US Consumer Redress

'Consumer Redress in the United States' by Amy Schmitz in The Transformation of Consumer Dispute Resolution in the European Union: A Renewed Approach to Consumer Protection (Oxford University Press, 2016, forthcoming) provides 

a snapshot of consumer redress processes in the United States, and suggests policy reforms building on advances in the European Union. The US traditionally has been distinct in its allowance for class relief and other judicial action as the primary means for consumers to pursue remedies in B2C transactions. However, these traditional American remedies processes have diminished due to the strict enforcement of pre-dispute arbitration clauses and other restrictions on class actions in the US. Furthermore, US small claims court and credit card chargeback procedures are limited and outdated, while emerging online complaint and dispute resolution processes remain largely unregulated. This leaves many consumers without meaningful access to remedies when they experience purchase problems. Accordingly, the chapter will suggest ideas for regulatory reforms building on the EU model for ODR aimed to expand consumers’ access to remedies with respect to their small dollar claims.

Schmitz notes

Borders are losing meaning in business-to-consumer (“B2C”) transactions as consumers increasingly satisfy their purchasing needs through Internet contracting (“ecommerce”). This is because ecommerce brings together buyers and sellers from all over the world and eliminates the need for face-to-face (“F2F”) negotiations. However, borders matter when disputes develop due to jurisdictional difference in laws and procedures for obtaining remedies. It is therefore critical to consider legal redress mechanisms on a global scale. Businesses and policymakers must address differences in consumer redress systems, and collaborate to create mechanisms that operate efficiently and fairly for consumers regardless of residence. ...

F2F processes in general have not provided consumers with adequate redress on claims against businesses regarding common purchases. It is rarely worth the cost and stress of pursuing these processes when the expected recovery is low. Additionally, businesses in the U.S. may use arbitration clauses to hinder consumers from shedding public light on purchase problems or obtaining remedies on their claims. At the same time, although small claims court, credit card chargeback, complaint portals, and limited ODR systems for B2C claims exist in the U.S., U.S. lawmakers have not advanced development of robust ODR systems aimed to deliver due process for consumer purchase disputes.

In contrast, the E.U. leads the U.S. in developing ODR programs. This Chapter suggests that the U.S. should follow the E.U. in promoting ODR processes designed to revive corporate responsibility and consumer trust in their purchases. These processes must be transparent, user-friendly, and economical in light of the complexity and possible payouts on the claims at issue.138 They also should be secure and subject to government oversight to ensure fairness. Such processes would benefit consumers and companies, and advance cross-border B2C trade as the U.S. brings its dispute resolution policies in line with peers overseas.

Prisoners and health

The latest Australian Institute of Health and Welfare report on The health of Australia's prisoners (the 4th report on the National Prison Health Indicators)

includes data from 1,011 prison entrants, 437 prison dischargees, over 9,500 prisoners who visited a prison health clinic and about 9,400 prisoners who took medications. These data were provided by prisons in all states and territories in Australia except New South Wales, which provided data on prison entrants only. Participation was not complete - 84% of prisons participated, with about 49% of prison entrants and 42% of sentenced dischargees in those prisons taking part. Accordingly, the information in this report needs to be interpreted with some caution. 

The AIHW indicates that the 224 page report [PDF]

 includes, for the first time, data on the smoke-free status of prisons, disabilities and long-term health conditions experienced by prisoners, and self-assessed health status. Mental health issues and risky health behaviours, including tobacco smoking, excessive alcohol consumption and illicit use of drugs, continue to be the main areas of concern. The health of Indigenous prisoners (over-represented at 27% of the prison population) is also a continuing concern.

Tobacco smoking

Prisoners in Australia continue to have high smoking rates compared with the general population. Almost three-quarters (74%) of prison entrants were current smokers, with 69% of entrants indicating they smoked daily. One-half (50%) of entrants who smoked on entry to prison reported that they would like to quit. Smoking bans are in varying stages of implementation in Australian prisons. Almost three-quarters (74%) of prison dischargees in prisons allowing smoking currently smoked, with one-in-six (16%) indicating that they smoked more now than they did on entry to prison. Dischargees from prisons with smoking bans were more likely to use quit smoking assistance in prison. Of those who smoked on entry to prison, dischargees from prisons with smoking bans were less likely to intend to smoke after release (59%) than those from prisons in which smoking is allowed (73%).

Disability

Almost one-third (30%) of entrants reported a long-term health condition or disability that limited their daily activities and/or affected their participation in education or employment. Limitations to daily activities were the most common (24%), followed by restrictions in employment (16%) and education (12%). About 2% of prison entrants needed help and/or supervision in the areas of self-care, mobility and/or communication. Entrants aged between 35 and 54 years were more likely to have some form of limitation or restriction than their general community counterparts.

Self-assessed physical and mental health

Prisoners being discharged from prison were more likely than those entering prison to report their mental health as generally good or better (78% compared with 67% respectively) and less likely to report it as poor (4% compared with 8%). A similar pattern was seen in self-reported physical health, with dischargees slightly more likely to report their physical health as generally good or better than entrants (78% compared with 73%).

It notes

Prisoners have higher levels of mental health problems, risky alcohol consumption, tobacco smoking, illicit drug use, chronic disease and communicable diseases than the general population (AIHW 2013a). This means that prisoners have significant and complex health needs, which are often long-term or chronic in nature. The health of prisoners is sufficiently poorer than in the general community such that prisoners are often considered to be geriatric at the age of 50–55 (Williams et al. 2014).

The United Nations Commission on Crime Prevention and Criminal Justice on 22 May 2015 adopted updated standard minimum rules on the treatment of prisoners, to be known as the ‘Mandela Rules’. This update to the original 1955 rules details the provision of health care to prisoners, and includes principles of equivalence (to the community standard); independence; multidisciplinary care including psychological and psychiatric, and dental; and continuity of care back to the community upon release from prison (United Nations 2015). These rules, launched by the General Assembly of the UN in October 2015, are reflected in the Australian context. The Corrective Services Administrators’ 2012 Standard Guidelines for Corrections in Australia specifically reference health care provision in prisons, including equivalence of care, access to both primary and specialist health professionals, medical examination within 24 hours of being received into prison, continuity of care between the community and prison, care for pregnant female prisoners, mental health and disability (AIC 2012).

Prison stays are usually temporary. On 30 June 2014, about one-quarter (24%) of prisoners were on remand while awaiting trial or sentencing. For those who were sentenced, the median time expected to serve was 1.8 years (ABS 2014e). As a result, the prison population is fluid, with prisoners constantly entering prison and being released from prison, and the health issues and concerns of prisoners therefore become those of the general community.

Prisoner health services in Australia

In Australia there are several differences in the way health services are provided to prisoners compared with the general community, including funding arrangements and models of service delivery.

In the general community, health services are provided through both the Australian Government and the relevant state or territory government. However, health services for prisoners are the responsibility of state and territory governments only, and the manner in which these services are delivered varies among jurisdictions.

In some states and territories the local Department of Health provides health services in prisons, while in others it is the responsibility of the Department of Justice or Corrections. Most jurisdictions use a mix of directly-provided services, community health services and contracted health services. The provision of mental health services and alcohol and other drug services can be particularly complex, both in the services delivered and the method of delivery. In prisons, primary health care, or the first level of contact with the health care system, is predominantly delivered by nurses. In the general community, however, most primary care is provided by general practitioners.

Specialist medical care can be provided to prisoners within the prison system or through non-prison-based services—such as general hospital inpatient and emergency care— depending on the prison, jurisdiction and service required. For example, some prison clinics have the capacity to deliver dental services and perform X-rays, whereas other smaller clinics are staffed by a single nurse only.

Medicare enables residents of Australia to have access to free or subsidised health care by health professionals such as doctors and nurses, including free treatment and accommodation in public hospitals. Medicare is funded by the Australian Government and does not apply to services provided directly by state and territory governments. This means that prisoner health services are effectively excluded from Medicare. The Pharmaceutical Benefits Scheme (PBS), which enables access to medicines at lower cost for Australian residents, is also funded by the Australian Government. Prisoners are therefore excluded from the PBS as well, except for Schedule 100 of the PBS, known as the Highly Specialised Drugs Program.

Healthcare in the prison environment

For prisoners who may underuse health services in the general community, prison may provide an opportunity to access treatment to improve their health. Many types of health care are accessed less often in the community than in prison (see section 15.1) for a variety of reasons, including cost, work or family commitments, and alcohol and drug issues (see section 15.2). The stability and regimentation of the prison environment may provide opportunities for prisoners to reflect on and seek treatment for their health concerns. However, the provision and operation of health services in a prison environment is not always straightforward. For example:

▪ Regimes and processes in place in a prison environment may make the goal of equivalence and continuity of care between the community and prison difficult to achieve, especially upon entry.

▪ Delays in being able to establish communication with a prisoner’s community-based general practitioner or psychiatrist, or to confirm existing prescriptions, may in turn lead to disruptions to regular medications or changes to established medication practices. Such issues may leave prisoners at increased risk of mental instability at the particularly difficult time of transition into prison (Bowen et al. 2009).

▪ Uncertainty surrounding exact discharge dates, which can be affected by, for example, applications for bail and parole, increases the difficulties associated with continuity of care into the community following release.

