The Limitations on Australian Companies

However, in the modern world everybody should be aware that companies do have limitations on the claims they can make and the manner of selling they undertake to snag new customers. In the modern world it’s not enough to be greedy in business… even if you’re successful. You are going to be held to account for your marketing integrity.

The limitations for an Australian company are spelled out in the Competition and Consumer Act 2010. Prior to 1 January, 2011 this piece of legislation was more widely known as the Trade Practices Act 1974.

Any Australian company should understand what constitutes misleading and deceptive conduct under this legislation. And they should realise that:

No matter how a business communicates with you—whether it is through packaging, advertising, logos, endorsements or sales pitch—you have the right to receive accurate and truthful messages about the goods and services that you buy.ACCC

Legislation that Protects Consumers

When defining what constitutes misleading and deceptive conduct in business the ACCC provides these statements:

There is a very broad provision in the Australian Consumer Law that prohibits conduct by a corporation that is misleading or deceptive, or would be likely to mislead or deceive you.

It makes no difference whether the business intended to mislead or deceive you—it is how the conduct of the business affected your thoughts and beliefs that matters.

If the overall impression left by an advertisement, promotion, quotation, statement or other representation made by a business creates a misleading impression in your mind—such as to the price, value or the quality of any goods and services—then the conduct is likely to breach the law.ACCC

That means if you are selling goods or services as an Australian company you had better provide a realistic idea of what they can expect from the product. Wild sales pitches that cannot be guaranteed should not be guaranteed, for example. And I don’t see that as a hard call to make – you don’t mislead people about the benefits of something just to get access to their bank account.

Australian Consumer Law

It is well worth your while – business people and consumers alike – to check out the new ACL (Australian Consumer Law) website. A general description of the new Australian Consumer Law includes:

• a new, national unfair contract terms law covering standard form contracts;
• a new, national law guaranteeing consumer rights when buying goods and services, which replaces existing laws on conditions and warranties;
• a new, national product safety law and enforcement system;
• a new, national law for unsolicited consumer agreements, which replaces existing State and Territory laws on door-to-door sales and other direct marketing;
• simple national rules for lay-by agreements; and
• new penalties, enforcement powers and consumer redress options, which currently apply nationally.ACL

The ACL applies to all Australian businesses and all transactions since 1 January, 2010.

If you are a consumer and you feel that any business has been misleading or deceptive then I would recommend that you should make a complaint to the ACCC.

Lodging a Complaint against a Seller or Proprietor

The process is to contact the seller or proprietor to attempt negotiation of the issue and if that fails then notify them of your complaint and your intention to take it further with the ACCC. If you have no response from the seller or proprieter after 10 days to 2 weeks then write a letter to the ACCC to lodge your complaint. You may want to also talk to a lawyer.

The problem is really as simple as this: we get the business environment that we deserve. If we don’t demand honest businesses then we won’t get them. Yes I do understand that entrepreneur’s feel that selling is just the ticket to get your dollar… but that’s so old school. We expect more from entrepreneurs and businesses nowdays.

The ACCC website also have this to say… and Australian businesses should pay attention:

We are more likely to take action against a business for misleading advertising if it has been carried out through a medium that reaches a wide audience, such as over the internet, on national television, or through a nation-wide print advertising campaign.ACCC

Just be Honest & let the ACCC know your concern

The Internet, for example, is NOT the Wild West. And even if you complain and nothing happens… others may be having the same issue with the same business. Eventually the ACCC will see a pattern and may decide to act to protect Australian consumers.

Just be honest about what happened, provide all the documentation that you can, and about what you can and cannot prove. Obviously smart operators will keep the incriminating stuff verbally on the telephone and watch their words within the email trail.

And don’t let anybody bully you out of complaining… by threatening you with a legal action. It is your legal right as an Australian consumer to complain to the ACCC if you have concerns.

You can Google film drying cabinets – they are EXPENSIVE. So I went hunting for a simple idea to create a cost effective solution.

To make my film drying cabinet I cut four large squares from the end of a disused roll of dog fencing wire from our back yard. I used the excess wire at each join to connect the structure together. This formed a stable wire tube frame. I then joined a smaller section of the fencing wire across the top and bottom of the tube – this will give me somewhere to hang my rubber band & top peg. The 120 film will hang from that peg with a second peg at the bottom of the film to keep it straight.

I needed to cut out a door large enough that I wouldn’t scratch the unwound wet roll of film as it entered or was removed from the cabinet. So I used wire cutters to remove all but the top and bottom rectangles in a vertical line and taped over all joins and wire ends to further ensure that my negatives would survive.

