Trade and Commerce

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RTF version - kb. At the opening of the Parliament inthe then-Governor General, William Morrison, First Viscount Dunrossil, commented with prompting by Sir Garfield Barwick and Prime Minister Robert Menzies that 'the development of tendencies to monopoly and restrictive practices in commerce and industry has engaged the attention of the Government which will give consideration to legislation to protect and strengthen free enterprise against such a development.

This marked the beginning of a revived interest in competition law in Australia, following the failure of the Australian Industries Preservation Act Cth to regulate anticompetitive behaviour.

With each legislative amendment option meaning in trade or commerce arguably wider scope for the Government to regulate private commerce and industry within Australia, and to encourage a relatively equal playing field for market participants in the private sector. Less attention has been paid to market participation by governments. It is true option meaning in trade or commerce in the s and s, government commercial activity was far less widespread than it is today.

Privatisation and deregulation of government assets, including the telecommunications and energy sectors, as well as many Australian airports, became more prevalent toward the late s and early s. Privatisation was touted as having the potential to lead to more productive and efficient industries, as well as lower prices for consumers. This reality has not altered the landscape of Australian competition law in any meaningful sense, despite the recommendations of the Hilmer Report in I want to start by tracing the history of the relevant provisions in the CCA and its predecessors as they apply to governments.

The earliest inception of the Act in contained section 8 which proclaimed:. The purpose of this section is the achievement of the orderly and convenient concurrent operation of this Act and complementary laws of the States, by means of cooperation between the Commonwealth and the States. Thus, while early forms of competition legislation envisaged a role for government in the sense of ensuring consistent implementation of the Act alongside existing lawthis did not extend to dealing with the application of the legislation itself to any level of government — federal, state or local.

For the first time, there was inserted a section dealing with the application of competition legislation to government. This followed the recommendations of the Swanson Committee, which one year earlier had observed that:.

Only in this way will the law be fair, be seen to be fair, and avoid giving a privileged position to those not bound to adhere to its standards.

The Act therefore bound the Crown in right of the Commonwealth insofar as the Crown in right of the Commonwealth carried on a business, either directly or by a Commonwealth authority. It is the concept of 'carrying on a business' that has caused the most difficulty since the amendments. The Act defines 'businesses' as inclusive of businesses not carried on for profit. In section 2C, introduced following the adoption of the Hilmer Report, which I will come to in a moment, several other non-commercial activities are excluded.

Beyond that, there is no legislative guidance as to the precise meaning of that phrase. It has been left to the courts to grapple with the concept, who have provided the following principles:.

I will later return to the concept of 'carrying on a business', and why this has done little to alleviate the issue of Crown immunity for anticompetitive behaviour. Section 2B was then inserted, which expanded its reach to the States and Territories:. In that case, the applicants commenced an action in the Federal Court against the respondent, as well as against the Commissioner for Railways for the State of Queensland.

The respondents contended that option meaning in trade or commerce Trade Practices Act did not apply to the Commissioner as he was an option meaning in trade or commerce, or agent, of the Crown in right of the State of Queensland and was 'entitled to all its rights, powers and privileges, and that the [ TPA ] is not intended to bind the Crown in the right of a State'.

His Honour noted that it was a recognised part of Australian law that the conduct of railways is a function of State governments. The Court emphasised its preferred wider construction of Crown immunity. The high water mark for Crown immunity represented by Bradken was then torpedoed twelve years later in Bropho v Western Australia [16] Bropho. The Court held that a statute would apply to and bind the Crown if its provisions, including its subject matter and disclosed purpose and policy, when construed in the context of permissible extrinsic aids, disclose an intention to bind the Crown.

The Court rejected any 'prerogative to override the provisions of a duly enacted statute'. The Court also pointed out that 'the Crown' now extended well beyond the Sovereign. Whereas there may have been overwhelming justification for a wide construction of Crown immunity in previous days, this was not the case now.

A legislative provision should not be read down 'so that it is inapplicable to the activities of any of the employees of the myriad of governmental commercial and industrial instrumentalities covered by the shield of the Crown'. Indeed, the contemporary approach to statutory construction, with its added emphasis on legislative purpose and permitted reference to a range of extrinsic material for the ascertainment of that purpose has added an element of anachronism to a judicial confinement of the permissible basis for discerning a legislative intent that the Crown be bound to what is manifest from the very terms of the statute.

There being no apparent difficulty in discerning an intention that the Crown was to be bound to the relevant legislation, the appeal was allowed. The Hilmer Report, commissioned by Prime Minister Keating following the establishment of the National Competition Policy Review, explored, among other things, the past and present justification for the current exemptions from trade practices legislation. The Report noted that 'the general inclusion of Commonwealth business activity is consistent with the increasingly commercial orientation of much governmental activity'.