Tobacco smoking is a significant health issue in the prison environment, with around 75% of prisoners entering as current smokers in 2015, and prison being a particularly difficult environment in which to successfully quit (AIHW 2013b). Smoking is banned in all enclosed public places and most outdoor public areas in Australia, and bans are increasingly being introduced to prisons (see Chapter 11 ‘Tobacco smoking’).

The prison population in Australia is increasing both in overall numbers and in the rate of imprisonment (see section 2.1 ‘Australia’s prisoners’), and many prisons are at or over capacity. Prisons in Australia were operating during 2013-14 at 104.4% of design capacity, meaning that there were more prisoners than the prisons were designed to accommodate (excludes Victoria and South Australia, who did not provide data) (Productivity Commission 2015). One of the strategies used to manage this over-capacity is an increase in movements of prisoners between prisons, making continuing health service provision more difficult (Grace et al. 2013) .... A population-based linkage study in Australia of adults in their 20s and 30s found that around one-third (32%) of those with a psychiatric illness had been arrested during a 10-year period, and the first arrest often occurred before first contact with mental health services (Morgan et al. 2013).

Prisoners have a high prevalence of self-reported mental health issues (AIHW 2013a), which continue to affect prisoners after release. Prisoners ever-diagnosed with a mental health disorder have been found to be more likely to experience substance use issues, crime, and poor health outcomes, up to six months post-release from prison (Cutcher et al. 2014). Self-reported information on mental health is quite different to a clinical diagnosis or research using diagnostic tools. For example, in a culturally sensitive research study involving Indigenous respondents, a higher prevalence of mental health issues could be found by using Indigenous mental health clinicians specially trained for the data collection (see Heffernan et al. 2012).

Prison entrants were asked whether they had ever been told that they had a mental health disorder by a doctor, psychiatrist, psychologist or nurse; and whether they were currently taking medication for a mental health disorder. Disorders included those relating to drug and alcohol abuse. A nurse was included in this list of health professionals in recognition of the high proportion of entrants with a history of imprisonment, and the nurse-led health care provided in prisons, including mental health nurses (see Chapter 15 ‘General health services’). Prison dischargees were also asked whether they had ever been told they had a mental health disorder and whether it was diagnosed while they were in prison this time. Prison dischargees were also asked a separate question about whether they had ever been told that they had alcohol or drug use problems. To make the data comparable with data from the entrants’ question, responses to these two questions were combined to create one variable that indicated whether the dischargee had been diagnosed with both or either of these problems.

Almost one-half (49%) of entrants and 44% of dischargees reported ever having been told they have a mental health disorder, including alcohol and drug misuse (Table 4.1). This is an increase from 38% of entrants in 2012. In 2015, among both entrants and dischargees, women (62% and 63% respectively) were more likely than men (40% and 47%) to report a history of mental health issues. There were fluctuations by age, although the youngest were the least likely to report a history, for both entrants (40%) and dischargees (30%). Fewer Indigenous (44%) than non-Indigenous (51%) entrants reported a history, but among dischargees the difference was less apparent. ....

 In the current data collection, 41% of dischargees thought that their mental health had improved since being in prison, with 19% reporting that it is ‘a lot better’ and 22% ‘a little better’. Less than 10% (9%) of dischargees thought their mental health had deteriorated while in prison, and 44% reported no change. Male dischargees were less positive than women, with 10% of men reporting that their mental health had become a little or a lot worse since being in prison, compared with 4% of women. Almost half (45–47%) of dischargees aged 25–44 reported an improvement in their mental health, compared with around one-third (30–33%) of the youngest and oldest dischargees. Indigenous dischargees were more positive than non-Indigenous dischargees in their responses. Just over one-half (51%) of Indigenous dischargees reported that their mental health was either a lot better (22%) or a little better (29%), compared with a combined 38% for non-Indigenous dischargees. Almost one-half (46%) of non-Indigenous dischargees reported no change in their mental health and wellbeing compared with 35% of Indigenous dischargees.

Obscurity

'The right to be forgotten: balancing interests in the flux of time' by Giovanni Sartor in (2015) International Journal of Law and Information Technology comments

The passage of time may reverse the balance of interests involved in the processing of personal data. This provides a rationale for the so-called ‘right to be forgotten’ – namely, data subjects’ right to exclude or limit the further processing of their personal information. This right has been endorsed in a number of judicial decisions in various EU Member States and has been affirmed in the recent Google-Spain decision by the European Court of Justice. To analyse the rationale of the right to be forgotten, I consider the evolving balance between legally relevant advantages and disadvantages resulting from the processing of personal data. For modelling this evolving balance, I propose a method based on the identification of trends over time and on their graphical representation. On the basis of this analysis, I consider how remedies and sanctions meant to implement the right to be forgotten may affect expectation and motivations of content and host providers, and consequently influence their behaviour. I argue that in the EU legal framework data subjects should be granted the right to request from competent authorities an injunction to have their personal data removed or their distribution limited when unrestricted online distribution is no longer justified by the balance of the interests at stake. However, sanctions against online distribution may induce premature forgetting. In particular, they may have a chilling effect on the distribution of information for journalistic purposes, negatively affecting freedom of expression and information.

Sartor concludes

When information is distributed online, the importance of impacts on the affected legal interests may change through time. In particular, the interference on the data subjects’ privacy interests may subsequently outweigh the originally prevailing publicity interests of publishers and readers. This pattern provides a rationale for a right to have personal information delisted, de-indexed or removed from the Internet, even when its online distribution was originally legitimate.

The existence of such a right justifies granting data subjects a power to request the competent authorities to issue injunctions restricting access to personal data. However, it does not justify subjecting publishers and the providers to sanctions in all cases in which, according to the subsequent judgment of the competent authority, the data has continued to be distributed after the balance of interests has changed in favour of privacy. In fact, data protection sanctions include both pecuniary and moral damages and severe fines, which may have a chilling effect.

Two circumstances motivate this concern. First, the parties (publishers and the host providers) usually have a small motivation to continue the online distribution of a particular piece of information, since they only partially internalize the social benefits resulting the availability of the information. Secondly, they are uncertain on the adjudicator’s assessment concerning the reversal time, namely, the time at which privacy interests start to outweigh publicity interests. Under such circumstances it seems likely that expected sanctions will outweigh the parties’ motivation to continue the distribution, even when the information could be legally published. This may lead to self-censorship by the publisher or to collateral censorship by the provider. I have consequently argued that publishers should not be sanctioned for failing to comply with requests by data subjects, unless the illegality of the continued distribution can be easily established. Host providers—including search engines—acting in good faith should enjoy an even broader immunity for failures to comply with private requests, on the bases of the immunities provided by eCommerce directive.

I should remark that my arguments here are only meant to address a restricted set of cases, ie cases such that (i) they concern the online distribution of information to the public, (ii) this distribution was originally legitimate, on grounds of freedom of expression and information, though negatively affecting data subjects and (iii) the passage of time has determined a reversal in the balance of the interests at stake. Different considerations may apply to cases where the online processing was illegitimate from the start, or has become illegitimate since the data subject has withdrawn her consent, this being the only legal basis for the processing.

Nominalism

'Privacy, Identification, and Common Law Names' by Adam Candeub in (2016) Florida Law Review (Forthcoming) argues 

The conventional wisdom, reflected in legal policy analysis and landmark Supreme Court cases such as Kyllo and Jones, views technology as privacy’s chief foe. This Article challenges that wisdom, arguing that the law of identification is privacy’s real threat. Particularly in the last decade, legal requirements for identification through government-issued identification cards in virtually every aspect of life — from online purchases to healthcare — have proved fatal to anonymity and privacy. This slow, subtle transformation has rendered a de facto nullity the Constitution’s anonymity protection against compelled identity disclosure. This transformation also has rendered impracticable the traditional, but mostly forgotten, common law rights to use whatever name one wishes, i.e., the right to pseudonymity. The common law name allows a type of anonymity, which, in turn, allows online privacy and privacy in other aspects of life.

This Article argues that the continued vitality of common law name rights, particularly in light of recent First Amendment jurisprudence, establishes a right to pseudonymity — as well as the possibility of increasing privacy. This right includes, in certain circumstances, the ability to demand a government-issued identification under a common law pseudonym. This ability would allow individuals to frustrate regulatory identification regimes and regain some privacy. Beyond these practical implications, this Article engages in a theoretical analysis of the legal mechanisms of identification. Using the classic Calabresi-Melamed property/liability distinction, this Article demonstrates how name governance changed from the common law liability regime to the current government-owned property regime. This shift reflects an important, and hitherto unrecognized, transformation in the legal relationship between the state and citizen.

Privacy Zones

With an article coming out shortly on the new Australian Capital Territory 'privacy zones' regime I was interested to see passage of the Public Health and Wellbeing Amendment (Safe Access Zones) Bill 2015 (Vic).

The Act addresses problems evident in Fertility Control Clinic v Melbourne City Council [2015] VSC 424.

Pictures

From IDP Education Ltd v Lejburg Pty Ltd [2015] VSC 650 in relation to the Australian Consumer Law -

24 The defendants’ website relied upon testimonials in the nature of ‘success stories’ to promote the sale of dispute packages. As the evidence revealed, they were wholly fabricated. The defendants did not seek to justify or even explain the testimonials, referring to them as their ‘Achilles heel’.

