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Print Chapter 3 (PDF 436KB) | < - Report Home < - Chapter 2 : Chapter 4 - > |
The Australia-New Zealand relationship
Closer association
Specific areas covered in this Chapter
Overview of relevant formal arrangements between Australia and New Zealand
Australia-New Zealand Closer Economic Relations Trade Agreement (CER)
Memorandum of Understanding Between the Government of New Zealand and the Government of Australia on Coordination of Business Law
Trans-Tasman Mutual Recognition Arrangement (TTMRA)
Trans-Tasman Accounting Standards Advisory Group (TTASAG)
Trans-Tasman Council on Banking Supervision
Joint Accreditation System of Australia and New Zealand (JASANZ)
Australia-New Zealand Therapeutic Products Authority (ANZTPA)
Double Taxation Agreement
Mutual recognition of offer documents
Food Standards Australia New Zealand (FSANZ)
Protocol on Harmonisation of Quarantine Administrative Procedures
Observations of the Committee
Possible new mechanism for legal harmonisation: referred legislative responsibility
Partnership law
Competition and consumer protection law
Productivity Commission inquiry and report
Competition law
Consumer protection law
Telecommunications regulation
Regulatory inconsistency
Copyright regulation
Regulatory inconsistency and impacts
Legal procedures
The Trans-Tasman Working Group on Court Proceedings and Regulatory Enforcement (TTWG) 77
The Committee’s view
Statute of limitations
Service of legal proceedings
Evidence law
TTWG reform
The Committee’s view
3.1 | This Chapter examines the current level of legal harmonisation between Australia and New Zealand in particular areas as raised in the evidence and identifies some possible initiatives for further harmonisation between the two countries. A further aspect of legal harmonisation between Australia and New Zealand is also considered in Chapter 4. |
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The Australia-New Zealand relationship |
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3.2 | Australia and New Zealand have a uniquely close and abiding relationship borne of shared history and longstanding connections – and it is a relationship that continues to grow closer over time. Both the Australian and New Zealand Governments affirmed this relationship in their evidence to the inquiry. DFAT stated that:
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3.3 | The NZG stated that:
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3.4 | The Committee was pleased to hear that much progress has been made, and continues to be made, to advance regulatory harmonisation, coordination and cooperation between Australia and New Zealand, particularly in the area of trade and commerce. DFAT indicated that:
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3.5 | The NZG stated in its initial submission that ‘…substantial work has been done to address legal and regulatory impediments to trans-Tasman commercial activity’ over the last ten years,6 and the terms of reference for a 2005 review of the Memorandum of Understanding Between the Government of New Zealand and the Government of Australia on Coordination of Business Law state that ‘ There has been a significant alignment of Australian and New Zealand business laws over the past five years’.7 The NZG also observed elsewhere that:
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3.6 | The Committee commends the Australian and New Zealand Governments for this excellent work. The Committee would also like to take the opportunity to thank the New Zealand Government for its considered, constructive and highly professional input into the inquiry. The Committee found the evidence of the New Zealand High Commissioner to Australia, HE Mrs Kate Lackey, particularly valuable, and greatly appreciated the fact that the High Commissioner took time out of her busy schedule to appear in person before the Committee. |
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Closer association |
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3.7 | The Committee notes that, prior to Australian Federation in 1901, New Zealand was one of the seven colonies of Australasia together with the Australian colonies, and was involved in the processes that led up to Federation. New Zealand participated in intercolonial conferences on various matters as well as in the Australasian Federation Conference of 1890 and the Federation Convention of 1891. While New Zealand ultimately chose not to join the Federation, it is still included in the definition of the States in s. 6 of the Australian Constitution. This historical context forms a backdrop to the closeness and breadth of the relationship between Australia and New Zealand today. While Australia and New Zealand are of course two sovereign nations, it seems to the Committee that the strong ties between the two countries – the economic, cultural, migration, defence, governmental, and people-to-people linkages – suggest that an even closer relationship, including the possibility of union, is both desirable and realistic. A more closely integrated relationship is also suggested by the ever-shrinking globalised environment that now exists and the sense that the concept of national sovereignty is not perhaps what it once was. |
3.8 | The Committee is of the view therefore that Australia and New Zealand would benefit from collaboration at the parliamentary level to ensure ongoing harmonisation of their respective legal systems and to investigate future options for mutually beneficial activity, including the possibility of union. |
3.9 | Recommendation 2
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3.10 | The Committee has also identified other initiatives at a broad overarching level which are most assuredly possible and which would function constructively to bring Australia and New Zealand closer together. Firstly, the Committee is of the view that both Governments should be actively pursuing a common currency. While the Committee is aware that both Governments have indicated that a common currency is not being considered at present,9 it seems to the Committee that a common currency between Australia and New Zealand would go a long way towards cementing closer economic relations between the two countries. The European experience shows that a common currency between sovereign nations is quite within the realms of possibility. |
3.11 | Recommendation 3
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3.12 | Secondly, while the Committee is aware that NZG ministers participate in Australian ministerial councils when matters affecting New Zealand are considered,10 it seems desirable to the Committee that NZG ministers should have full membership of Australian ministerial councils, which would therefore become Australasian ministerial councils. This would strengthen Government-to-Government links, provide an additional perspective in the consideration of policy issues, and would ensure that New Zealand ministers are kept abreast firsthand of significant developments in Australia which may have ramifications for New Zealand and the trans-Tasman relationship. |
3.13 | Recommendation 4
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Specific areas covered in this Chapter |
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3.14 | In this Chapter the Committee also considers a number of specific areas that were raised in the evidence. These are:
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3.15 | Each of these areas is considered in turn. Before this, however, an overview of a number of relevant formal arrangements and instruments between Australia and New Zealand, encompassing a range of measures and activities including legal coordination and harmonisation, is provided below. The possibility of a new legislative mechanism for legal harmonisation between Australia and New Zealand is also raised. |
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Overview of relevant formal arrangements between Australia and New Zealand |
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3.16 | The Committee notes that there are currently more than 80 ‘…government-to-government bilateral treaties, protocols and other arrangements of less-than-treaty status’11 between Australia and New Zealand, dealing with a wide range of matters including:
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Australia-New Zealand Closer Economic Relations Trade Agreement (CER) |
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3.17 | Upon its entry into force in 1983 the CER provided for the incremental removal of tariffs, import licensing and quantitative restrictions. Both Governments also agreed to stop providing subsidies as inducements to export. In its submission to the inquiry, the NZG noted that ‘…the CER agreement took a comprehensive, “everything is included unless expressly excluded” approach to trade issues’.13 |
3.18 | In 1988 the CER was extended to the trans-Tasman trade in services, with the same inclusive, overarching approach as had been employed earlier.14 The CER has meant a liberalisation of services trade between Australia and New Zealand; indeed, DFAT indicated that ‘…almost all trans-Tasman trade in services is now open’.15 The CER was further augmented in 1990 when anti-dumping rules were replaced with complementary ‘abuse of market power’ provisions in both countries’ respective trade practices legislation.16 |
3.19 | In its submission DFAT noted the success of the CER in fostering trade:
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3.20 | DFAT also indicated that the CER has been successful in fostering investment between Australia and New Zealand:
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3.21 | In oral evidence DFAT stated that the CER:
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3.22 | As noted in Chapter 2, however, Telstra suggested in its evidence that the CER ‘…does not appear to have kept pace with other international agreements’,20 notably in the area of telecommunications. As was also noted in Chapter 2, the CER is currently under review by the Joint Standing Committee on Foreign Affairs, Defence and Trade.21 |