There are many areas of the Australian economy today that are immune from [the TPA ]: This patchwork coverage reflects historical and constitutional factors, not economic efficiencies; it is another important instance of the way we operate as six economies, rather than one.

Taking into account some submissions, the Report noted the concerns expressed as to the advantages enjoyed by Commonwealth-owned businesses. With respect to increasing privatisation, it highlighted that 'the non-competitive habits developed through decades of operation in a tightly regulated environment run the risk option meaning in trade or commerce being perpetuated through private arrangements'. Citing Brophothe Report noted that many of the historical considerations behind the doctrine of Crown immunity were inapplicable to a more modern style of government, in option meaning in trade or commerce 'the activities of the executive government reach into almost all aspects of commercial, industrial and developmental endeavour'.

The COAG then entered into three separate agreements: Also excluded were transactions involving only non-commercial government authorities. As ANU's Dr Seddon commented at the time, while the aims of competitive neutrality and market equality were laudable, the Hilmer Report was narrowly focused and ignored a option meaning in trade or commerce area of government commercial activity — namely, government procurement.

As was recognised later in the Harper Report, this has the potential to harm competition. All the more so given the widespread popularity of market-based mechanisms used by governments to deliver public goods and services, frequently involving contracts with private sector service providers or the leasing of government-owned infrastructure.

Government contracting… is of major significance in the economic life of this country…. It is somewhat surprising, that when the State enters the market place to acquire goods or services, it should exempt itself from those norms of conduct considered appropriate to the conduct of trade and commerce that it has imposed upon the private sector as of course — the more so given the "business-like" manner in which the Executive government commonly professes it conducts its affairs both internally and in its dealings with the community.

Dr Seddon also pointed out that the lopsided nature of government contracting would remain a source of disadvantage to the government, which, despite the advantages of Crown immunity, may still find itself in an inequitable market position when dealing with the private sector. In other words, anticompetitive behaviour is not 'all one way' and any reforms must take into account the special position, and associated disadvantages, of government when contracting.

Assessing his own Option meaning in trade or commerce earlier this year, Professor Fred Hilmer acknowledged that 'Much has changed since [the publication of the Report] in Many of the changes are positive, and open opportunities for new business and new industries'. Many of the judicial developments concerning the application of the Trade Practices Act to government postdate the Hilmer Report.

I propose to review only a selected few. Justice Emmett held that, while the conduct in question was undoubtedly in trade or commerce, the issuing of a request for tender and then dealing with prospective tenders did not relate to the carrying on of a business.

Justice Emmett went on to reject the applicant's contention that, were the activities of AGPS to have been considered a business, the Trade Practices Act would apply to all conduct connected in some way with that business.

His Honour described this interpretation as 'attendant with a degree of arbitrariness', holding instead that a government would only be bound where the conduct complained of is engaged in the course of carrying on the business. From government publishing services, I turn now to migration detention facilities.

This option meaning in trade or commerce in the context of the Commonwealth putting out for competitive tender the provision of detention centres. His Honour rejected the argument that this amounted to carrying on a business:. It is no different from a government maintaining and operating a prison for convicted felons. Maintaining and operating a prison may be described by some as "government business", but it does not amount to the carrying on of a trading or commercial activity.

When laws provide that a person should be held in custody… the government is not providing any service either to the department which has responsibility for those persons or to the person in prison or in detention. Even if what is being done could be characterised as the provision of a option meaning in trade or commerce, by no use of the English language could it be characterised as the carrying on of a business. His Honour held that the Commonwealth was seeking to find an appropriate provider of services; it was not itself 'attempting to trade in goods or provide any option meaning in trade or commerce.

The respondent granted a licence to the appellant NTP to sell electricity it generated at a mining power station. NTP sought access to the respondent's infrastructure. The respondent refused to grant such access until a Territory Government Policy Review was carried out.

The Full Court held that the respondent was not carrying on a business and option meaning in trade or commerce was not bound by the relevant provisions of the TPA.

The Court noted that as the respondent's permission was required to enable the appellant to take advantage of its existing licence to sell electricity, the corresponding refusal of permission would not bring its conduct within a section 2C exception.

NT Power Generation suggested a willingness by the High Court to give effect to the Hilmer Report objectives and to have government commercial activities at least to the point where these could be considered to be carrying on a businesswhen anticompetitive, treated similarly to the private sector.

The respondent, Baxter Healthcare, manufactured several types of sterile fluids used by Australian hospitals as well as peritoneal dialysis PD products and machines for the option meaning in trade or commerce of chronic kidney failure. It enjoyed an effective monopoly on these products. In response to tender invitations by State and Territory Governments, Baxter made an offer to supply sterile fluid and PD products item-by-item at a specific higher price, and an alternative offer to supply these on an exclusive, sole-supplier basis for a cheaper price.

