Law Info

Some of the properties that the court can deal with may include:

• property purchased during the marriage;
• property owned by the parties before the marriage;
• assets built up in a business;
• gifts and inheritances received by either party;
• superannuation;
• redundancy;
• compensation.

When talking about property in relation to trusts or a company, the court may treat such property as belonging to one of the parties if it appears that they have benefitted from the ownership of the trust or company.

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When determining whether a person is in contravention of s 21, s 22(1) of the ACL outlines the types of conduct that may be considered unconscionable by the courts which includes the following:

“(1)  Without limiting the matters to which the court may have regard for the purpose of determining whether a person (the supplier ) has contravened section 21 in connection with the supply or possible supply of goods or services to a person (the customer ), the court may have regard to:

(a)  the relative strengths of the bargaining positions of the supplier and the customer; and

(b)  whether, as a result of conduct engaged in by the supplier, the customer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier; and

(c)  whether the customer was able to understand any documents relating to the supply or possible supply of the goods or services; and

(d)  whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the customer or a person acting on behalf of the customer by the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the goods or services; and

(e)  the amount for which, and the circumstances under which, the customer could have acquired identical or equivalent goods or services from a person other than the supplier; and

(f)  the extent to which the supplier's conduct towards the customer was consistent with the supplier's conduct in similar transactions between the supplier and other like customers; and

(g)  the requirements of any applicable industry code; and

(h)  the requirements of any other industry code, if the customer acted on the reasonable belief that the supplier would comply with that code; and

 (i)  the extent to which the supplier unreasonably failed to disclose to the customer:

 (i)  any intended conduct of the supplier that might affect the interests of the customer; and

(ii)  any risks to the customer arising from the supplier's intended conduct (being risks that the supplier should have foreseen would not be apparent to the customer); and

(j)  if there is a contract between the supplier and the customer for the supply of the goods or services:

(i)  the extent to which the supplier was willing to negotiate the terms and conditions of the contract with the customer; and

(ii)  the terms and conditions of the contract; and

(iii)  the conduct of the supplier and the customer in complying with the terms and conditions of the contract; and

(iv)  any conduct that the supplier or the customer engaged in, in connection with their commercial relationship, after they entered into the contract; and

(k)  without limiting paragraph (j), whether the supplier has a contractual right to vary unilaterally a term or condition of a contract between the supplier and the customer for the supply of the goods or services; and

(l)  the extent to which the supplier and the customer acted in good faith.”

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Using s 18E of the Home Building Act 1989 (NSW) as our example, a major defect is defined as a defect in a major element of a building that is attributable to defective design, defective or faulty workmanship, defective materials, or a failure to comply with the structural performance of the Code.

A major element in relation to a building can mean the following:

·         internal or external load-bearing components of a building that is essential to the stability of the building, or any part of it, that can include, but not limited to foundations, footings, floors, walls, roofs, columns, beams;

·         fire safety systems;

·         waterproofing;

·         any other element that is prescribed by the relevant statute. 

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Generally speaking, for fixed term contracts of less than two years, a landlord cannot increase rent unless 60 days’ written notice has been provided, and that the rental agreement either specifies the increase in rent, or there is an outline of the method for which the increase will be calculated.

In relation to fixed term agreements of two years or more in duration, the 60 days’ written agreement can be applied, and a maximum of one increase is allowable for a 12 month period.

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In circumstances where a co-tenant or co-tenants wish to end the tenancy relationship with another tenant, generally speaking, an application must be submitted to the relevant state or territory body, and must outline the special circumstances warranting the eviction of the person. However, it should be noted that common issues such as the person never doing the dishes for example may not be seen as a sufficient reason for evicting a co-tenant. 

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Damage from either a tree or branches may make the neighbour liable in negligence for any damages if the neighbour fails to address any dangers.

In circumstances where a tree or branches that were not overhanging onto the adjoining property fell onto the adjoining land after trimming, or purposely put onto the property, the person whose land the tree or branches came from may be liable for damages in trespass.

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Before exploring in greater detail the laws surrounding easements, it’s probably a good starting point to clarify what exactly is an easement. Well, an easement gives a person the right to use a neighbour’s land without actual possession. So, having the right of way to pass through a neighbour’s land to get to yours is perhaps the most common example of an easement. 