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Memorandum of Understanding Between the Government of New Zealand and the Government of Australia on Coordination of Business Law |
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3.23 | The current Memorandum of Understanding Between the Government of New Zealand and the Government of Australia on Coordination of Business Law was signed by Australia and New Zealand in February 200622 following a review of the previous incarnation (signed in 2000). Treasury informed the Committee that the MoU ‘…sits under the umbrella’ of the CER and ‘…reflects the desire of both countries to deepen the trans-Tasman relationship within the global market’.23 In terms of objectives, Treasury indicated that the MoU:
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3.24 | The Committee notes that the current MoU contains the following statement regarding the reduction of business law regulatory impediments:
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3.25 | Further, the current MoU also affirms a commitment on the part of both Australia and New Zealand to work towards a single economic market:
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3.26 | In reference to this commitment, the NZG stated that:
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3.27 | In his evidence to the Committee, Professor Gordon Walker stated that the single economic market initiative:
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3.28 | The current MoU also notes that Australia and New Zealand have achieved a ‘…significant degree of coordination and cooperation in a number of areas of business law’ including the following:
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3.29 | In its submission, Treasury informed the Committee of the following current business law coordination projects between Australia and New Zealand that were put in train under the previous version of the MoU:
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3.30 | The current MoU retains and refines a number of the areas for possible business law coordination that were identified in the previous version, as well as specifying new areas for possible coordination work such as insurance regulation and anti-money laundering supervisory frameworks. In relation to the areas identified for possible coordination, the current MoU further states that:
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3.31 | While the MoU does not focus on legal harmonisation of laws, the Committee is encouraged to see that this important document recognises the desirability of reducing regulatory overlap and inconsistency where warranted. |
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Trans-Tasman Mutual Recognition Arrangement (TTMRA) |
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3.32 | The TTMRA, which commenced in 1998, extends the mutual recognition scheme which operates within the Australian jurisdictions to include New Zealand. Treasury informed the Committee that:
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3.33 | The NZG also informed the Committee that the TTMRA is ‘…of particular importance’ in the context of product standards between Australia and New Zealand:
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3.34 | The NZG noted that while there are outstanding differences between Australia and New Zealand in relation to product standards which can present problems (for example non-enforceable standards set by industry or major purchasers), it ‘…supports continuing the momentum of the current work programme on these issues’.34 |
3.35 | The AGD indicated that the TTMRA is given effect in Australia by the Commonwealth Trans-Tasman Mutual Recognition Act 1997.35 |
3.36 | The Committee notes that the Productivity Commission conducted a review of the TTMRA in 2003. The Commission noted that its data were limited given the TTMRA’s commencement in 1998, but nevertheless was able to conclude that:
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3.37 | The NZG informed the Committee that the Productivity Commission made a number of recommendations in its review report to further improve the operation of the TTMRA, which the Australian and New Zealand Governments are working to implement. These recommendations include:
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3.38 | The Committee notes that exemptions to the TTMRA apply to medical practitioners. However, DFAT indicated that mutual recognition arrangements apply to doctors trained in either Australia or New Zealand.38 The NZG indicated similarly:
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Trans-Tasman Accounting Standards Advisory Group (TTASAG) |
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3.39 | The TTASAG, which was announced by Australia and New Zealand in January 2004, is intended to coordinate work towards common accounting standards in Australia and New Zealand. Treasury informed the Committee that membership of the TTASAG includes:
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3.40 | Treasury also indicated that the TTASAG has focused on the following areas thus far:
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Trans-Tasman Council on Banking Supervision |
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3.41 | The Trans-Tasman Council on Banking Supervision was announced in February 2005 as part of the single economic market agenda.42 Treasury informed the Committee that:
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3.42 | The NZG indicated that the purpose of the Council is to ‘…promote a joint approach to trans-Tasman banking supervision’.44 The Committee notes the terms of reference for the Council as follows:
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3.43 | The Committee notes that in February 2006 Australia and New Zealand announced the legislative implementation in both countries of the Council’s first set of recommendations. These are:
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3.44 | The ANZ Bank stated that these legislative changes will ‘…materially… we believe, decrease the risk of a problem occurring in Australia impacting on our New Zealand operations in an adverse way’.47 |
3.45 | While the Committee is encouraged by the progress that has been made towards joint trans-Tasman banking supervision between the prudential regulators, the Committee notes evidence from the ANZ that there are still material differences between the Australian and New Zealand banking regulation environments. In oral evidence the ANZ stated that:
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3.46 | The ANZ further stated that ‘…there are very few products that we offer in Australia that are mirrored in New Zealand’.49 Given the importance of the banking sector to both the Australian and New Zealand economies, the Committee considers that more should be done to progress a genuinely seamless banking environment between the two countries, particularly in the context of the trans-Tasman commitment to a single economic market. |
3.47 | Recommendation 5
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Joint Accreditation System of Australia and New Zealand (JASANZ) |
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3.48 | The NZG informed the Committee that the JASANZ, which was established in 1991,
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3.49 | The NZG also indicated that the JASANZ ‘…plays an important role in facilitating New Zealand’s and Australia’s bilateral and international trade’.51 |
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Australia-New Zealand Therapeutic Products Authority (ANZTPA) |
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3.50 | In December 2003 the Australian and New Zealand Governments signed a treaty to establish the ANZTPA. Once it is established, the ANZTPA will replace the current Australian TGA and the New Zealand Medicines and Medical Devices Safety Authority and will be the joint therapeutic goods regulator for both countries. The NZG informed the Committee that the ANZTPA, which will be ‘…accountable to both Governments’,52 will be established via legislation enacted both in Australia and New Zealand:
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3.51 | The NZG also indicated that the regulatory framework of the ANZTPA will include ‘…a single set of Rules made by the Ministerial Council, and technical Orders made by the Managing Director’,54 and that the agency will be overseen by:
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3.52 | As noted in Chapter 2, arrangements for the Australia-New Zealand Therapeutic Products Authority are currently in development.56 The Committee understands that public consultations regarding the details of the ANZTPA regulatory scheme commenced in May 2006.57 |
3.53 | The Committee welcomes this historic development in the Australia – New Zealand relationship. As the NZG stated, the ANZTPA ‘…will in a sense be the first genuinely binational Australian and New Zealand body’.58 The Committee envisages that a single approval process for both countries will result in reduced compliance costs for therapeutic product companies operating across the Tasman. |
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Double Taxation Agreement |
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3.54 | DFAT informed the Committee that the Double Taxation Agreement, which commenced in 1995:
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3.55 | DFAT also informed the Committee that Australia and New Zealand agreed in 2003 to ‘…extend Australia’s and New Zealand’s imputation regimes to include certain companies resident in the other country [sic]’ in order to resolve shareholder inability to receive imputation credits relating to taxes paid on investment income from companies resident the other country.60 |
3.56 | In its submission the ANZ Bank indicated that this is ‘…an improvement on the previous situation’61 but still does ‘…not go far enough’ to resolve some outstanding issues relating to double taxation.62 |
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Mutual recognition of offer documents |