However, there remained a question as to whether Baxter, as government supplier, enjoyed or was protected by Crown immunity. The High Court [66] revisited the principles of Crown immunity outlined in Bradken and modified somewhat in Bropho. It definitively stated that the Bradken position on Crown immunity no longer 'accurately represent[ed] the law'.

The Court then considered the cases in which a statutory provision not binding on the Crown by reason of Crown immunity must be 'denied an incidence upon a subject of the Crown [i.

The Court examined the kind of right involved in this case. It warned of 'a risk of confusing governmental, commercial or even political interests with legal, equitable or statutory rights and interests'. There are many laws, some of which apply to governments and some of which do not, that constrain freedom of contract.

Some of option meaning in trade or commerce laws that do not apply to governments have an indirect effect upon governments, in their application to people dealing with governments. Some of those laws operate for the protection of governments. A law to promote competition and fair trading may, in some of its aspects, operate in that way.

The Court emphasised legal consequences. It cautioned that a conclusion which would find Baxter Healthcare enjoying a general immunity not available option meaning in trade or commerce the government itself when carrying on business would be problematic, and impossible to reconcile with the purposes of the TPA.

It would also go beyond what would be necessary to protect the legal rights of the government. On remittal to the Full Court, Baxter Healthcare was found to have taken advantage of its market power under section 46 as well as to have engaged in exclusive dealing under section There have been few cases dealing with Crown immunity in respect of trade practices legislation post Baxter Healthcare.

The error in the parties' approach [i. The difficulty with the definition of 'carrying on a business' is apparent when one considers the range of government activities that have fallen alternatively inside, or outside, that concept. Justice Jagot acknowledged the difficulty of the definition 'carrying on a business' in a recent interlocutory decision, Salvation Army New South Wales Property Trust v Commonwealth of Australia. The scope of the services would depend upon the evidence: These were clearly defined powers, a different situation to one involving statutes of Nauru and Papua New Guinea; that is, the Commonwealth 'was not exercising any statutory function when it contracted with the Salvation Army for the provision of services at regional processing centres'.

Her Honour's review of the statement of claim left apparent the gaps in the current test, particularly so where a carefully drafted pleading may describe government commercial activities in such a way as to avoid the TPA:.

As the Salvation Option meaning in trade or commerce submitted, while the Commonwealth contends that it is a purely or inherently governmental function for services to be provided by one nation state to another, the pleading certainly leaves open a different characterisation of the Commonwealth's activities: The review of the above option meaning in trade or commerce indicates that, for the most part, the 'carrying on a business' test option meaning in trade or commerce uncertain and, as Dr Seddon and many others have noted, ill-equipped to deal with an increasing amount of government commercial activity; in particular, government procurement.

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Renting, buying and selling property, building and renovating, owners corporations, retirement villages. Refunds, returns, repairs, warranties, energy products and services, online shopping, contracts, advertising. Buying and selling new and used cars, pricing, cooling-off period, warranties, leasing, trade-ins, auctions. Apply for, renew, update and cancel a licence or registration, lodge an annual statement, legal responsibilities. Register, update, manage, or search for an incorporated association, fundraiser, or patriotic fund.

Forms and publications, legislation, languages, business, teacher, Koori and disability resources, advice in a disaster. Under the Australian Consumer Law ACL , products bought from an Australian business are automatically covered by consumer guarantees regardless of any other warranty. For more information, view our Warranties section. However, the consumer guarantees will not apply if a business buys goods to resell or transform into a product to sell.

If there is a major problem with a product, the consumer is entitled to return it and seek a remedy. However, if the supplier is asked to fix the problem but fails to act, or does not act within a reasonable time, then the consumer can:.

Products are supplied to consumers when they are sold, exchanged, re-supplied, let, hired or hire-purchased to consumers. If you bought an item online from a private seller not engaged in trade or commerce or overseas store, view either our:. Products are supplied in trade or commerce when they are sold, exchanged, leased, hired or hire-purchased as part of a trading or commercial relationship or a business or professional activity, including non-profit.

Products including second hand products supplied in trade or commerce to consumers are covered by the consumer guarantees and the supplier or manufacturer must also comply with any express warranties extra promises they give about the product. Sometimes, when products do not work, do not do what they should, or are not what the consumer asked for, the supplier may need to examine them in order to figure out what the problem is and what should be done.