25 A testimonial from Hans Gerda Ulrich was published with a photograph image. A search of the image revealed the photo to be that of Bernd Jurgen Armando Brandes, a victim of murder and cannibalism in Germany in 2001. A testimonial from Gupta Agate was accompanied by his photo image. A search of the internet revealed that the photograph was that of Jayant Maru, a student at the University of London International Programme, studying BSc Sociology and Law. The photograph of Sun Lei, who provided another testimonial, was that of an actor, Song Seung Hun. The photograph of Amee Krishnamurthy appears to be that of another person known as Aparna Krishnamurthy from Bangalore. The photograph of Wang Siwen, who provided a testimonial, appears to be that of Janlyn Kor. The photograph of Wang Wing, who provided a testimonial, appears to be that of a Japanese woman taken by photographer, Cedric Bertrand. The photograph of Gao Wuan, who provided a testimonial, appears to be that of Celestine Lee, who works with MMR Solutions in Singapore in the financial services industry.

Criminal Law Theory

'International Criminal Law: Theory All Over the Place' by Sarah Nouwen in Oxford Handbook of the Theory of International Law (Forthcoming) comments

Written for the forthcoming Oxford Handbook of the Theory of International Law, this chapter analyses the role of ‘theory’ in the field of international criminal law. It finds theory in international criminal law all over the place: theory is almost irrelevant whilst also highly influential; it is both explicated and covered up; it is developed but also immature. However, it is not just that the state of theory is all over the place; there is no shared understanding of what ‘theory’ in, or of, international criminal law refers to.

Theorising the concept of theory itself, the chapter identifies at least four types of ‘theories’ in international criminal law: (1) ‘factual theories’ (theories of a case); (2) ‘operational theories’ (mental schemes that the field employs in its operations, for instance to organise modes of liability, systematise crimes, or classify sentences); (3) ‘foundational theories’ (systems of ideas about the origins, essence and rationales of the field); and (4) ‘external theories’ (theories that try to make sense of international criminal law as a phenomenon, and study the meaning and effects of the field as a whole beyond its stated objectives, usually from a perspective external to international criminal law).

Theorising international criminal law is not exclusive to scholars or practitioners: international criminal law is also ‘theorised’ by millions of people who, without considering themselves to be ‘theorists’ or ever using the word ‘theory’, try to make sense of international criminal law as they encounter it in their daily lives. As a result, in addition to the axis along which we find factual, operational, foundational and external theories, we can also identify a further axis, with ‘official’ and ‘popular’ theories at its ends.

It is usually when the different types of theories in international criminal law are considered in light of each other that theoretical weaknesses are revealed and, on that ground, the field is labelled as ‘under-theorised’. Perhaps the greatest disconnect is between the official and the popular theories. Tribunals increasingly pay attention to ensuring that the official theories (in particular, the foundational theories) inform the general public’s views, especially in countries where international criminal tribunals intervene. Far less attention, however, is being given to ensuring that popular theories are fed back into the official theories, which in fact have much to gain from connecting with the day-to-day experience of international criminal law. However, for that to happen, official theories of international criminal law must first recognise popular theories as valuable.

Govt response to Harper Review

The national Government has provided an uneven response to recommendations from the Harper Review of competition policy.

Today's response states

The Coalition made an election promise early in 2013 that we would deliver the first root and branch review of Australia’s competition laws in more than 20 years. This promise was delivered with the final report of the Review, led by Professor Ian Harper, and publicly released on 31 March this year. The Review provided a far reaching analysis of competition policy across the Australian economy and showed that reforming competition policy will be critical if Australia is to lift its long term productivity growth. Effective competition encourages businesses to pursue efficiencies, rewarding the most innovative and dynamic that provide the best services at the lowest cost. It also benefits households by giving them more and better products and services to choose from at lower prices. As the response shows, the Government will implement the majority of the Review’s recommendations. Many of the recommendations are in areas of state and territory responsibility, and the Government is committed to working closely with the states and territories to advance reform. Indeed, I have already met with state and territory treasurers in October and commenced discussions on the reform opportunities that it presents. I am confident that this package of reforms will deliver stronger economic performance for Australia in the long term by promoting more dynamic, competitive and well functioning markets for the benefit of all Australians.

That's followed by unsurprising policy boilerplate -

Competition is one of the surest ways to lift long term productivity growth. Competition energises enterprise and encourages business to pursue efficiencies, rewarding the innovative and dynamic businesses that provide the best services at the lowest cost, and benefiting households by giving them more choice and better value products and services.

The 2015 Intergenerational Report showed that productivity growth is the most important driver of Australian incomes and living standards. That is why the Australian Government (the Government) is laying the groundwork for a more competitive and flexible economy by reforming Australia’s competition framework. These reforms will make markets work better for the benefit of all Australians, reduce barriers to entry for new businesses and encourage businesses to innovate and provide greater choice to consumers.

Previous National Competition Policy (NCP) reforms delivered in response to the Hilmer Review resulted in substantial economic benefits for Australia. Efficiency improvements in the key infrastructure industries targeted by the reforms boosted Australia’s gross domestic product (GDP) by 2.5 per cent. The reforms delivered by the NCP are a strong example of how all governments can work together and utilise competition to increase economic growth. The Competition Policy Review (the Harper Review) was commissioned by the Government as a key election commitment and is an important limb of the Government’s forward economic policy agenda, which also includes the Tax White Paper, the Federation White Paper and the response to the Financial System Inquiry. The Harper Review provides a comprehensive, independent assessment of Australia’s competition framework. It makes 56 recommendations to revitalise competition policy at both the state and Commonwealth level, reshape competition institutions, and modernise and simplify Australia’s competition laws with a view to strengthening competition and incentives to innovate, empowering consumers, and promoting better use of and investment in infrastructure.

The Government will implement the majority of the Review’s recommendations. Many of the recommendations of the Harper Review are in areas of state and territory responsibility and the Government is engaging with the states and territories to advance an ambitious reform agenda. All governments recognise the benefits that were delivered by the NCP and are already working together to develop a new national framework between the Commonwealth, states and territories that will identify and facilitate innovative ways to deliver services and promote economic growth.

The Government supports 39 of the Harper Review’s recommendations in full or in principle and a further 5 recommendations in part. The Government also notes or remains open to 12 recommendations in areas where implementation will be considered following further review and consultation, including with the states and territories. The Government has already announced reform in a number of areas consistent with recommendations of the Harper Review’s final report, including that it will simplify the regulation of coastal trading and review remuneration and location rules in the pharmacy sector. The Government supports removing restrictions on the parallel importation of books following the Productivity Commission’s inquiry into Australia’s intellectual property arrangements and consultations with the sector on transitional arrangements, to make local booksellers more competitive with international suppliers, promote lower prices for consumers and ensure the timely availability of titles. In addition, the Government will review competitive neutrality policies and guidelines, and expand its Regulatory Reform Agenda to incorporate a competition regulation review that will strengthen Australia’s competitiveness by systematically reducing barriers to competition.

The Government endorses the revised competition principles and, through the Council of Australian Governments (COAG), it will propose that all governments commit to a new set of competition principles and reform agenda. These new principles should include choice and diversity of providers in human services. Inefficiencies in human service sectors can result in significant costs to the economy and individuals, and reduce productivity. Promoting innovative funding and delivery of human services is key to improving the effectiveness and efficiency of the sector, and reducing waste will help ensure that high quality service provision remains affordable for all Australians as our population ages and demand and cost pressures increase. The Government will commission a Productivity Commission review to explore how the principles can be applied in practice to the human services sector, following consultation with the states and territories on the terms of reference. Of course, progress over time to improve the efficiency and responsiveness of human services should also take account of important issues such as social equity, particularly in regional and remote areas.

The Government is also exploring early actions in areas where scope for reform in human services delivery has been identified and where action can be implemented independently of the states and territories. For instance, in the health sector the Australian Government Hearing Services Program has introduced the Hearing Services Online website and portal. The portal allows members of the public to search a directory of some 260 contracted providers using a map, and enables Voucher Program clients to lodge applications electronically. The portal also enables clients to move easily between providers should a client be dissatisfied with the service provided or need to transfer providers for other reasons.

One of the priorities for the Government is to work with states and territories to develop ways to promote sound investment decisions in and efficient use of roads in line with other infrastructure sectors, focusing on ensuring road infrastructure services best and most efficiently meet the needs of users. Road transport is a major input cost for businesses and the competing demand for funding of high quality road infrastructure is placing increasing pressure on government budgets. These are long term challenges for governments and the community, but the economic benefits are potentially significant and it is possible to build on existing work underway. In the near term, in consultation with the states and territories, the Government will reform and update the competition provisions of the Competition and Consumer Act 2010 (CCA). This includes introducing a prohibition on concerted practices, refining exclusionary conduct provisions, simplifying cartel laws, streamlining merger clearances, introducing a class authorisation process and establishing more flexible collective bargaining provisions. The Government will also investigate options to apply a class exemption to the liner shipping industry in consultation with the Australian Competition and Consumer Commission (ACCC) following the introduction of a new general class exemption power.

