Thursday, July 28, 2016
With the census
just around the corner many privacy advocates are questioning the motives of
the Australian Bureau of Statistic (ABS),
in not only collecting but also storing personal data. Recent revelations that
the ABS has already used census data for more than just administrative purpose,
has raised concerns about the security of the personal data being collected.
The ABS has used
personal data collected in the census to compare with data held by other
government agencies since the 2006 census. Duncan Young, Head of Census with
the ABS said that the personal data is anonymised through the use of computer
codes and no staff members ever see identifiable information. The key concern
of privacy advocates, including the Australian Privacy Foundation, is the illegitimate
purpose for which valuable personal data could be used.
Census is conducted every five years in accordance with the Census and Statistics Act 1905 (Cth)
(the Act). Pursuant to section 8 of the
Act, the ABS may collect ‘statistical information in
relation to the matters prescribed’ by regulation. In previous years this
statistical information has included:
Personal relationships with others in same
Country of birth;
Ancestry, including names and country of birth of
Employment status; and
Health, including the need for assistance with
personal care, movement or communication.
The storage of
this data by the ABS puts the privacy of Australians at risk. While the ABS
claims that every possible security precaution is taken with the collection of
this personal information, there are countless instances of government security
breaches around the world that result in the release of personal data. For
example, in 2015 the United States
Office of Personnel Management reported a major breach of personal data by
suspected Chinese hackers resulting in the theft of social security numbers, names, dates and places of birth, and addresses. The theft
affected the personal data of as many as 21.5 million Americans.
backlash from Australians not wanting to risk their personal data could be
detrimental to the integrity of the census. With many calling for a boycott of
the census and others suggesting not including personal data or including false
data, the census has the potential to be rendered useless to statisticians.
Monday, July 25, 2016
From 1 July 2016 it is a requirement of the Office of State
Revenue to collect and report on transfers of freehold or leasehold interests
in real property in New South Wales to the Commissioner of Taxation. The
purpose of the reporting is twofold. Firstly, to establish a National Register
of Foreign Ownership of Land Titles. Secondly, to provide information to the
Australian Taxation Office regarding all transfers of property.
The mandatory reporting is a result of an amendment to the Taxation Administration Act 1953 which
allows the Commissioner of Taxation to require certain entities to provide
information about transactions that could reasonably be expected to have tax
consequences for other entities.
Property details, transactional information, identity
information and foreign identity details of the transferee and the transferor
are required under the amendment to the legislation. This information will be
collected in two ways:
For Vendors or Transferors, the information will
be collected through the provision of a Land Tax Clearance Certificate (LTCC)to the purchaser. In order to
obtain the LTCC, the Vendor will need to complete the required Vendor
For Purchasers or Transferees, the information
will be collected during the stamping process. Each Purchaser will be required
to complete a Purchaser Declaration form (PDF)and
provide supporting identification documents. The information provided in the PDF
is required to process your stamp duty payment.
What does it mean for
If you are buying property in New South Wales, the short
answer is additional paperwork. You will be required to complete a purchaser
declaration form and will also need to provide a certified copy of your birth
certificate, passport or citizenship certificate.
If you are selling property in New South Wales, you will
have the additional cost of a Land Tax Clearance Certificate which you will be
required to provide to the purchaser prior to settlement.
If you require assistance purchasing or selling a New South
Wales property, please contact a member of our conveyance team.
Thursday, July 21, 2016
A Power of Attorney is a formal deed governed by the Power of Attorney Act 2006 (ACT). A Power of Attorney is a binding legal
document which gives one or more people the legal authority to make decisions, and
do certain things on your behalf, but it does not remove your rights to do
these things. It is a common misconception that the Attorney needs to be an
“Attorney” (i.e. a lawyer) but he or she does not. The Attorney can be anyone
over the age of 18, however it is important that you trust them implicitly.
Types of Powers of Attorney
A Power of Attorney does not have to give blanket control to
do anything or everything. There are different options available and
limitations that you can place on each. They can be broadly categorised into
the following types:
General Power of Attorney.
