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New Guidelines for the Issuing of Environmental Protection Orders

March 23rd, 2017

The Environmental Protection Act 1994 (“the Act”) deals with, amongst other things, the issuing of Environmental Protection Orders (“EPO’s”).

In April 2016, amendments were made to the Act as a result of the introduction of the Environmental Protection (Chain of Responsibility) Amendment Act 2016.  Due to the amendments, EPO’s can now be issued to a ‘related person’ of a company, in addition to the offending person or company.

On 27 January 2017, the Department of Environment and Heritage Protection (“Department”) released a Guideline providing information about how the Department will approach issuing EPO’s to ‘related persons’.

What are EPO’s?

Before understanding the matter of EPO’s being issued to ‘related parties’, it is important to understand EPO’s generally.

The Department may issue an EPO to a person or company in a number of circumstances, for example:

  1. if the person or company does not comply with a requirement to conduct or commission an environmental evaluation and submit it to the authority;
  2. if, because of an environmental evaluation conducted or commissioned by the person or company, unlawful environmental harm is being, or is likely to be, caused; or
  3. to secure compliance by the person or company with other various environmental duties, policies and conditions prescribed by the Act.

An EPO may require the person or company to stop (or prevent from commencing) an activity indefinitely, carry out a certain activity or take action as specified by the Department.

EPO’s can now be issued not only to the person or company that engaged in the conduct resulting in the issuing of the EPO, but also to a person who is ‘related’ to a company who engaged in such conduct.

What does the Guideline say about issuing EPO’s to ‘related parties’?

The Guideline, most importantly, explains the circumstances in which a person will be deemed to be a ‘related party’ of an offending company.  These circumstances are as follows:

  1. the person is a holding company of the offending company; or
  2. the person owns land on which the offending company carries out, or has carried out, a relevant activity other than a resource activity; or
  3. the person is an associated entity of the offending company and owns land on which the offending company carries out, or has carried out, a relevant activity that is a resource activity; or
  4. the administering authority decides under this section the person has a relevant connection with the company.

Whilst points 1 through to 3 are relatively straightforward (but no less important to note), point 4 requires further elaboration.  As the Guideline explains, a relevant connection may arise in two circumstances:

  1. Firstly, where the person is capable of significantly benefitting financially from the carrying out of the activity by the offending company, or has already benefitted financially. As explained in the Guideline, what amounts to a ‘significant’ financial benefit depends on the circumstances.  Generally, however, a benefit may be ‘significant’ if it is important, notable or of consequence, taking into account:
    • the proportion of the benefit relative to the total assets or total benefit available;
    • the proportion of the benefit relative to the costs of restoring or rehabilitating the environment; or
    • the abnormality of the benefit.
  2. Secondly, where the person is, or has been in the previous two years, in a position to influence the offending company’s conduct insofar as it relates to the offending company’s compliance with the Act.

Conclusion

The powers of the Department under the Act have been greatly broadened as a result of the introduction of the Environmental Protection (Chain of Responsibility) Amendment Act 2016 and the recently released Guideline.  Together they provide invaluable direction about when the Department will exercise such power.

Clearly, the ability to issue an EPO to a related party will put landlords, company directors and (most likely) trust beneficiaries in the firing line.  If you own land on which an activity which poses a risk of environmental harm is being carried out, or you are a director, manager or have some other interest in a company conducting such activity, you will need to be careful to exercise diligence to ensure that environmental harm does not occur.

If you have any concerns, or require any advice about the issuing of EPO’s please contact our accredited property law specialist and partner, Nigel Hales on 4036 9700.

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Uber drivers to register for GST

March 16th, 2017

Uber launched in Cairns today and more than 3000 Cairns residents have applied to become Uber drivers.  The recent decision of the Federal Court in Uber B.V. v Commissioner of Taxation [2017] FCA 110 will be of particular interest to those in the Far North who have applied or are interested in applying to drive for Uber.

The ride-sharing service has been legal to use and operate in Queensland since 5 September 2016.  The legalisation accompanied a suite of changes to the rules regulating the taxi industry in the interests of levelling the playing field between traditional taxi operators and ride sharing companies.  Consistent with the aim for a level playing field, on Friday 17 February 2017 the Federal Court found that the Uber service is a supply of ‘taxi travel’ within the meaning of the current Goods and Services Tax (GST) legislation.

This decision means that all Uber drivers will need to be registered for and pay GST from the first dollar they earn.  Generally a service provider is not required to register for or charge/pay GST if their turnover is less than the legislated threshold of $75,000.00.  However, services for ‘taxi travel’ are excluded from gaining the benefit of this threshold.