The Government acknowledges concerns raised in submissions to the Harper Review about the operation of the misuse of market power provision (section 46 of the CCA) and the Harper Review’s recommendation for reform. In light of the importance of this issue for business and consumers, the Government will consult further on options to reform the provision and release a discussion paper on this topic.

Specific responses are - 

R 1: Competition principles

The Australian Government, state and territory and local governments should commit to specific principles. The Government supports this recommendation, will work with the states and territories to secure their agreement to a reform agenda including a new set of overarching principles to guide competition policy implementation, and will seek to negotiate a new competition principles and reform agreement for COAG’s consideration within 12 months.

R2: Human services

Each Australian government should adopt choice and competition principles in the domain of human services.  The Government supports this recommendation. It will commission a Productivity Commission review into human services, which will include research on past or ongoing reforms in different jurisdictions that incorporate principles of choice, competition and contestability. The review will also identify human services sectors or sub sectors for more detailed analysis. .

R3: Road transport

Governments should introduce cost reflective road pricing with the aid of new technologies, with pricing subject to independent oversight and revenues used for road construction, maintenance and safety.  The Government supports this recommendation as a long term reform option, further to its response to the Productivity Commission’s Public Infrastructure inquiry report. The Government will seek to accelerate work with states and territories on heavy vehicle road reform and investigate the benefits, costs and potential next steps of options to introduce cost reflective road pricing for all vehicles. The Government is willing to consider payments to states and territories for reforms that improve productivity and lead to economic growth, including for significant regulatory reviews that are followed by reforms..

R4: Liner shipping

Part X of the CCA should be repealed. A block exemption granted by the ACCC should be available for liner shipping agreements that meet a minimum standard of pro competitive features. The minimum standard of pro competitive features to qualify for the block exemption should be determined by the ACCC in consultation with shippers, their representative bodies and the liner shipping industry. Other agreements that risk contravening the competition provisions of the CCA should be subject to individual authorisation, as needed, by the ACCC. The Government remains open to this recommendation and will work with the ACCC and relevant stakeholders, including shipping lines and importers and exporters, to investigate options regarding how a class exemption could be applied to the liner shipping industry. Any options considered would need to be consistent with Australia’s international law obligations.  

R5: Cabotage — Coastal shipping and aviation

Noting the current Australian Government Review of Coastal Trading, cabotage restrictions on coastal shipping should be removed, unless it can be demonstrated that the benefits of the restrictions to the community as a whole outweigh the costs, and the objectives of the government policy can only be achieved by restricting competition. The current air cabotage restrictions should be removed for all air cargo as well as passenger services to specific geographic areas, such as island territories and on poorly served routes, unless it can be demonstrated that the benefits of the restrictions to the community as a whole outweigh the costs, and the objectives of the restrictions can only be achieved by restricting competition.  The Government notes this recommendation, with a plan for coastal shipping to be implemented as soon as practicable following the passage of legislation in 2015-16. The Government  does not have immediate plans to ease aviation cabotage arrangements.

R6: Intellectual property review

The Australian Government should task the Productivity Commission to undertake an overarching review of intellectual property. The Review should be a 12 month inquiry. The review should focus on: competition policy issues in intellectual property arising from new developments in technology and markets; and the principles underpinning the inclusion of intellectual property provisions in international trade agreements. A separate independent review should assess the Australian Government processes for establishing negotiating mandates to incorporate intellectual property provisions in international trade agreements. Trade negotiations should be informed by an independent and transparent analysis of the costs and benefits to Australia of any proposed intellectual property provisions. Such an analysis should be undertaken and published before negotiations are concluded. The Government supports in part this recommendation.

The Government supports the recommendation for the Productivity Commission to undertake an overarching review of intellectual property. An inquiry into Australia’s intellectual property arrangements was commissioned by the Treasurer on 18 August 2015, which is to have regard to Australia’s international arrangements, including obligations accepted under bilateral, multilateral and regional trade agreements to which Australia is a party. The global economy and technology are changing and there have been increases in the scope and duration of intellectual property protection. Excessive intellectual property protection can result in higher costs for Australian businesses and consumers and inhibit innovation. However, weak intellectual property protection can lead to under investment in research and development (R&D) which also stifles innovation. A comprehensive evaluation of Australia’s intellectual property framework is needed to ensure that the appropriate balance exists between incentives for innovation and investment and the interests of both individuals and businesses, including small businesses, in accessing ideas and products.

The Government does not support a separate independent review of the Australian Government processes for establishing negotiating mandates to incorporate intellectual property (IP) provisions in international trade agreements. The Government already has robust arrangements in place to ensure appropriate levels of transparency of our negotiating mandate while protecting Australia’s negotiating position. These include public and stakeholder consultation; feasibility studies and cost benefit analyses; and whole of government agreement to negotiating positions. Once a free trade agreement (FTA) is signed, regulation impact statements and national interest analyses are published and the agreement is scrutinised by the Parliament through the Joint Standing Committee on Treaties, prior to ratification. The Government does not support an independent cost benefit analysis being undertaken and published before negotiations are concluded. Such an analysis would reflect incomplete or inaccurate outcomes, signal Australia’s position to our negotiating partners and potentially compromise our capacity to achieve Australia’s national intere

R7: Intellectual property exception

Subsection 51(3) of the CCA should be repealed. The Government notes this recommendation and will have regard to the findings of the Productivity Commission’s inquiry into Australia’s intellectual property arrangements. The Productivity Commission released an issues paper for its inquiry on 7 October 2015. The terms of reference for the inquiry provide that the Productivity Commission is to have regard to the findings and recommendations of the Harper Review in the context of the Government’s response. The inquiry report is expected to be provided to the Government in August 2016. The Government will reconsider its response to this recommendation again in the context of the Productivity Commission’s report.

R8: Regulation review

All Australian governments should review regulations, including local government regulations, in their jurisdictions to ensure that unnecessary restrictions on competition are removed. Legislation (including Acts, ordinances and regulations) should be subject to a public interest test and should not restrict competition unless it can be demonstrated that: • the benefits of the restriction to the community as a whole outweigh the costs; and • the objectives of the legislation can only be achieved by restricting competition.   The Government supports this recommendation. The Government will expand its Regulatory Reform Agenda to incorporate a competition regulation review to remove unnecessary regulatory barriers to competition. It will also encourage the states and territories to undertake similar reviews by seeking agreement to a reform agenda, including a new set of competition principles as outlined in the response to Recommendation 1.  The Government is willing to consider payments to states and territories for regulatory reviews where subsequent reforms improve productivity and lead to economic growth.

R9: Planning and zoning

Further to Recommendation 8, state and territory governments should subject restrictions on competition in planning and zoning rules to the public interest test, such that the rules should not restrict competition unless it can be demonstrated that the benefits of the restriction to the community as a whole outweigh the costs, and the objectives of the rules can only be achieved by restricting competition.  The Government supports this recommendation, noting this is an area of state responsibility.   The Government will continue discussions with states and territories on ways to promote these reforms. The Government is willing to consider payments to states and territories for reforms that improve productivity and lead to economic growth.

R10: Priorities for regulation review

Further to Recommendation 8, and in addition to reviewing planning and zoning rules (Recommendation 9), the following should be priority areas for review: • Taxis and ride sharing: in particular, regulations that restrict numbers of taxi licences and competition in the taxi industry, including from ride sharing and other passenger transport services that compete with taxis. • Mandatory product standards: that is, standards that are directly or indirectly mandated by law, including where international standards can be adopted in Australia. The Government supports this recommendation and  notes that regulation of taxis and ride sharing is an area of state responsibility. The Government is willing to consider payments to states and territories for regulatory reviews where they result in reforms that improve productivity and lead to economic growth .  

R11: Standards review

Given the unique position of Australian Standards under paragraph 51(2)(c) of the CCA, Australian Standards that are not mandated by government should be subject to periodic review against the public interest test (see Recommendation 8) by Standards Australia. The Government supports this recommendation.

R12: Retail trading hours

Remaining restrictions on retail trading hours should be removed. To the extent that jurisdictions choose to retain restrictions, these should be strictly limited to Christmas Day, Good Friday and the morning of ANZAC Day, and should be applied broadly to avoid discriminating among different types of retailers. Deregulating trading hours should not prevent jurisdictions from imposing specific restrictions on trading times for alcohol retailing or gambling services in order to achieve the policy objective of harm minimisation. The Government supports this recommendation, noting this is an area of state responsibility. The Government encourages state and territory governments with remaining restrictions on retail trading hours to consider whether these restrictions are impeding competition and the ability of retailers to meet customer demand for flexibility and choice, and whether they can be removed without imposing undue pressure on retailers to remain open when it is uneconomical to do so.  The Government is willing to consider payments to states and territories for reforms that improve productivity and lead to economic growth.