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3.57 | Stemming from an October 2001 Australian proposal for the mutual trans-Tasman recognition of offer documents in financial services regulation, Australia and New Zealand agreed in 2005 on a treaty for the implementation of a mutual securities offer recognition scheme.63 Treasury indicated that the purpose of the scheme is to:
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3.58 | Treasury also indicated that the potential benefits of a trans-Tasman mutual recognition regime include:
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3.59 | The Committee understands that the treaty was signed by Australia and New Zealand in February 2006,66 and that provisions to implement the mutual recognition regime under the Corporations Act 2001 are currently being drafted.67 The NZG indicated that the ‘…enabling framework is already in primary regulation in New Zealand so only the passing of regulations is required’.68 |
3.60 | While welcoming the treaty, Professor Gordon Walker raised one concern in oral evidence regarding the potential for unlisted securities issuers to sell assets in Australia.69 Professor Walker suggested that, in order to prevent this, ‘… Australia would be very smart to confine [the treaty] to mutual recognition in respect of listed issuers or issuers seeking listing’:70
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3.61 | In its oral evidence Treasury stated that New Zealand has brought areas of its securities regulation closer to Australian securities regulation in recent years.72 Treasury also indicated that it was not aware of the capacity for regulatory arbitrage being raised as an issue.73 |
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Food Standards Australia New Zealand (FSANZ) |
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3.62 | DFAT informed the Committee that FSANZ is:
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3.63 | The NZG elaborated on the operation of FSANZ and the implementation of food standards:
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3.64 | In its evidence to the Committee DFAT identified FSANZ as a significant example of regulatory harmonisation between Australia and New Zealand,76 and the SIAA cited the implementation process for food standards under the Australia-New Zealand arrangement as an example of best practice with regard to achieving regulatory harmonisation.77 |
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Protocol on Harmonisation of Quarantine Administrative Procedures |
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3.65 | The Protocol on Harmonisation of Quarantine Administrative Procedures entered into force in 1988 and comes under the aegis of the CER (quarantine was not dealt with in the original CER other than in an exception allowing for ‘…reasonable, scientifically justified quarantine measures to protect human, animal or plant life or health’78). The NZG noted that the purpose of the Protocol is to:
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3.66 | In evidence to another parliamentary inquiry, the Australian Department of Agriculture, Fisheries and Forestry described the role of the Protocol as follows:
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3.67 | In its evidence to the harmonisation inquiry the NZG also informed the Committee that the Protocol provides for the harmonisation of quarantine standards in the international context and specifically between Australia and New Zealand:
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3.68 | Both the NZG and DFAT noted that each country regulates its own quarantine regime.82 The Committee was pleased to hear from the NZG that ‘…the overwhelming majority of [quarantine] issues’ acting as an impediment to trans-Tasman trade in goods ‘…have now been resolved, with only one or two remaining’.83 In oral evidence the NZG also indicated that Australia and New Zealand are endeavouring to reach commonality regarding quarantine requirements for third countries:
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Observations of the Committee |
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3.69 | The array of arrangements and instruments summarised above demonstrates that, since the advent of the CER in 1983, cooperation between Australia and New Zealand and integration of the two economies has continued apace. These examples also demonstrate the merit of utilising a range of approaches and mechanisms, and that it is necessary to fit the method to the matter. |
3.70 | The Committee notes that there are a number of other agreements relating to the CER that are in place between Australia and New Zealand, for example the Open Skies Agreement, the Trans-Tasman Travel Arrangement, and the Government Procurement Agreement.85 |
3.71 | The Committee was interested to hear views on whether additional arrangements or instruments were required to further pursue harmonisation between Australia and New Zealand. Treasury commented that, while further arrangements ‘…may be required to implement coordination in particular areas’, Treasury was ‘…not aware of the need for further overarching arrangements’.86 DFAT did not identify the need for additional arrangements at this stage, noting that the ‘CER is a dynamic and living instrument which… continues to evolve’, and that the ‘…extensive work program to enhance coordination between Australia and New Zealand’ is a ‘…significant and evolving agenda’.87 DFAT also stated that it:
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3.72 | Over the course of the inquiry the Committee was particularly impressed by the joint regulator model of legal harmonisation between Australia and New Zealand, as exemplified by the ANZTPA. For the Committee, the functionality and simplicity that this model can achieve suggests that, as a general principle, it should be utilised wherever possible. |
3.73 | Recommendation 6
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3.74 | During the course of the inquiry also the Committee was struck by the possibility of a new legislative mechanism for legal harmonisation between the two countries – the referral of legislative responsibility. |
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Possible new mechanism for legal harmonisation: referred legislative responsibility |
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3.75 | The Committee envisages a referred legislative responsibility mechanism between Australia and New Zealand involving one Parliament voluntarily ceding legislative competency on a specific matter to the other Parliament for an agreed period. The single regulatory framework resulting from this arrangement could then apply in each country. Such an arrangement would have the advantage of facilitating and streamlining mutual regulation of an area where there is considerable common ground. Specific benefits would include:
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3.76 | A limited analogy may be drawn with the referral of powers mechanism within Australia under subsection 51(xxxvii) of the Australian Constitution. |
3.77 | The Committee notes that arrangements involving the ceding of legislative responsibility exist abroad. In the United Kingdom, for example, the Parliament has ceded some legislative responsibility to European Community legislation:
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3.78 | The Committee notes that the ability for the Australian Parliament to participate in a referred legislative responsibility mechanism would be conferred by the external affairs power under subsection 51(xxix) of the Australian Constitution. The NZG indicated that there would seem to be no apparent constitutional bar to New Zealand participating in a referred legislative responsibility mechanism:
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3.79 | Despite this, the NZG expressed doubt regarding the possibility of a referred legislative responsibility mechanism being established between Australia and New Zealand:
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3.80 | In its initial submission the NZG also indicated that arrangements involving one country agreeing to be regulated by the laws of another country are ‘…the least satisfactory mechanism for making joint rules or establishing joint bodies’,92 as they can raise significant concerns regarding the ceding Parliament’s participation in the law-making process and the level of accountability of the legislating Parliament to the ceding Parliament.93 The NZG did note however that these concerns can be alleviated to some extent when a formal treaty is concluded on the matter.94 |
3.81 | The Committee acknowledges that, upon closer investigation, the possibility of a referred legislative responsibility mechanism between Australia and New Zealand may well prove to be unfeasible. The Committee believes however that the potential benefits of such a mechanism warrant further exploration of the concept by the two Governments. |
3.82 | Recommendation 7
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3.83 | The balance of the Chapter examines specific areas that were raised in the evidence as specified at paragraph 3.14 above. |
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Partnership law |
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3.84 | In its initial submission the NZG noted the shared history of Australian and New Zealand partnership laws and the fact that discrepancies have arisen between the two countries over time:
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3.85 | The NZG submitted however that these differences should not generate compliance costs for businesses operating in Australia and New Zealand:
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3.86 | The NZG also indicated that intended reforms in New Zealand will have the effect of more closely aligning aspects of New Zealand partnership law with partnership regimes in Victoria, the ACT, and NSW:
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3.87 | The Committee did not receive any evidence from the AGD on the harmonisation of partnership laws between Australia and New Zealand. |
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Competition and consumer protection law |
