The Brief Edition 3 2018

Macquarie University Law Society magazine

Edition 3, 2018 (Volume 24)

For Sale

Edition 3, 2018 | 1

STAY TRUE.

2 | The Brief

Staying true to your direction is what defines Clayton Utz. We’ve built a culture that’s unlike any other law firm, but don’t just take our word for it. A good lawyer needs compelling evidence so meet our people and judge for yourself. claytonutz.com/graduates

Academic brilliance certainly counts, but graduates who thrive here have something extra – a natural passion for connecting with people and a strong sense of self. That’s what staying true is all about. If you have these qualities, Clayton Utz is for you.

For Sale

CONTENTS

16 20

FEATURES

Crimes of Fashion: Design Infringements in the Fast Fashion Industry Nerissa Puth

Buy Now Pain Later: Are Services Such as Afterpay Exploiting Legislative Loopholes and Putting Desperate Consumers at Risk?

James Woodward

22 25 27

IN CONTEXT

6 7 8 14

What's New in the Law? Isabella He [Social Justice Corner] The Complicated Relationship Between Personal Data Protection and You Annie Renouf [Under the Radar] The Evolution of Australian Euthanasia Laws Juwariya Malik [Devil’s Advocate] GST in Malaysia Ally Perdikaris and Raveena Randhawa

Fit for Purpose: The Harper Review and Competition Law Reform Nicholas Owczarek

Give Me Back My Bond!

Vincent Appleton The All-Natural, 100% Preservative-free Lie: How Current Health and Wellbeing Trends Mislead Consumers Jessica Haddad

ADDITIONALS

10 30 32

[A Brief Conversation] Adrian Coorey, Principal Lawyer at ACCC Swatilekha Ahmed [A Brief Review] Terms & Conditions: A Work of Fiction that Hits Close to Home Fiorentine Pefani [A Postcard from Abroad] An Exchange at Leiden University, The Netherlands Briellen Sands

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A

Editor’s Welcome Swatilekha Ahmed Editor in Chief

n average day for me involves a workout for me, but probably a workout for my wallet as well. I wake up in the dark and travel to my train station.

Every day. I tap my Opal card, and as I wait for my train to university, I see numerous billboards advertising the latest movie at my local cinema.

At my stop, I tap my Opal card off again, and grab a coffee from the American import Starbucks.

After class, I stop by Woolworths, where I witness the sheepish staff handing out plastic shopping bags to customers - now at 15 cents a piece. Taking my groceries home, I log onto Telstra to pay my phone bill, and also notice that I have had an automatic deduction from my account for my Netflix account.

After dinner (I ‘Menulog’ it), I head to bed, but not before receiving a scam text from ‘Woolworths’ - telling me that I had won a $200 dollar gift card… yet another day in the life of a consumer in 2018.

That’s why our final edition for 2018 is focussed on consumer issues - because as they say, ‘it happens to me’. Consumer law interacts with contract law, property law, social justice issues, environmental

sustainability, and challenges posed by technology. We are shown advertisements for literally anything that can be sold, every day, and the law offers society the unique framework to regulate it, manage it, and future-proof it. Given that the ‘season for giving’ is coming up, we can expect even more costs as we pick up presents, wrapping paper and not to mention the costs of the Christmas day lunch.

In this edition, we have articles on advertising claims of ‘all-natural products’, rental laws in NSW and Victoria, online shopping technologies and the pitfalls, legislative reforms to consumer laws, piracy and trademarks in fashion. I’m very proud of our interview with Macquarie alumni and ACCC lawyer, Adrian Coorey.

Keep an eye out for our usual suspects as well - social justice issues, new legislative developments and a ‘brief’ review!

On another note, this is my final edition as the Editor-in-Chief for 2018. I will be graduating this year, keen to explore beyond the confines of our beloved lake and Wally’s Walk. Good luck for your exams!

Events ADR Championship 29 September

Mental Health Month October

Social Justice Trivia Night 5 October

Law Ball 12 October

Baker McKenzie Mental

Social Justice Speaker Night II 18 October

Witness Examination Grand Final

Torts Moot Grand Final

Paper Presentation Grand Final

Foundations Moot Grand Final

Novice Moot Grand Final

Health Breakfast 16 October

Junior Client Interview Grand Final

4 | The Brief

O President’s Welcome Leon Warren President Macquarie University Law Society

n behalf of MULS, it is my pleasure to welcome you to the third and final edition of The Brief for 2018.

I commend our Editor-in-Chief, contributors and the entire MULS Publications portfolio for producing yet another edition which canvasses such a diverse range of legal topics. After exploring a range of topical and environmental issues in the first two editions for 2018, The Brief now turns its attention to another dynamic and controversial area – commerce. From articles on design piracy to e-commerce, I am confident that you will find this edition to be as engaging and enthralling as I have.

Semester 2 has been as busy as ever for MULS, with several new initiatives being introduced to provide a range of unique and useful opportunities for MULS Members such as an Introduction to Coding seminar. MULS Elections for 2019 will be coming up in the next few

Edition 3, Volume 24, September 2018

Editor in Chief Swatilekha Ahmed Deputy Editor Emalee Walker-Philcox Online Editor James Woodward Designer Nathan Li Subeditors Adelaide Falzon, Angus Macpherson, Beatrice Gunawan, Behesta Wasseh, Jessica Toner, Matthew Lo, Tashfia Tasnim

weeks, so make sure to come along to one of our Common Room Chats or contact someone on the Executive Council if you would like to find out more about MULS to help with writing your application. Before semester wraps up, I encourage you all to come along to our remaining initiatives which include Trivia Night, Intervarsity Sports Day, the inaugural Torts Moot Grand Final and Law Ball, just to name a few – these events are a fantastic opportunity to meet new friends, network and unwind before exams kick in. As always, make sure to keep an eye on the Facebook page and the MULS Newsletter to keep up to date with all things MULS. I wish you all the best with the remainder of semester and thank you again for the opportunity to represent MULS as President this year - it has been a true privilege.

Writers (in alphabetical order) Ally Perdikaris, Annie Renouf, Briellen Sands, Fiorentine Pefani, Isabella He, James Woodward, Jessica Haddad, Juwariya Malik, Nerissa Puth, Nicholas Owczarek, Raveena Randhawa, Vincent Appleton Editorial Review Ilija Vickovich Macquarie University, Sydney Daniel Lim, Director (Publications) Macquarie University Law Society Images Shutterstock unless otherwise stated.

The Brief’s print edition is published three times a year by the Macquarie University Law Society, Sydney, Australia.

View our website at thebrief.muls.org.

Disclaimer: All views expressed herein are those of the individual authors and do not reflect, in any way, the attitude of the Macquarie University Law Society. The Macquarie University Law Society does not accept any responsibility for the losses flowing from the publication of material in The Brief.

The Brief would like to thank Adrian Coorey for agreeing to be interviewed for this edition.

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What’s new in the law?

New Strata Laws Targeting Short-Term Holiday Letting On 5 June 2018, the NSW Minister for Innovation and Better Regulation Matt Kean revealed new strata laws that target investors who buy apartments to put on online booking platforms like Airbnb and HomeAway. These new laws are in response to growing concerns that short-term rentals are leading to housing affordability issues.

The new laws will limit hosts who own a property in the greater Sydney area and do not live at the property to rent it out for a maximum of 180 nights a year, while hosts in other areas of the state are not restricted. Of the proposed changes, an amendment to the Strata Schemes Management Act 2015 (NSW) will allow owners corporations with a 75% majority to adopt a by-law that prevents short-term letting in their apartment block if the host does not reside in the unit. A mandatory code of conduct will also be introduced and will apply to anyone involved in providing or using short-term holiday letting.

The Department of Finance, Services and Innovation will be appointed to administer and enforce this code.

Airbnb has welcomed the new rules. Airbnb’s Global Head of Policy and Communications Chris Lehane has commended the laws as protecting the rights of home sharers whilst also adopting a zero-tolerance stance on antisocial behaviour.

The laws will be reviewed in 12 months.