A photograph should give you an idea – the red tape covers joins along the back of the wire tube where the coil was brought together; black tape was used on the top and bottom joins; and, yellow, green and blue tape was used around the front entry doorway.

I can sit a small heavy ceramic plate inside the wire structure to prevent pooling of the drips. The outer covering is a full length cream coloured breathable wedding dress bag with a zipper (costing $15). I used black tape to cover the coat hanger opening in the top of the bag as an effective seal against dust.

For a total cost of approximately $25 this affords me everything that I need for drying my film in a dust free environment overnight. The design’s lightness offers me the ability to take the drying cabinet into the processing area where I can hang the wet negatives and seal it away from dust. Then I can move the safely enclosed film negatives into my office to dry overnight.

For storage it’s imperative to prevent dust accumulating on the tape and frame so they should be kept zipped inside the cover when not in use. Similarly, it is advisable that you store the cabinet and outer bag under an old sheet to prevent the breathable cover accumulating unwanted layers of dust that could enter your film processing environment.

It just goes to show that you don’t need to invest upward of $600 to achieve results in a non-commercial environment.

The Myth of Writing your own Contracts

One of the stupidest things anybody could do in business is try to shortcut their way through the legal landscape. Just like accountants will save you more money than they cost… so will hiring a decent lawyer.

For a lot of people this is real news: a contract isn’t just anything you cobble together and get some fool to sign. There is a structure, like a dance, that determines when and where any contract was made, the parts that are valid and the aspects the courts will or won’t enforce. But I’ve received my fair share of these self-authored car wrecks to know it’s a real problem. People do want to cut corners in the short-term.

The real and present danger is that small businesses generally have no idea about contract law… and I’m hoping they might glean one thing from reading through this series of 15 posts (starting with Contracts 101 – Part 1: Outline). That one thing is this:

Sometimes you just need to know when to hire a lawyer. Appreciate what you don’t know.

Installments in Contracts 101

• Contracts 101 – Part 1: Outline
• Contracts 101 – Part 2: Which Contract?
• Contracts 101 – Part 3: The Six Elements
• Contracts 101 – Part 4: The Agreement
• Contracts 101 – Part 5: The Offer
• Contracts 101 – Part 6: The Acceptance
• Contracts 101 – Part 7: Battle of the Forms
• Contracts 101 – Part 8: Consideration
• Contracts 101 – Part 9: Capacity
• Contracts 101 – Part 10: Legality of Object
• Contracts 101 – Part 11: Possibility of Performance
• Contracts 101 – Part 12: Genuine Consent
• Contracts 101 – Part 13: Promissory Estoppel
• Contracts 101 – Part 14: Ending the Contract
• Contracts 101 – Conclusion: Protect your Business

Resources for this Series

The bulk of this information is obtained through Australian Business Law 26^th edition by Paul Lattimer, Managers and the Law: A guide for Business Decision Makers by Lynden Griggs, Eugene Clark and Ian Iredale, A Guide to Business Law thirteenth edition by John Carvan, John Gooley and Evelyn McRae, Law in Commerce third edition by Brendan Sweeney and Jennifer O’Reillly, as well as through the MBA unit BFA682 Law for Managers taught at the University of Tasmania by Simone Watson in 2009. These resources are highly recommended for improving your understanding about these issues. Many case files hyperlinked within this series are directly accessed via the Austlii database (Australia) and the BAILLI database (United Kingdom).

The part that really gets me is that cameras can go in and reveal mouldy fridges and grubby hovels, they can reveal the most disgusting vestiges of slop being fed to patrons… Ramsay can show them they’re losing a thousand pound every week… they’ve lost their house and live in a box in the alleyway… everything in the commonsense world says THIS IS FUCKED – but the restaurateur disagrees.

And that’s the amazing thing about offering advice to small businesses whether they’re doing well or going down the drainpipe. The owner is in the trenches with invested money and emotion. The owner is invested in a dream… in reconciling the success or collapse of that dream in their own fragile human world. So when Ramsay comes and tells them the facts, they don’t find it easy to accept.

This is the saddest part about watching a lot of small businesses slowly fall out of business. Sometimes it’s not that hard to pick what’s wrong – they’re selling too expensively or too cheaply to be viable concerns, their value proposition is crap against the alternatives, they’re not breaking even, they haven’t figured out that you need a strategy and focus… and the entire enterprise is falling over.

But what do you do? I mean, if the owner even respects your ability to identify and fix an issue then you can bet they’re not going to hand over the keys. Even if they hire you on board as a manager… they still probably won’t hand over those keys.