R13: Parallel imports

Restrictions on parallel imports should be removed unless it can be shown that: • the benefits of the restrictions to the community as a whole outweigh the costs; and • the objectives of the restrictions can only be achieved by restricting competition. Consistent with the recommendations of recent Productivity Commission reviews, parallel import restrictions on books and second hand cars should be removed, subject to transitional arrangements as recommended by the Productivity Commission. Remaining provisions of the Copyright Act 1968 that restrict parallel imports, and the parallel importation defence under the Trade Marks Act 1995, should be reviewed by an independent body, such as the Productivity Commission. The Government supports in part this recommendation. The Government supports the removal of parallel import restrictions on books. The Government will progress this recommendation following the Productivity Commission’s inquiry into Australia’s intellectual property arrangements   and consultations with the sector on transitional arrangements. Following consultation as part of the review of the Motor Vehicles Standards Act 1989 and having regard to consumer protection and community safety concerns, the Government has decided not to proceed with reducing parallel import restrictions on second hand cars at this time.  

R14: Pharmacy

The Panel considers that current restrictions on ownership and location of pharmacies are not needed to ensure the quality of advice and care provided to patients. The pharmacy ownership and location rules should be removed in the long term interests of consumers. They should be replaced with regulations to ensure access to medicines and quality of advice regarding their use that do not unduly restrict competition.  The Government notes this recommendation. In light of the Final Report, as well as the National Commission of Audit and the Productivity Commission Research Paper: Efficiency in Health, the Government recognises the need for competition in the pharmacy sector, including that the location rules should be examined closely. The Government recognises the original intention of the location rules was to create a suitable geographic spread of pharmacies to ensure dependable and timely access to Pharmaceutical Benefits Scheme (PBS) medicines, including in rural and remote regions. While the location rules have been extended for another five years under the Sixth Community Pharmacy Agreement, the Government and the Pharmacy Guild have agreed that an independent public review of pharmacy remuneration and regulation will also be conducted. The review will examine whether the location rules should remain in their current form or be updated in the future, with a final report by 1 March 2017. The Government also encourages states and territories to consider the appropriateness of existing restrictions on pharmacy ownership in pursuing public policy objectives. The Government is willing to consider payments to states and territories for reforms that improve productivity and lead to economic growth  

R15: Competitive neutrality policy

All Australian governments should review their competitive neutrality policies. Specific matters to be considered should include: guidelines on the application of competitive neutrality policy during the start up stages of government businesses; the period of time over which start up government businesses should earn a commercial rate of return; and threshold tests for identifying significant business activities. The review of competitive neutrality policies should be overseen by an independent body, such as the proposed Australian Council for Competition Policy (see Recommendation 43). The Government supports this recommendation.

R16: Competitive neutrality complaints

All Australian governments should increase the transparency and effectiveness of their competitive neutrality complaint processes.  The Government supports this recommendation. Competitive neutrality complaints are considered by the Australian Government Competitive Neutrality Complaints Office, which operates within the independent Productivity Commission. The Government encourages those jurisdictions without independent complaint bodies to consider establishing such a body. It supports the Government responding publicly to the findings of complaint investigations, and encourages other governments to do the same. The Productivity Commission currently includes updates on Government competitive neutrality investigations as part of its annual reporting.

R17: Competitive neutrality reporting

To strengthen accountability and transparency, all Australian governments should require government businesses to include a statement on compliance with competitive neutrality principles in their annual reports. The proposed Australian Council for Competition Policy (see Recommendation 43) should report on the experiences and lessons learned from the different jurisdictions when applying competitive neutrality policy to human services markets. The Government endorses the principles of accountability and transparency of its competitive neutrality policy. It remains open to this recommendation and will be consulting on its competitive neutrality policy in 2016. The Government will ask the Productivity Commission, as part of developing policy options in human services sectors, to consider how competitive neutrality can be improved in these markets. 

R18: Government procurement and other commercial arrangements

All Australian governments should review their policies governing commercial arrangements with the private sector and non government organisations, including procurement policies, commissioning, public private partnerships and privatisation guidelines and processes. Procurement and privatisation policies and practices should not restrict competition unless: • the benefits of the restrictions to the community as a whole outweigh the costs; and • the objectives of the policy can only be achieved by restricting competition. An independent body, such as the Australian Council for Competition Policy , should be tasked with reporting on progress in reviewing government commercial policies and ensuring privatisation and other commercial processes incorporate competition principles. The Government supports in principle this recommendation. The Public Governance, Performance and Accountability Act 2013 requires Government entities, when imposing requirements on others for the use or management of public resources to take into account associated risks and the effects of imposing those requirements. The Government will ensure, via the Efficiency through Contestability Programme, that government functions are systematically assessed, including for improved efficiency through competitive arrangements, where appropriate..

R19: Electricity and gas

State and territory governments should finalise the energy reform agenda. The Government is committed to promoting the application of national energy legislation and rules across all Australian jurisdictions. The Government has tasked the ACCC with reviewing the competitiveness of the Eastern Australian gas market. The ACCC is due to report to the Government by April 2016. The Government through the COAG Energy Council has tasked the AEMC to review facilitated markets and pipeline frameworks to improve market efficiency, transparency and operation.  

R20: Water

All governments should progress implementation of the principles of the National Water Initiative, with a view to national consistency. Governments should focus on strengthening economic regulation in urban water and creating incentives for increased private participation in the sector through improved pricing practices. State and territory regulators should collectively develop best practice pricing guidelines for urban water, with the capacity to reflect necessary jurisdictional differences. To ensure consistency, the Australian Council for Competition Policy  should oversee this work. The Government supports this recommendation and will work with the states and territories to advance water reform. The Government is willing to consider payments to states and territories for reforms that improve productivity and lead to economic growth .  

R21: Informed choice

Governments should work with industry, consumer groups and privacy experts to allow consumers to access information in an efficient format to improve informed consumer choice. The proposed Australian Council for Competition Policy   should establish a working group to develop a partnership agreement that both allows people to access and use their own data for their own purposes and enables new markets for personal information services.  The Government supports allowing consumers to access information in an efficient format, especially as new technologies increase the generation of data that can improve consumer decisions but also raise consumer protection issues. The Government will task the Productivity Commission with reviewing options to improve accessibility to data.

R22: Competition law concepts

The central concepts, prohibitions and structure enshrined in the current competition law should be retained, since they are appropriate to serve the current and projected needs of the Australian economy. The Government supports this recommendation. Proposed changes to competition laws will retain the central concepts, prohibitions and structure of the current CCA.  

R23: Competition law simplification

The competition law provisions of the CCA should be simplified, including by removing overly specified provisions and redundant provisions. The process of simplifying the CCA should involve public consultation.   The Government supports this recommendation and will develop a proposal to further simplify  provisions of the CCA, following stakeholder consultation by the Treasury .

R24: Application of the law to government activities

Sections 2A, 2B and 2BA of the CCA should be amended so that the competition law provisions apply to the Crown in right of the Commonwealth and the states and territories (including local government) insofar as they undertake activity in trade or commerce. The Government supports in principle this recommendation. The Government will consult further with the states and territories on the implications of extending the CCA to apply to government activities in trade or commerce.  

R25: Definition of market and competition

The current definition of ‘market’ in section 4E of the CCA should be retained but the current definition of ‘competition’ in section 4 should be amended to ensure that competition in Australian markets includes competition from goods imported or capable of being imported, or from services rendered or capable of being rendered, by persons not resident or not carrying on business in Australia.   The Government supports this recommendation and will develop exposure draft legislation for consultation with the public and states and territories to ensure that competition in Australian markets includes competition from goods and services imported or capable of being imported into Australia.  

R26: Extra territorial reach of the law

Section 5 of the CCA, which applies the competition law to certain conduct engaged in outside Australia, should be amended to remove the requirement that the contravening firm has a connection with Australia in the nature of residence, incorporation or business presence and to remove the requirement for private parties to seek ministerial consent before relying on extra territorial conduct in private competition law actions. Instead, the competition law should apply to overseas conduct insofar as the conduct relates to trade or commerce within Australia or between Australia and places outside Australia. The in principle view of the Panel is that the foregoing changes should also be made in respect of actions brought under the Australian Consumer Law.   The Government supports in part this recommendation, noting that the Competition and Consumer Amendment (Deregulatory and Other Measures) Bill 2015 gives effect to the recommendation that the Government remove the requirement for private parties to seek ministerial consent before relying on extraterritorial conduct in private competition law actions.  

R27: Cartel conduct prohibition

The prohibitions against cartel conduct in Part IV, Division 1 of the CCA should be simplified. The Government supports simplification of the prohibitions on cartel conduct, and will amend the current exception for joint ventures to provide appropriate exemptions for demonstrable and deliberative joint venture activity. The Government accepts that the prohibitions on cartel conduct are complex and will develop exposure draft legislation for consultation with the public and states and territories to simplify definitions to improve clarity and certainty, while retaining specificity and meaning. Exposure draft legislation to broaden the joint venture exemption so that it does not limit legitimate commercial transactions (such as through vertical supply arrangements) will also be developed for consultation.  

R 28: Exclusionary provisions

The CCA should be amended to remove the prohibition of exclusionary provisions in subparagraphs 45(2)(a)(i) and 45(2)(b)(i), with an amendment to the definition of cartel conduct to address any resulting gap in the law. The Government supports simplifying the prohibitions on exclusionary conduct and will develop exposure draft legislation for consultation with the public and states and territories. Simplification can be achieved by amending the cartel provisions and removing the prohibitions on exclusionary provisions.