First Comprehensive Family Law Court Review The federal Attorney-General Christian Porter has proposed to merge the current Family Court of Australia and the Federal Circuit Court of Australia to create the Federal Circuit and Family Court of Australia, to be established on 1 January 2019. The proposal promises to resolve 6 | The Brief

 Isabella He

disputes more quickly, cheaply and consistently in the hope of dramatically increasing the number of family law matters that are finalised and to reduce backlog. Currently the backlog of family law cases has reached 21 000. The median time to reach a trial is 11.5 to 17 months in the Family Court and 10.8 to 15.2 months in the Federal Circuit Court. Though the proposal aims to solve cases more efficiently it is still unclear how the merger will resolve the existing issues in the current family law system without amending the legislation first.

Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW) New laws on child sex abuse have come into effect as a result of the Royal Commission into Institutional Responses to Child Sexual Abuse.

Key changes that have been introduced include: a strengthened offence of persistent child sexual abuse with a maximum penalty of a life sentence; new offences for failing to report and failing to protect a child against child abuse; a new offence of grooming a person for unlawful sexual activity with a child under the offender’s authority; and requiring courts to disregard an offender’s good character during sentencing when the offender’s reputation facilitated the offending.

NSW has led the way in responding to the Royal Commission by being one of the first states to opt into the National Redress Scheme for Survivors of Institutional Child Sexual Assault Abuse. This scheme is intended to provide justice and will operate for 10 years to provide redress to eligible survivors of institutional child sexual abuse via three components, including: a monetary payment of up to $150 000; access to counselling and psychological services; and, upon request, a direct response from the responsible institution(s).

Social Justice Corner

The Complicated Relationship between Personal Data Protection and You

Power to the consumer under personal data reform?  Annie Renouf

Y

ou are purchasing an item online and get asked to provide your personal details. You type in your name, date of birth, home address and card information. You then proceed to checkout. Did you ever stop to think whether your personal information is being stored?

When data analysis is used to monitor consumer behaviour, we encounter an impasse between individual safety and business conduct.

This issue was brought to public attention in a statement issued by the Chairman of the Australian Competition and Consumer Commission (ACCC), Rod Sims, on the 16th of July: ‘We live in a world in which the importance and value of data has increased significantly for businesses, allowing them to target their consumers in ways that were previously unheard of, and the volume of data that is routinely harvested has become almost incomprehensible… the genie is out of the bottle, now we have to decide what to do with it.’

Data is being used for unprecedented purposes, inviting businesses to infringe upon the privacy of personal information provided to them during simple transactions. This is particularly concerning because consumers are unaware of the risks associated with data mining, 9 out of 10 of consumers lacking an awareness of what companies do with the personal information they receive (Chartered Institute of Marketing’s 2016 study).

Navigating the complexity of data practices in a technological era is a legal challenge.

Restoring consumer confidence in businesses is an endeavour which must be undertaken because this will provide a foundation for economic growth, stability and investment.

Providing greater protection to the consumer starts with empowering them to control how and if their data is used. The first step being taken to achieve this outcome is the creation of Consumer Data Rights. These rights allow individuals to safely access personal information held about them and share it with trusted third parties. While consumers will not be able to take centerstage in data practices, they now play an important role in safeguarding their personal information as well as promoting business accountability.

The potential risks that can arise for the consumer will be addressed through a robust dual - regulator model. The Australian Competition and Consumer Commission and the Office of the Australian Information Commissioner will have separate enforcement responsibilities under this framework. The ACCC will primarily focus on supporting competition and good consumer outcomes. The OAIC’s complementary ability to investigate individual consumer complaints, will provide consumers with a voice and visibility.

The consumer data right will be rolled out on a sector by sector basis, before the government enshrines it in legislation. It will not fundamentally transform business practice in the initial stages of its implementation; however it is an important standard which will lead to the enforcement of greater personal information protections. This can provide an incentive for businesses to self - regulate their conduct through the creation of business models focused on consumer protection. As a result, we can hope for a future in which data practices are transparent and accessible, respecting the privacy and data property of consumers.

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Under the Radar

An evolution of

Euthanasia laws in Australia We’ve come further than you think.  Juwariya Malik

“

I

t’s wrong.”

“But it’s his choice.”

Before writing this article, much of my knowledge about euthanasia came from glamourised Hollywood filmographies such as Me Before You, or online blogs. Euthanasia, also referred to as assisted suicide, was once a taboo topic. But with national developments advancing its legality in Australia, there has been increasing discourse surrounding it.

Although there are varying definitions, euthanasia or assisted suicide commonly refers to the voluntary intention and action of ending one’s life to relieve suffering, generally via administration of legal medication or an injection under the supervision of a physician or medical professional.

Euthanasia is currently illegal in Australia, however it was legal under the Rights of the Terminally Ill Act 1995 (NT) which was nullified in 1997. Debate concerning assisted suicide has been recently reignited, with Victoria passing the Voluntary Assisted Dying Bill last year which provides for access to lethal drugs for terminally ill adults in severe pain with only a year left to live. A similar bill was narrowly defeated in New South Wales last year, with 19 votes in favour of passing the Victorian Bill, and 20 opposed.

National public opinion has shifted over the years, with 87% Australians favouring legalisation of Euthanasia, a significant increase of 18% from 1996. With over 40 attempts around Australia to introduce voluntary and assisted dying legislation, this number is only expected 8 | The Brief

to rise with increasing favourable public opinion surrounding the topic.

Many well-known figures have purported euthanasia legalisation in Australia, including renowned comedian, producer and television host Andrew Denton, who recently published a 17-part audio series titled Better Off Dead in support of euthanasia. Organisations supporting euthanasia legalisation include Dying with Dignity and Exit International, and those against it include HOPE and Right To Life Australia.But what constitutes unbearable suffering? The Victorian Bill provides availability of assisted suicide to those who have a terminal medical condition and experience intolerable pain. However, these laws may be insufficient in considering the mental and emotional competency of the decision maker and of the medical supervisor providing euthanasia services. One study has found that 64% of terminally ill patients who desired euthanasia were suffering from varying degrees of clinical depression.

This debate leaves us with some pertinent questions. Should medical professionals work in conjunction with mental and legal services before administering euthanasia? What constitutes mental and physical competency of those deciding to receive a lethal dose? Is it just an economic solution to sidestep the provision of palliative care? There is no clear answer in this morally polarising topic, but with the assent of the Voluntary Assisted Dying Act 2014 (VIC), it is sure to become a more regular topic over the dinner table.

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A Brief Conversation

Interview with Adrian Coorey, Principal Lawyer at the ACCC  Swatilekha Ahmed

M

y first impression of Adrian Coorey is that he is very friendly and he talks very fast. He also has that real lawyer’s skill of delivering information quickly, clearly and succinctly, which I think we can all learn from! The fact that I managed to catch Adrian for a very brief (no pun intended) phone conversation in the middle of his work day is testament to how many hats this interviewee wears on a day to day basis. By day, he is a Principal Lawyer at the Australian Competition and Consumer Commission, a general editor and writer with LexisNexis, editing two publications – Inhouse Counsel and Competition and Consumer News, and teaches at Macquarie. By night (like all good students of law – we never stop learning!), he is an academic, with articles in the pipeline about online scams and spamming attacks. For this edition, I wanted to interview someone who was not only a specialist in competition and consumer law, but also has a keen interest in the ways in which the consumer regulatory landscape has been changed forever, and will continue to change through technology. That’s why I chose to have a chat with Adrian. He has demonstrated an interest in internet issues and supports a holistic approach to consume regulation of online matters – which I am definitely on board with. I hope this interview will highlight the many ways you can use your law degree in your career, and the importance of keeping up to date with new developments outside the law as well.

10 | The Brief

You work as a principal lawyer at the Australian Competition and Consumer Commission (ACCC), what does a typical day look like?

It varies. It varies as to whether I have a large amount of litigation going on or investigations, or whether I’m doing a covert operation. It also depends on what I’m currently focusing on.