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Productivity Commission inquiry and report |
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3.88 | The Committee notes that the Productivity Commission conducted a major inquiry into the Australian and New Zealand competition and consumer protection regimes in 2004. In its final report the Commission found that:
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3.89 | The Commission also found that ‘…the regimes are not significantly impeding businesses operating in Australasian markets’, and that ‘…major changes to the two regimes are not warranted at this stage’.99 The Commission stated that:
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3.90 | This being the case, the Commission did find that ‘… there are aspects of the Australian and New Zealand competition and consumer protection regimes that are not consistent with a single economic market’, such as a tendency for each country to focus mainly on its internal context and ‘…differences in guidelines, timelines, and decision making and duplication of processes, for cases where approval is required in both countries’.101 |
3.91 | The Commission considered however that both partial and full integration of the two countries’ competition and consumer protection regimes would not be desirable:
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3.92 | Instead, the Commission indicated that the Australia-New Zealand single economic market agenda ‘…would be assisted by a package of measures involving a transitional approach to integration of the two regimes’.103 The Commission identified a number of elements in this package of measures including the following:
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3.93 | The Commission also recommended a number of other elements relating to greater cooperation and collaboration between the two relevant regulatory institutions – the Australian Competition and Consumer Commission (ACCC) and the New Zealand Commerce Commission (NZCC) – such as enhanced cooperation, information sharing, and use of investigative powers to assist the regulator in the other country.105 |
3.94 | The Committee supports the recommendations of the Productivity Commission. In its submission Treasury indicated that the Productivity Commission report and recommendations were endorsed by the Australian and New Zealand Governments in February 2005.106 The ANZ in its submission stated that:
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Competition law |
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3.95 | In its submission Telstra advocated greater institutional coordination between the ACCC and the NZCC along with greater sharing of expertise and formal consultation requirements.108 The Committee notes that the recommendations of the Productivity Commission encompass a range of enhanced cooperation and collaboration measures between the ACCC and the NZCC. |
Exclusionary provisions |
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3.96 | Telstra also raised the issue of exclusionary provisions (agreements between competitors not to deal with particular suppliers) in its submission. Telstra informed the Committee that exclusionary provisions are illegal under the Australian TPA per se and are also prohibited under the New ZealandCommerce Act 1986 but with a competition defence.109 Telstra noted a 2002-2003 independent review of the TPA (the Dawson Review) which recommended the harmonisation of the Australian per se prohibition of exclusionary provisions with the New Zealand approach:110
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3.97 | The Committee notes that the Government accepted this recommendation in its response to the Dawson Review report:
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3.98 | As Telstra noted in its submission, however, the eventual proposed legislation amending the TPA, the Trade Practices Legislation Amendment Bill (No. 1) 2005, only provides a limited competition defence for exclusionary provisions for the purpose of initiating a joint venture.113 Telstra submitted that ‘…the recommendation of the Dawson Committee should be adopted on this issue’.114 |
3.99 | The Committee notes the following explanation of the changed stance adopted by the Government in the Explanatory Memorandum to the Bill:
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Consumer protection law |
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3.100 | In his submission Mr Ray Steinwall compared provisions of the Australian consumer protection regulation framework governing non-excludable implied warranties in consumer contracts with equivalent provisions in the New Zealand Consumer Guarantees Act 1993 (CGA). Mr Steinwall noted that there are both similarities and differences between New Zealand and the Australian jurisdictions – a situation which reflects the differences that exist among the various Australian consumer protection regimes. Some examples include:
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3.101 | As is discussed in the next Chapter, Mr Steinwall submitted that a national harmonised regulatory framework for implied warranties should be established in Australia.120 In his submission Mr Steinwall further suggested that such a framework:
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3.102 | The Committee agrees, and is of the view that legal harmonisation between Australia and New Zealand in the area of non-excludable implied warranties could be usefully pursued consistently with work to advance a national harmonised framework in Australia (recommended in the following Chapter). |
3.103 | Recommendation 8
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Telecommunications regulation |
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3.104 | The main issue raised in the evidence in relation to telecommunications regulation was regulatory inconsistency. |
Regulatory inconsistency |
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3.105 | Telstra informed the Committee that there are considerable differences between the Australian and New Zealand telecommunications regulatory environments:
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3.106 | Telstra cited differences in a number of specific areas:
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3.107 | Telstra stated that these differences:
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3.108 | Importantly, Telstra indicated that it does not perceive Australia’s telecommunications regulation framework to be inherently superior to that of New Zealand or indeed that either country’s regulatory system is perfect:
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3.109 | Telstra did note however that the current telecommunications regulation framework in New Zealand is disadvantageous for the New Zealand consumer in certain respects:
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3.110 | The Committee was informed by Telstra that harmonisation and/or integration of telecommunications regulation between Australia and New Zealand was expressly identified as a key element of the single market initiative at the inaugural meeting of the Australia-New Zealand Leadership Forum in May 2004. 128 |
3.111 | In oral evidence Telstra advocated the concept of harmonised telecommunications regulation between Australia and New Zealand:
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3.112 | Telstra submitted that such harmonisation would result in considerable benefits to consumers and to the Australian and New Zealand economies:
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3.113 | In evidence to another parliamentary inquiry, Telstra elaborated on the benefits of having a single trans-Tasman network:
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3.114 | In this other evidence Telstra also estimated that the elimination of mobile phone roaming charges between Australia and New Zealand would save Australian consumers some A$31 million per year.133 In its oral evidence to the harmonisation inquiry, Telstra made the additional point that harmonisation would likely result in greater competition in the Australian market: ‘In Australia you would have another large player in Telecom New Zealand’.134 |
3.115 | The Committee is attracted to the concept of a harmonised regulatory telecommunications framework between Australia and New Zealand with a view to fostering a joint telecommunications market. Common regulation, however constituted, would eliminate the impediments that result from regulatory divergence and would benefit the consumers and economies of both countries. Further, it would seem to the Committee that greater harmonisation between Australia and New Zealand in this crucial sector will be highly important if the objective of a single economic market between the two countries is ever to be achieved. This is borne out by the fact that harmonisation/integration of telecommunications regulation between Australia and New Zealand was identified as a key element of the single market initiative by the Australia-New Zealand Leadership Forum in 2004. The Committee considers that the two Governments should explore the legal harmonisation of their telecommunications regulation frameworks. |
3.116 | Recommendation 9
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Measures for greater coordination |
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3.117 | In its evidence Telstra also advocated the following measures for greater coordination of telecommunications regulation between Australia and New Zealand:
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3.118 | The Committee sees merit in the suggestion that a regular formal ministerial level dialogue be established between Australia and New Zealand on telecommunications regulation. Such a dialogue, particularly as regards regulatory change, would be a useful means of promoting harmonisation between the two countries in the area of telecommunications, and would constitute a valuable parallel support structure for the pursuit of legal harmonisation between Australia and New Zealand regarding telecommunications regulation (see Recommendation 9 above). The Committee also sees merit in the suggestion that telecommunications regulation coordination could be added to the work programme of the Memorandum of Understanding Between the Government of New Zealand and the Government of Australia on Coordination of Business Law, but considers that such an addition would more properly be pursued subsequent to the establishment of the ministerial dialogue. |