R29: Price signalling

The ‘price signalling’ provisions of Part IV, Division 1A of the CCA are not fit for purpose in their current form and should be repealed. Section 45 should be extended to prohibit a person engaging in a concerted practice with one or more other person that has the purpose, effect or likely effect of substantially lessening competition. This recommendation is reflected in the model legislative provisions in Appendix A. The Government supports this recommendation and will develop exposure draft legislation for consultation with the public and states and territories. The Government agrees that the price signalling provisions are complex and create an additional and unnecessary compliance burden for business. Other provisions of the law are capable of addressing anti competitive price signalling, and with the extension of provisions relating to contracts, arrangements or understandings that restrict dealings or affect competition to include concerted practices, the price signalling provisions are not required. The Government will develop exposure draft legislation to repeal the price signalling provisions of the CCA and extend section 45 of the CCA to capture concerted practices that substantially lessen competition.  

R30: Misuse of market power

The primary prohibition in section 46 of the CCA should be reframed to prohibit a corporation that has a substantial degree of power in a market from engaging in conduct if the proposed conduct has the purpose, or would have or be likely to have the effect, of substantially lessening competition in that or any other market. To mitigate concerns about inadvertently capturing pro competitive conduct, the legislation should direct the court, when determining whether conduct has the purpose, effect or likely effect, of substantially lessening competition in a market, to have regard to: • the extent to which the conduct has the purpose, effect or likely effect of increasing competition in the market, including by enhancing efficiency, innovation, product quality or price competitiveness; and • the extent to which the conduct has the purpose, effect or likely effect of lessening competition in the market, including by preventing, restricting or deterring the potential for competitive conduct in the market or new entry into the market. Such a re framing would allow the provision to be simplified. Amendments introduced since 2007 would be unnecessary and could be repealed.  The Government notes this recommendation and will consult further on options to strengthen the misuse of market power provision. The Government acknowledges concerns raised in submissions to the Harper Review about the operation of the misuse of market power provision. In light of the importance of this issue for business and consumers, the Government will consult further on options to reform the provision and release a discussion paper on this topic.  

R31: Price discrimination

A specific prohibition on price discrimination should not be reintroduced into the CCA. Where price discrimination has an anti competitive impact on markets, it can be dealt with by the existing provisions of the law (including through the Panel’s recommended revisions to s 46. Attempts to prohibit international price discrimination should not be introduced into the CCA on account of significant implementation and enforcement complexities and the risk of negative unintended consequences. Instead, the Panel supports moves to address international price discrimination through market solutions that empower consumers. These include removing restrictions on parallel imports and ensuring that consumers are able to take lawful steps to circumvent attempts to prevent their access to cheaper legitimate goods. The Government supports this recommendation and agrees that a specific prohibition on price discrimination should not be reintroduced. The Government will remove parallel import restrictions on books  and will consult further on options to strengthen section 46.

R32: Third line forcing test

Third line forcing (subsections 47(6) and (7) of the CCA) should only be prohibited where it has the purpose, effect or likely effect of substantially lessening competition. The Government supports this recommendation and will develop exposure draft legislation for consultation with the public and states and territories. Prohibiting third line forcing only where it has the purpose, or has or is likely to have the effect, of substantially lessening competition will bring the provision into line with comparable international jurisdictions and with other provisions of the CCA.  

R33: Exclusive dealing coverage

Section 47 of the CCA should be repealed and vertical restrictions (including third line forcing) and associated refusals to supply addressed by sections 45 and 46 (as amended in accordance with Recommendation 30). The Government notes this recommendation. Vertical restrictions are agreements with or conditions imposed on acquirers of goods in a supply chain, and their impact on competition can vary depending on the circumstances. Simplification of section 47 will be considered as part of the proposal to further simplify the competition law and in light of the outcome of further consultation on R30.

R34: Resale price maintenance

The prohibition on resale price maintenance (RPM) in section 48 of the CCA should be retained in its current form as a per se prohibition, but notification should be available for RPM conduct. This recommendation is reflected in the model legislative provisions in Appendix A. The prohibition should also be amended to include an exemption for RPM conduct between related bodies corporate, as is the case under ss 45 and 47. The Government supports this recommendation. ... The Government considers that maintaining a per se prohibition on RPM but allowing notification is an appropriate next step. The Government will develop exposure draft legislation for consultation with the public and states and territories to permit notification of RPM conduct to the ACCC, subject to longer timeframes (60 days) and the ability for the ACCC to impose conditions, and include an exemption for such conduct between related bodies corporate.  

R35: Mergers

There should be further consultation between the ACCC and business representatives with the objective of delivering more timely decisions in the informal merger review process. The formal merger exemption processes (i.e., the formal merger clearance process and the merger authorisation process) should be combined and reformed. The Government supports this recommendation. The Government considers that overall the merger provisions of the CCA are working effectively. There should be further consultation between the ACCC and business representatives with the objective of delivering more timely decisions in the informal review process. The recommended changes will streamline and simplify the formal merger review processes, reducing burdens on businesses while maintaining the integrity of the system. The Government will develop exposure draft legislation for public consultation on changes to the formal merger review process, in consultation with business, competition law practitioners, the ACCC and states and territories. With regard to the ACCC’s informal merger review process, the Government notes its expectation that the ACCC will take into account this recommendation in performing its role and meeting its responsibilities, particularly in relation to delivering more timely and transparent decisions.

R36: Secondary boycotts

The prohibitions on secondary boycotts in sections 45D 45DE of the CCA should be maintained and effectively enforced. The ACCC should pursue secondary boycott cases with increased vigour, comparable to that which it applies in pursuing other contraventions of the competition law.  The Government supports this recommendation, and will develop exposure draft legislation for consultation with the public and states and territories.   The Government  will draft legislation to increase the maximum penalty for secondary boycotts to the same level as that applying to other breaches of the competition law.  

R37: Trading restrictions in industrial agreements

Sections 45E and 45EA of the CCA should be amended so that they apply to awards and industrial agreements, except to the extent they relate to the remuneration, conditions of employment, hours of work or working conditions of employees. Further, the present limitation in sections 45E and 45EA, such that the prohibitions only apply to restrictions affecting persons with whom an employer ‘has been accustomed, or is under an obligation,’ to deal, should be removed.  The ACCC should be given the right to intervene in proceedings before the Fair Work Commission and make submissions concerning compliance with sections 45E and 45EA. A protocol should be established between the ACCC and the Fair Work Commission. The maximum penalty for breaches of sections 45E and 45EA should be the same as that applying to other breaches of the competition law. The Government notes this recommendation. This issue is being considered further as part of the Productivity Commission Review of the Workplace Relations Framework, which is scheduled to provide its final report to the Government in November 2015.

R38: Authorisation and notification

The authorisation and notification provisions in Part VII of the CCA should be simplified. The Government supports this recommendation and will develop exposure draft legislation for consultation with the public and states and territories. The Government will simplify the authorisation and notification provisions of Part VII of the CCA to ensure that only a single application is required for a single business transaction or agreement and allow the ACCC to consider both competition and public benefit considerations.

R39: Block exemption power

A block exemption power, exercisable by the ACCC, should be introduced and operate alongside the authorisation and notification frameworks in Part VII of the CCA. The ACCC should also maintain a public register of all block exemptions, including those no longer in force. The decision to issue a block exemption would be reviewable by the Australian Competition Tribunal.   The Government supports this recommendation and will develop exposure draft legislation for consultation with the public and states and territories.  The Government will provide the ACCC with a power to provide a ‘class exemption’ for classes of conduct that could otherwise be authorised individually on competition or public benefit grounds..  

R40: Section 155 notices

The section 155 power should be extended to cover the investigation of alleged contraventions of court enforceable undertakings. The ACCC should review its guidelines on section 155 notices having regard to the increasing burden imposed by notices in the digital age. Section 155 should be amended so that it is a defence to a ‘refusal or failure to comply with a notice’ under paragraph 155(5)(a) of the CCA that a recipient of a notice under paragraph 155(1)(b) can demonstrate that a reasonable search was undertaken in order to comply with the notice. The fine for non compliance with section 155 of the CCA should be increased in line with similar notice based evidence gathering powers in the Australian Securities and Investments Commission Act 2001. The Government supports this recommendation and will develop exposure draft legislation for consultation with the public and states and territories..

R41: Private actions

Section 83 of the CCA should be amended so that it extends to admissions of fact made by the person against whom the proceedings are brought in addition to findings of fact made by the court.... The Government supports this recommendation and will develop exposure draft legislation for consultation with the public and states and territories to allow private parties to rely on admissions of fact made in another proceeding.  

R42: National Access Regime

The declaration criteria in Part IIIA of the CCA should be targeted to ensure that third party access only be mandated where it is in the public interestt. The Competition Principles Agreement should be updated to reflect the revised declaration criteria. The Australian Competition Tribunal should be empowered to undertake a merits review of access decisions, while maintaining suitable statutory time limits for the review process. The Government supports in part this recommendation. The Government will adopt all the recommendations of the Productivity Commission inquiry into the National Access Regime, including on criteria  which differ from the recommendations of the Harper Review. The Government considers that the Australian Competition Tribunal’s existing merits review role should remain in place. The Government will develop exposure draft legislation for consultation to give effect to this response.