Uber argued that because their operators do not utilise a taxi meter, taxi ranks or roadside hailing (among other reasons) that they were not supplying a ‘taxi travel’ service under the GST legislation.  However, these arguments were not accepted by the Federal Court, which found that the definition of ‘taxi travel’ in the legislation should be given its ordinary meaning and not a specialised industry meaning.

If you are thinking about applying to be an Uber driver in Cairns you will need to make sure that you are registered for GST to avoid a nasty tax bill or fine from the tax office.

The full decision of the Federal Court can be found here.

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Director of Consumer Affairs Victoria v Gibson [2017] FCA 240

March 16th, 2017

Yesterday the Federal Court handed down a decision finding Annabelle Natalie Gibson guilty of three representations that amounted to misleading and deceptive conduct in trade and commerce, under the Australian Consumer Law.

The case against Ms Gibson has been well documented in the media. The conduct in question related to statements by Ms Gibson’s about her diagnosis with terminal brain cancer, and her subsequent cure, by following certain natural recipes and therapies. These statements were made via Facebook, Instagram, in media interviews, and within Ms Gibson’s app and recipe book titled ‘The Whole Pantry’ from which Ms Gibson made substantial profits.

Australian Consumer Law provides that “a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.” Significantly, there need not be any fraudulent intention or guilty mind for a person to have engaged in misleading conduct. By contrast, deceptive conduct requires the person making the representation to know that it is false.

Whilst, in this case, the person engaging in the prohibited conduct made a lot of money, the terms ‘in trade or commerce’ have generally been interpreted widely by the courts and may encompass any commercial activity, even on a small scale.

Section 18 is a ‘strict liability’ provision. This means that it does not matter that a person is not aware that their misleading statement was false.

The court is yet to decide the penalty that will be applied to Ms Gibson.

This decision is a reminder that care should be taken, in any commercial dealings, not to make any statements that are misleading, deceptive or capable of leading another into error.

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How to choose the right family law solicitor for you

March 14th, 2017

The trauma of separation or divorce

Separation and divorce has been widely recognised as one of the most traumatic life events people experience.  Somehow, through the emotional upset and often grief people experience at this time, they are required to deal with decisions such as:

  • where their children will live;
  • how much time they will get to spend with their children;
  • how they will financially support their children;
  • whether they seek to, and can afford to, retain the family business or the family home; and
  • how much money they will need to survive after separation and into the future.

These life-changing decisions are so very important to the lives of people who separate and their families.

An experienced, approachable and empathetic family law solicitor can assist separating parties to make the right decisions for them, avoid unnecessary conflict with former partners, build strong co-parenting relationships into the future, and avoid nasty family court battles and high legal costs.

Three essential attributes of the right family law solicitor for you:

  1. Your family law solicitor listens to you, and can identify all of the legal issues you are facing, and guide you on each issue

The first skill your solicitor must possess is the ability to listen – to really listen to you, and understand your particular concerns and priorities.

No two separating couples are the same; nor do they face the exact same circumstances, family dynamics or financial pressures.  As such, no two separating couples have the exact same legal issues.

This is why you need an experienced and skilled family solicitor who can guide you on every family law issue you face.

  1. Your family law solicitor advises you on options to resolve your matter that are in your best interests, avoid unnecessary conflict, and save time, and high legal costs

A good family law solicitor will look at your case not just issue-by-issue, but holistically, and advise you on a range of options to resolve your matter and help you move on with your life whilst doing the least damage to your relationship with your former partner.

A skilled and experienced family law solicitor should have a suggestion and possible solution for every family law issue you raise.  The first suggestion, unless absolutely necessary, should never be – go to court.  The court process is often traumatic, costly, takes a long time and unnecessarily adds to the conflict between separated parties.

A family law solicitor who has you and your family’s best interests at heart will advise you on the suitability of options such as informal settlement discussions between you and your former partner, mediation, the collaborative law process, arbitration and negotiation via solicitors or a combination of them.

These pathways to resolution are effective in the vast majority of family law cases and can involve solicitors as much or as little as each party requires, thereby saving legal costs.

  1. Your family law solicitor suggests things that you can do yourself to save legal costs

A family law solicitor who has your best interests at heart will always suggest things you can do to prepare, advance or settle your case yourself and save legal costs.  Such suggestions, where appropriate, might include:

  • preparing a chronology – to save the costs of taking a long statement from you as to your relevant contributions, future factors and care arrangements for the children;
  • preparing a draft property pool/asset and liabilities table;
  • gathering all relevant financial documentation – including superannuation statements from your superannuation fund, relevant bank statements, guarantee documents and other financial information from your banks and financial institutions, and trust deeds, tax returns and financial statements from your accountant (where necessary); and
  • where appropriate, conducting informal settlement discussions with your former partner – to try to narrow or resolve some of the legal issues, after your solicitor has provided you with the legal advice you require.