Easements generally cannot exist without one piece of land deriving a benefit from another. The land that is deriving the benefit is known referred to as the dominant tenement, while the land which is subject to the easement is known as the servient tenement. In summation, an easement is a right which is taken from one estate, and attached to another.

Readers might assume that the two estates also need to be adjacent to one another in order for an easement to be created, but this is not always the case. The general approach when creating an easement is that if the estates are too far away from one another, the easement may not be considered valid because there may be no actual benefit to the dominant tenement – which is after all, the main reason for wanting to create an easement in the first place.

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There’ll of course be circumstances where repairs are urgently required and there is no choice but for a tenant to arrange for repairs to be made immediately. A tenant may arrange for urgent repairs to be carried out to the rented property if the tenant:

• has taken reasonable steps to arrange for the landlord or the landlord’s agent to immediately carry out the repairs; and
• is unable to get the landlord or agent to carry out the repairs.

If a tenant does have to use their own money in undertaking any urgent repairs, in New South Wales and Victoria, tenants can be reimbursed for up to $1000 or such other prescribed amount, and within 14 days, must provide written notice to the landlord about the costs associated in organising for the urgent repairs to be undertaken.

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It’s not unusual for a tenant to disagree with what the landlord may have written in a condition report, and in such a scenario, the tenant should make note of their disagreement. If it’s possible, taking photographic evidence may be a good idea and can be used as evidence for the tenant. It may also be handy to have the photo dated and signed by a witness in the event of a dispute. Additionally, a tenant can also apply to the relevant body to have the condition report amended.

If a landlord fails to provide a condition report, then a tenant may be able to produce their own report and have it signed by a witness. A copy should also be provided to the landlord or real estate agent.

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There are various situations where the right to redeem in equity can be extinguished, and can be generally done so under the following circumstances:

• the mortgagee chooses to foreclose a property;
• the mortgagor has not enforce their right within the statutory limitation period;
• the mortgagee has purchased the right of redemption.

However, we should note, that equitable jurisdictions may be reluctant in interfering with the enforceability of the right of redemption. One such example that may be considered as interference in the enforceability of the right of redemption will be a situation where either a right or option to buy a mortgaged property extinguishes the right to redeem. Such a right can only be done so via a separate and independent agreement. 

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Real estate agents or landlords can only list information on the tenant database under the following circumstances:

• the person was a tenant as classified under a residential tenancy agreement and that the agreement was terminated; and
• the person had breached their agreement; and
• due to the breach, the person may owe an amount greater than the rental bond, or the relevant body has issued a termination order; and
• the information on the tenant database accurately, completely and unambiguously specifies the nature of the breach.

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When a marriage comes to an end, there are a number of matters that need to be considered, with one of the biggest issues related to how property is to be dealt. Property matters can be dealt with privately or the court can issue a property order. In the event that the court has to make a decision in relation to a property order, there will be a process that will be undertaken which this piece will cover.

Prior to the High Court decision in Stanford v Stanford (2012) 247 CLR 108; HCA 52, the courts relied on the four step process based on s 79(4) of the Family Law Act 1975 (Cth) (the Act) which provided guidance as to how the court should apply a “just and equitable settlement”. However, with the decision in Stanford, there is now a threshold question that also needs to be raised before the application of the four step process.

The High Court in Stanford recognised for the first time that it shall not make a property settlement order unless it is satisfied that it is “just and equitable”. The Court came to this conclusion because it recognised that property orders can potentially modify legal and/or equitable rights to property, and it can also have an impact on third parties.

In Stanford, the Court outlined three fundamental propositions that must not be obscured, which were:

·         consideration whether it is just and equitable to make a property settlement order by identifying according to ordinary common law, and equitable principles, the existing legal and equitable interests of the parties;

·         in relation to property settlement, there is no special right to a settlement that arises from family law;

·         when determining what is just and equitable, the court isn’t exclusively reliant on s 79(4) of the Act, but rather, the surrounding circumstances of the parties.

