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Washington & Lee Law School
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Australian Business Law Review
Volume 38, Number 1, February 2010
How would an Australian Human Rights Act impact business?
Francine Johnson and Edward Santow
The National Human Rights Consultation has reinvigorated debate about an Australian Human Rights Act. Its report, released in October 2009, recommended that Australia adopt a Human Rights Act, based on the dominant "dialogue model" of human rights legislation in jurisdictions such as the United Kingdom, New Zealand, Victoria and the Australian Capital Territory. In light of these events, this article considers the possible impact of such a reform on the business sector in Australia. The authors argue that a Human Rights Act is unlikely to impact business directly, except for those relatively few businesses that perform public functions or services on behalf of government, or for businesses that voluntarily bind themselves to comply with such an Act. Further, any negative impact of a Human Rights Act on these businesses is likely to be substantially outweighed by the benefits it would bring to Australia generally and to those businesses specifically.
Cartel output restrictions — Construction and common sense collide and particularity of "persons" tinder the Trade Practices Act 1974
I S Wylie
This article examines parallel civil and criminal prohibitions on output restrictions which came into force on 24 July 2009, extending the previous law in ss 45, 4D and 45A of the Trade Practices Act 1974. As the new cartel prohibitions are untested, the relevant principles of construction are first noted, followed by analysis and construction of the relevant parts of s 44ZZRD and following sections in the Act. Reference is made to the extent to which conduct must be directed towards particular persons to give rise to other per se contraventions of the Act to inform that construction exercise. Finally, the scope of potential overreach of the output restriction cartel prohibitions to proscribe legitimate commercial activity, and the position in other jurisdictions, is considered.
Section 46 — A new approach
Section 46 has been substantially amended in recent years — such that a new approach to the provision is required. The author explains and analyses the purpose of those amendments and sets out potential approaches to their sensible construction and application. Further, the likely impact of these changes on Australian corporations is assessed, supported by suggestions as to the effective management of compliance risks
COMMERCIAL LITIGATION — Ian Turley
Transfield Shipping Inc v Mercator Shipping Inc
COMPETITION LAW AND MARKET REGULATION — Stephen Corones
Master Education Services v Ketchell: Contracts infringing statutory requirements, PT IVB of the TPA and the franchise sector