The keys to the shiny Jaguar that lives in their minds-eye when they envision their beautiful (but probably struggling) business.

Sometimes all a business is doing wrong is not understanding who their real competitors are… or they’re in the wrong business… or they’re trying to sell ice to fucking Eskimos (or Innuit)… or there’s a systemic issue with some slugger in the office playing gatekeeper. Sometimes they just don’t realise where the niche opportunities lay or who are their real customers. Quite often it’s a matter of realising that debts should be payed slower and collected faster because cash is the lifeblood of meeting short-term financial commitments as they fall due.

Sometimes it’s all of that and more… and it can be theoretically complicated to explain without a shared professional vocabulary.

Because, don’t be surprised by this, business isn’t all about living the dream. It’s all about being in business. It’s about realising the reason you are in business isn’t even to make money – the reason you’re in business should be to serve social needs not met by government; the reward for doing that well (better than most) is people will give you money.

Money is a consequence of doing all that other stuff correctly. All the Ramsay detail laid out in Ramsay’s honesty. You may like the man or not; he produces one of the best practical small business shows on commercial television if you’re interested in how small businesses struggle to evolve and adapt to their market.

Diane Arbus (1923-1971) was definitely a photographer’s photographer. I absolutely love Norman Mailer’s 1971 quote: “Giving a camera to Diane Arbus is like putting a live grenade in the hands of a child.” She was the photographer who focused on the freaks and described them as people who had “already passed their test in life.” She wrote “They’re aristocrats.”

Of course, these were through the times in the United States where there were the so-called “Ugly Laws”… intended to stop freaks from going into cafes and diners and public places. They were laws intended to get the disturbing off the street so society could fool itself that normalcy was somehow normal. So, while viewing Diane Arbus’ work, I can’t avoid the conscious echo that super-imposed on her images are the footprints of a society that was beating these people down.

And Diane Arbus, of course, was a disturbed soul in her own right. She committed suicide in 1971 in her 40s… relatively young.

Her work is blunt. Her photographs are a surviving document of the flaws and the differences between human beings through the facilitating perspective of an empathic communicator. In Diane Arbus: An Aperture Monograph, printed in 1972 (a year after her death), the reader is exposed to a selected array of her work in the spirit of the values and ideals that she held through her life. The iconic “Child with a hand grenade in Central Park, NYC 1962″; “Tattooed man at a carnival, Md 1970″; and, “A young [black] man and his pregnant [white] wife in Washington Square Park, NYC 1965″.

While we may make photographs as observers, documenters or collaborators there are certain truths that constrain the resulting artifacts. The photographer chooses what to include or omit from photographs. The photographer selects the correct exposure, the angles and the light. The photographer brings an inevitable bundle of political and social belief systems into the selection and creation of the subject matter.

Looking through the eyes of Diane Arbus is to inhale a social comment about humanity. Why do we ostracise the different? Why are we mesmerised by twins and triplets, or nudists or transvestites?

This is an incredible body of work and nobody would argue that Diane Arbus was anything but a master of her craft and an influence for future generations.

Paul Strand (1990-1976) was an American modernist photographer with a career spanning well over half a century. His work included the first intentionally made abstraction photographs, the first photograph of a part of a mechanical device as a purely aesthetic image, landscapes, architecture and candid portraits of everyday people. One of the most fascinating things about Strand is also the influence of artists like Picasso and Cézanne on what he was trying to achieve with his camera.

Reading Paul Strand: a Retrospective Monograph, the Years 1915-1946, published in 1971 as a hardcover, is something like dipping your big toe into a warm pool and then slowly submersing yourself further on every read through its pages. On first browse there appeared to be less to these images than I had imagined. However, Strand’s photography is deceptively simple, something very difficult to achieve. And it’s important to realise that these photographs were experiments and excursions in a two-dimensional visual world unlike our modern image-intensive iPhone enabled contemporary society. In that sense, it’s important to slow down and appreciate the black and white photographs for what they were in their context of time and space. In one sense, they are aesthetically beautiful images in their own right. In another, they represent the expression and evolution of artistic ideas.

Alfred Stieglitz thought enough of Paul Strand to include him in his Camera Work magazine in 1917 and exhibited Strand at 291, formerly known as Little Galleries of the Photo-Secession, located on Fifth Avenue in New York. Stieglitz wrote:

New picture makers happen every day, not only in photography but also painting. New picture makers are notoriously nothing but imitators of the accepted: the best of them imitators of, possibly at one time, original workers… [Strand's] work is pure. It is direct. It does not rely on tricks of process.Alfred Stieglitz

This retrospective of Strand’s work from 1915- 1946 covers only half of his career as a photographer. However, from abstractions to portraits to landscapes there is a strong sense of discoverability within his photographs that compelled me read and re-read this book a half dozen times in succession. Strand was a master of drama in the understated… a man who pushed photography toward art… a creator of deceptively simple images – attributes that I definitely admire.