Enduring Power of Attorney.
General Power of
A General Power of Attorney is usually created for a
specific purpose, with either specific or general powers given to the Attorney.
Examples of where a General Power of Attorney is useful are
(a) if you are going overseas for work or on holiday
and are in the middle of a business or property transaction that requires your signature;
(b) if you are in hospital for an extended period of
time and finding it difficult to manage your affairs.
Some of the powers you may confer on your Attorney are:
execution of documents on your behalf generally;
general dealings with banks, insurance companies
etc. on your behalf; and
any other specific powers, for example execution
of a specified document on a one off basis.
General Powers of Attorney are only valid while a person has
legal capacity, and are immediately revoked upon loss of legal capacity. Legal
capacity means the ability to fully understand the nature and effect of the
document you are signing.
Enduring Power of
An Enduring Power of Attorney remains valid even if a person
loses legal capacity as a result of disability or illness. However, you can
revoke it at any time, providing you have legal capacity.
When creating an Enduring Power of Attorney, you give your
chosen Attorney or Attorneys the capacity to make decisions in relation to
certain aspects of your affairs. You choose whether or not to give your
Attorney of Attorneys power to make decisions in relation to your:
You can choose, one, two or all of these aspects and can also
choose whether the power takes effect immediately or only upon loss of legal
Why have one?
A Power of Attorney can be a safety net that enables your
affairs to be dealt with by someone you trust in situations where you can’t
effectively manage them yourself. You might want to think about creating a
Power of Attorney in circumstances such as the following:
where your health is failing;
if you are going in for major surgery;
if you are going overseas; or
as a general precaution.
If you intend to put an Enduring Power of Attorney in place,
you must do so while you still have full legal capacity.
Our estate planning lawyers have the knowledge to guide you
and the skills to reflect your intentions clearly in creating your General
Power of Attorney or Enduring Power of Attorney.
Friday, July 15, 2016
is no denying that entering in to a new commercial or retail lease can be a
costly and time consuming exercise for both the tenant and landlord. Once
negotiations and signing of the lease are out of the way, further costs may
arise in order to register a lease over the title of the property. As an
example, a landlord may be required to prepare and register a subleasing plan
or a deposited plan in order to adequately define the part of the land that is being
leased, and the tenant is liable for the Land Titles Office fees for lodgement
and registration of the lease.
common question we are asked is “Do I need to register my lease?”. Our answer
is more often than not “yes, you should register your lease” and here is why.
speaking, a tenant has the most to gain from Lease registration. By registering
their lease a tenant gains a registered interest over the title of the
property, which they can claim on if necessary.
the lease is properly made and executed, the lease will be binding on both
parties regardless of whether it is registered. However, in ACT and NSW only
leases with a term of 3 years or less are automatically afforded statutory
protection under the relevant Land Titles legislation without being registered
on the title (note that the length of short term leases that are provided
statutory protection may differ depending on which state or territory
legislation applies to your lease). This means that a lease of a term greater
than 3 years (including any options to renew) should be registered in order to gain
statutory protection and a registered interest on the title.
a lease for a term greater than 3 years is unregistered and a bank holds a
registered interest over the title, the bank or mortgagee is not obligated to
recognise the tenant’s right to occupy the property unless they have consented
to the lease. The process of registering a lease includes contacting the
mortgagee for consent and requesting production of the title, meaning a record
of consent is obtained. Mortgagees will often pass on their costs for
a lease is not registered, any competing interest that is registered over the
title will take preference to the unregistered lease.
a landlord, allowing a lease to be registered on their title is of no detriment
and has little effect. Having said that, it may add value to their property,
for instance in the event that a landlord was attempting to sell their
property, prospective buyers will want to be aware of all potential interests
over the property. If applicable, the land may also be of more value if it has
already been surveyed or identified using a subleasing plan or deposited plan,
allowing a prospective buyer to enter into multiple leases over the premises.
important for landlords to keep in mind that if a tenant requires the lease to
be registered, the landlord has an obligation to attend to registration of the
lease. Tenants should also be aware that they will be required to pay the costs
of registration of the Lease, currently $135.00 in the ACT and $136.30 in NSW,
and factor this in to their costs for entering into a new lease. Both parties
should ensure that, when signing a lease, it is in a form that will be
acceptable to the relevant Land Titles Office when it is sent for registration.
contact our office if you require assistance or advice in relation to your
existing or proposed commercial or retail lease.
