TRADE PRACTICES AND RISK

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TRADE PRACTICES AND RISK AURIMS PRESENTATION
Sue Beach General Counsel University of
Newcastle 20 February 2007
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TRADE PRACTICES ACT (1974)

• Misleading or deceptive conduct
• S.52(i) A corporation shall not, in trade or
• commerce, engage in conduct that is
• misleading or deceptive.
• See also Fair Trading Act (NSW) and ESOS Act

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Section 52 Trade Practices Actand Universities

• Not yet strongly tested regarding its application
  to Universities
• Quickenden case University of Western Australia
  (UWA) found to be a constitutional corporation
  as it engaged in trading and financial activities
• UWA v Gray 2005 misleading and deceptive
  conduct in research grant applications

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Section 52 Trade Practices Actand Universities

• Ogawa v University of Melbourne s.52 Question
  eventually not addressed time and cost in
  defending proceedings
• ESOS Act also raised- alleged failure to provide
  adequate supervision
• See University Marketing and the Law Applying
  the Trade Practices Act to Universities
  Marketing and Promotional Activities. Phillip
  Clarke, Deakin University Law Review (2003)

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Section 52 Trade Practices ActTenders and Breach
of Contract

• Griffin Energy Pty Ltd v Western Power
  Corporation 2006 Federal Court
• Griffin alleged breach of s.52 and breach of
  contract
• Winning tender bid did not meet the tender
  specifications
• Hughes Aircraft Systems International v Civil
  Aviation Authority 1995
• -evaluation criteria in tender not fairly
  applied- alleged breach of contract

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Section 53 Trade Practices ActFalse or
misleading representations

• s.53 prohibition on false or misleading
  representation in connection with the supply
  or possible supply of goods or services
• Misleading advertising
• Examples of false or misleading representations
  in universities
• - Scholarships available
• - Supervision available and appropriate

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Unconscionable Conduct and s.51 AA, AB, ACTrade
Practices Act

• s 51 AA Trade Practices Act Applies to
  corporations
• s.43 Fair Trading Act applies to persons
• Prohibit unconscionable conduct
• Look at relative bargaining power, understanding,
  exercise of undue influence
• Wearne v Southern Cross University
• -employee alleged unconscionable conduct by
  University

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PENALTIES

• s.52 damages
• s.53 false or misleading representations
• - strict liability offence - 1.1
  million
• Misleading conduct in relation to employment -
• 1.1 million strict liability offence see
  ACCC site
• Misleading conduct in relation to services
• 1.1 million strict liability offence

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PENALTIES

• Part IV offences (Restrictive Trade Practices)
• Eg Price fixing, Collusive tendering,
• Third Line Forcing, Boycotts,
• Anti-competitive behaviour-
• Prohibitions and Penalties
• ESOS Act misleading and deceptive conduct-
  Minister may take action
• Reputational Damage

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Trade Practices Act Competitive Neutrality

• The National Competition Policy
• The objective of the competitive neutrality is to
  ensure government businesses including
  universities do not have competitive advantages
  or disadvantages relative to their privately
  owned competitors simply as a result of
  government ownership or funding.
• Examples
• Use of University resources for private
  consultancies
• Sporting facilities for commercial gain

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PROTECTIVE MEASURES

• Risk Awareness
• Risk Assessment and treatment
• Education - Trade Practices Act ESOS Act
• Policies on Consulting
• Disciplinary Measures
• Tender processes guidelines for administrators
  and committees
• Seek advice