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Landlords or real estate agents generally cannot list a person on a tenant database without first providing a tenant with an outline of the information they want listed, or take reasonable steps to provide the information to be listed to the tenant. In addition to providing the tenant with the relevant information to be listed, the real estate agent or landlord must give a tenant no less than 14 days to review and to respond to the information to be listed. Finally, if the tenant provides a response, the real estate agent or landlord must consider that response.

Personal information cannot be listed by a database operator unless requested by a real estate agent or landlord, and the information listed must also be made in accordance with the criteria contained in the previous paragraph.

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• sponsorship, approval or affiliation; or
• the nature of the interest in the land; or
• the price payable for the land; or
• the location of the land; or
• the characteristics of the land; or
• the use to which the land is capable of being put or may be lawfully put; or
• the existence of availability of facilities associated with the land.

The matter of Pryor v Given was an appeal to the Federal Court of Australia regarding a decision under s 53A(1)(b) of the former Trade Practices Act 1974 (the TPA) in which the appellant was convicted of making misleading statements in the sale of land. The basis for initiating legal action centred around  advertisements for the sale of land in various media that included the words “a wonderful place to live” and “watch it grow”, with the ads also including a pictorial representation of a number of houses. 

Ultimately, the court found that the appellant had engaged in a misleading representation concerning the use of the land contravening s 53A(1)(b) of the TPA, which was a precursor to s 30(1)(f) of the ACL.

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Residential tenancy agreements should have a number of standard terms, and generally speaking, such terms cannot be varied by a landlord.

Some of the most important terms that cannot be varied include:

• the existence of an agreement;
• the right to occupy and possess the property;
• the amount of rent that should be paid, which includes either increases or reductions in rent;
•  rights such as the right to quiet enjoyment, and to use the property;
• the obligations of the landlord in relation to the property, such as urgent repairs and access to the property.

The above standard terms is just an outline and do not include all standard terms that should be in a leasing agreement.

Landlords must provide a written agreement at the commencement of the leasing period and depending on the laws of the jurisdiction, landlords may not be able to increase the rent for a specified period, nor are they also allowed to terminate the agreement if no grounds are provided.

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In order for a marriage solemnised overseas to be valid in Australia, the marriage must conform to the legal requirements of the country in which the marriage is held. If no such laws exist, then the vows must be performed before an episcopally ordained priest and generally should also include the following:

·         the ceremony was documented and witnessed

·         vows were exchanged before an ordained priest.

If the basic common law parameters are met, then the marriage will usually be recognised in Australia as valid.

On the other hand, if the marriage took place during a period of civil strife such as the breakdown of the civilian authority, or during a period of armed conflict within the country in question, then it may be impossible to conform with the local requirements, and as a consequence, the marriage may not be recognised as valid in Australia.

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The question of the validity of a marriage involving a person who underwent a transition was considered by the Full Court of the Family Court in the matter of Re Kevin FLC 93-127.

The Full Court rejected the approach adopted in the English decision of Corbett v Corbett (orse. Ashley) in particular the notion that one of the purposes of marriage is that of procreation. The Full Court in Re Kevin stated (at 78,143):

“[W]e reject the argument that one of the principal purposes of marriage is procreation. Many people procreate outside of marriage and many people who are married neither procreate, nor contemplate doing so.”

Additionally, the Full Court also held the term ‘man’ in the Act should be afforded its “contemporary ordinary everyday meaning” (at 78,139).

Ultimately, the Court upheld the validity of Kevin’s marriage and should be regarded as a man for the purposes of marriage as defined in the Act due to some of the following reasons (at 78,170):

• Kevin had always perceived himself to be a male;
• Kevin was perceived by those who knew him to have had male characteristics since he was a young child;
• Kevin undertook sex reassignment surgery;
• at the time of marriage, Kevin’s appearance, characteristics and behaviour was perceived as a man by his family, friends and fellow employees;
• Kevin was accepted as a man for a number of social and legal purposes;
• Kevin’s marriage as a man was accepted in full knowledge of his circumstances by his family, friends and work colleagues.

It should be highlighted, that the Full Court left open the question of whether a person who has yet to undertake a surgical procedure, should be regarded as a member of their psychological gender. 