Monday, July 11, 2016
Restraint of trade clauses are often included in employment contracts,
to restrain employees from certain activities which may threaten the business
of the employer. Restraint of trade clauses are difficult to enforce, and may
only be enforced to the extent necessary to protect the employer’s legitimate
The types of actions that employers often seek to restrain include:
(a) using confidential information or documents of the
(b) soliciting or “poaching” clients or other employees of
(c) starting a business which is in direct competition
with the employer; and
(d) commencing employment with a competitor of the
In New South Wales, the Restraints of Trade Act 1976 (NSW)
governs the validity of restraint of trade clauses. In the Australian Capital
Territory, this is governed by common law (case law).
Restraint of trade clauses must be reasonable in protecting the
employer’s interests, which is assessed with reference to the particular
circumstances on a case-by-case basis. Often restraint of trade clauses are
drafted as “cascading clauses”, which allows the clause to be written down in
the event that the maximum is not considered reasonable. Consideration as to
whether a clause is deemed reasonable includes an assessment of the following:
(a) Is the geographical area too broad? Does the clause
extend beyond the employer’s legitimate business catchment?
(b) Is the time restriction excessive?
(c) Is the type of conduct restrained reasonable?
(d) Does the clause unnecessarily restrict the employee
from being able to make a living?
In some circumstances, restraint of trade clauses will be considered to
be reasonable and enforceable. This is particularly the case where the business
of the employer involves confidential information, or where the employee has
actively sought to “poach” clients of the employer.
In the event that there is an enforceable restraint of trade clause
which has been breached by a former employee, the employer should take action
early in order to protect its interests. This may involve:
(a) writing to the former employee to instruct them to
immediately cease all conduct inconsistent with their obligations under the
restraint of trade clause;
(b) applying to the Court for an injunction in order to
prevent the former employee from taking any further action; and/or
(c) commence legal proceedings in Court to recover
If you are an employee or an employer with questions about restraints of
trade, please contact Griffin
Legal for more information and advice specific to your
Monday, July 04, 2016
When you die will your assets be
distributed according to your wishes?
in which you own your assets has a significant impact on how you treat these
assets under your will and how they are distributed after your death. The
important thing to remember is that you can “own” assets in different ways.
Ways of controlling assets
of ways you might own or control your assets include:
your sole name;
your superannuation fund;
family trust; and
How you control your assets is important
planning the way in which you own or control an asset can have significant
implications for how that asset will be dealt with after your death. The
popularity of structures such as family trusts, family companies and
partnerships means that for a lot of people estate planning is quite complex.
the way that you structure your estate plan is crucial. Not only will a good
plan give effect to your intentions after death, it may also significantly affect
the value of your assets when these are transferred.
below demonstrates different ownership structures.
How is the asset held?
Capable of being dealt
with under will?
name as joint tenants
will pass into the other joint title holder’s name.
names as tenants in common in equal or unequal shares
testator’s share of the property can be passed to a nominated beneficiary
under the Will, otherwise it will form part of the residuary estate.
family trust deed will address the mechanism for transferring control of the
trust such as appointment of successor trustees or appointors.
company assets cannot be dealt with by a will. However, the testator can gift
shares in the company to particular beneficiaries and in that way ensure control
of the company and therefore the assets held by the company are transferred
to the intended beneficiaries.
in mind that shareholders select the Directors who in turn control the
person can put in place a binding death benefit nomination (BDBN) which
directs the Trustee of their Super fund to distribute the money to a
nominated person. If a BDBN is not in place, the Trustee of the
superannuation fund, in their discretion, can direct a person’s
superannuation to be paid to a person’s estate or directly to a person’s
not remember the implications of every method of ownership, but you should
you own or control your different assets is crucial;
must be clear in your will what you intend for your assets such as who they go
to or who has control over them; and
to your lawyer about your assets and your intentions for them.
estate planning lawyers have the knowledge to guide you and the skills to reflect
your intentions clearly in your will and estate planning documents.
