHCR 2012). The lack of a permanent and formal asylum processing process in these countries means that that asylum-seeking populations in the region are reliant on the local offices of the United Nations High Commission for Refugees based in the region to process their claims. These offices rely upon the good will of these governments to have a presence near detection camps and in capital cities to process claims of those who manage to reach the UNHCR representative office. The only burden sharing mechanism within the region primarily exists under the Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime (the Bali Process), introduced in 2002. The Bali Process refers to an informal cooperative agreement amongst the states from the Asia-Pacific region, with Australia and Indonesia as the co-chairs, which discusses its namesake: primarily anti-people smuggling activities and migration protocols. There is no provision within this process to discuss the development of national asylum seeking legislation, processes for domestic processing of asylum claims or burden sharing in contrast to other regions such as Africa and South America (i.e. 2009 African Union Convention for the Protection and Assistance of the Internally Displaced, 1969 African Union Convention Governing the Specific Aspects of Refugee Problems in Africa and 1984 Cartagena Declaration on Refugees [Americas]) (PEF 2010: 19).

An orientation to early childhood education for sustainability and research : framing the text

This publication arose from the interests of the chapter authors, ‘a small group of thoughtful people’ almost all of whom participated in one or both Transnational Dialogues in Research in Early Childhood Education for Sustainability, held in Stavanger, Norway in 2010 and Brisbane, Australia in 2011 (Refer Appendix 1 for list of participants). These meetings were the first time that a critical mass of researchers from vastly different parts of the globe - Norway, Sweden, Australia and New Zealand at the inaugural meeting, with additional participants from Korea, Japan and Singapore attending the second - had come together to debate, discuss and share ideas about research and theory in the emerging field of Early Childhood Education for Sustainability (ECEfS. Some of the researchers who joined these Transnational Dialogues, had met serendipitously at earlier conferences and meetings, or corresponded via email, but many had never met face-to-face. Now a significant number are contributing authors in this text. It is a testament to these researchers’ interest in this agenda that they mostly self-funded their travel and other costs to attend the Transnational Dialogues research meetings. While most chapter authors come from the field of early childhood education, a few are more aligned with education for sustainability/environmental education, while a much smaller number are already working at the intersection of early childhood education and education for sustainability. What we share as a group is a range of perspectives and orientations to research and to the research focus at the heart of this book - young children and their actual and potential capabilities as agents of change for sustainability. As researchers, regardless of experience and perspectives, participants knew they had something extra to offer - their expertise as researchers - providing scholarly insights into the work of practitioners, applying critically reflective lenses to curricula, pedagogies and assumptions, testing of ideas and theories, and presenting a sense for where ECEfS might fit or, indeed, go beyond norms and orthodoxies. This is a text, then, for both researchers and those whose primary interests lie in daily interactions with children, families and communities.

Invisible ties : implicit contracting and its implications for the agency relationship in corporate governance research

Research that applies agency theory to boards of directors suffers from being quite narrow as it does not recognize the true legal relationships between directors, managers and shareholders. Instead, the board of directors is best conceptualized as the principal, management as agents and stockholders’ relationships as a mix of legal and implicit contracts. We propose a recast agency relationship and develop a contingency approach that proposes (1) how a corporation’s goals vary with a board’s implicit contracting and (2) a reconceptualization of the agency problem facing boards.

Auditor independence : an analysis of the adequacy of selected provisions in CLERP 9

Worldwide corporate collapses in the past have highlighted various weaknesses in corporate governance, which included auditor independence. This thesis advocates the use of private interest theory as a framework to evaluate proposals for law reform related to the independence of external company auditors. This study argues that the current regulation of auditor independence falls short of the 'ideal independence' required by the general public. This is because the regulation was developed, in some instances, to serve the private interests of powerful lobby groups rather than the public interest. This research concludes that there is a case for reform of the existing requirements in the Corporations Act 2001 (Cth) in respect of auditor independence.

