The Trade Practices Act (Cth) 1974 and its impact on maritime law in Australia

Kate Lewins

The trade of shipping is necessarily international in nature. Courts and international bodies often express the need to ensure international consistency in matters of maritime law. However, it has been an extremely difficult goal to achieve. Many countries have refused to be party to international conventions that seek to ensure comity. Some have enacted laws that reflect part but not all of those conventions, or seek to improve the protection offered by the conventions. The domestic law of each country also adds its own flavour to shipping law as recognised and applied by the courts in that jurisdiction. In 1974 Australia enacted the Trade Practices Act 1974 (Cth) (TPA), heralding a new era in corporate and commercial law. However, its impact on maritime law on Australia has only been felt over the last 10 - 15 years. It is potentially relevant to many areas of maritime law, including carriage of goods by sea, cruise ships, and towage. This thesis explores the encroachment of the TPA on a number of different areas of shipping law, using the few case examples on offer and extrapolating the impact that the TPA may have. It also considers the extent to which the TPA is stymied by simple contractual agreements to litigate or arbitrate in a non Australian forum, despite the TPA's status as a mandatory statute within Australia. Raised at various points in the thesis is the possibility of law reform, which is a complex compendium of issues overlaid with a moral dimension - does shipping, as an industry, deserve to be exempted from the operation of the Act which sets a high standard of corporate behaviour? If so, how could that reform be shaped? In the meantime, what steps can the shipping industry take to work within the legal framework of the TPA?

The Trade Practices Act (Cth) 1974 and its impact on maritime law in Australia

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