Normally my day would be a multitude of providing legal and strategic advice to staff members on various competition and consumer matters. I suppose a high-level answer would be that I provide expert litigation support and legal advice. Day to day what I do, specific to those two roles is that I’ll be involved in drafting and reviewing documents, settling documents, meetings and negotiations. I had a big negotiation meeting this morning actually. The day is usually full on – it starts from 8- 8.30am and the workload stretches right through to the end of the day. There is a tendency in my position to move swiftly from one matter to another. This is my position - I roughly take on 15 to 20 matters at a time (but sometimes much longer, particularly if you are in

court reviewing a large document(s)) and those matters will progress at different rates and are at different stages and it requires hands on work.

How did you get into this work? I’m curious.

While working in my position at the ACCC I am permitted to do work outside of the ACCC – academic work. I’ve been working for LexisNexis for a long period time and also at Thomson Reuters at various stages. If my memory is correct, the Competition and Consumer Law News position came because the previous general editor retired. It was Professor Warren Pengilley - a very well respected member of academia and the legal profession, who has contributed so much to competition and consumer law.

assist in teaching intellectual property classes when I came back to Sydney. I was also offered a position at a boutique law firm where I stayed for about two and a half years and I already had two years of experience at larger law firms during my undergraduate degree at Macquarie. People may think differently, but I think it is possible if you are willing to give up private time to have a split between academia and working as a lawyer.

It might be more difficult if you are in private practice – no doubt about that, and a firm will require you at the very least to get permission from them about teaching or writing or research or take up one of these extra positions. But by being at the Commission, they complement each other, and the Commission has always been very fair as long as these things don’t cause a conflict of interest. And they complement me.

I can continue teaching and giving knowledge to students, and at the same time be involved in the latest cases rather than simply reading off a textbook to students as an academic. I’m coming in with 13 years at the Commission and 5 years’ experience in private practice.

That 18 years’ experience in total – I think that provides a generally richer form of lecture to students as well as complementing my job here, because students do sometimes face issues or put challenges – saying what about this or that or I don’t really agree with that decision – and that type of intellectual discussion – I think that makes me a better government officer and a principal lawyer at the Commission. So in my humble opinion, the different roles complement each other. It is definitely achievable because I’ve been an academic since 2004, and I’ve been a lawyer since that long.

And you’d say that your work at the ACCC feeds into your work at LexisNexis?

Sure it does. And so does my teaching. I write for LexisNexis and I’m a main author – you would’ve seen on their website – the one with the horrible photo of me. I’ve been writing for LexisNexis even before I came to the Commission. I was offered my first contract when I came back from Cambridge University and I started teaching at Macquarie around that time as-well. I recall that a lecturer contacted me when I was studying at Cambridge and asked whether I would like to

That’s good. This edition we are focusing on consumer issues. Students are writing articles about trademarks and fast fashion, property buying. I’ve got a question here about social media. We go onto Instagram and someone is always trying to sell me something with various hashtags or sponsored posts. What do you have to say about that?

If you are interested in this issue, I am confident you will find it useful to read a chapter I drafted on the Internet and the Australian Consumer Law, which focuses on misleading conduct.

I read that you were a general editor with LexisNexis?

Yes! I’m also the general editor of Inhouse Counsel which is another one of their publications. They’re both flagship publications of LexisNexis. The Competition and Consumer Law News publishes ten times a year, a publication every month. It consists of short practical papers which are about five pages long, for lawyers and barristers. Whereas Inhouse Counsel is more article style papers with a theme every month, and they publish ten articles per year as well. With Competition and Consumer Law News there are about ten or twelve editors and there are nine editors for Inhouse Counsel. The Competition and Consumer Law News is a mixture of barrister, academics and senior lawyers in the area whereas Inhouse Counsel is all partners from law firms.

Edition 3, 2018 | 11

In that chapter, I categorised the Internet in relation to domain names, websites, online options, social media, scamming and spamming etc. This is to be published in the second edition of my book “Australian Consumer Law” by LexisNexis. Prior to this, Internet material was scattered in other areas. I did, from that work, publish a couple of articles and there are a couple more articles in the pipeline. I put out an article on scams and spams, extraterritorial injunctions and online conduct. Basically, in my book what I have said is that the challenges are not so much in understanding what the law is. It applies in a non-electronic form in the same way that we understand the threshold which is the principle of misleading conduct. The difficulty with different interfaces is how you apply it to a non-geographical arena. That compounds the problems you have such as different devices.

There are cases on Facebook here people are being hit by what they don’t understand; for example, the Seafolly and Madden case or the swimsuit case. In that case, the lady who owned the company White Sands wrote on her own private Facebook page some comments about her competitor, Seafolly. And those comments she made indicated that she thought that they were ripping off her products but unfortunately, they had their swimsuit line out before and had started designing them before she put hers out. Those comments were on appeal to the Full Federal Court (Madden v Seafolly Pty Ltd [2014] FCAFC 30) and they were found to be misleading and deceptive, and the issue was in trade and commerce, even though it was a post from her private Facebook page. Talking about social media – that’s in my opinion, the upcoming hotspot of consumer protection law.

fabulous place to work. Particularly the ACCC is a five-star agency and it is a fabulous place to start your career even if you don’t want to stay in government for the rest of your life. And the work is absolutely interesting. You are unlikely to be doing discovery, database entry, photocopying or filing. You will be out there doing interview statements with witnesses, search warrants, proper investigations if you join the investigation team, etc. You can take up so many roles - there is the energy side. The Commission is a very diverse place and we are always looking for enthusiastic and talented people. I urge every student from Macquarie who is looking for a job and thinking about the future - keep it in mind!

Don’t think that law firms, in house counsel or being a barrister is the be all and end all.

Government to me is my home – I wouldn’t have stayed for 12 odd years if I did not enjoy it!

We’ve got a just a couple more minutes.

Why did you pick Macquarie to do your undergraduate?

Historical reasons I should say. In fact, I did 3 undergraduate degrees at Macquarie. I should also say that at the time when I chose to apply for Macquarie, there were variety of law subjects to choose from and of course, “trade practices” at that time, was one of the subjects that I did very well. From there I studied at Cambridge University in England. As soon as I left Macquarie, a lot of people went to Cambridge or Oxford to do their postgraduate and travelled at the same time.. While this might be costly, you can also apply for the scholarship. You can check the details of the scholarship online. I highly recommend it as it is a fabulous experience. *****

There are a lot of students at Macquarie who are interested in a career in consumer issues and regulation. What advice would you give them?

My advice would be that you should consider a government role and apply – apply to the internships and graduate programs that are on offer. Applications for the ACCC internships open in September. We already have a growing number of students working here that have come from my class. So apply! The government is a 12 | The Brief

We wrapped up our chat then as Adrian had a meeting straight after. For your information – this interview only went on for about 21 minutes – which shows you how much information and wisdom Adrian has to impart in a short time. I’d like to thank Adrian profusely for his time as I learnt a lot, and am sure that the readers have too.

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Edition 3, 2018 | 13

Devil’s Advocate

The scrapping of the GST in Malaysia

I

magine you were running for Parliament in a genuine bid to make the lives of Australians better. What promises would Ally Perdikaris you make as a part of your campaign? And how far would you go to ensure you keep those promises?

Currently in Malaysia, many critics are outraged

by Prime Minister, Mahathir Mohamad’s election promise to completely do away with Malaysia’s Goods and Services Tax (GST).

Mohamad has reduced Malaysia’s previously 6% GST down to 0% due to the countless complaints by Malaysians about the high costs of living. Given the fact that the Malaysian government would have made RM$43.8 billion ($11.05 billion USD) just from collecting GST alone, this dramatic reduction has caused many to point out the negatives of the situation. One of the major issues is that the GST reduction will be detrimental to Malaysia’s already hefty fiscal debt. For reference, a fiscal debt arises when a country’s government spends more money than the revenue it generates, and Malaysia’s debt amounts to almost $40 billion. However, there are a few positives to this campaign pledge that may be overlooked by many.

Firstly, scrapping the GST will promote more spending. One of the aims of the GST reduction is to induce people into buying more, and thus a larger amount of money will flow into Malaysia’s economy. Boosting the economy is beneficial as no

FOR

14 | The Brief

GST will allow for that money to be circulating in Malaysia’s economy. Furthermore, even though the GST scrap will create an incentive for the government to collect tax in other ways, alternative methods will be aimed at collecting tax from those who earn more money. This means that the social class divide will be lessened and the Malaysian Government will be accommodating those in their country who are working class.