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In order for a step parent to adopt a child, the following requirements must be met:

·         the child is at least five years of age;

·         the step parent must have lived with the child and the birth or adoptive parent of the child for a continuous period of at least two years;

·         the Court is satisfied that the adoption order is clearly preferable in the best interests of the child to any other action.

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Separation in the sense used within the Family Law Act 1975 (CTH) (the Act) does not encompass periods where the parties are living apart for other reasons, such as one person has been transferred overseas for work for example. In order for the court to construe that a period of separation has begun, some of the considerations can include:

·         one party informing the other that they consider that the marriage has come to an end;

·         evidence that demonstrates separation, such as one party taking steps to end financial arrangements or one party has cohabitated with another person for example.

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The ACT, New South Wales, Queensland, Tasmania, and Victoria provide for voluntary reporting to an authoritative body if a child is being maltreated or requires care. The provisions differ slightly between the jurisdictions. For instance in New South Wales, s 24 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) provides that a person believing on reasonable grounds that a child is at risk of harm, may notify the Director-General of the Department of Community Services. Additionally, some jurisdictions provides that any person acting honestly and without recklessness in their reporting, will not be been deemed to have breached their professional ethics and is protected from civil liability, such as s 874 of the Children and Young People Act 2008 (ACT).

Although there are no specific provisions in South Australia and Western Australia for voluntary reporting, both jurisdictions still provide for those who have acted in good faith when reporting maltreatment of a child to the relevant authority, and will generally be protected from civil or criminal liability.

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At the federal level, there are no laws in place where those in de facto relationships are afforded personal protection. However, s 114(2A) of the  Family Law Act 1975 (Cth) (the Act) may apply to a de facto relationships restricting one party from entering, using or occupying a residence of one or both parties to the de facto relationship.

Former de facto partners may be eligible for an s 68B personal protection order if they are a parent of a child of the relationship, a person where the child is living under the parenting order, or any other set of relationships as defined under the section in relation to the child.

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The term ‘living will’ is somewhat misleading in that it is not a document related to how a person’s assets are to be dispersed upon their passing, but rather, it is a written document relating to how a person is to be treated in the future if they are incapacitated. The more accurate descriptor for a living will is ‘Advance Care Directives’ and there may be some differences between the States and Territories in relation to such documents.

For any person wishing to make plans for the possibility of future incapacity, it’s essential that you talk to a legal practitioner to ensure that your interests are properly handled. 

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Using the Relationships Register Act 2010 (NSW) as our statutory example, two adults who are in a relationship can register if:

• at least one of the partners resides in the State;
• neither person is married, in a registered relationship, or in a relationship as a couple with any other person; and
• the parties are not related by family.

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Prior to the High Court decision in Stanford v Stanford (2012) 247 CLR 108; HCA 52, the courts relied on the four step process based on s 79(4) of the Family Law Act 1975 (Cth) (the Act) which provided guidance as to how the court should apply a “just and equitable settlement”. However, with the decision in Stanford, there is now a threshold question that also needs to be raised before the application of the four step process.

The High Court in Stanford recognised for the first time that it shall not make a property settlement order unless it is satisfied that it is “just and equitable”. The Court came to this conclusion because it recognised that property orders can potentially modify legal and/or equitable rights to property, and it can also have an impact on third parties.

In Stanford, the Court outlined three fundamental propositions that must not be obscured, which were:

• consideration whether it is just and equitable to make a property settlement order by identifying according to ordinary common law, and equitable principles, the existing legal and equitable interests of the parties;
• in relation to property settlement, there is no special right to a settlement that arises from family law;
• when determining what is just and equitable, the court isn’t exclusively reliant on s 79(4) of the Act, but rather, the surrounding circumstances of the parties.

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Section 90G of the Family Law Act 1975 (Cth) (the Act) outlines the circumstances when financial agreements are binding. The requirements are strict, and all parties must have been provided with independent legal advice about the effects of the agreement on the rights of the party, and the advantages and disadvantages of making the agreement. Additionally, the parties must be provided with a signed statement that independent legal advice had been sought, and that the agreement has not been terminated. After both parties have signed the agreement, both parties will be provided with either the original document, or a copy.

The Act provides the court a wide range of powers to make orders that the court deems necessary to enforce any agreements. 