Tuesday, June 21, 2016
The introduction of the Australian Charities and Not-for-profit
Commission Act (ACNC Act) and the Australian Charities and Not-for-profit Commission Regulations (ACNC Regulations) on 3 December 2012 changed both directors and company
obligations for charities in Australia. The ACNC Act established the Australian
Charities and Not-for-profit Commission (ACNC)
which has largely replaced the Australian Securities and Investments Commission
(ASIC) as the primary regulator for
charities and to ensure compliance with governance standards. Despite plans to
abolish the ACNC, the Federal Government has indicated that the ACNC will
continue its operations into the foreseeable future and any change is not a
priority on its legislative agenda.
The ACNC Regulations
outline a series of Governance Standards that must be met by charities
registered with the ACNC. These governance standards are general in nature and
apply to all charities regardless of corporate structure. Broadly, the
standards require charities to remain in association with the vision of the
ACNC, maintaining a charitable status, operating within the law and to ensure
accountability and responsibility of the charity.
In order to remain
registered under the ACNC, a charity has an obligation to:
keep a charitable status;
notify the ACNC of any changes to the charity’s
legal name, address for service, responsible persons and governing documents;
keep required records;
report information regarding the charity’s
charitably status to the ACNC annually; and
meet the governance standards.
with the ACNC have obligations under the ACNC Act and the ACNC Regulations that replace the standard obligations
on companies under the Corporations Act
2001 (Cth) (Corporations Act). Obligations for a company
registered with ACNC are found in ACNC
Governance Standard 5, which set out the duties of responsible persons,
such as directors and the Chief Executive Officers, including to:
act with reasonable care and diligence;
act honestly in the best interests of the
charity and for its purposes;
not misuse the position of responsible person;
not to misuse information obtained in performing
disclose any actual or perceived conflict of
ensure that the charity’s financial affairs
are managed responsibly; and
not allow a charity to operate whilst
Despite this, the
following requirements of the Corporations Act still apply to directors of a
company that are registered charities:
criminal offences relating to breaches of
duties of good faith an acting for a proper purpose and misuse of position or
information (under section 184 of the Corporations Act); and
the duty to prevent insolvent trading (under
section 588G of the Corporations Act); this duty is also included under
Governance Standard 5.
of ACNC and other regulators
Whilst the ACNC has
assumed the regulatory role for Australian charities, the Australian Tax Office
(ATO) remains responsible for
deciding eligibility for tax concession as a charity and other Commonwealth
exemptions and benefits.
The majority of
reporting and notification obligations placed on companies registered with the
ACNC now provide annual reporting requirements to the ACNC rather than to ASIC.
Generally, a company should contact ASIC for matters relating to their
corporate status, whilst they should contact the ACNC for matters relating to
their charitable status.
It is important to note
that if a company ceases being registered with the ACNC they must comply with
obligations under the Corporations Act which are regulated by ASIC.
It is important for charities to
understand and keep up to date with their obligations under both the ACNC
governance standards and the Corporations Act. Failing to do so may result in
potential civil or criminal charges.
Friday, June 17, 2016
As a litigator, I advocate for my clients in the most traditional sense of the word – in the Courtroom. But if you think about it, isn’t advocacy part of everyday life? We are all required to advocate constantly – for our clients, for our family and friends and for ourselves. We may not consciously recognise that when we are required to become an advocate, particularly for ourselves, for example when we are interviewing for a promotion or for pay rise at work.
So what makes a good advocate? Do you have to be loud? Aggressive? Dramatic? Not necessarily. One of the first things I learned about advocacy is that effective advocates are not striving to achieve that “you can’t handle the truth” moment.