Moreover, Malaysia will benefit from the rise in the price of oil, as Malaysia produces a significant amount of it. According to Malaysia’s Finance Minister, Lim Guan Eng, the revenue that Malaysia expects to make from the rise in the price of oil is close to RM$5.4 billion ($1.32 billion USD). This can be one way that the Malaysian government can reduce their fiscal debt. Oil and other trade ventures (perhaps even some new trade agreements) will probably become the main source of income for the Malaysian government. However, relying on oil prices to generate a large amount of revenue is a risk as the price of oil fluctuates quite frequently.

Although trading is likely to be promoted now that the GST is gone, this could also see Malaysia’s economy broadening, as well as their relationships with other nations strengthening.

Furthermore, sources detail that the Malaysian government is expecting to gather some revenue from the Sales and Services Tax (SST) which will be reintroduced, but the takings from the SST will not equal nearly as much as what the government would have made from the GST.

T

here are currently 160 countries in the world that have implemented VAT or GST. Historically, once Raveena introduced into a country the Randhawa GST has never been removed.

That is until the 1st June 2018 when Malaysia was the first country in the world to remove their 6% GST. This means until the 1st of September 2018 when they reintroduce the SST (Sales and Service Tax) Malaysia is on a 3-month tax free holiday.

The GST is a transparent, efficient and effective way to raise revenue in a country crippled by debt and political corruption. With an incredibly small individual tax base of 2.27 million people out of 31.2 million people paying taxes, the GST was a broad-based tax system that efficiently generated revenue for the Malaysian Government. Before the introduction of the GST in 2015, the SST applied to companies with an annual turnover of RM$500,000 per year.

The 2018 reintroduction of the SST, Malaysian Finance Minister announced that only companies with a RM$1 million annual turnover would be charged a service tax of 6%. Therefore, the removal of the GST will decrease government tax revenue from RM$48 billion to an optimistically estimated RM$ 25 billion under the SST. This will make it far more difficult for the government to start paying off their RM$1 trillion ($251 million USD) public debt. It is uncertain how the government will be able make up the large difference in revenue loss.

Although reverting back to the SST may result in higher disposable income for Malaysians due to generally lower prices of goods and services, under the SST system businesses will not be eligible for tax refunds in the same way under the GST. Businesses will have to absorb these extra costs, affecting the prices of their

AGAINST

goods and services and that increase will be borne by consumers. Therefore the removal of the GST does guarantee an increase in disposable income.

Also, the GST system is the most transparent form of taxation. The original 6% tax was imposed at every stage of production from manufacturing, distribution to retailers and consumers. In comparison, the SST is only imposed at one stage of goods production and some service providers such as food and beverage providers, will be able to charge between 5%-15% SST. Therefore the SST allows for more misappropriation of funds and less transparency for the consumer.

Lastly, increased spending boosts the economy, and removal of the GST has caused an increase in car sales in Malaysia. The president of the Malaysian Automotive Association and those in the Council of Eminent Persons in the Malaysian government foresaw a surge in car sales even before the GST was removed in May, with information of updated car prices without GST prolifically published in both online and in newspapers across the country. However with almost a one to one ratio of people to cars in Malaysia currently, this is not a positive result for the country. An increase in cars could potentially mean there will be an increase in both road accidents and pollution. This is significant for a country that suffers from air pollution issues, that more than once it has caused schools to shut down. Therefore not only is there a potential for economic problems caused by the removal of the GST, but also detrimental affects the health of Malaysians too.

The removal of the GST is not in the best interests of the country contrary to the promises made in ruling party Pakatan Harapan’s election manifesto. Pakatan Harapan translates to ‘The Alliance of Hope.’ However without GST, the Malaysian government is going to need more than hope to be able to repay its mounting RM$1 trillion debt.

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Crimes of Fashion:

Design Infringements in the Fast Fashion Industry

A

 Nerissa Puth

ustralian fashion consumers have long turned to supplement their wardrobes with copies of high-end fashion designs that are sold at a substantially lower price. This avenue for consumers is becoming more accessible and affordable because of the increasing acceptance and growing reliance on the fast fashion industry, who are able to rapidly turn high-fashion design trends into inexpensive garments and accessories intended for massmarket consumption. By turning garments and accessories from each fashion season into their retail stores fast fashion darlings like Zara have been steeped in controversy after accusations of plagiarising print and accessory designs of more than 40 independent artists across the US, UK, Europe and Australia. In 2016 the company faced significant criticism for allegedly copying pins from artist Tuesday Bassen, as well as for replicating sandals by designer Aurora James of Brother Vellies. In such instances, the question that commonly arises is, is it perfectly acceptable for fast fashion retailers to copy the

16 | The Brief

original designs of others? Given Zara’s growth to prominence as a leading retailer it is often praised as having found a solution to ‘bringing elite fashion to the masses’ however, for those in the creative industries Zara’s success lies in part in the polite copying of designers’ expressions of talent and creativity. The exact things that intellectual property seeks to protect.

Often when fast fashion brands come under criticism for their ‘blatant knockoffs’ the attention is centred on how the alleged copyist reacts to the controversy. Jessica Carlson, a spokesperson for the US Target Corporation, expressed that the company ‘has a deep appreciation for great design, and it has always been out policy to respect the intellectual property rights of others.’

The company has a habit of removing alleged copies from its e-commerce sites as swiftly as possible however, this response seldom seeks to adequately remedy the damage caused to the original designers, particularly for emerging design talent and lesser known brands. When Melbourne-based artist John Campbell took Target Australia to the Federal Court of

Australia, he alleged that the retail giant had used his original design without permission and sought $200 000 in damages despite the company’s removal of the infringing product from their website. When the parties sought to settle the matter out of Court, Campbell expressed ‘as an artist, my artwork and intellectual property is also my livelihood, so I want to make sure I protect it from being misused’. Evidently for emerging design talent and independent artists it is more than the monetary loss that is threatened when their design is copied. This raises the question, what impacts do design piracy actually have for fashion designers?

The fact and speed of copying were not borne out of the fast fashion industry although, the ability to cannily reduce the cost of making high-fashion garments has made the practice of copying less costly and purely efficient. This is enabled by the industry’s ability to sell copies at a lesser quality and gain profit from the ‘lower unit costs and avoided expenses of design.’ While this strategy accommodates to a new generation of consumers willing to dip their toes into fast

fashion, as Harper Bazaar Journalist Anamaria Wilson wrote in light of the 2008 global financial crises ‘financial woes are putting fashion lovers in panic, [s]urvive with one big-ticket item, something in between, or a little bit of both’, and accommodate the consumer mentality of wanting to purchase the latest fashion trends as soon as possible. Julie Zerbo of The Fashion Law echoes the perspective of the designers and argues that the two major deleterious consequences are the loss of sales and licensing deals because of widespread copying, and the less tangible harm to a brand’s reputation that flows from an abundance of inexpensive replications.

The entry of copies into the market has an overall detrimental effect on the financial performance of the original designs. Firstly, this is the result of substitution, for example, a customer will substitute a Balenciaga sneaker from Zara to replace the original shoe. Secondly, there is an issue of diminishing number of sales that ‘occurs when a design become more ubiquitous as a result of the knockoff’. Through these approaches the fast fashion industry seeks

Edition 3, 2018 | 17

to cut through a designer’s ability to profit from their original expression or to work their original designs into more affordable forms. As Zerbo argues, the intangible damage that flows from reputational harm to the brand’s image as a result of an oversaturation of the original market yields equally harmful impacts. She articulates that this occurs when fast fashion retailers proliferate the market with cheap manufactured and affordable priced garments and accessories that are blatant replications of a cut, construction, print, pattern or any other features of the originals. This is especially true for those garments and accessories that are derived of an identifiable signature design.

The result is an appearance of saturation in the market that diminishes high fashion which finds its value in not only quality and originality, but also exclusivity. So the dilution of a brand’s signature design creates significant roadblocks for designers, especially for emerging design talent to enter the market, as their designs will no longer be capable of distinction in a market filled with other creatives and similarly situated brands.