Crowdsourcing in developing countries : a possible model to co-create with the poor

The interest in poverty and the moral sense of'helping the poor' are a constant topic in Western culture (Mayo 2009).ln recent years, multinational corporations (MNCs) have evolved in their understanding of how social issues, such as poverty alleviation, relate to their fundamental purposes. From a business strategy point of view, 'socially responsible' initiatives are generally born with lhe dual purpose of attaining social visibility (i.e. marketing) and increasing economic returns. Besides addressing social challenges as part of their corporate social responsibility strategies, MNCs have also begun 'selling to the poor' in emerging markets (Prahalad 2004). A few forward -looking companies consider tltis base of the pyramid (BOP) market also as a source of innovation and have started to co-create with consumers (Simanis and Hart 2008).

An observational analysis of the impact of board dynamics and directors’ participation on perceived board effectiveness

This study addresses calls for closer examination of board dynamics by offering an inside view of director interactions. Video-observations of three board meetings at each of two Australian corporations matched with director interviews and secondary data reveal distinct patterns of director interactions, their sources of variation and impact on perceived board effectiveness. Our data reveal that director interactions are multi-dimensional and dynamic: while group interactions across agenda items are similar, with a few directors leading the discussion, the contributing directors change across items. Moreover, directors’ inclusiveness and evenness of participation are associated with higher perceptions of board effectiveness. Last, we find that director interactions change with the nature of the items, board climate and board meeting arrangements. The study contributes to the literature by moving beyond the individual-level analysis of directors’ skills or independence, and offering a detailed view of how the joint group and individual dimensions of board dynamics affect board functioning.

Editors review of 'Research in early childhood education for sustainability : international perspectives and provocations'

Mounting concerns about climate change and unsustainable development, and their current and future impacts on all of us – but particularly on children - provided the impetus for this book. Then, as researchers in early childhood education (ECE) and/or education for sustainability (EfS), we used these concerns to shape and question our thinking. This first-ever research text in Early Childhood Education for Sustainability (ECEfS) was advanced when the chapter authors, almost all of whom participated in one or both Transnational Dialogues in Research in Early Childhood Education for Sustainability (Stavanger, Norway, 2010, and Brisbane, Australia, 2011) met for the first time - a critical mass of researchers from vastly different parts of the globe - Norway, Sweden, Australia and New Zealand at the inaugural meeting, with participants from Korea, Japan and Singapore attending the second. We came together to debate, discuss and share ideas about research and theory in the emerging field of ECEfS. An agreed-upon outcome of the Dialogues was this text.

Cartels – What are they and how to avoid being part of one : the implications of University fee deregulation

Universities supply a range of services to students. These include most obviously, tuition services in relation to undergraduate and postgraduate courses; research supervision services in relation to research degrees; as well as consultancy services in relation to Government and industry work. For the purposes of the CCA, universities are trading corporations. They engage in trade or commerce through the provision of a range of services for reward. As such Universities are subject to the same rules and regulations that govern the conduct of other trading corporations, such Coles and Woolworths. As senior officers and managers of a trading corporation you need to acquire some basic understanding of the rules that govern competition in the education sector. In other sectors, companies generally undertake a risk assessment of those areas where they are most at risk of contravening the CCA; to ascertain in advance how problems might arise so that they can put in place strategies to mitigate the risk of inadvertent contraventions.

Work health and safety and the criminal law in Australia

This paper analyses recent Australian debates about the use of the criminal law in work health and safety regulation. It argues that these debates have to be seen in the context of the historical development of work health and safety regulation in the United Kingdom and Australia. The first part of the paper shows that, since the late 19th century, contraventions against the Australian work health and safety statutes have not been regarded as 'really criminal', and have largely been addressed by informal measures and, since the 1980s, by administrative sanctions. When prosecutions have taken place, work health and safety issues have been individualised and decontextualised, so that defendants have been able to reduce their culpability in the eyes of the court. Significant legal barriers have undermined the use of the crime of gross negligence manslaughter against corporations and individuals. The second part of the paper analyses recent debates about restructuring gross negligence manslaughter and bolstering the 'criminality' of offences under the work health and safety statutes. It argues that the latter debate has been constrained by the historical forces examined in the first part of the paper, and that the current position, embodied in the recently harmonised Work Health and Safety Acts, favours attempting to recriminalise the work health and safety legislation. The debate about reforming gross negligence manslaughter has stalled.