The role of a family law solicitor

What many separating parties don’t realise is that your family law solicitor can do as little or as much as you require.  You may not need a family law solicitor to represent you on all legal issues and a good solicitor should be upfront about which legal issues you would benefit most from having legal representation for.  You may just need some advice and guidance at the initial stages of separation, and then at the final stages of your matter, for your solicitor to make ‘legal’, any settlement agreements reached.  This is a good option for many separating couples.

If you need expert legal advice on any family law issues and are after a solicitor who will really listen, and come up with effective, realistic and optimal suggestions and advice tailored to your particular situation, please contact Julie Hodge, Senior Associate in our Miller Harris family law team.

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Update: Workplace Discrimination

March 14th, 2017

The New South Wales Civil and Administrative Tribunal (“Tribunal”) has recently awarded an employee $24,000.00 in compensation on the basis that her employer discriminated against her after she contracted tuberculosis.  Tuberculosis is a disease caused by bacterial infection and can be treated with antibiotics, symptoms may include coughing and fatigue.

The Tribunal held that the employee had been treated less favourably than a hypothetical employee without the ‘disability’ under the workplace policies.  This unfavourable treatment consisted of being pressured to take unpaid leave, being unduly performance managed and being pressured to resign.

In addition to being awarded a sum for her economic loss in taking unpaid leave, the Tribunal also awarded $10,000.00 in compensation for the detriment to the employee’s sense of self and wellbeing.  The fact that the employer had offered a separation package did not influence the Tribunal when calculating the quantum of the compensation.

This decision is a timely reminder to both employers and employees of the wide reaching application of anti-discrimination legislation.  In Queensland, discrimination is prohibited against the following attributes:

  • sex;
  • relationship status;
  • pregnancy;
  • parental status;
  • breastfeeding;
  • age;
  • race;
  • impairment (which includes disease or illness);
  • religious belief or religious activity;
  • political belief or activity;
  • trade union activity;
  • gender identity;
  • sexuality;
  • family responsibilities; or
  • association with, or relation to, a person identified on the basis of any of the above attributes.

At Miller Harris Lawyers we have a dedicated team of employment lawyers who can assist both employers and employees to understand their respective rights and obligations in the workplace.  We can also assist in preparing appropriate internal policies and practices to minimise the risk of discrimination claims arising.

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Thinking of buying a second hand vehicle, watercraft, caravan or motorcycle?

March 13th, 2017

If you are considering buying a second hand motorcycle, trailer, caravan, watercraft, aircraft or other ‘vehicle’ from a private seller then you should always consider conducting a Personal Property Securities Register (“PPSR”) search.

Conducting a search is important when purchasing from a private seller through Gumtree, Facebook or newspaper advertisement.  However, a search need not be conducted if purchased through an authorised second hand vehicle dealer.

A PPSR search costs as little as $3.40 and it will reveal whether or not there is a security interest already registered over the vehicle.  This is important, as if you acquire property over which a debt is owed, the debtor may be able to take possession of the property in order to satisfy the pre-existing debt. Alternatively you may end up paying off the previous owner’s car loan. This is because the loan is charged over the car itself (a bit like a mortgage over a property) and not the individual.  This can leave the purchaser out of pocket.

In some instances the search may also provide other useful information such as registration details, description of the vehicle and whether the vehicle has been reported as stolen or has a written off status.

A PPSR search is easy to conduct, all you need is the vehicle’s VIN number or the watercraft’s HIN (hull number).  Other property may be searchable by reference to some other serial number.  This information is available on the PPSR website.  The search can be conducted online or through the PPSR contact centre.

On completion of the search you will be issued a certificate.  If the certificate states that “there is no security interest or other registration kind registered on the PPSR against the serial number” then this means that there is no outstanding debt owed on the vehicle.  Provided that you have conducted the search either on the day of purchase, or the day before purchase then you will be protected and have peace of mind.

If however the search reveals registered interests, then the asset in question is subject to those interests.  If you are considering purchasing a car that has a registered security interest, then there are steps that you can take to protect yourself.  These include attending at the financier’s office to ensure the owner uses the money you pay for the car to first satisfy the remainder of the loan.

If you have any questions in relation to the Personal Property Securities Register please contact our commercial department on 4036 9700.