Existing forms of intellectual property in the US fall short in protecting design integrity due to outdated legal doctrines that enables copying by fast fashion retailers to fall within the parameters of legal activity, while Australia’s registered design regime seeks to protect a complete garment comprising its aspects of shape, colour and cut. Despite the recognition of design

18 | The Brief

registration as a protection regime adaptable to fashion, its creative and transient nature poses challenges for designers to adequately protect themselves against those in business of rapidly selling inexpensive copies of other’s original designs. Intellectual property Professor William van Caenegem and Violet Atkinson from Bond University identify the cost of design registration for creative fashion poses complications, particularly for most of Australia’s independent artists and up-and-coming design houses that are small and medium sized enterprises. As the fashion innovation cycle is limited to a short period, usually six months, and fashion designers will often produce whole collections consisting of various separated and individual pieces, the overall cost of design registration quickly rises.

In essence, although the design registration regime is most suitable for protecting design integrity factors of costs and delays are playing a significant role in detracting its intended utility and giving rise to a greater decision against registering designs.

Zara and other fast fashion retailers are likely to continue to accommodate to ready-tobuy customers, while the increasing acceptance and growing reliance on the fashion fast industry has given way to the making a of a global multibillion industry. The question now is not whether the practice of copying by fast fashion brands is acceptable. It is. The question is what is their strategy costing others, particularly little-known brands and independent designers?

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Edition 3, 2018 | 19

‘Buy Now, Pain Later?’

Are Services Such as Afterpay Exploiting Legislative Loopholes and Putting Desperate Consumers at Risk?  James Woodward

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he regulation of credit providers is the responsibility of the Commonwealth government due to the referral of state legislative power, specifically enshrined in the commencement of the National Consumer Credit Protection Act 2009 (Cth) (‘the Act’) and the National Credit Code 2009 (Cth) (‘the Code’).

Small amount loan services demand credit for consumers who cannot access mainstream credit sources. Aftepay is a service akin to a short-term loan that allows consumers to purchase goods from retailers without paying the full amount – new users pay 25% of the full price upfront and three fortnightly repayments, returning users nothing upfront and four fortnightly repayments. Afterpay and similar services are similar in this respect to traditional small loan providers, yet they appear not to be covered by the legislative scheme. This raises the question of whether they should be subject to the same credit regulation and if they may be exploiting desperate consumers.

Under the Act, a credit provider is defined, by reference to section 204 of the Code, as a person who provides credit. Under section 3 of the Code (Cth), credit is provided under a contract and payment of a debt owed by one person (the debtor) to another (the credit provider) is deferred. This may also take form where one person (the debtor) incurs a deferred debt to another (the credit provider). At first glance, services like Afterpay appear to be covered by the Act and the Code as they provide credit insofar under a contract and the consumer incurs a deferred debt to the service. Afterpay and like arrangements also meet other requirements 20 | The Brief

under the Code: the consumer is a natural person and credit is provided wholly for personal, domestic or household purposes in the course of a business of providing credit.

However, it appears that such services are exempt from the Code and the Act. They may avoid the scheme through an exemption for shortterm credit or as they technically do not charge for credit provided. Section 5 of the Code operates to fall within the scope of when a charge is made for providing credit. Under section 6, there is an exemption for short-term credit as the scheme does not apply if: provision of credit is limited to 62 days or less, the maximum amount of credit fees and charges does not exceed 5 per cent of the amount of credit, and the maximum amount of interest does not exceed an amount equal to 24 per cent per annum.

To illustrate, Afterpay gives the consumer 56 days to repay in instalments and, rather than charging credit fees as understood by the Code, consumers are charged $10 for late payments and a further $7 if not made within seven days of payment falling due, with no interest accruing.

Accordingly, Afterpay and similar services are most likely exempt from the scheme.

According to a Discussion Paper by the Department of Treasury, ‘Strategies for Reducing Reliance on High-Cost, Short-Term, Small Amount Lending’ consumers of heavily-regulated traditional small loans are typically persons unable to access mainstream credit products due to financial exclusion. As Caroline Corr identifies, many factors contribute to financial exclusion, notably access exclusion and selfexclusion. Access exclusion encompasses the perception by mainstream financial services that

some individuals are too risky to lend to and this particularly affects those on income support of with a history of credit defaults. Self-exclusion, as defined by Corr, is when individuals exclude themselves from mainstream services based on previous experience of discrimination or beliefs of discrimination. To Corr’s definition of selfexclusion, I would add exclusion out of fear, which appears in some cases to be a motivating factor in millennial uptake of services such as Afterpay, the fear being of falling into a debt cycle through credit card reliance.

The drivers of traditional small loans, usually at high interest rates, constitute an inability to meet basic living expenses, such as food, rent and utilities, and one-off unexpected costs such as medical expenses, car repairs and purchases of whitegoods. In 2010, the Consumer Action Law Centre reported that 71.3 per cent of surveyed consumers used small loans to pay for basic expenses. Similarly, the Policis research consultancy found: 28 per cent of borrowing by low income households was ‘distress borrowing’ to deal with cash shortfalls, 29 per cent was used to meet unexpected bills and expense, and 9 per cent was used to meet regular bills and expenses. In contrast, it was found discretionary spending was financed by credit in only 10 per cent of cases. The data on traditional small lending therefore suggests the typical consumer profile of such loans is one of vulnerability and disadvantage. In contrast, Afterpay founder Nick Molnar has described millennial uptake of services such as Afterpay as being to satisfy the ‘millemma’ – dilemma facing millennials, of the desire for instant gratification. In contrast to the desperation of traditional short- term borrowing, Afterpay and similar services’ users are utilising their ‘budgeting service; to buy life’s little luxuries now and pay later in instalments and avoid credit card debt.

Given the contrasting impetus for the uptake of services such as Afterpay, as opposed to traditional small loans, it is contestable whether they should be subject to identical regulation: The reasons outlined in the explanatory memorandum for the National Consumer Credit Protection Bill for the Act and the Code being introduced provide strong support for subjecting services like Afterpay to the scheme.

Bringing them within the ambit of the scheme would: (a) help to ensure responsible lending conduct, (b) make them more accountable by imposing sanctions and subjecting them to regulator enforcement powers under the scheme, and (c) provide consumer protection through access to dispute resolution mechanisms, court arrangements and remedies. More specifically, as noted in the Minister’s second reading speech, responsible lending requires an assessment of the loan’s suitability for the consumer and of the consumer’s repayment capacity. Credit providers under the Act and the Code must make reasonable inquiries and verify details provided to them and consumers can request a copy of this assessment to make better informed borrowing decisions, or in the case of a dispute.

Accordingly, as Afterpay and like services reserve the right to run credit checks, to report to credit rating agencies, and consumer debt to collection agencies, the consumer risk involved in using such services weighs heavily in favour of it being subject to these requirements.

One convincing reason for not subjecting services such as Afterpay to the scheme is this will increase service provision costs for providers, which may in turn increase consumer or retailer costs, reducing their appeal. Equally convincing is the argument Afterpay has raised, is the model promotes responsible lending insofar as consumer accounts are suspended when payments are missed until existing debts are paid though this may not be true of all similar services. Moreover, the different motivating factors driving consumer uptake of these services and the contrast in financial status of the typical consumer profile, in comparison to traditional small lending, may suggest there is little justification for increased regulation. In this regard, it must be considered what appropriate balance must be struck between regulatory concerns and encouraging innovation.

It seems clear that Afterpay and similar services fall into an exemption for particularly short-term loans and probably also for arrangements not involving interest or credit charges. Despite this, it is very much debateable whether increased regulation should be introduced and until more data about the consumer profile emerges, a decisive conclusion on this seems premature.

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Fit for Purpose:

The Harper Review and Competition Law Reform  Nicholas Owczarek

A

s part of an election promise by the Abbott Coalition government, a review of competition policy in Australia was announced in 2013 – the first since the Hilmer Review in 1993. Headed by Professor Ian Harper, the Harper Review focused on achieving more competitive and productive markets for the benefit of consumers. Key focal points of the Review included targeting anti-competitive conduct, identifying microeconomic reforms, and easing regulatory burden on business. With productivity growth at tepid levels over the preceding decade and the mining investment boom (which had driven the rise in living standards over the 2000s) finally tapering off post-GFC, the Review was necessary and timely.