3.119 | Recommendation 10
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3.120 | Telstra also advocated greater institutional coordination between the ACCC and the NZCC along with greater sharing of expertise and formal consultation requirements.144 As noted at paragraph 3.93 above, the recommendations of the Productivity Commission in its 2004 report on the Australian and New Zealand competition and consumer regimes encompass a range of enhanced cooperation and collaboration measures between the ACCC and the NZCC. |
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Copyright regulation |
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3.121 | In its submissions the AGD provided the Committee with an overview of a number of aspects of the Australian and New Zealand copyright regulation frameworks. To begin with, the AGD informed the Committee of a number of areas of divergence between the Australian CommonwealthCopyright Act 1968 and the New ZealandCopyright Act 1994. These include:
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3.122 | The AGD also noted that a number of aspects of the Australian and New Zealand copyright regulation frameworks are under review, which may result in either further divergence between or harmonisation of the two systems:
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3.123 | In terms of adverse impacts resulting from differences between the Australian and New Zealand copyright regulation frameworks, the AGD indicated that there have been suggestions that the difference in the term of protection between the two countries ‘…may create greater transaction and system costs for copyright collecting societies who represent copyright owners and licence users in both countries’.155 The AGD also indicated that, in reference to the absence of declaration requirements in New Zealand, ‘Collecting societies have highlighted that this creates greater administrative hurdles in gaining remuneration for educational and government copying in New Zealand.’ The AGD stated that it ‘…does not have a view on whether harmonisation is required between Australia and New Zealand copyright law’.156 |
3.124 | Other evidence to the Committee focused on specific elements of regulatory inconsistency between the Australian and New Zealand copyright frameworks and associated impacts. |
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Regulatory inconsistency and impacts |
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3.125 | In its evidence to the inquiry, Screenrights, an Australian collecting society for copyright holders in audio and audio-visual works also operating in New Zealand, drew the attention of the Committee to a number of elements of the New ZealandCopyright Act 1994 which differ from the Australian Copyright Act 1968:
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3.126 | Screenrights submitted that these discrepancies:
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3.127 | Screenrights also cited uncertainty for the educational sector in New Zealand and economic disadvantage to both copyright owners and users as further adverse impacts resulting from the inconsistencies between the Australian and New Zealand copyright regimes:
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3.128 | Screenrights further indicated that the greater certainty in Australia also translates to a higher level of licence fees collected in Australia as opposed to the level of fees collected in New Zealand.161 Screenrights also informed the Committee that the lack of provision in the New Zealand legislation for the declaration of collecting societies led to costly litigation in New Zealand (including in the New Zealand High Court) regarding a challenge to a licensing scheme that Screenrights sought to establish. Screenrights stated that:
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3.129 | Another trans-Tasman collecting society, Viscopy Ltd, also raised regulatory inconsistency between the Australian and New Zealand copyright regimes. Viscopy indicated that, unlike the Australian Copyright Act 1968, the New Zealand Copyright Act 1994 explicitly provides that those who commission works such as photographs, computer programs, paintings, drawings, maps, charts, plans, engravings, models, sculptures, films or sound recordings are the first owners of copyright in those works.163 |
3.130 | In oral evidence Viscopy indicated that this inconsistency between Australia and New Zealand regarding the commissioning rule negatively impacts on copyright creators in New Zealand:
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3.131 | In its submission Viscopy elaborated on the disadvantages suffered by visual artists in New Zealand as a result of the presence of the commissioning rule in the New ZealandCopyright Act 1994:
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3.132 | Both Screenrights and Viscopy advocated harmonisation of New Zealand copyright law with Australian copyright law in relation to their areas of concern. Screenrights stated that: …it is critical to our submission that New Zealand needs to introduce a right of communication into their Copyright Act – as they say they intend to do – and this right should extend to the educational provisions of the Copyright Act. This will create greater clarity for new media and will put New Zealand educators in the same position as Australian educators. |
3.133 | Viscopy stated that:
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3.134 | While the Committee is sympathetic to the issues raised by Screenrights and Viscopy, it is unable to recommend that the sovereign parliament of another country amend its legislation. Screenrights indicated that the New Zealand Government has legislation in train which may address one of its areas of concern by instituting a right of communication of broadcast material for educational institutions:
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3.135 | Both Screenrights and Viscopy indicated that they have raised their concerns with the NZG.168 The Committee notes evidence from the AGD indicating that intellectual property may be included in the forthcoming Australia-ASEAN-New Zealand Free Trade Agreement (AANZFTA):
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3.136 | The Committee would encourage Screenrights and Viscopy to raise their concerns with the Australian and New Zealand Governments in the context of the AANZFTA negotiations. |
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Legal procedures |
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The Trans-Tasman Working Group on Court Proceedings and Regulatory Enforcement (TTWG) |
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3.137 | The AGD informed the Committee that the TTWG was established in 2003 to:
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3.138 | The terms of reference for the TTWG require the Group to:
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3.139 | The Committee was interested to learn that in August 2005 the TTWG released a discussion paper that:
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3.140 | The AGD stated that the TTWG ‘…expects to report, with recommendations, to both governments in 2006’ and that additional ‘…consultation with the States and Territories, and other stakeholders, will be undertaken prior to the Working Group’s recommendations being finalised’.173 |
3.141 | The Committee notes that, in the August 2005 discussion paper, the TTWG identified reforms to the civil justice systems of Australia and New Zealand which were implemented in the early 1990s:
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3.142 | The TTWG stated that further reform of the two countries’ legal frameworks:
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3.143 | The TTWG identified a number of areas for further reform as follows. |
Recognition and enforcement of judgments |
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3.144 | The TTWG stated in the discussion paper that:
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3.145 | In order to resolve this issue, the TTWG has proposed a new regime modelled on the Commonwealth Service and Execution of Process Act 1992 which would:
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3.146 | TTWG indicated that this new harmonised civil procedure regime would contain the following elements:
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Final non-money judgments |
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3.147 | The TTWG indicated that, currently, ‘… only final money judgments can be registered and enforced between Australia and New Zealand’, and that orders for final injunctions or specific performance are not enforceable across the Tasman, which renders ‘…the effective resolution of disputes more difficult, slower and more expensive’.179 The TTWG has suggested that, under the proposed new harmonised civil procedure regime outlined at paragraphs 3.145 – 3.146 above, ‘…judgments that require someone to do, or not do, something (such as injunctions and orders for specific performance) should also be enforceable’. The TTWG did state however that:
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Interim relief in support of foreign proceedings |
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3.148 | The discussion paper noted that:
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3.149 | The TTWG has proposed that ‘… appropriate Australian and New Zealand courts be given statutory authority to grant interim relief in support of proceedings in the other country’.182 |
Enforcing tribunal orders |
