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How far is too far? Protecting the Privacy of Australians during the 2016 Census

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.


The Australian 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:


(a)          Name;

(b)          Sex;

(c)          Age;

(d)          Personal relationships with others in same household;

(e)          Marital status;

(f)           Religious denomination;

(g)          Citizenship;

(h)         Country of birth;

(i)            Educational background;

(j)            Ancestry, including names and country of birth of parents;

(k)          Employment status; and

(l)            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.


The potential 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.

Commonwealth Reporting Requirements for Property Transactions in New South Wales

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:

(a)    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 information.


(b)    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 me?

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.

"What Is A Power Of Attorney, And Do I Need One?"

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:

1.       General Power of Attorney.

2.      Enduring Power of Attorney.

General Power of Attorney

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 as follows:

(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; or

(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:

(a)          execution of documents on your behalf generally;

(b)          general dealings with banks, insurance companies etc. on your behalf; and

(c)          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 Attorney

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:

(a)          finances;

(b)          property; and/or

(c)          health  

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 capacity.

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:

(a)          where your health is failing;

(b)          if you are going in for major surgery;

(c)          if you are going overseas; or

(d)          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.


"But why should I register my lease?"

Friday, July 15, 2016

There 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.

A 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.

1.         Generally 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.

2.         If 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.

3.         If 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 consenting.

4.         If a lease is not registered, any competing interest that is registered over the title will take preference to the unregistered lease.

5.         For 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.


It is 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.


Please contact our office if you require assistance or advice in relation to your existing or proposed commercial or retail lease.

Employment Contracts: Restraint of Trade Clauses

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 business interests.


The types of actions that employers often seek to restrain include:


(a) using confidential information or documents of the employer;

(b) soliciting or “poaching” clients or other employees of the employer;

(c) starting a business which is in direct competition with the employer; and

(d) commencing employment with a competitor of the employer.


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 damages.


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 circumstances.


When you die, will your assets be distributed according to your wishes?

Monday, July 04, 2016



When you die will your assets be distributed according to your wishes?


The way 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


Examples of ways you might own or control your assets include:


(a)          in your sole name;

(b)          in joint names;

(c)          in your superannuation fund;

(d)          in a family trust; and

(e)          in a partnership.


How you control your assets is important


In estate 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.


Therefore, 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.


The table below demonstrates different ownership structures.


How is the asset held?

Capable of being dealt with under will?

Other considerations

Sole name



Joint name as joint tenants


Title will pass into the other joint title holder’s name.

Joint names as tenants in common in equal or unequal shares


The 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


The family trust deed will address the mechanism for transferring control of the trust such as appointment of successor trustees or appointors.

Family Company

No, 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.

Keeping in mind that shareholders select the Directors who in turn control the company.



A 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 dependents.





You may not remember the implications of every method of ownership, but you should remember:


·                how you own or control your different assets is crucial;

·                you 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

·                speak to your lawyer about your assets and your intentions for them.


Our estate planning lawyers have the knowledge to guide you and the skills to reflect your intentions clearly in your will and estate planning documents.


Duties and Obligations for Not-For-Profit Organisations

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.


ACNC Governance Standards


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:


(a)       keep a charitable status;

(b)       notify the ACNC of any changes to the charity’s legal name, address for service, responsible persons and governing documents;

(c)       keep required records;

(d)       report information regarding the charity’s charitably status to the ACNC annually; and

(e)       meet the governance standards.


Directors Duties


Companies registered 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:


(a)       act with reasonable care and diligence;

(b)       act honestly in the best interests of the charity and for its purposes;

(c)       not misuse the position of responsible person;

(d)       not to misuse information obtained in performing duties;

(e)       disclose any actual or perceived conflict of interest;

(f)        ensure that the charity’s financial affairs are managed responsibly; and

(g)       not allow a charity to operate whilst insolvent.


Despite this, the following requirements of the Corporations Act still apply to directors of a company that are registered charities:


(a)       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

(b)       the duty to prevent insolvent trading (under section 588G of the Corporations Act); this duty is also included under Governance Standard 5.


Relationship 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.


Being a Good Advocate: More than Just being the Loudest

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.




The Future of Privacy after Dallas Buyer Club

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 against you.


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:


1.              the prospective applicant may have a right to seek relief against a prospective respondent;

2.             the prospective applicant is unable to ascertain the description of the prospective respondent; and

3.             another person knows the prospective respondent’s description or has control of a document that may help ascertain the prospective respondent’s description.


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 [2015] FCA 317.


The ISPs attempted to reject DBC’s request to access their client records and presented a number of arguments including that:


1.              the prospective respondents did not breach the Copyright Act 1968 (Cth) and therefore DBC did not have a right to relief;

2.             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;

3.             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

4.             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 current practices.

Do you feel that you have been unfairly left out of a Will?

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 to beneficiaries.

Who can make a claim?

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 circumstances.

Eligible persons in ACT

In the ACT, the categories of persons who may be entitled to make a claim are:

1.    A partner of the deceased;

2.    A 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;

3.    A child of the deceased person;

4.    A stepchild of the deceased person;

5.    A grandchild of the deceased person; and

6.    A 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 claim. 

Consideration that the Court makes

The Court when determining whether to order provision for the applicant may consider the following:

1.    Any family or other relationship between the deceased person, including the nature and the duration of the relationship;

2.    The nature and extent of the deceased persons’s estate and any liabilities of the estate;

3.    The nature and the obligations or responsibilities owed by the deceased person to the person making the claim (applicant);

4.    The financial resources (including earning capacity) and financial needs, both present and future) of the applicant;

5.    If the applicant is cohabiting with another person – their financial circumstances;

6.    The age of the applicant when the application is being considered;

7.    Any physical, intellectual or mental disability of the applicant;

8.    Any contribution (whether financial or otherwise) by the applicant to the acquisition, conversation and improvement of the estate of the deceased person;

9.    Any 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;

10.  Any evidence of the testamentary intentions of the deceased person;

11.  The character and conduct of the applicant before and after the date of the death of the deceased person;

12.  Any 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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