R43: Australian Council for Competition Policy — establishment

The National Competition Council should be dissolved and the Australian Council for Competition Policy (ACCP) established. Its mandate should be to provide leadership and drive implementation of the evolving competition policy agenda. The ACCP should be established under legislation by one state and then by application in all other States and Territories and at the Government level. It should be funded jointly by the Australian Government and the states and territories.  The Government supports the need for a body to oversee progress on competition reform and will discuss its design, role and mandate with the states and territories.   

R44: Australian Council for Competition Policy — role

The Australian Council for Competition Policy should have a broad role. The Government supports the need for a body to oversee progress on competition reform and, further to R43, will discuss its design, role and mandate with the states and territories.

R45: Market studies power

The Australian Council for Competition Policy (ACCP) should have the power to undertake competition studies of markets in Australia and make recommendations to relevant governments on changes to regulation, or to the ACCC for investigation of potential breaches of the CCA. The ACCP should have mandatory information gathering powers to assist in its market studies function; however, these powers should be used sparingly. The Government supports the need for a body to oversee progress on competition reform and, further to R43, will discuss its design, role and mandate with the states and territories. The ACCC currently has scope to conduct market studies, including under Ministerial direction under Part VIIA of the CCA. The Government agrees that the ACCC should continue to have this role as it can better inform its broader enforcement and regulatory work.  

R46: Market studies requests

All governments, jointly or individually, should have the capacity to issue a reference to the Australian Council for Competition Policy (ACCP) to undertake a competition study of a particular market or competition issue. All market participants, including small business and regulators (such as the ACCC), should have the capacity to request market studies be undertaken by the ACCP. The work program of the ACCP should be overseen by the Ministerial Council on Federal Financial Relations to ensure that resourcing addresses priority issues. The Government remains open to this recommendation and, further to its response to R43, will continue discussions with states and territories on the most appropriate institutional architecture to support reform. The Government recognises that state and territory governments may wish to instigate studies of a particular market or competition issue from time to time. Independent institutions, including the Productivity Commission and ACCC, perform a market studies function for competition matters. The Government will consider ways in which any state and territory requests for market studies could be managed and resourcing implications addressed.

R47: Annual competition analysis

The Australian Council for Competition Policy should be required to undertake an annual analysis of developments in the competition policy environment, both in Australia and internationally, and identify specific issues or markets that should receive greater attention. The Government remains open to this recommendation and, further to its response to Recommendation 43, will continue discussions with states and territories on the most appropriate institutional architecture to support reform. ...  

R48: Competition payments

The Productivity Commission should be tasked to undertake a study of reforms agreed to by the Australian Government and state and territory governments to estimate their effect on revenue in each jurisdiction. The Government supports this recommendation and will continue discussions with states and territories.

R49: ACCC functions

Competition and consumer functions should be retained within the single agency of the ACCC. The Government supports this recommendation.  

R50: Access and Pricing Regulator

The following regulatory functions should be transferred from the ACCC and the NCC and be undertaken within a single national Access and Pricing Regulator: • the telecommunications access and pricing functions of the ACCC; • price regulation and related advisory roles of the ACCC under the Water Act 2007 (Cth); • the powers given to the ACCC under the National Access Regime; • the functions undertaken by the Australian Energy Regulator under the National Electricity Law, the National Gas Law and the National Energy Retail Law; • the powers given to the NCC under the National Access Regime; and • the powers given to the NCC under the National Gas Law. Other consumer protection and competition functions should remain with the ACCC. Price monitoring and surveillance functions should also be retained by the ACCC.  The Government remains open to this recommendation. The Government will continue discussions with states and territories on how a new national framework could be developed between the Commonwealth, states and territories to promote economic growth including the most appropriate institutional architecture to support reform.  

R51: ACCC governance

Half of the ACCC Commissioners should be appointed on a part time basis. The ACCC should report regularly to a broad based committee of the Parliament, such as the House of Representatives Standing Committee on Economics. The Government supports in part this recommendation. The Government supports the ACCC reporting regularly to a broad based committee of the Parliament, such as the House of Representatives Standing Committee on Economics. The Government considers that full time Commissioners are best placed to consider and take action on the varied and frequent decisions of the ACCC. .

R52: Media Code of Conduct

The ACCC should establish, publish and report against a Code of Conduct for its dealings with the media with the aim of strengthening the perception of its impartiality in enforcing the law.   The Government supports this recommendation; it expects the ACCC to take into account this recommendation and establish, publish and report against a Code of Conduct for its dealings with the media with the aim of strengthening the perception of its impartiality in enforcing the law.

R53: Small business access to remedies

The ACCC should take a more active approach in connecting small business to alternative dispute resolution schemes where it considers complaints have merit but are not a priority for public enforcement. Where the ACCC determines it is unable to pursue a particular complaint on behalf of a small business, the ACCC should communicate clearly and promptly its reasons for not acting and direct the business to alternative dispute resolution processes. Where the ACCC pursues a complaint raised by a small business, the ACCC should provide that business with regular updates on the progress of its investigation. Resourcing of the ACCC should allow it to test the law on a regular basis to ensure that the law is acting as a deterrent to unlawful behaviour. Small business commissioners, small business offices and ombudsmen should work with business stakeholder groups to raise awareness of their advice and dispute resolution services.  The Government supports the ACCC taking steps to improve its communications with small businesses (and complainants more generally). The Government has asked the ACCC to consider introducing changes to improve transparency and clarity for small businesses on why it is unable to pursue certain complaints. The Government will continue to liaise with the ACCC with a view to enhancing public disclosure of operational procedures and decision making processes where it is appropriate and feasible to do so. The ACCC will also be asked to consider how it can more actively connect small businesses to alternative dispute resolution (ADR) schemes where appropriate.  Legislation to establish the ASBFEO received Royal Assent on 10 September 2015. The Government is working to implement this legislation. During the transition, the Australian Small Business Commissioner will continue to operate and service the needs of small businesses across Australia. The Government will explore options for facilitating greater collaboration and cooperation across tiers of government to have a national complaint handling and dispute resolution network that brings together small business commissioners, ombudsmen and relevant agencies.  The Government notes that the Panel endorsed findings from the Productivity Commission’s Access to Justice Arrangements report.

R54: Collective bargaining

The CCA should be reformed to introduce greater flexibility into the notification process for collective bargaining by small business. Reform should include allowing: • the nomination of members of the bargaining group, such that a notification could be lodged to cover future (unnamed) members; • the nomination of the counterparties with whom the group seeks to negotiate, such that a notification could be lodged to cover multiple counterparties; and • different timeframes for different collective bargaining notifications, based on the circumstances of each application. Additionally, the ACCC should be empowered to impose conditions on notifications involving collective boycott activity, the timeframe for ACCC assessment of notifications for conduct that includes collective boycott activity should be extended from 14 to 60 days to provide more time for the ACCC to consult and assess the proposed conduct, and the ACCC should have a limited ‘stop power’ to require collective boycott conduct to cease, for use in exceptional circumstances where a collective boycott is causing imminent serious detriment to the public. The current maximum value thresholds for a party to notify a collective bargaining arrangement should be reviewed in consultation with representatives of small business to ensure that they are high enough to include typical small business transactions. The ACCC should take steps to enhance awareness of the exemption process for collective bargaining and how it might be used to improve the bargaining position of small businesses in dealings with large businesses. The ACCC should also amend its collective bargaining notification guidelines. This should include providing information about the range of factors considered relevant to determining whether a collective boycott may be necessary to achieve the benefits of collective bargaining. The Government supports this recommendation and will develop exposure draft legislation for consultation with the public and states and territories. Further to the Government’s Statement of Expectations of the ACCC, the Government expects the ACCC will take into account this recommendation in performing its role and meeting its responsibilities. This includes the ACCC taking steps to enhance awareness of the exemption process for collective bargaining and how it might be used to improve the bargaining position of small businesses. It also includes the ACCC amending its collective bargaining guidelines to provide information about the range of factors considered relevant to determining whether a collective boycott may be necessary.

R55: Implementation

The Australian Government should discuss this Report with the states and territories as soon as practicable following its receipt. The Government supports this recommendation.

R56: Economic modelling

The Productivity Commission should be tasked with modelling the recommendations of this Review as a package (in consultation with jurisdictions) to support discussions on policy proposals to pursue. The Government notes this recommendation. Discussions with the states and territories on potential competition reforms are continuing. Productivity Commission modelling of the recommendations of the Review will be considered further pending the outcome of these discussions.

Oaths

'Faith in Public Office: The Meaning, Persistence and Importance of Oaths' by Nicholas Aroney comments 

Oaths of office are strangely ubiquitous in liberal-democratic regimes. They bind office-holders to their duties of office, but they do so by invoking divine or religious sanction for the performance of those duties. This divine witness to the oath of office appears to stand in as a guarantor of the political order, but also looms large as an authority that is separate from, and in some sense stands above, the political order. This opens up the possibility that this other sovereign may make moral demands that supersede those of the political order and the duties incumbent upon the office holder. This is the paradox of the oath of office. It both guarantees the performance of official duties and subjects the content of those duties to external judgement. It is a paradox embedded in the very nature of the oath of office, which captures within its short compass the very large question of the relationship between religious conviction, moral principle and political power. Through a study of the use of oaths in our political systems (including their secular adaptation, the affirmation of office), much light can be shed on the nature of faith in public office.

