by Dr R J Desiatnik
Vale the “Trade Practices Act”
What is in a name? As Shakespeare might have put it, had he been so minded, an Act by any name would be as effective. Yet, one can, without any doubt, become as accustomed to the title by which an oft-referred to and utilised enactment is known, as one can become accustomed to a face. A generation of lawyers, most of whom are still in practice, have looked up, learnt about, researched, advised on, abided by, and brought and defended proceedings upon, various provisions of the Trade Practices Act 1974 (Cth). In the process, the legislation’s name became so well known, so familiar, that it was affectionately known as “the TPA”. Books and articles were written with its name in their titles, and “trade practices” became a discrete subject of study, a fixture in the indexes of numerous law reports, and even part of the title of an esteemed law journal.
Now this name is no longer with us. It has been replaced, for better or for worse, by an unwieldy composite title, the abbreviation of which (“CACA”) is certainly unflattering. In the course of time its pronunciation will no doubt be undertaken with alacrity, but at the moment it is awkward. The full new title is, quite frankly, a mouthful. Moreover, it lacks the ring of the “Trade Practices Act”, being quite insipid in comparison.
So, though lawyers, in general, do not lean towards sentimentality, there is a distinct sense of loss over the demise of the title “Trade Practices Act” for an Act which is the basis of the trade practices field of law. For many, as well, this unhappy state has been made worse by the manner of this passing. For it came, not by being highlighted in amending legislation, for example by being, deservedly, that legislation’s stirring initial provision, but by way of a weak side wind, namely s 2 of Sch 5 to the Trade Practices Amendment (Australian Consumer Law) Act (No 2) 2010 (Cth).
A sad way to go. The “Trade Practices Act” deserved better.
There is, however, more grief to bear. The same amending legislation has struck down not merely a well-loved name of an Act, but ended the manner by which some of its most significant provisions were known. No longer will breach of s 52 of the legislation be pointed out, pleaded, argued in court, and judicially declared. No more will persons involved in contraventions be identified as having engaged in conduct specified in s 75B of the statute. No claim will ever again be made or threatened, nor the remedy awarded for damages be under s 82 of the enactment! Instead, lawyers and judges alike will be saddled with having to refer to, respectively, ss 18, 2 and 236 when referring to these often used concepts. The profession and the judiciary will of course in time become used to the changed statutory section numbers, but for now the relish with which these provisions were once referred to has dissipated.
The name “Trade Practices Act” has been with us for nigh on 37 years, and now goes to a nether world wherein other legislative names languish which have served Australia well, but are now rarely recalled, such as the “Broadcasting Act”, the “Postal Services Act”, the “Child Care Payments Act”, the “Designs Act”, and the “Matrimonial Causes Act”. It will, of course, still appear in law reports for some years to come in respect of cases in which judgments were handed down prior to 1 January 2011, and in later judgments in which, cruelly, the words “the former” or “previously known as” precede the reference to it. Sic transit gloria mundi.
It was not a dainty name, but it was plain, clear, meaningful and straight forward. It was all that the contents of the legislation, of which it was the banner, aspired to be. We should mourn its passing, and honour its memory. It assuredly merits that.
You can have one without the other
It is beyond question that English is not just a living language but one which is full of life. Every year new words appear and are adopted into common usage. No new technology or other form of innovation lacks a description in English. However, of late, a worrying trend has appeared, particularly in the speeches of politicians and hence in the reports of those speeches in the media – the use of what could be termed the “love and marriage” expression. This describes the usage of one word, which is always, always accompanied by another, as if the first word, without its companion, would be meaningless.
Examples of this highly irritating habit abound. Thus we have heard more than enough of a conviction which is invariably “deep seated”, a plan which is always “positive”, an examination that is never less than “rigorous”, issues that are constantly “big” and, if controversial, must be “highly” so, and the majority of voters that is consistently “overwhelming”.
Fortunately, this unfortunate habit has not reached the judgments delivered in court. Never will we hear that a submission was not merely “flawed”, a perfectly adequate description, but was “fundamentally flawed”…
A new look – a new name
“The old order changeth, yielding place to new.” That observation, which Alfred, Lord Tennyson made in his 1869 masterpiece “Idylls of the King:The Passing of Arthur”, applies to law journals as much as it does to legislation. Accordingly, the Journal, in keeping with the change in the title of its namesake, the Trade Practices Act 1974 (Cth), has begun the new decade by changing its name to the Australian Journal of Competition and Consumer Law. Moreover, the front cover has had a makeover. What has not changed, though, is the Journal’s focus on being a forum for writings in the ever-expanding field of competition and consumer law; writings that not only probe and provoke, but which “analyse legal developments and develop legal analysis” [(1993) 1 TPLJ 11], and have a practical bent to boot. In so being, the journal has long been one of the cornerstones of jurisprudence in this field. Under its new name and new front cover, it will continue to be.
The citation for this editorial is (2011) 19 AJCCL 3.