As the Terms of Reference acknowledged, competition policy and the Competition and Consumer Act 2010 (Cth) (‘CCA’) needed to evolve to ensure productivity growth, economic growth and higher living standards.

Recommendations at a glance The Review made 56 recommendations, spread over three broad areas – competition policy, competition laws and competition institutions.

In relation to policy and institutions, the Review recommended the Productivity Commission examine intellectual property protection, as well as the replacement of the National Competition Council with a new advocate for competition reform (the Australian Council for Competition Policy). The ACCC’s governance was also scrutinised.

22 | The Brief

The Review also made wide-ranging competition law recommendations, particularly in relation to the complexity of the existing provisions in the CCA. Notably, it was recommended that the cartel provisions in pt IV div 1 be simplified (recommendation 27) and that the misuse of market power provisions in s 46 be reframed (recommendation 30). It was also recommended that price signalling provisions be rejected as well as former price discrimination prohibitions (recommendations 29 and 31).

The Turnbull Coalition government responded to the Review in November 2015. No recommendations were rejected outright – 44 of the 56 recommendations were supported and the remaining left open to consideration.

What has changed?

The Government introduced two Competition and Consumer Amendment Bills into the House of Representatives in light of the Review’s recommendations – one broad Competition Policy Review Bill, and a Misuse of Market Power Bill. Both were passed in October and August 2017 respectively with their changes commencing on 6 November 2017. While many areas of competition law are worth elaborating upon, this article will focus on two significant aspects – cartel conduct (CCA s 45) and the misuse of market power (CCA s 46).

Cartels At this stage it is helpful to briefly outline what the cartel provisions involve. Contained in pt IV div 1, the division sets out what

constitutes cartel conduct. Cartel conduct essentially means to engage with a competitor/ competitors through making or giving effect to a contract, arrangement or understanding (‘CAU’) to either: • Fix prices; • Control or limit output available to buyers; • Share markets through dividing or allocating customers or suppliers among participating parties; or • Bid rig (which can constitute the manipulation of the tender process for a construction contract).

This kind of behaviour is inherently anticompetitive as it involves the collusion of one or more parties in the marketplace, benefitting those parties at the detriment of other businesses and consumers. Pecuniary penalties apply both at the civil and criminal level.

The original provisions as they stood contributed to complexity in interpretation.

Surprisingly, the Review noted the cartel provisions applied to anti-competitive conduct in markets outside Australia. This was made evident in the Federal Court case of Norcast v Bradken, which held the cartel provisions were applicable to a tender occurring outside Australia, involving parties with business operations also outside Australia. In light of this, the old s 44ZZRD(4) of the CCA (now s 45AD(4)) was amended to include the ‘in trade or commerce’ requirement for the supply and acquisition of goods and services. Given that ‘in

trade or commerce’ is defined in s 4 of the CCA to mean ‘trade or commerce within Australia or between Australia and places outside Australia’, the primary cartel provisions were in effect narrowed to exclude anti-competitive conduct external to Australia. This will ensure that the CCA remains focused on Australian competition and by extension economic prosperity in Australia.

These changes also accompanied the removal of the prohibition of ‘exclusionary provisions’ (found in CAUs) in the old s 45(2)(a)(i) and 45(2) (b)(i) of the CCA. These sub-sections prohibited the creation of CAUs containing provisions which prevented, restricted or limited the supply or acquisition of goods or services. Due to the evident similarities to other forms of cartel conduct, repealing these provisions has helped bring clarity to the law through removing duplication.

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Misuse of market power Undoubtedly the most controversial provision in the CCA, according to internationally recognised competition lawyer Russell Miller, the former laws were deemed ‘almost unusable’ by the ACCC chairman Rod Sims.

This was because the old wording of s 46 of the CCA, which prohibited corporations with a substantial degree of market power from taking advantage of that power to alter competition, essentially stopped the ACCC from prosecuting because of its subtle meaning – both large and small corporations can ‘take advantage’ of market power. Further, the old provisions subjected businesses to a ‘purpose’ test. While more straightforward than the ‘take advantage’ test, this test essentially judges conduct based on whether corporations intended to cause anticompetitive harm, which is a subjective (and therefore difficult) inquiry. With the ACCC just this year failing in an appeal against Pfizer in a matter originally commenced under the old s 46, such instances demonstrate the complex practical application of the former legislation.

While recommendations regarding s 46 of the CCA underwent further consultation as they were not fully accepted by the government on first reading, the government finally opted to accept that s 46 should be reframed to include an ‘effects’ test and a substantial lessening of competition. This means that conduct that has or is likely to have the effect of substantially lessening competition in a market will breach the legislation. There are types of conduct which the ACCC considers as having greater potential to involve misuse of market power. These include 24 | The Brief

predatory pricing (ie to significantly undercut competitors on goods/services offered), as well as tying and bundling (ie when suppliers sell goods on the condition a purchaser buys another good, and when suppliers offer lower prices if two products are purchased together). While opponents (namely big businesses) believe the new provisions will ‘chill’ investment, the new provisions provide a clearer test in terms of what is required to establish misuse of market power – proving conduct has occurred is an objective test.

That said, it is still uncertain how the new tests will be applied by the courts given the case law on the old s 46 tests is now redundant. However, the ACCC has published guidelines on how they will interpret the new provisions.

Conclusion The most comprehensive review of competition law in a generation has resulted in vast changes to the CCA, endeavouring to remove regulatory impediments and ensure large and small businesses compete effectively in the marketplace. While it is still early days, the consumer stands to benefit given the removal of complexity in the legislation which will allow for easier interpretation and practical application of the new tests. Time will tell how the courts interpret the new tests, and whether the new measures will help boost productivity, growth, and prosperity in the same way that competition reform pre-2000 (together with microeconomic reforms) managed to achieve.

Give Me Back

My Bond!

T

 Vincent Appleton

he repayment of rental bonds is a serious issue in Australia. Many tenants receive only partial refunds and in more extreme situations, no return at all.

The number of people renting is on the rise in Australia. According to data published by the Australian Bureau of Statistics in 2016, there are now nearly as many renters as there are outright home owners. A staggering 30.9% of the Australian population rents compared to the 31% who own their homes outright. The number of those renting has been steadily increasing since 1991. Australian Bureau of Statistics data from 1991 records Australians renting at 26.9%, indicating a 4% increase in renting since then.

The large numbers of renters today make the issue of bond repayment hard to ignore.

According to the NSW Rental Bond Board 2016-17 Annual report, 12% of tenants did not receive their bonds back at the end of their lease.

A further 32% only received a partial refund of their bond. This means that of the 823, 901 residential bonds held by the Rental Bond Board, which accounts for approximately $1.42 billion, 44% of renters had issues recovering their bonds.

This either proves that Australian tenants

are raging barbarians who wreak havoc and destruction wherever they go or more likely that there is a significant power imbalance between renters and landlords.

Residential leases are governed by state legislation. In NSW, tenants are afforded some protections by the Residential Tenancies Act 2010 (NSW) and the Residential Tenancies Regulation 2010 (NSW). Under this legislation, landlords cannot charge more than 4 weeks rent for the bond and only one bond can be charged for each rental agreement. Landlords are also restricted from obtaining further securities from tenants in addition to the bond. Tenants in turn have the right to dispute bond returns with the NSW Civil and Trade Tribunal (NCAT), which is granted power under this legislation. To successfully prove one’s case, the civil standard applies, meaning that one’s case must be proved on the balance of probabilities.

However, the legislation only provides protection against the bond’s amount. Within the legislation, there are no specific provisions regarding disputes of bond returns. This is likely because the legislation grants power to NCAT to decide such disputes, but without clear legislative guidelines, this creates ambiguity.