Here are some of our tips on how to be a good advocate:
1. Listen before you talk
Before you launch into your brilliantly prepared speech, make sure you take a moment to listen to what it is the other person is saying. Do you understand what the issues are that you need to address? There is no point making a perfectly prepared speech which does not address the issues in dispute. Accordingly, it is worth taking the time to listen at the beginning. Some strategies that might help you to actively listen include taking notes of the key points or even summarising them to the other person to ensure you are both on the same page.
2. Be objective
There is a lot to be gained by stepping back and seeing a situation from a different perspective. This can be difficult to do when you are personally invested in a situation and this is often why people get lawyers involved in dealing with a dispute. Sometimes it helps to pretend a situation is happening to someone else rather than yourself or to recognise what prejudice or unconscious bias may be swaying your opinion. If you are able to view a situation objectively, you are better equipped to figure out how to best to persuade someone to agree with your view on the situation. This can also assist with being able to identify and address any weaknesses in your arguments.
3. Be clear
Have structure to what you say and know what you want to say before you start talking. Fumbling around issues without addressing them head-on is not persuasive and you are not going to convince anyone of your point of view. Clearly identifying the issues and your response to each of the issues before you launch into your arguments will assist in ensuring there is a clear structure to what you say.
4. Be concise
It is not effective to raise every possible argument in support of what it is you are trying to achieve. The best approach is to only raise your strongest arguments, which go directly to the crux of your case. It may assist to create a list or a mind-map of every argument you can think of and then pick the best ones to focus on.
5. Be confident
If you don’t believe what you are saying, there is little chance that anyone else will. Speak with conviction and certainty. This is often easier said than done, but becomes easier with practice. Try practicing what you want to say to a trusted friend or mentor and ask them to challenge your views so that you can prepare for how to recover from a setback.
6. Come up with various solutions
It is important to be able to recognise when you are failing to persuade someone. It might be worth changing tactics and raising new arguments. It may also be worth considering what creative solutions you can come up with to a problem. Is there another way to reach your end goal? This may involve asking for an incremental pay rise if you are not able to secure the increase you want straight away or considering what solutions to a problem might benefit the other person as well as yourself. There are often many possible outcomes to a problem which will satisfy your interests and it is important not to get stuck on only fighting for what you perceive to be the most favourable outcome.
7. Don’t be afraid to walk away
There may come a time where discussions become circular and you feel like you are not advancing your position. In these situations, it may be necessary to walk away, either temporary or permanently. In some circumstances, some breathing room can allow everyone to reassess the situation and come back with a fresh outlook. Being prepared to walk away permanently may also result in the person you are advocating to reconsidering their position and being prepared to make some more concessions in order to keep you around.
Tuesday, June 07, 2016
Thought you can use the internet anonymously?
A recent Australian case has shown that the right to privacy does not
necessarily prevent someone finding out your identity in order to make a claim
If an individual or entity has a right to relief against a prospective
respondent but cannot adequately identify that prospective respondent, they may
seek an order for discovery to identify the respondent under rule 7.22 of the Federal
Court Rules 2011 (Cth) (the Rules).
To exercise this rule the court must be satisfied that:
the prospective applicant may have a right to seek relief against a prospective
the prospective applicant is unable to ascertain the description of the
prospective respondent; and
another person knows the prospective respondent’s description or has
control of a document that may help ascertain the prospective respondent’s
Generally, this would be an uncontroversial exercise of court power
allowing a prospective applicant access to information that will give them an
opportunity to seek the relief to which they are entitled. However, this power
under the Rules became a hot topic when the US Corporation, Dallas Buyers Club
LLC (DBC), asked the court to order
six Australian Internet Service Providers (ISPs) to provide information
about their customers that would allow DBC to pursue action against ‘pirates’
who they claim breached copyright laws by unilaterally sharing the movie “Dallas
Buyers Club”. Dallas Buyers Club
LLC v iiNet Limited 
The ISPs attempted to reject DBC’s request to access their client
records and presented a number of arguments including that:
the prospective respondents did not breach the Copyright Act
1968 (Cth) and therefore DBC did not have a right to relief;
providing the information held by the ISPs may not identify the actual
person who had downloaded the film and would therefore not help ascertain
the prospective respondent’s description;
if the information was provided to DBC, they might engage in
‘speculative invoicing’ – where a prospective applicant sends a letter of
demand to a prospective respondent with the threat of pursuing legal action if
the prospective respondent does not pay a specified sum; and
the Telecommunications Act 1997 (Cth) contains privacy
provisions preventing the ISPs from releasing the information requested by DBC.