US Drone Registration

The US Federal Aviation Administration’s Unmanned Aircraft Systems Registration Task Force Aviation Rulemaking Committee has released its recommendations [PDF].

The report featuring those recommendations states

 The Federal Aviation Administration (FAA) chartered the Unmanned Aircraft Systems (UAS) Registration Task Force (RTF) Aviation Rulemaking Committee (ARC) (Task Force) to provide recommendations to the FAA “on registration requirements and process for small UAS, including those used for commercial purposes, and all model aircraft.”

Federal law (49 U.S.C. § 44101(a)) requires that a person may only operate an aircraft when it is registered with the FAA. An “aircraft” is defined as “any contrivance invented, used, or designed to navigate, or fly in, the air” (49 U.S.C. § 40102(a) (6)). In 2012, Congress confirmed that UAS, including those used for recreation or hobby purposes, are aircraft consistent with the statutory definition set forth in 49 U.S.C. § 40102(a)(6). See Pub. L. 112-95, §§ 331(8), 336. The FAA currently requires civil UAS operators who have been granted operational authority by exemption to register their aircraft. The FAA would also require registration for civil UAS that would be operating under the proposed rule titled Operation and Certification of small UAS (sUAS). See 80 FR 9544 (Feb. 23, 2015).

Although the FAA does not currently enforce the requirement for sUAS used for hobby or recreational purposes to be registered, the rapid proliferation of these aircraft in the national airspace has caused the FAA to reevaluate this policy in the interests of public safety and the safety of the National Airspace System (NAS). On October 22, 2015, the Department of Transportation (DOT) and the FAA published the Clarification of the Applicability of Aircraft Registration Requirements for Unmanned Aircraft Systems (UAS) and Request for Information Regarding Electronic Registration for UAS (Clarification and RFI). See 80 FR 63912. The Clarification and RFI did three main things: (1) clarified that the statutory requirements regarding aircraft registration of UAS apply to aircraft used for recreational or hobby purposes; (2) announced the formation of this Task Force; and (3) facilitated the Task Force’s work, requesting information and data from the public in 10 specific areas.

The stated objective of the Task Force was to develop recommendations for the creation of a registration process, which ultimately would contribute to an enforceable rule imposed by the FAA. The FAA stated that the intent of establishing this registration framework was to promote a culture of accountability while achieving a maximum level of compliance.

The FAA scoped the Task Force’s objectives at inception, and advised them that deliberations and recommendations were not dependent on the issuance or enactment of new regulation(s) or legislation, thus bound by existing statutes and rules. Additionally, the FAA advised the Task Force that recommendations should only consider sUAS operations covered under existing laws or statutes for which the FAA has direct oversight or responsibility (e.g., indoor sUAS operations were outside of the scope of discussion).

Recommendations from the Task Force are within the bounds of its charter, and may be used at the FAA’s discretion. The FAA may incorporate all, some, or none of the recommendations provided in any rulemaking activity, as well as take any future steps deemed necessary by the Agency to ensure compliance with the registration requirement. The work of the Task Force is an important step toward promoting a safety culture, but it is by no means the only action that can be taken. Any implemented registration system must align with the Agency’s priorities of safety, education, and accountability.

 The Task Force had  three formal objectives:

1. Develop and recommend minimum requirements for UAS that would need to be registered. ● Factors to consider include, but are not limited to: technical capabilities and operational capabilities such as size, weight, speed, payload, equipage, and other factors such as age of operator.

2. Develop and recommend registration processes. ● Factors to consider include, but are not limited to: electronic means for registration, data retention and storage, fee collection, and information required to be submitted for registration.  

3. Develop and recommend methods for proving registration and marking. ● Factors to consider include, but are not limited to: how certificates will be issued and how a UAS will be able to be identified with the registered owner.

It was asked to consider the following questions:

  1. What methods are available for identifying individual products? Does every UAS sold have an individual serial number? Is there another method for identifying individual products sold without serial numbers or those built from kits?

2. At what point should registration occur (e.g., point-of-sale (POS) or prior to operation)? How should transfers of ownership be addressed in registration?

3. If registration occurs at POS, who should be responsible for submission of the data? What burdens would be placed on vendor of UAS if DOT required registration to occur at POS? What are the advantages of a point-of-sale approach relative to a prior-to-operation approach?

4. Consistent with past practice of discretion, should certain UAS be excluded from registration based on performance capabilities or other characteristics that could be associated with safety risk, such as weight, speed, altitude operating limitations, duration of flight?

5. How should a registration process be designed to minimize burdens and best protect innovation and encourage growth in the UAS industry?

6. Should the registration be electronic or web-based? Are there existing tools that could support an electronic registration process?

7. What type of information should be collected during the registration process to positively identify the aircraft owner and aircraft? 8. How should the registration data be stored? Who should have access to the registration data? How should the data be used?

9. Will the data be used primarily to hold registrants accountable for accidents or intentional misuse? If so, how will this affect registration by consumers? How will registration be enforced?

10. To encourage awareness, should the registration process include an acknowledgment of UAS safe operating rules?

11. Should a registration fee be collected and if so, how will the registration fee be collected if registration occurs POS? Are there payment services that can be leveraged to assist (e.g., PayPal)?

12. How will a registration program affect sales of drones, future innovation, and the positive economic impacts of the use of drones?

13. The effort to register all aircraft will have costs to government, consumers, industry, and registrants. What are these costs, and are these costs clearly outweighed by the benefits to aviation safety?

14. Are there additional means to encourage accountability and safe responsible use of UAS?

In response

The Task Force agreed that it was outside the scope of the Task Force’s objectives to debate or discuss the DOT Secretary’s decision to require registration of sUAS or the legal authority for the implementation of such a mandate. Once that understanding was reached, the Task Force undertook the task to develop and recommend a registration process that ensures accountability for users of the NAS and encourages a maximum level of compliance with the registration requirement, while not unduly burdening the nascent UAS industry and its enthusiastic owners and users of all ages. The Task Force also sought to define a category of sUAS that should be excluded from the registration requirement because they do not present a significant level of risk to the non-flying public and to users of the NAS.

It provided the following  recommendations for the registration process

1) Fill out an electronic registration form through the web or through an application (app).

2) Immediately receive an electronic certificate of registration and a personal universal registration number for use on all sUAS owned by that person.

3) Mark the registration number (or registered serial number) on all applicable sUAS prior to their operation in the NAS.

The report comments

While the brief summary above leaves out some details, like the option of serial number registration, it demonstrates the simplicity of the solution recommended by the Task Force members. This simplicity is what allowed for a consensus recommendation to develop. Any registration steps more burdensome than these three simple steps may jeopardize the likelihood of widespread adoption and would undermine the overall registration philosophy that enabled the Task Force to come to consensus. Although there were often very divergent views, and some decisions were not unanimous, the Task Force reached general agreement on their recommendations to the FAA with the frequent use of votes. Additionally, the general consensus view of the Task Force is that the recommendations on the three objectives are to be presented together as a unified recommendation, with each of the individual recommendations dependent upon elements in the others. Compromises in positions were made whenever possible to obtain a general consensus, and changes to any of the components could further dilute support among the Task Force members and their constituencies for the final recommendations. It should be noted that the Task Force acknowledged that the timeframe provided for deliberations did not allow for in-depth analysis of all the factors involved in instituting a federal requirement for registering sUAS, nor did it allow for an assessment of the impact of such a mandate on the recreational/hobby community.

Based primarily upon an assessment of available safety studies and risk probability calculations, and notwithstanding determinations in other countries with differing weight thresholds, the Task Force recommended an exclusion from the registration requirement for any small unmanned aircraft weighing a total of 250 grams (g) or less. The 250 grams or less exclusion was based on a maximum weight that was defined as the maximum weight possible including the aircraft, payload, and any other associated weight. In manned aircraft terms, it is the “maximum takeoff weight.”

The Task Force also recommends a free, owner-based registration system with a single registration number for each registrant. (They also suggested that if the FAA is required by statute to charge, that the fee should be $0.001). sUAS owners would be required to register with the FAA, prior to operation in the NAS, by entering their name and street address into a web-based or app based registration system. The system would be powered by an Application Program Interface (API) that would allow multiple app clients to feed registration information into the database, ensuring widespread compliance. Provision of email address, telephone number, and serial number of the aircraft into the system would be optional. Information on U.S. citizenship or residence status would not be required, but there would be a minimum age requirement of 13 years to register. At the time of registration, each registrant would receive a certificate of registration that contains a unique universal registration number (and the aircraft serial number if provided) that can be used on all sUAS owned by the individual. This registration number would be required to be directly marked on or affixed to each sUAS the registrant owns, prior to outdoor operation. This marking would need to be maintained in a readable and legible condition, and be readily accessible upon visual inspection. If a registrant chose to provide the FAA with the aircraft’s serial number, the registrant would not be required to further mark the sUAS with the FAA-issued registration number , as long as the serial number meets the requirement of being readable, legible, and readily accessible (without the use of tools) upon visual inspection. The Task Force also recommends that the registration process contain some sort of education component which could be similar to the existing content in the Know Before You Fly campaign.