Edition 3, 2018 | 25

Former senior policy officer for the Tenant’s Union NSW, Ned Cutcher, claims that once a bond dispute enters the NCAT, it is very likely that the landlord will receive a portion of the bond. According to Domain Media, many tenants have lost part of their bond, even after appealing to NCAT. Domain Media reported on the case of Tonni Wynne. Allegedly, Wynne was the perfect tenant, paying her rent on time and always passing routine inspections. However, when she decided to leave her rental property prematurely, due to much-needed repairs and maintenance which had not been addressed for months, she was refused her bond back. Her bond amounted to $2,800, an amount no one would give up without a fight.

She had allegedly given 6 weeks’ notice to the property manager, so she felt entitled to leave early. However, after taking the matter to NCAT, she still only recovered half her bond.

Victorian Premier Daniel Andrews has proposed reforms in favour of tenants in Victoria.

Some of these reforms include greater tenant rights in relation to pet ownership and a possible black list registry for landlords, similar to what currently exists for tenants. Perhaps most importantly, these reforms increase penalties for landlords breaching bond terms and provide a framework for bonds to be returned from as soon as 14 days, if the Bond Board is not notified.

These reforms are reflected in the Residential Tenancies Amendment Bill 2018 (Vic), which was introduced on 8 July 2018. However, tenants should not start rushing out to the pet shops just yet, as the Bill has not been assented yet.

As of 24 August 2018, the Bill is currently in the Legislative Council.

In NSW, no such Bill exists. However, reviews of NSW tenancy legislation have been conducted.

For example, the NSW law society recommended in its 2016 statutory review of the Residential Tenancies Act 2010 (NSW) that members of the NCAT be better versed in relation to the legislation, especially considering that applicants are self-represented and their knowledge of the law is limited. If NSW Parliament adopted this recommendation, then it would result in fairer outcomes for tenants recovering bonds.

However, what is crucial is for tenants to properly understand their rights and the legal process.

26 | The Brief

In 2016, Redfern Legal Centre conducted a statutory review of the Residential Tenancies Act 2010 (NSW). Using data collected from surveys, it reported that many tenants were unsure about how to fill out a condition report, and the meaning of ‘fair wear and tear’. This is particularly concerning as tenants claiming bond refunds must have updated condition reports and a clear understanding of what constitutes permissible ‘wear and tear’ to successfully argue their claim.

Tenants also reported feeling unprepared at NCAT, as they were largely self-represented, whereas landlords typically had an agent representing them. The Redfern Legal Centre reported that although the dispute system is reasonably solid, tenants are still disadvantaged, as they simply do not know how to navigate the system. Therefore, a government funded education program, as well as additional funding to organisations that provide legal assistance to tenants is necessary. Furthermore, funding for NCAT should be increased, so that more tenants have access to advocates, to represent them during bond disputes which would give tenants the opportunity to properly state their claims.

Another recommendation the Redfern Legal Centre put forward was the need to address the problem of landlords not lodging bonds with Fair Trading NSW. When a bond is not lodged, tenants are unclear about the timeframe for which they can recover their bond without opposition. As the Residential Tenancies Act 2010 (NSW) currently stands, it does not provide a timeframe for bond refunds, which are not properly registered in accordance with its provisions. The mandated 14-day period for landlords to dispute bond refunds following the end of the lease does not apply to unregistered bonds. Therefore, tenants are left confused as to what to do in these situations.

More research needs to be done, and action needs to be taken in reforming the bond returns system in NSW to address the current challenges faced by tenants. It is astounding that 44% of all NSW tenants will not receive their full bond back.

Given that renting is on the rise in Australia, this is a problem that needs to be addressed.

Barbarians or not, tenants are people too!

The All Natural,

100% Preservative Free lie: How Current Health and Wellbeing Trends Mislead Consumers  Jessica Haddad

A

s consumers, we do not have to venture too far beyond our phones to be bombarded with products that boast a range of health benefits. However, these fat-free, all-natural products we see on the supermarket shelf and Instagram feeds form part of the burgeoning health and wellness trend across the country. For example, in 2016, Australians increased their spending on health by 26% over the last five years. In fact, the Australian Institute of Health and Welfare stated in their 2018 report- ‘Australia’s Health’ in 2014-15, 4 in 5 Australians who are 15 years and older reported their health as ‘excellent’, ‘very good’ or ‘good’. It was also reported that market research showed an increase in popularity of natural healthcare products with a growth rate of 7% per year.

The above statistics demonstrate that the desire to achieve optimum health and wellbeing has inevitably influenced the choices of consumers; they will favour products and services that they believe to be healthy. As a result, businesses have responded to this consumer behaviour by advertising their products to have attributes, such as ‘all-natural ingredients’ ‘organic’, and ‘fat-free’, to profit from the latest health and wellbeing market trends. However, whilst these buzzwords are in constant circulation within a range of products, from hair care to baby food, the real question is - are they accurate representations of the products we buy?

Edition 3, 2018 | 27

What does it mean to be ‘natural?’

The recent decision by the Full Court of the Federal Court of Australia in Aldi Foods Pty Ltd v Morrocanoil Israel Ltd [2018] FCAFC 93 provided a useful commentary on what is required under the law for a product to be deemed ‘natural.’ In 2012, Aldi introduced hair care products called ‘moroccan argan oil’ under its brand ‘Protane’, with the sub-brand ‘Naturals’. In a long running dispute, the Court reversed the trial judge’s findings that the use of the word ‘naturals’ by Aldi was misleading and deceptive.

The primary judge held that by including the word ‘naturals’ on the packaging ‘there is no logical reason why a trader would choose to call a product line ‘naturals’ unless it intended to convey to the consumer that the product was “natural” or was comprised of substantially natural ingredients.

Aldi submitted that the primary judge, in ruling that the use of the world naturals on the packaging, had failed to consider the context in which the conduct had occurred. In context, it was the pricing and placement of the product being in the special discounted section of the store and at low prices.

The Full Court also noted that ‘naturals’ was used in a smaller font and underneath the word ‘Protane’.

As Perram J stated, ‘if the ordinary reasonable customer noticed the word ‘naturals’ at all they would have noticed it to be sub-line of the Protane products and not a statement about the quantity of natural ingredients in the product.’ On this basis it was held that the ordinary reasonable consumer would be of the understanding that the hair products did not contain substantially natural products and was not misleading or deceptive.

28 | The Brief

However, in the earlier decision of SC Johnson & Son Pty Ltd v Reckitt Benckiser (Australia) Pty Ltd (2012), the packaging of ‘Mortein NaturGard’ insecticide products was found to be misleading to consumers and therefore in breach of section 18 of the Australian Consumer Law. The packaging of the products used the colour green with a leaf symbol to represent a natural product and stated ‘over 90% natural ingredients’ on the package. However, the first refill of the package did not contain the words ‘1.4% synthetic actives’ and unlike the main product and second refill, was found to be deceptive. The Court held that without this phrase on the packaging it would lead an ordinary consumer to form an understanding that some of the product (including the active ingredients) was natural.

These cases therefore suggest that whilst a product marketed as ‘natural’ does not necessarily need to contain wholly natural ingredients, at least some or all its active ingredients should be natural.

Recently, misleading and deceptive conduct in the case of natural products was again brought to light when the Australian Competition and Consumer Commission (ACCC) issued three infringement notices against Dreamz Pty Ltd trading as GAIA Skin Naturals. It was found that GAIA’s line of baby products were found to be misleading due to the description of the products as ‘pure, natural and organic’. Despite having substantially natural ingredients, the products also contained two synthetic chemicals used to prevent the growth of bacteria. As a result, GAIA was ordered to pay $37, 800 in penalties.

It appears that the position of the courts is different to that of the ACCC who suggest that having substantially natural ingredients was insufficient to

substantiate a ‘natural’ claim. These inconsistencies between activities of regulatory bodies and legal decisions means that a higher emphasis will need to be placed on the context of the sale of the product to determine whether it is ‘natural’, including packaging, where it is sold and the set price. However, despite consumer protections within the Australian Consumer Law and the efforts of our national statutory authority in actively enforcing this law for the benefit of consumers, the difference in standards of what is natural can contribute to consumer confusion which potentially undermines these efforts, as a consumer can be left in a vulnerable position with the burden to clear confusion surrounding products’ claim of being natural.

