az SHAUN McELWAINE + ASSOCIATES 18 November 2014 ‘The Registrar RMPAT GPO Box 2036 HOBART TAS 7001 Attn: Jarrod Bryan Dear Registrar ‘TRIBUNAL CIRCULAR: 13 NOVEMBER 2014 | have considered this. | have also considered an email from Mr Armstrong to you of 13 November 2014. | agree with Mr Armstrong. However, there is a more fundamental issue. In order to implement the requirements set out in your circular it is necessary for me to purchase a commercial version of Adobe software from a third party supplier. The investigation which my office staff has undertaken to date indicates that this software is not compatible, or is not readily compatible, with my office Apple computer system, which runs Mac OSX version 10.7.5. am not prepared to purchase software from a third party supplier in order to ‘accommodate this requirement of the Tribunal. | draw to your attention the Competition Policy Reform (Tasmania) Act 1996. This Act applies, as a law of Tasmania, the Competition Code text which is set out in the schedule version of Part IV of the Competition & Consumer Act 2010. Expressed as simply as one is able to, with complex legislation, the effect of this State and Federal legislative interplay is that each of the restrictive trade practices provisions of the Competition & Consumer Act 2010, commencing with section 44ZZRA and concluding at section 51AAA, apply to the conduct of all persons who either carry fon business, are incorporated within, are ordinarily resident in or are otherwise connected with Tasmania. Pursuant to section 13 these provisions bind the Crown In the right of Tasmania to the extent that it carries on business either directly or by ‘an authority within Tasmai BARRISTERS + SOLICITORS. S2ELIZABETHST PoBox12168 LAUNCESTON TAS 7250, 1. 036334.588% 0363345372 E offce@shaunmcelwaine com au W.shaunmeelwaine com auSHAUN McELWAINE + ASSOCIATES The Tribunal is not an independent legal entity. Each member of the Tribunal is an officer of the Executive of the State of Tasmania. Self-evidently the Executive is part of the Crown: Saap ~v- Minister for Immigration & Multicultural Affairs (2005) 228 CLR 294 at [43] and (91). ‘Accordingly the Competition Code of Tasmania (as it is known) incorporates section 47 of the Competition & Consumer Act 2010. This prohibits the practice of exclusive dealing in trade or commerce. Exclusive dealing is defined as including the practice of supplying or offering to supply services on the condition that the person to whom the supply is made or is proposed to be made will acquire services of @ particular kind or description directly or indirectly from another person: Section 47(6). Pursuant to section 47(13(a)) a reference to a condition ‘shall be read as a reference to any condition, whether direct or indirect and whether having legal or equitable force or not, and includes a reference to a condition the existence or nature of which \s ascertainable only by inference from the conduct of persons or from other relevant circumstances.’ | do not say that the Tribunal engages in conduct in trade or commerce within the meaning of these provisions. Accordingly | do not say that a requirement of the Tribunal for the provision of its services to me, or indeed anyone else, which requires that third party software be purchased from another person is unlawful The concern which I have is focused at 2 much higher level of abstraction. | do not consider that it is appropriate for the Tribunal, as a component of the Executive Government of the State of Tasmania, to impose a requirement upon each user of its services which in turn requires the acquisition of software from a third party supplier, for a fee, in order to continue to have access to the services which the Tribunal is obliged to supply in discharge of its statutory obligations. One infers from your circular, when read with the content of each other practice direction of the Tribunal, that the Tribunal will not receive for filing, or will reject for filing, any document which does not comply with this recently formulated additional Fequirement for bookmarking by engagement of a particular branded software. Obviously were that to occur, persons who either do not or cannot use this software will be treated differently from other persons in the conduct of hearings before the Tribunal. Ultimately evidence which might be intended to be rely upon by a party, will not be received or will at least attract adverse comment from the Tribunal as constituted from time to time. Were this to be the case then in any objective analysis that ls @ disadvantage and is likely to breach the Tribunals overriding obligation to afford procedural fairness to all persons who are parties to a hearing. ‘The engagement of the jurisdiction of the Tribunal is not a matter of competitive choice by persons who either engage the jurisdiction of the Tribunal or are subjected to it. It is surprising in these circumstances that the Tribunal would seek to impose a requirement by a practice direction which, if it were sought to be imposed by a person in trade or commerce (including the Crown) would be unlawful.SHAUN McELWAINE + ASSOCIATES | apprehend that the reason for this circular Is to enable the Tribunal to more efficiently and effectively search the content of any document which is lodged with It in PDF format. If | have correctly understood the issue, then | draw to your attention that any PDF document is entirely content searchable by the use of any PDF document reader which is freely available by download from the internet. For example the Apple Preview program contains many tools which includes @ word search facility. Likewise, if one uses an iPad, there are similar programs: for example iAnnotate. Doubtless similar products are available for persons who do not use Apple computers; a matter about which | am entirely ignorant as my office Is exclusively focused on Apple technology. In the circumstances | request that you carefully reconsider the content of the circular published on 13 November 2014. rs faithfully 3.