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3.150 | The TTWG indicated that tribunal decisions cannot currently be enforced across the Tasman, despite the fact that ‘… many tribunals decide disputes in essentially the same way as a court and are widely used’.183 The TTWG stated that this ‘…limits efficient and cost-effective dispute resolution’ and has accordingly proposed that certain tribunal decisions should be enforceable in the other country and that, under the proposed new harmonised civil procedure regime outlined at paragraphs 3.145 – 3.146 above, the proceedings of certain tribunals could be served across the Tasman.184 |
Forum non conveniens |
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3.151 | The TTWG discussion paper noted that the Australian and New Zealandforum non conveniens rules are ‘…potentially inconsistent’ in that Australian courts require a court to refuse jurisdiction ‘…only where it is clearly inappropriate for it to determine the dispute’, whereas New Zealand courts are required to refuse jurisdiction ‘…where another court is more appropriate’.185 The TTWG stated that this potential inconsistency could ‘… lead to inconvenience, expense and uncertainty’ and proposed a single statutory test for both Australia and New Zealand which would specify that proceedings ‘…in one country could be stayed if a court in the other country is appropriate to decide the dispute’.186 |
Enforcing civil pecuniary penalty orders |
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3.152 | The TTWG stated that:
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3.153 | In order to resolve this issue the TTWG has suggested that ‘…all civil pecuniary penalty orders from one country should be enforceable in the other’ under the proposed new harmonised civil procedure regime.188 |
Enforcing fines for certain regulatory offences |
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3.154 | The TTWG discussion paper noted that, currently, ‘…a criminal fine imposed in one country is not enforceable in the other’, and that this creates difficulties where such a fine is given ‘…under a regulatory regime that impacts on the integrity of markets and in which each country has a strong mutual interest.’189 The TTWG has proposed therefore that criminal fines imposed under the following regimes should be enforceable in the other country:
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3.155 | The TTWG indicated that a number of safeguards would be in place:
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The Committee’s view |
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3.156 | The Committee endorses the work of the TTWG. The reform measures identified above should, mutatis mutandis, streamline the interaction between the Australian and New Zealand legal systems and reduce the costs and inconvenience that can be associated with trans-Tasman proceedings. In its submission to the inquiry Treasury stated that these reforms will also have wider benefits for trans-Tasman trade and commerce:
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Statute of limitations |
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3.157 | The NZG stated that there are differences between Australian and New Zealand statutes of limitations, but that the NZG:
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3.158 | The NZG also indicated that there were historically concerns relating to the application of limitation rules in trans-Tasman proceedings, but that these were largely addressed in the early 1990s by the harmonisation of New Zealand law with that of relevant New South Wales legislation.194 |
3.159 | In its initial submission the AGD indicated that the TTWG was considering the possible harmonisation of Australian and New Zealand statute of limitations legislation.195 The AGD however also stated that:
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3.160 | The Committee notes that, in the subsequent TTWG discussion paper of August 2005, the issue of statute of limitations legislation was not raised. |
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Service of legal proceedings |
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3.161 | In terms of service of Australian proceedings in New Zealand, the AGD stated that, currently:
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3.162 | The AGD also stated that these jurisdictions ‘…specify the circumstances which create a sufficient jurisdictional nexus to allow service outside of Australia’,198 and that leave for service outside Australia can be granted for actions based on:
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3.163 | The AGD indicated that service in New Zealand of documents issued in an Australian court must be performed by an agent in New Zealand – a mechanism which does not breach New Zealand law and ‘…is not considered by the New Zealand Government to be a breach of its sovereignty’.200 |
3.164 | In terms of service of New Zealand proceedings in Australia, the AGD stated that ‘…Australia does not raise objection to the service of process within its territorial jurisdiction by a foreign plaintiff (or an agent acting on behalf of the plaintiff)’ and that such process ‘…can be served by mail, by a private process server or by other means chosen by a foreign litigant’.201 |
3.165 | The AGD informed the Committee that, currently, there is no convention ‘…in force between Australia and New Zealand relating to the service of documents in civil proceedings’.202 The Committee notes that, under the TTWG’s proposed new harmonised civil procedure regime outlined at paragraphs 3.145 – 3.146 above, initiating process in civil proceedings begun in any Australian Federal, State or Territory court, or in any New Zealand court, will be able to be served in the other country without leave. The Committee also notes that the TTWG has proposed further reforms to current arrangements for trans-Tasman service of subpoenas (discussed at paragraphs 3.173 – 3.174 below). |
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Evidence law |
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3.166 | In its submission the NZG noted that there are ‘…some differences, mainly on issues of detail, between the evidence laws of New Zealand and the evidence laws of the Australian jurisdictions’.203 The NZG also stated however that:
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3.167 | The AGD informed the Committee that Australia has legislative schemes in place to facilitate mutual evidentiary assistance with other countries, including New Zealand, in criminal matters (Commonwealth Mutual Assistance in Criminal Matters Act 1987) and business regulatory investigations (Commonwealth Mutual Assistance in Business Regulation Act 1992).205 In terms of civil matters, the AGD stated that both Australia and New Zealand are parties to the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters (1970), which:
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3.168 | Also in relation to civil matters, the Committee was informed that the Commonwealth Evidence and Procedure (New Zealand) Act 1994 and the New ZealandEvidence Amendment Act 1994 provide:
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3.169 | The AGD also noted the Commonwealth Foreign Evidence Act 1994, which allows for the taking of evidence overseas for Australian proceedings (for example the examination of witnesses overseas), and the Commonwealth Federal Court of Australia Act 1976, which enables the Federal Court to take evidence for the New Zealand High Court in particular trade practices proceedings and which allows the Federal Court and New Zealand High Court to sit in the other country if convenient.208 |
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TTWG reform |
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3.170 | The Committee notes that in its August 2005 discussion paper the TTWG identified areas for reform in relation to evidence law as follows. |
Court appearance by video link or telephone |
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3.171 | The Committee notes that, currently, video link and telephone technology are utilised in court proceedings between Australia and New Zealand under the Commonwealth Evidence and Procedure (New Zealand) Act 1994 and the New ZealandEvidence Amendment Act 1994.209 The TTWG has proposed that this technology also be available for remote appearances and stay of proceedings appearances:
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3.172 | The TWWG stated that the ‘…appropriate privileges, immunities and protections’ would need to be in place for those utilising the technology from remote locations.211 |
Leave requirement for trans-Tasman service of subpoenas |
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3.173 | In its discussion paper the TTWG noted the limited trans-Tasman civil evidence regime that is currently in place between Australia and New Zealand (see paragraph 3.168 above). The TTWG stated that, under this regime:
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3.174 | In order to address this situation the TTWG has proposed that ‘…lower court judges should be able to grant leave to serve a subpoena in proceedings before that lower court or a tribunal’.213 |
Extending trans-Tasman subpoenas to criminal proceedings |
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3.175 | The Committee was informed that, currently, subpoenas cannot be issued in criminal proceedings under the regime established by the Commonwealth Evidence and Procedure (New Zealand) Act 1994 and the New ZealandEvidence Amendment Act 1994.214 The TTWG indicated that, in the situation where a witness is unwilling, ‘… evidence can only be obtained under less convenient procedures, such as the Mutual Assistance in Criminal Matters legislation’.215 The TTWG has proposed extending the current trans-Tasman civil subpoenas regime to criminal proceedings. The TTWG stated that ‘Various safeguards (such as the leave requirement) would prevent misuse’.216 |
The Committee’s view |
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3.176 | Again, the Committee endorses the work of the TTWG. The reform measures suggested by the TTWG in relation to evidence law should streamline the interaction between the Australian and New Zealand legal systems and reduce costs and inconvenience to parties. |