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Building and Construction Industry Reform – Security of Payment

March 8th, 2017

The Queensland Government is currently undertaking public consultation on a suite of proposed law reforms for the building and constructions industry.  A key component of the proposed reforms is improved security of payment for sub-contractors.

The planned changes will impose an obligation on head contractors (in projects over $1 million) to set up a Project Bank Account (“PBA”) for large construction contracts which the principal will make payments into.  The account is to be set up as a trust account with the head contractor and sub-contractors as the beneficiaries.  Progress payments and retention amounts paid by the principal will be required to be paid to the PBA.

The purpose of the account is to quarantine payments to subcontractors particularly in the event of the head contractor’s insolvency.  It is also designed to encourage head contractors to pass on progress payments more quickly, instead of retaining progress payments for other general expenses.  The PBA requirements will only apply to sub-contractors who have contracted directly with the head contractor (i.e. sub-subcontractors will not be covered).

To coincide with the introduction of PBAs the Queensland Government is also considering:

  • changes to the Building and Construction Industry Payments Act to encourage earlier lodging of payment claims by sub-contractors where adjudication is required;
  • amending the Subcontractors’ Charges Act to update the Act in accordance with the other proposed changes; and
  • combining the legislation dealing with sub-contractor payments into one act.

The PBAs will be brought into effect for government projects between $1 million and $10 million from January 2018.  The government plans for the changes to be in effect and begin applying to private sector contracts from January 2019.

Some of the other proposals for reform include:

  • builders’ licensing requirements;
  • powers of the QBCC in relation to non-conforming building products; and
  • the Queensland Home and Warranty Scheme.

The closing date for written submissions on the proposed changes is 15 March 2017.  Further information on the Queensland Building Plan and making submissions can be found here.

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Amendments to the Privacy Act on Cyber Security

March 2nd, 2017

Notifying customers of data breaches that could cause serious harm will now be mandatory for entities under the Privacy Act following the enactment of the Privacy Amendment (Notifiable Data Breaches) Bill 2016.  The amendments come as a result of record data breaches in 2016 along with some high profile breaches of companies such as Ashley Madison (in 2015) which is reported to have leaked the names and other personal information (including credit card details) of over 30 million people.

The changes to the privacy laws on this issue have been a long time coming.  This is the third time the changes have been put before parliament and come as a result of the recommendations of the Australian Law Reform Committee’s report on Australian Privacy Laws from 2008.

The amendments will require organisations covered by the Privacy Act to notify customers where there has been an ‘eligible data breach’.  This includes where there is unauthorised access, unauthorised disclosure or loss of personal information that could reasonably cause serious harm to individuals.  ‘Harm’ includes physical, emotional, reputational or financial harm.

Notifications of breaches are to be communicated to individuals in the usual way the organisation corresponds with the individual or if that is not practical, notices are to be published on the organisation’s website.  Notifications will not be required:

  • where the harm as a result of the breach is not reasonably considered to be ‘serious’;
  • if an organisation is sure that they have taken effective measures to remediate the harm arising from a data breach before it occurs; or
  • where a suspected breach has occurred and following investigation the entity believes that no breach occurred (notification will be required where an investigation finds that there was a breach that could cause serious harm).

A failure to comply with the new laws once they come into effect may result in organisations facing investigation by the Privacy Commissioner, court action, compensation orders or penalties up to $1.8 million.

The legislation provides for a grace period of 12 months before the changes will come into effect, to give those entities affected, time to implement policies and procedures dealing with the changes.

If you have any questions about the changes or would like assistance in reviewing policies and procedures please contact our team today.

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Solar Energy at Miller Harris Lawyers

March 2nd, 2017

It was an exciting day today as Miller Harris Lawyers’ solar energy system was officially ‘switched on’ for the first time. “This is the culmination of a number of months work and it is great to see the system now up and running.”  Miller Harris Lawyers Director of Operations Nick Masasso said.  “We anticipate the system will provide approximately 25% of our total energy requirements with the potential for further expansion in future.  As well as the cost savings associated with a reduced power usage, this system is another important contribution to the sustainability of our business.  It also follows our recent adoption of commercial waste recycling arrangements for our building.”  Nick went on to say.  “We now just hope the clouds disappear soon so we can see the full benefits from the system!”

Miller Harris Lawyers’ commercial team is able to advise clients and businesses considering the switch to solar and other renewable energy sources on the variety of legal issues involved including the assignment of Small-Scale Technology Certificates (STCs), supply agreements with installation contractors and Negotiated Connection Establishment Contracts with Ergon Energy and other energy suppliers.

 

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