The important thing for photographers to take away from Paul Strand’s work is that our ideas and perspectives as “new picture makers” come from somewhere. In many cases, they can be traced back to Strand. When you take an aesthetic photograph of a printing press roller… when you break perspective with a fence… when you take abstract photographs of light on contrasting surfaces… there is Strand.

This is an important piece of knowledge for every photographer. Ideas are currency and it’s important to understand the economy of ideas if you hope one day to produce original ideas rather than just pretty pictures.

“I had plans, man,” says the little voice in the back of my head. “I was going to spend the summer nailing down the details of the Neill-Fraser case by scouring and cross-referencing her trial transcripts. Perhaps some interviews. Only I never did receive those transcripts to scour… and, well, one thing led to another and I stopped leaving the house (again) and kept putting off shooting photographs because the light wasn’t perfect.”

That me, the little voice in the back of my head with excuses, is a total bastard to live with, too. You probably have no idea. Or maybe you do. Maybe you’re also a sucker for waking up at 6.30am only to check emails, RSS feeds and scour your Twitter stream. And, hey, I know that in the real world none of this electronic social bullshit matters… but I get sucked into it way too easily.

And I’m a sucker for watching films… so subscribing to a DVD mail service is probably like a junkie picking up a casual ounce of brown heroin. I’m a brown heroin pig with an addiction to film. Foreign cinema. Science fiction. Thriller. Brown stained teeth from drinking good quality coffee from a stovetop espresso maker.

So here I am in my last six weeks of the Christmas holiday. I’m dreading another year at university studying post-graduate journalism. Both cameras sit behind me on a shelf primed for action. Rarely used.

At least, rarely used in the context of my expectation. But then… when you’re shooting with a DSLR I’m not sure 1,000 or 2,000 images in a given day is doing anything more than exploiting the technology. I’m not sure being a Flickr bitch is any more effective than becoming a member of any group or gang – pressure towards consensus and conformity, for example. I’m not sure poking my camera into a stranger’s business is even that challenging.

More recently, I prefer to slow down… I’m thinking about the light a lot more… and it’s not enough for me to grab pretty pictures, clean or otherwise. I’m thinking more about ways to achieve a long-term project.

But there is a seething core in me that knows the truth. I’ve procrastinated away at least two thirds of my Christmas holiday. I haven’t achieved any significant work, I haven’t been taking the cameras out… and I haven’t been in optimal physical or mental condition as a result.

The little voice in my head has spent the Summer hitting me up with excuses. He’d prefer to drink booze and watch movies. The bastard.

Carleton Watkins (1829-1916) travelled from New York State to California as a young man alongside his slightly older family friend Collis Huntington. After some time in the West, Watkins took up a temporary position in a daguerreotypy studio and from that moment had found his calling… he would be a photographer.

Watkins had a mammoth camera made by a cabinetmaker to take 18 inch by 22 inch glass negatives and headed on the long and arduous trek to Yosemite where he produced mammoth plate photographs that were received with some acclaim. Although, the best of these Yosemite photographs were produced in the 1860s, while in his 30s as a more accomplished expert in the field. He went on to record much of the development of the West Coast including the gold rush and the ever-expanding railroads.

Watkins also produced a large number of stereoscopic photographic views through his career using a stereo camera, popular in the mid-to-late 1800s, and employed techniques like panorama and ‘putting a framed photograph on a wall’ that were quite novel.

So why have you probably not heard of Carleton Watkins? After all, he was the photographic rival to Edweard Muybridge. His friend Collis Huntington was to be one of the big four Robber Barons of the 19th Century railroads alongside Leland Stanford, Mark Hopkins and Charles Crocker.

The answer is probably that Carleton Watkins left little evidence of his thinking behind in written words to share for posterity.

But he was also, in the end, a victim of fate. On the morning of 18 April, 1906 Carleton Watkins woke to the San Francisco earthquake and a studio where a lifetime work lay in broken glass plates and burning business records. He was approaching 70 and had just arranged for his life’s work to be bought by Stanford University. The post-earthquake fire deleted that work like a blunt force trauma. A half century of work. Gone.