1 | Mr Hans Sax inger, DFAT, Transcript of Evidence, 21 March 2006, p. 1. Back |
2 | DFAT, Submission No. 28, p. 1. Back |
3 | Mr Hans Saxinger, DFAT, Transcript of Evidence, 21 March 2006, p. 2. Back |
4 | NZG, Submission No. 23, p. 1. Back |
5 | Mr Hans Saxinger, DFAT, Transcript of Evidence, 21 March 2006, p. 2. Back |
6 | NZG, Submission No. 23, p. 7; see also pp. 7-8. Back |
7 | Terms of Reference for the Review of the Memorandum of Understanding between the Government of New Zealand and the Government of Australia on Coordination of Business Law, New Zealand Ministry of Economic Development website: http://www.med.govt.nz/templates/Page____13456.aspx (accessed 7 August 2006 ). Back |
8 | NZG, Submission No. 23.1, p. 5. Back |
9 | See for example joint press conference of the Australian Treasurer, the Hon Peter Costello MP, and the New Zealand Minister for Finance, the Hon Dr Michael Cullen , 17 February 2005 . This document can be accessed at: http://www.treasurer.gov.au/tsr/content/transcripts/2005/013.asp. See also HE Mrs Kate Lackey, NZG, Transcript of Evidence, 21 March 2006 , p. 41. Back |
10 | See Chapter 2 paragraph 2.68 above. Back |
11 | Mr Hans Saxinger, DFAT, Transcript of Evidence, 21 March 2006, p. 3. Back |
12 | Mr Hans Saxinger, DFAT, Transcript of Evidence, 21 March 2006, p. 3. Back |
13 | NZG, Submission No. 23, p. 6. The CER can be accessed at: http://www.austlii.edu.au//cgi-bin/disp.pl/au/other/dfat/treaties/1983/2.html?query=CER. Back |
14 | The Trade in Services Protocol to the CER: see DFAT, Submission No. 28, p. 5 (Attachment A). Back |
15 | DFAT, Submission No. 28, p. 5 (Attachment A). Back |
16 | NZG, Submission No. 23, p. 6. Back |
17 | DFAT, Submission No. 28, p. 2. Back |
18 | DFAT, Submission No. 28, p. 2. Back |
19 | Mr Hans Saxinger , DFAT, Transcript of Evidence, 21 March 2006 , p. 2. Back |
20 | Dr Tony Warren, Telstra, Transcript of Evidence, 6 April 2006, p. 2. Back |
21 | See Chapter 2 footnote 80 above. Back |
22 | Ms Ruth Smith, Treasury, Transcript of Evidence, 21 March 2006, p. 16. Back |
23 | Treasury, Submission No. 21.1, p. 6. Back |
24 | Treasury, Submission No. 21, p. 6. Back |
25 | Memorandum of Understanding Between the Government of New Zealand and the Government of Australia on Coordination of Business Law (2006), para. 4. This document can be accessed at: http://www.treasury.gov.au/contentitem.asp?NavId=&ContentID=1073. Back |
26 | Memorandum of Understanding Between the Government of New Zealand and the Government of Australia on Coordination of Business Law (2006), para. 3. Back |
27 | HE Mrs Kate Lackey, NZG, Transcript of Evidence, 21 March 2006, p. 40. Back |
28 | Professor Gordon Walker, Transcript of Evidence, 7 March 2006, p. 2. Back |
29 | Memorandum of Understanding Between the Government of New Zealand and the Government of Australia on Coordination of Business Law (2006), para. 8. Back |
30 | Treasury, Submission No. 21.1, pp. 7-12. Back |
31 | Memorandum of Understanding Between the Government of New Zealand and the Government of Australia on Coordination of Business Law (2006), para. 13. Back |
32 | Treasury, Submission No. 21.1, p. 12. See also AGD, Submission No. 26.3, pp. 9-10. Back |
33 | NZG, Submission No. 23, p. 22. Back |
34 | NZG, Submission No. 23, p. 22. Back |
35 | AGD, Submission No. 26.3, p. 10. Back |
36 | Productivity Commission, Evaluation of Mutual Recognition Schemes, p. xiv. This report can be accessed at: http://www.pc.gov.au/study/mra/finalreport/. Back |
37 | NZG, Submission No. 23.1, p. 3; see also NZG, Submission No. 23, p. 9. Back |
38 | DFAT, Submission No. 28, p. 5 (Attachment A). Back |
39 | NZG, Submission No. 23.1, p. 5. Back |
40 | Treasury, Submission No. 21.1, p. 8. Back |
41 | Treasury, Submission No. 21.1, p. 8. Back |
42 | Joint media statement of the Australian Treasurer, the Hon Peter Costello MP, and the New Zealand Minister for Finance, the Hon Dr Michael Cullen , 17 February 2005 . This document can be accessed at: http://www.treasurer.gov.au/tsr/content/pressreleases/2005/007.asp. Back |
43 | Treasury, Submission No. 21.1, p. 11. Back |
44 | NZG, Submission No. 23, p. 8. Back |
45 | Joint media statement of the Australian Treasurer, the Hon Peter Costello MP, and the New Zealand Minister for Finance, the Hon Dr Michael Cullen , 17 February 2005 . See also Treasury, Submission No. 21.1, p. 11. Back |
46 | Joint media statement of the Australian Treasurer, the Hon Peter Costello MP, the New Zealand Minister for Finance, the Hon Dr Michael Cullen , and the New Zealand Minister of Commerce, the Hon Lianne Dalziel , 22 February 2006 . This document can be accessed at: http://www.treasurer.gov.au/tsr/content/pressreleases/2006/006.asp. Back |
47 | Ms Jane Nash, ANZ Bank, Transcript of Evidence, 7 March 2006, p. 24. Back |
48 | Ms Jane Nash, ANZ Bank, Transcript of Evidence, 7 March 2006, p. 22. Back |
49 | Mr Sean Hughes, ANZ Bank, Transcript of Evidence, 7 March 2006, p. 25. Back |
50 | NZG, Submission No. 23, p. 7. Back |
51 | NZG, Submission No. 23, p. 7. Back |
52 | NZG, Submission No. 23, p. 19. Back |
53 | NZG, Submission No. 23, p. 19. Back |
54 | NZG, Submission No. 23, p. 19. Back |
55 | NZG, Submission No. 23, pp.18-19. Back |
56 | See Chapter 2 paragraph 2.64 above. Back |
57 | Further details can be accessed at the ANZTPA website: http://www.anztpa.org/index.htm (accessed 8 August 2006 ). Back |
58 | HE Mrs Kate Lackey , NZG, Transcript of Evidence, 21 March 2006 , p. 44. Back |
59 | DFAT, Submission No. 28, p. 6 (Attachment A). Back |
60 | DFAT, Submission No. 28, p. 6 (Attachment A). Back |
61 | ANZ Bank, Submission No. 27, p. 6. Back |
62 | ANZ Bank, Submission No. 27, p. 6. Back |
63 | Treasury, Submission No. 21.1, pp. 9-10. Back |
64 | Treasury, Submission No. 21.1, p. 10. Back |
65 | Treasury, Submission No. 21.1, p. 9. Back |
66 | Joint media statement of the Australian Treasurer, the Hon Peter Costello MP, the New Zealand Minister for Finance, the Hon Dr Michael Cullen, and the New Zealand Minister of Commerce, the Hon Lianne Dalziel, 22 February 2006 . Back |
67 | Ms Ruth Smith, Treasury, Transcript of Evidence, 21 March 2006, p. 17. Back |
68 | NZG, Submission No. 23, p. 18. Back |
69 | Professor Gordon Walker, Transcript of Evidence, 7 March 2006, pp. 3-5. Back |
70 | Professor Gordon Walker, Transcript of Evidence, 7 March 2006, p. 3. Back |
71 | Professor Gordon Walker, Transcript of Evidence, 7 March 2006, p. 4. Back |
72 | Ms Ruth Smith, Treasury, Transcript of Evidence, 21 March 2006, p. 17. Back |
73 | Ms Ruth Smith, Treasury, Transcript of Evidence, 21 March 2006, p. 17. Back |
74 | DFAT, Submission No. 28, pp. 5-6 (Attachment A). Back |
75 | NZG, Submission No. 23, p. 13. Back |
76 | Mr Hans Saxinger, DFAT, Transcript of Evidence, 21 March 2006, pp. 2, 4. Back |
77 | Dr Terry Spencer, SIAA, Transcript of Evidence, 21 March 2006, p. 22. Back |
78 | NZG, Submission No. 23.1, p. 8. Back |
79 | NZG, Submission No. 23.1, p. 8. Back |
80 | Submission by the Australian Government Department of Agriculture, Fisheries and Forestry to the inquiry into Australia and New Zealand Closer Economic Relations (CER) by the Joint Standing Committee on Foreign Affairs, Defence and Trade Trade Sub-Committee, p. 30. This document can be accessed at: http://www.aph.gov.au/house/committee/jfadt/nz_cer/subs.htm. Back |
81 | NZG, Submission No. 23.1, p. 8. Back |
82 | Mr Hans Saxinger , DFAT, Transcript of Evidence, 21 March 2006 , p. 6; Ms Paula Wilson , NZG, Transcript of Evidence, 21 March 2006 , p. 47. Back |
83 | NZG, Submission No. 23.1, p. 9. Back |
84 | Ms Paula Wilson, NZG, Transcript of Evidence, 21 March 2006, p. 47. Back |
85 | See DFAT, Submission No. 28, pp. 5-6 (Attachment A). Back |
86 | Treasury, Submission No. 21.2, p. 8. Back |
87 | DFAT, Submission No. 28.1, p. 2. Back |
88 | DFAT, Submission No. 28.1, p. 2. Back |
89 | House of Commons Info rmation Office Factsheet L11: European Communities Legislation, p. 3. This document can be accessed at: http://www.parliament.uk/parliamentary_publications_and_archives/factsheets.cfm. Back |
90 | NZG, Submission No. 23.1, p. 6. The NZG noted however that Parliamentary sovereignty also means that ‘…one Parliament cannot fetter the legislative competence of a subsequent Parliament… a subsequent Parliament could reassert its sovereignty at any time’: Submission No. 23.1, p. 6. Back |
91 | NZG, Submission No. 23.1, p. 7. Back |
92 | NZG, Submission No. 23, p. 15. Back |
93 | NZG, Submission No. 23, p. 15. Back |
94 | NZG, Submission No. 23, p. 15. Back |
95 | NZG, Submission No. 23, p. 20. Back |
96 | NZG, Submission No. 23, p. 21. Back |
97 | NZG, Submission No. 23, p. 20. Back |
98 | Productivity Commission, Australian and New Zealand Competition and Consumer Regimes, p. xiv. This report can be accessed at: http://www.pc.gov.au/study/transtasman/finalreport/index.html. Back |
99 | Productivity Commission, Australian and New Zealand Competition and Consumer Regimes, p. xiv. Back |
100 | Productivity Commission, Australian and New Zealand Competition and Consumer Regimes, p. xxv (finding 4.1). Back |
101 | Productivity Commission, Australian and New Zealand Competition and Consumer Regimes, p. xxv (finding 4.2). Back |
102 | Productivity Commission, Australian and New Zealand Competition and Consumer Regimes, p. xiv. Back |
103 | Productivity Commission, Australian and New Zealand Competition and Consumer Regimes, p. xiv. Back |
104 | Productivity Commission, Australian and New Zealand Competition and Consumer Regimes, p. xiv. Back |
105 | See Productivity Commission, Australian and New Zealand Competition and Consumer Regimes, p. xiv. Back |
106 | Treasury, Submission No. 21.1, p. 11. Back |
107 | ANZ Bank, Submission No. 27, p. 7. Back |
108 | Telstra, Submission No. 7, pp. 7-8. See also Dr Tony Warren , Telstra, Transcript of Evidence, 6 April 2006 , p. 5. Back |
109 | Telstra, Submission No. 7, pp. 6-7. Back |
110 | Telstra, Submission No. 7, pp. 7. Back |
111 | Review of the Trade Practices Act, Review of the Competition Provisions of the Trade Practices Act, p. 131 (Recommendation 8.1). This report can be accessed at: http://tpareview.treasury.gov.au/content/report.asp. Back |