Generally, it is the store or seller's responsibility to return products to the manufacturer for repair. This may include products that are under warranty. If the store cannot arrange repairs for example, because the manufacturer does not have the necessary parts or cannot do so within a reasonable time, the consumer can:. Products do not need to be in their original packaging to be returned. Consumers may, however, need to ensure the products are adequately protected for posting or collection.

If the consumer is not able to take the products to the supplier in person, and the supplier does not have a complimentary pick up or return policy, the consumer may have to return them by post or another delivery service. As a general rule, if the item can be posted or easily returned, consumers should cover the initial cost of returning faulty products to the supplier.

Consumers should keep the receipts for those costs because if the returned products are later confirmed to have a fault - whether major or minor - they can recover reasonable postage or transportation costs from the seller. When products with a major fault are too large, too heavy or too difficult to remove, because of the very nature of the fault, the seller becomes responsible for the initial cost of returning the products.

For example, if the fault has made the product too dangerous or fragile to deal with without expensive expert assistance. The seller needs to pay the necessary shipping costs, or otherwise collect the products, within a reasonable time of being notified that the consumer has rejected the products.

Examples of products too large or heavy to return without significant cost would include:. In some of these situations, the store or seller may still choose to give a refund, exchange or credit note. If they have their own refund policy that offers more than what is required by law, a consumer may be able to return the product, if for example, they bring the product back within a set period of time. The store or seller must comply with the terms of their in-store policies.

An in-store refund policy is not a cooling-off period. Unlike door-to-door sales and telemarketing contracts, standard consumer purchases do not have an automatic 'cooling-off' period, unless one is stated in the terms and conditions.

It may be difficult for a consumer to return a product if they do not have a receipt or other proof of purchase. Before products are returned, the seller should provide clear advice of any transport or inspection costs that apply if the item is not faulty. This will enable you to choose whether you wish to go ahead with that method of returning the products. Failing to disclose these costs may be misleading or deceptive conduct, in breach of the ACL, especially where it denies you the opportunity to choose whether you wish to go ahead with returning the products.

Sellers cannot inflate costs in an attempt to deter you from pursuing your claims. To do so may also be misleading, deceptive or even unconscionable conduct, which is in breach of the ACL. Skip to content Skip to main navigation Skip to footer. Your rights and responsibilities Menu options for Consumer Affairs Victoria Housing Renting, buying and selling property, building and renovating, owners corporations, retirement villages.

Consumer guarantees that apply automatically. Skip listen and sharing tools Listen. Definition of a consumer Major problems with products Minor problems with products Products supplied to consumers Products supplied in trade or commerce Repairs Products that are not covered When consumers do not have the right to return a product Tips for avoiding disputes There are consumer guarantees that apply automatically: Acceptable quality Products will match description or sample Products will be fit for purpose Title, possession and security Repairs and spare parts for services: Due care and skill Services will be fit for purpose Reasonable time For more information about these guarantees, view our: Problems with a product section Problems with a service section Under the Australian Consumer Law ACL , products bought from an Australian business are automatically covered by consumer guarantees regardless of any other warranty.

Definition of a consumer A person or a business is considered a consumer if they buy: The cost of the vehicle or trailer is irrelevant. Major problems with products If there is a major problem with a product, the consumer is entitled to return it and seek a remedy. If there is a major problem with a product, the consumer can: Minor problems with products A minor problem can be fixed within a reasonable time. Consumers must give the supplier the chance to fix the problem. The store chooses whether to: However, if the supplier is asked to fix the problem but fails to act, or does not act within a reasonable time, then the consumer can: Products supplied to consumers Products supplied to consumers are covered by guarantees that the: The automatic consumer guarantees apply to: If you bought an item online from a private seller not engaged in trade or commerce or overseas store, view either our: Buying from a private seller online page Buying from an overseas seller online page Products supplied in trade or commerce Products are supplied in trade or commerce when they are sold, exchanged, leased, hired or hire-purchased as part of a trading or commercial relationship or a business or professional activity, including non-profit.

Repairs Sometimes, when products do not work, do not do what they should, or are not what the consumer asked for, the supplier may need to examine them in order to figure out what the problem is and what should be done. If the store cannot arrange repairs for example, because the manufacturer does not have the necessary parts or cannot do so within a reasonable time, the consumer can: Returning products for repair Products do not need to be in their original packaging to be returned. Examples of products too large or heavy to return without significant cost would include: Products that are not covered Products not covered under consumer guarantees include those: When consumers do not have the right to return a product Consumers do not have a right to return a product if they: Tips for avoiding disputes Before products are returned, the seller should provide clear advice of any transport or inspection costs that apply if the item is not faulty.

Learn about consumer rights with a faulty product Read about problems with a service See additional business requirements for industries we regulate Print out the standard Refund policy point-of-sale poster PDF, KB.