The Federal Court rejected these arguments, although did make an order
to prevent speculative invoicing, and ruled that the ISPs must provide the
names and residential addresses of each of their customers who had been
identified as a prospective respondent due to downloading “Dallas Buyers Club”.
The effect this ruling has on privacy in Australia, and the
circumstances when privacy provisions may be overruled, remains to be seen. Amendments
to the Copyright Act 1968 (Cth) in
June 2015 mean that applications can be made to the Federal Court for an
injunction to prevent accessing websites which infringe copyright.
With technology becoming the more prominent means of watching movies and
TV shows, it will be interesting to see how the legislation keeps up with
Friday, June 03, 2016
A person may leave their assets to whoever they
wish. However, the law recognises that
there are those who may have relied upon the deceased for support, who are
sometimes left out of the Will. If you
feel this is you or someone you know, please continue to read.
What is a
family provision claim?
A family provision claim refers to an application for
an order for provision to be made out of the estate for a person’s maintenance,
education or advancement in life. In the
ACT, claims are governed by the Family
Provision Act 1969.
Time limits on
making a claim
In the ACT, the time for bringing a claim is within 6
months from the date probate or administration is granted by the Supreme
Court. The Court has a discretion to
extend time, where sufficient cause for making a late application can be
demonstrated, except after the estate has been lawfully and fully distributed
Who can make a
The legislation sets out the classes of persons who are
entitled to make application to the Court for the provision out of the estate
of a deceased person. The Court has no discretion to permit an
application from a person who is not an eligible person, even in exceptional
persons in ACT
In the ACT, the categories of persons who may be entitled
to make a claim are:
partner of the deceased;
person (other than a partner of the deceased person) who was in a domestic
relationship with the deceased person for 2 more years continuously at a time;
child of the deceased person;
stepchild of the deceased person;
grandchild of the deceased person; and
parent of the deceased person.
There are some conditions in respect to a stepchild,
grandchild or parent that need to be considered and satisfied before making a
that the Court makes
The Court when determining whether to order provision
for the applicant may consider the following:
family or other relationship between the deceased person, including the nature
and the duration of the relationship;
nature and extent of the deceased persons’s estate and any liabilities of the
nature and the obligations or responsibilities owed by the deceased person to
the person making the claim (applicant);
financial resources (including earning capacity) and financial needs, both
present and future) of the applicant;
the applicant is cohabiting with another person – their financial circumstances;
age of the applicant when the application is being considered;
physical, intellectual or mental disability of the applicant;
contribution (whether financial or otherwise) by the applicant to the
acquisition, conversation and improvement of the estate of the deceased person;
provision made for the applicant made by the deceased person, either during the
deceased person’s lifetime or made from the deceased’s person’s estate;
evidence of the testamentary intentions of the deceased person;
character and conduct of the applicant before and after the date of the death
of the deceased person;
other the matter the court considers relevant, including matters in existence
at the time of the deceased person’s death or at the time the application is
being considered by the Court.
In the ACT, the Judge has discretion regarding legal
costs in family provision cases.
If you are successful as the applicant and you receive
an order for provision, normally the estate will pay your ordinary costs. However, if you receive no order for
provision, the Court may order that you pay the defendant’s legal costs.
If you feel that you have been treated unfairly or
left out of a will, please do not hesitate to contact Kym Kennedy, Special Counsel
to discuss the possibility of a family provision claim.
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