112 | Australian Government Response to the Review of the Competition Provisions of the Trade Practices Act 1974. This document can be accessed at: http://www.treasurer.gov.au/tsr/content/publications.asp. Back |
113 | Telstra, Submission No. 7, pp. 7. Back |
114 | Telstra, Submission No. 7, pp. 7. Back |
115 | Explanatory Memorandum to the Trade Practices Legislation Amendment Bill (No. 1) 2005 , p. 72. This document can be accessed at: http://parlinfoweb.parl.net/parlinfo/view_document.aspx?ID=1958&TABLE=EMS. Back |
116 | Mr Ray Steinwall, Submission No. 22, pp. 3-4. Back |
117 | Mr Ray Steinwall, Submission No. 22, p. 5. Back |
118 | Mr Ray Steinwall, Submission No. 22, p. 5. Back |
119 | Mr Ray Steinwall , Submission No. 22, p. 6. Back |
120 | See Chapter 4 paragraphs 4.81 – 4.86 below. Back |
121 | Mr Ray Steinwall, Submission No. 22, p. 8. Back |
122 | Dr Tony Warren, Telstra, Transcript of Evidence, 6 April 2006, p. 2. Back |
123 | Telstra, Submission No. 7.1, p. 7. The Committee notes that Telstra currently operates a wholly-owned subsidiary telecommunications company in New Zealand, TelstraClear Ltd. Telstra informed the Committee that TelstraClear ‘…is New Zealand’s second largest full service telecommunications company and provides a suite of telecommunications and information services including: voice, data, Internet, mobile, managed services and cable television to approximately 12% of the New Zealand market. TelstraClear also provides a seamless service to Telstra’s trans-Tasman customers’: Submission No. 7, p. 5. Back |
124 | Telstra, Submission No. 7.1, pp. 11-12. See also Transcript of Evidence, 6 April 2006, pp. 3-4. Back |
125 | Telstra, Submission No. 7.1, pp. 6, 7. Back |
126 | Dr Tony Warren, Telstra, Transcript of Evidence, 6 April 2006, p. 4. Back |
127 | Mrs Rosemary Howard, Telstra, Transcript of Evidence, 6 April 2006, pp. 7-8. Back |
128 | Telstra, Submission No. 7.1, p. 6. Back |
129 | Dr Tony Warren, Telstra, Transcript of Evidence, 6 April 2006, p. 10. Back |
130 | Mr Danny Kotlowitz, Telstra, Transcript of Evidence, 6 April 2006, p. 9. Back |
131 | Mrs Rosemary Howard, Telstra, Transcript of Evidence, 6 April 2006, p. 9. Back |
132 | A Review of the Australia-New Zealand Closer Economic Relations (CER) Trade Agreement: Submission by Telstra Corporation Limited and TelstraClear Limited to the Joint Standing Committee on Foreign Affairs, Defence and Trade, p. 10. This document can be accessed at: http://www.aph.gov.au/house/committee/jfadt/nz_cer/subs.htm. Back |
133 | A Review of the Australia-New Zealand Closer Economic Relations (CER) Trade Agreement: Submission by Telstra Corporation Limited and TelstraClear Limited to the Joint Standing Committee on Foreign Affairs, Defence and Trade, p. 2. Back |
134 | Dr Tony Warren, Telstra, Transcript of Evidence, 6 April 2006, p. 8. Back |
135 | Dr Tony Warren , Telstra, Transcript of Evidence, 6 April 2006 , p. 2; Telstra, Submission No. 7.1, p. 4. Back |
136 | Dr Tony Warren, Telstra, Transcript of Evidence, 6 April 2006, p. 2. Back |
137 | Dr Tony Warren, Telstra, Transcript of Evidence, 6 April 2006, p. 3. Back |
138 | Telstra, Submission No. 7.1, p. 5. Back |
139 | Singapore-Australia Free Trade Agreement, Chapter 10. This document can be accessed at: http://www.dfat.gov.au/trade/negotiations/safta/. Back |
140 | Dr Tony Warren, Telstra, Transcript of Evidence, 6 April 2006, p. 6. Back |
141 | Dr Tony Warren, Telstra, Transcript of Evidence, 6 April 2006, p. 5. Back |
142 | Dr Tony Warren , Telstra, Transcript of Evidence, 6 April 2006 , p. 6. See also Telstra, Submission No. 7.1, pp. 9-10. Back |
143 | Productivity Commission, Australian and New Zealand Competition and Consumer Regimes, p. xxvii (Recommendation 6.1). Back |
144 | Telstra, Submission No. 7, pp. 7-8 and Submission No. 7.1, p 8. See also Dr Tony Warren , Telstra, Transcript of Evidence, 6 April 2006 , p. 5. Back |
145 | AGD, Submission No. 26, p. 25. Back |
146 | AGD, Submission No. 26, p. 26; Submission No. 26.1, pp. 5, 6. Back |
147 | AGD, Submission No. 26.1, pp. 6-7. Back |
148 | AGD, Submission No. 26.1, p. 5. Back |
149 | AGD, Submission No. 26, p. 26. Back |
150 | AGD, Submission No. 26.1, p. 4. Back |
151 | Media release of the Attorney-General, the Hon Philip Ruddock MP, 14 May 2006 . |
152 | AGD, Submission No. 26.1, pp. 4-5. Back |
153 | AGD, Submission No. 26.1, p. 5. Back |
154 | AGD, Submission No. 26.1, p. 6. Back |
155 | AGD, Submission No. 26, p. 25. Back |
156 | AGD, Submission No. 26, p. 26; Submission No. 26.1, p. 7. Back |
157 | Screenrights, Submission No. 17, paras. 12-23; Mr Simon Lake , Screenrights, Transcript of Evidence, 6 April 2006 , pp. 12-13. Back |
158 | Screenrights, Submission No. 17, para. 12. Back |
159 | Mr Simon Lake, Screenrights, Transcript of Evidence, 6 April 2006, pp. 12-13. Back |
160 | Mr Simon Lake, Screenrights, Transcript of Evidence, 6 April 2006, p. 13. Back |
161 | Mr Simon Lake, Screenrights, Transcript of Evidence, 6 April 2006, p. 15. Back |
162 | Screenrights, Submission No. 17, para. 12. Back |
163 | Viscopy, Submission No. 1, p. 4 ; Ms Chryssy Tintner , Viscopy, Transcript of Evidence, 6 April 2006 , pp. 56-57. Viscopy indicated that the relevant provision is s. 21(4) of the New Zealand Copyright Act 1994. Back |
164 | Ms Chryssy Tintner , Viscopy, Transcript of Evidence, 6 April 2006 , p. 56. Back |
165 | Viscopy, Submission No. 1, p. 4 Back |
166 | Viscopy, Submission No. 1, p. 7. See also Ms Chryssy Tintner , Viscopy, Transcript of Evidence, 6 April 2006 , p. 58. Back |
167 | Mr Simon Lake, Screenrights, Transcript of Evidence, 6 April 2006, p. 13. Back |
168 | Mr Simon Lake, Screenrights, Transcript of Evidence, 6 April 2006, p. 13; Ms Chryssy Tintner, Viscopy, Transcript of Evidence, 6 April 2006, pp. 57, 58. Back |
169 | AGD, Submission No. 26.2, p. 1. Back |
170 | AGD, Submission No. 26, p. 9. See also NZG, Submission No. 23, p. 17. Back |
171 | AGD, Submission No. 26, p. 10. Back |
172 | AGD, Submission No. 26.1, p. 1. Back |
173 | AGD, Submission No. 26.1, p. 2. Back |
174 | AGD and New Zealand Ministry of Justice, Trans-Tasman Court Proceedings and Regulatory Enforcement, p. 2. This document can be accessed at: http://www.ag.gov.au/agd/WWW/agdHome.nsf/Page/Publications_2005_Trans-Tasman_Court_Proceedings_and_Regulatory_Enforcement_-_August_2005. Back |
175 | AGD and New Zealand Ministry of Justice, Trans-Tasman Court Proceedings and Regulatory Enforcement, p. 2. Back |
176 | AGD and New Zealand Ministry of Justice, Trans-Tasman Court Proceedings and Regulatory Enforcement, p. 4. See also AGD, Submission No. 26.3, p. 6. Back |
177 | Trans-Tasman Court Proceedings and Regulatory Enforcement , p. 4. Back |
178 | Australian Attorney-General’s Department and New Zealand Ministry of Justice, Trans-Tasman Court Proceedings and Regulatory Enforcement, pp. 4-5. Back |
179 | Australian Attorney-General’s Department and New Zealand Ministry of Justice, Trans-Tasman Court Proceedings and Regulatory Enforcement, p. 5. Back |
180 | AGD and New Zealand Ministry of Justice, Trans-Tasman Court Proceedings and Regulatory Enforcement, p. 5. Back |
181 | AGD and New Zealand Ministry of Justice, Trans-Tasman Court Proceedings and Regulatory Enforcement, p. 5. Back |
182 | AGD and New Zealand Ministry of Justice, Trans-Tasman Court Proceedings and Regulatory Enforcement, p. 5. Back |
183 | AGD and New Zealand Ministry of Justice, Trans-Tasman Court Proceedings and Regulatory Enforcement, p. 5. Back |
184 | AGD and New Zealand Ministry of Justice, Trans-Tasman Court Proceedings and Regulatory Enforcement, p. 5. Back |
185 | AGD and New Zealand Ministry of Justice, Trans-Tasman Court Proceedings and Regulatory Enforcement, p. 6. Back |
186 | AGD and New Zealand Ministry of Justice, Trans-Tasman Court Proceedings and Regulatory Enforcement, p. 6. Back |
187 | AGD and New Zealand Ministry of Justice, Trans-Tasman Court Proceedings and Regulatory Enforcement, p. 7. Back |
188 | AGD and New Zealand Ministry of Justice, Trans-Tasman Court Proceedings and Regulatory Enforcement, p. 7. Back |
189 | AGD and New Zealand Ministry of Justice, Trans-Tasman Court Proceedings and Regulatory Enforcement, p. 7. Back |
190 | AGD and New Zealand Ministry of Justice, Trans-Tasman Court Proceedings and Regulatory Enforcement, p. 7. Back |
191 | AGD and New Zealand Ministry of Justice, Trans-Tasman Court Proceedings and Regulatory Enforcement, pp. 7-8. Back |
192 | Treasury, Submission No. 21.1, p. 13. Back |
193 | NZG, Submission No. 23, pp. 19-20. Back |
194 | NZG, Submission No. 23, p. 20. Back |
195 | AGD, Submission No. 26, p. 15. Back |
196 | AGD, Submission No. 26, p. 15. Back |
197 | AGD, Submission No. 26, p. 11. Back |
198 | AGD, Submission No. 26, p. 11. Back |
199 | AGD, Submission No. 26, p. 11. Back |
200 | AGD, Submission No. 26, p. 12. Back |
201 | AGD, Submission No. 26, p. 12. Back |
202 | AGD, Submission No. 26, p. 11. Back |
203 | NZG, Submission No, 23, p. 21. Back |
204 | NZG, Submission No, 23, p. 21. Back |
205 | AGD, Submission No. 26, p. 17. Back |
206 | AGD, Submission No. 26, p. 17. Back |
207 | AGD, Submission No. 26, pp. 17-18. Back |
208 | AGD, Submission No. 26, p. 18. Back |
209 | See AGD and New Zealand Ministry of Justice, Trans-Tasman Court Proceedings and Regulatory Enforcement, p. 6 (see also p. 2). See also AGD, Submission No. 26, p. 18. Back |
210 | AGD and New Zealand Ministry of Justice, Trans-Tasman Court Proceedings and Regulatory Enforcement, p. 6. Back |
211 | AGD and New Zealand Ministry of Justice, Trans-Tasman Court Proceedings and Regulatory Enforcement, p. 6. Back |
212 | AGD and New Zealand Ministry of Justice, Trans-Tasman Court Proceedings and Regulatory Enforcement, p. 6. Back |
213 | AGD and New Zealand Ministry of Justice, Trans-Tasman Court Proceedings and Regulatory Enforcement, p. 6. Back |
214 | AGD and New Zealand Ministry of Justice, Trans-Tasman Court Proceedings and Regulatory Enforcement, p. 8; AGD, Submission No. 26, p. 18. Back |
215 | AGD and New Zealand Ministry of Justice, Trans-Tasman Court Proceedings and Regulatory Enforcement, p. 8. Back |
216 | AGD and New Zealand Ministry of Justice, Trans-Tasman Court Proceedings and Regulatory Enforcement, p. 8. Back |
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