It wasn’t until the 1960s and 1970s that interest in Watkins resurfaced. Remember, he took those Yosemite photographs some 80 years before Ansel Adams trod the timbers into that same park to create his iconic images.

The San Francisco Museum of Modern Art produced Carleton Watkins: The Art of Perception by Douglas R. Nickel as an exhibition book. It not only covers Watkins mammoth plate photographs but includes a large number of other stereoscope, panorama and card photographs.

I think if you take the time to look at the work of Carleton Watkins you’ll be amazed at the quality and detail of those photographs. In the mid-to-late 1800s photography was barely out of its cage and Watkins produced what could be described as perfect landscapes. They were technical masterpieces. Created under extreme difficulty and carried home precariously on the backs of mules.

It makes clear that photography is a medium that started out with perfection and seems to have been met by compromises in every direction. They already had it back in the day, right there.

A good example is the first-mover in an area. Say you make a suite of software that automatically records the amount of alcohol consumed over a night of drinking and based on your weight, body mass and other known data it can give you a ballpark figure on your inability to drive. This, in turn, disables your (modern) car unless you sync another person’s smart phone to the driver’s role. That smartphone needs the mobile application and the relevant data… or the car is stuck until at least 8am. It may also phone a relative for automatic notification, pay any parking fines by default and serve other simple needs.

Yes, that’s a bullshit application that probably doesn’t exist but let’s run with this hypothetical.

Because nobody else has worked on this specific area of application you’re in a good position to make a decent profit. Things look good. Your team are developing expertise that give you advantages over other businesses – industry contacts, research driven design decisions and capital raised from private investors. Things are looking good.

[Note: please don't send emails about existing applications or technical limitations... this is a hypothetical, OK?]

But it’s never that easy in a hyper-competitive globalised world. Everybody is watching you, including your existing (and future) competitors. One rule of thumb is that any area where money is made will attract competitors like flies to a lamington… someone out there will want to create that drink-driver application faster, cheaper, better and with a bigger smile… possibly, on a larger scale. They’ll either try to expand the current profit pool (imagine that as a large pie being upsized) or they’ll want a share of the existing profit pool (meaning less pie for your business) and push you out.

Second-movers have don’t have to invest in all of that expensive research and development… they can reverse-engineer the product you sell them. They have the advantage of riding on your coat-tails after you’ve marketed the original idea to a buying public… you’ve found that public and already convinced them how good the idea could be for social improvement. And second-movers often have plenty of time to check off big ticks against your faults until they enter the market with a significantly superior value proposition and business model.

However, the main second-mover advantage is that they stand back and watch every hurdle you jump on your way through the experience. They learn huge lessons from your expensive little mistakes. Then they implement and improve on your efforts.

Being aware of that is an important part of staying in business. And even if you think you’re alone in a market segment it’s necessary to improve your processes and hone your value proposition. Competitors are always watching, no matter what business you’re performing.

My Norwegian grandfather was a photographer born in 1870 and he jumped ship in Australia at 19 years of age. He was a photojournalist and portrait photographer and my particular interest is in a set of 100 glass negatives and his wooden large format camera found by a local farmer in a King Island barn several decades ago. Knowing the gem he had in his possession, being an avid photographer, the farmer donated the items to the King Island Museum where several negatives and the camera are on permanent display. Several years later, they were exhibited for a fortnight at the Launceston Museum.

The glass negatives were taken on King Island from 1900 to 1910 and are significant because the island was only opened for farming in 1880 so Kittles’ captured many historic moments (including the first car on the island).

So this is how I see the project at this point. Imagine an ball of hemp twine unwound across space and time. My grandfather holds one end and I the other. My objective is to wind that ball back upon itself over and over in successive layers. Because it’s just too easy for me to look at Kittles’ photographs and imagine that I understand their context… the meaning of photographs changes as culture and society change around them. I need to understand what it meant for Kittles and why he did what he did.

The funding issue aside (and that I will need to visit King Island over the next few years several times) it seems like the place to start is right here with me. My life and context in 2012 is as relevant to the photographic journey as discovering Kittles’ context a century ago.

To that end I have slowly begun exploring several avenues. The first is self-portraiture and I will expand this year into general portraiture. The second, and I have to confess to being less than prolific, is the introduction of analogue film photography (or slow photography) with a Zenza Bronica ETRS medium format camera. I’m too poor for a Hasselblad but if anybody wants to donate one to a project feel free to contact me.

Even better would be a large format camera and dark room equipment. And funding.

I should also acknowledge that Brett Drinkwater at Tashosting provides web hosting services on the King Island Project website for free. The white-site design and building was done by me.