The role of marketing in misleading consumers The role of advertising as a clever marketing gimmick to fool consumers into eating ‘healthy’ products, is made more alarming where such products claim to be beneficial to young children. In the case of ACCC v H.J. Heinz Company Australia Limited [2018] FCA 360, Heinz ‘Little Kids Shredz’ products were advertised with claims that the products contained 99% fruit and vegetables, but instead they contained approximately two-thirds of sugar. In determining the breach, the Federal Court said that Heinz ought to have known the product was not the equivalent nutritional value of fruit and vegetables, even though images of fruit and vegetables were on the product packaging.

This case demonstrated the ability of the court to essentially see through common advertising techniques to determine if a product is found to be in breach of consumer law provisions.

As well as this, the ACCC has asked the court to penalise Heinz with a $10 million fine for its actions. Actions such as this from the ACCC demonstrate its commitment to ensure honesty in advertising as a way to protect vulnerable consumers; an enduring priority for the Commission. However, these standards have no legislative effect and is only legally enforceable when they are read in conjunction with the consumer law provisions.

Therefore, it appears that unless ACCC is continuously monitoring claims, there will be a clear lack of substantial legal instruments to ensure compliance.

So, what do these cases suggest about the effectiveness of the current law in protecting consumers and their ability to make healthy choices? There is no doubt that both the ACCC and the judiciary have extensive power in enforcing consumer law provisions for the benefit of Australian consumers, the potential inconsistency could result in increased consumer confusion that weakens the efficacy of the current mechanisms.

Given that the ACCC relies heavily on complaints of individuals to identify illegal conduct yet cannot resolve individual complaints, consumers may continue to be unconsciously misled about the true contents of these so called ‘healthy products.’ Perhaps the only way to ensure consumers are effectively protected is to take matters into their own hands and continue to further their education through publications provided by Food Standards Australia and New Zealand (FSANZ) and State Fair Trading bodies – or by learning to decipher the ‘all-natural’, ‘organically sourced’ and ‘preservative free’ marketing gimmicks and read the label.

Edition 3, 2018 | 29

A Brief Review

Terms & Conditions:

A work of fiction that hits close to home . . .

L

 Fiorentine Pefani

ife doesn’t seem to come with fine print. This is a fact that protagonist and corporate lawyer Frank Shaw learns all too well when he is involved in a vehicular accident and awakes to find large sections of his recent memories missing. Frank tries to piece together and resume his former life, but the bout of amnesia has given him a new lens through which to view his old life – and what he sees, he doesn’t completely enjoy.

Robert Glancy’s debut novel Terms & Conditions introduces us to the world of insurance law and an expert contract draftsman, who has worked so hard his entire life – against the difficulties of law school, his brilliant attorney father, and his competitive brother – to establish himself as a presence in the legal world. Yet his newfound worldview, complete with in-text footnotes throughout the entire novel, reveals a phenomenon similar to the contracts he once wrote; the world seems to belie what is truly written in the footnotes.

Frank’s wife, Alice, and his older brother, Oscar, try to remind Frank that before his accident he was a happy husband and successful partner in the firm founded by his father. Frank is sceptical of the picture Alice and Oscar are portraying and so chooses to find out what’s been going on around him. What he finds – without spoiling too much for the reader – is that his wife isn’t maintaining their lifestyle because she loves him, and his brother isn’t so much interested in getting him to return to work as a brilliant contract

30 | The Brief

lawyer, as he is getting him to stop asking questions. This all transpires in amongst Frank’s firm acquiring a highly lucrative and highly confidential government contract. Meanwhile, Frank is receiving constant advice from his younger brother, Malcolm, who is living life as a nomad in Southeast Asia, whilst also finding out that his heart lay not with the person he originally thought.

Those who choose to pick up Glancy’s work have a unique genre to absorb – think the novel form of 500 Days of Summer meets the world of commercial legal practice. Such an excellent mish-mash of legal/comedy/ romance is, for instance, epitomised by a line within the novel wherein the data produced by one of the actuaries at Frank’s law firm reveals that “[w]e have half a million chances to change our lives. If we live to be about 80, we’ll have almost 30,000 days, or more than half a million hours — each hour giving us a new opportunity for change.”

Frank’s story is one about not getting so busy trying to make a living that you forget to make a life.

As women and men of the law we all get lost in attempting to achieve as much as possible within the finite time we are given each day, of each week, of each year. The allegory of Frank Shaw’s life is a reminder to be selfreflective and to consider the grander picture of where you are heading in life. For one does not necessarily need to suffer a head injury before one wakes up one morning and sees the life they’ve built around them was one they never wanted.

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Edition 3, 2018 | 31

A Postcard from Abroad

 Briellen Sands

At which university did you complete your exchange? Tell us about your first impressions.

I completed my exchange at Leiden University in the Netherlands. Leiden is a student town about half an hour out of Amsterdam. My first thought when I arrived was: is this place even real? It felt like a life-size doll village. The quaint terrace houses, winding canals and beautiful bridges made me fall in love with the town instantly.

Tell us a bit about the subjects you studied.

What was the most interesting subject?

At Leiden, I studied a mix of law electives and two humanities subjects about Dutch culture and history, which were especially recommended for exchange students. The humanities subjects were a fantastic way to interactively learn about the Netherlands and make friends with both local and international students. On the other hand, the law subjects enabled me to be taught by renowned professors and study fascinating topics not available at Macquarie, such as Aerospace Law and European Private International Law. The subject I found most interesting was, ‘A Europe that Serves and Protects’, which is all about how the Area of Security, Freedom of Justice in the European Union is dealing with topical legal issues such as migration, refugee responsibility and border security threats.

Why did you choose that particular university?

I chose Leiden University because of its respected reputation for law, its convenient location for 32 | The Brief

exploring Europe on weekends and because I wanted to experience living in a small town (population just over 100 000). The Netherlands also appealed to me for its progressiveness as I had heard the Dutch are a very tolerant and liberal society.

How was life as a law student different at your host university to life at Macquarie University?

Student life at Leiden law school was quite different to Macquarie. Leiden has a law building with its own library and cafeteria so it felt like a closer-knit community – you were always running into people you knew which I liked. The academic structure was unusual in that each semester was separated into two blocks for six weeks each.

Assessments were organised differently too - with exams often weighing a considerable amount, usually 80% or 100%. However, there was less pressure because if you fail any exams you have the opportunity to re-take them.

What was strikingly different about life in Leiden however was the bike culture. Absolutely everyone owns at least one bike and it’s the mode of transportation. Everything you need is a maximum ten minute bike ride away – classes, supermarkets, bars, parks and if you ride a bit further lakes, tulip fields and even the beach. Of course being a student town with bikes presented a new challenge… riding home after a night out.

This was a source of endless laughs!

Tells us about the unique aspects of your host university, such as traditions, events, and extracurricular activities.

Leiden, like most Dutch universities, has a number of fraternities. As international students we could not join them, but they organised a few ‘open’ events such as live music with oneeuro beers, and a traditional Beer Cantus event, which involved chanting songs and completing drinking challenges if you got the lyrics wrong.

The hallmark event of the Dutch student social calendar is by far the King’s birthday, known as Koningsdag. On this day everyone dresses up in the royal colour orange and takes to the canals and streets for a day of drinking and merriment.

Say yes! To all the opportunities and adventures that come your way, you never know what wonderful friends and amazing memories you will make. If your host university has an orientation week I’d highly recommend attending that – easily the best way to make friends.

If I had the opportunity to go on exchange again I would push myself out of my comfort zone and choose a wildly different country such as somewhere in the Indo-Pacific.

Did you participate in any work experience, volunteering or internships?

I coached gymnastics one afternoon a week at a nearby school, which was quite challenging at times due to the language barrier, but was great fun and a good way to practise some Dutch! I was also a member of the European Law Student’s Association (ELSA) and enjoyed going on inside tours they ran of international courts and tribunals in The Hague. As an ELSA member, I was also able to participate in a specialised summer school on International Law and Arbitration in Turkey.

What advice would you have for a law student participating in an exchange programme?

What would you have done differently if you got the opportunity again?

Edition 3, 2018 | 33

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