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If the respondent is based in another country, it is important to find out whether Australia has an agreement with the other country in relation to civil proceedings, and such countries are referred to as a Convention country, as set out in reg 21AE of the Family Law Regulations 1984 (Cth). The other important detail, besides whether the respondent resides in a Convention country, is also whether the person is a citizen of that country.

If the respondent is in a Convention country, the documents may be sent to the registrar of the Family Court, who then forwards the documents to the respondent in the Convention country. For anyone who is unsure about the requirements of overseas service, they should check the Commonwealth Attorney General’s guide to Serving a legal document across international borders on their website.

For respondents in non-Convention countries, documents may be served by post or by using a process server in that country.

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There may be instances where the court may consider that there is a “reasonable excuse” for contravention of an order with the reasonable excuses outlined in s 70NAE of the Family Law Act 1975 (Cth)(the Act), and are as follows:

·         the party fails to understand their obligations imposed by the order;

·         one party holds the reasonable belief that it was necessary to contravene the parenting order to protect the health and safety of the child, the parent, or another person;

·         the act of contravention was not for a period longer than was necessary to protect the health and safety of the person.

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There is of course no uniform way in which marriages should be conducted, and the law does not attempt to define how a married couple should behave. Instead, the court will look at evidence showing that there has been a change in the overall character of a relationship.

The reasoning behind why the court will look to any changes in the overall character of a relationship is essential if there is any dispute that may arise in relation to the date of separation. Consequently, the court will look at the entirety of circumstances of the relationship pre and post-separation.

Some of the factors that the court may consider when determining separation can include whether the parties live together, whether they continue to have sexual relations, complete household duties for one another such as cooking and cleaning, present themselves as a couple out in public, jointly care for any children, and whether they support or protect one another may be some of the considerations of the court. Although some of the aforementioned indicators may be considered, it should be reemphasised that the absence of the indicators does not within itself signify that the marriage has come to an end, and that there is no formula which is indicative that the marriage has reached its conclusion.

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It should also be noted that the homemaker and parental contribution considerations can also apply to men as well. Therefore, labour involving home improvements can also be seen as non-financial contributions, especially if it leads to an increase in the value of property.

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Generally speaking, when a person gets married, any will made before the marriage will be revoked. However, wills made before a marriage that anticipates the marriage will generally be valid.

Again, it’s always a good idea that a person has a will. However, it is equally as important to create a new will after the marriage to ensure that a person’s intentions are fulfilled in the event of death because if there is no will, a person dying intestate may result in a number of issues for the surviving spouse.

The intestacy rules may differ between the jurisdictions but generally speaking, the surviving spouse may need to make an application to the Supreme Court for letters of administration and to be appointed as the executor. However, all jurisdictions grant entitlements to spouses in the case of intestacy.

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With the introduction of the Bankruptcy and Family Law Legislation Amendment Act 2005(Cth)(the Amendment) afforded non-bankrupt spouses greater protections in property proceedings with the insertion of the s 59A provisions into the Bankruptcy Act. The provisions provides that ss 58 and 59, being the vesting sections, are subject to orders made under Pt VIII of the Family Law Act 1975 (the FLA). So what does that exactly mean? Well, what it essentially signifies is that the income of the bankrupt does not vest in the trustee, therefore, allowing a non-bankrupt spouse the ability to seek maintenance from a bankrupt spouse. 

• a party to a marriage; and
• the bankruptcy trustee of a bankrupt party to the marriage.

“Although, there is a general rule, it is not absolute, is not prescribed by statute and there are a number of well recognised exceptions. There is no requirement of that the rights of an unsecured creditor or a claim by a third party must be considered and dealt with prior to the Court making an order under sec 79, nor is there a rule of priority as between a creditor claimant and a spouse. Those rights, however, cannot be ignored. They must be recognised, taken into account and balanced against the rights of the spouse.”

Under the provisions of s 79(12) of the FLA, there will be certain circumstances where a trustee in bankruptcy must be joined to the proceedings, and the bankrupt needs to obtain leave in order to make submissions if the trustee is a party.

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The laws relating to surrogacy arrangements within Australia falls within the jurisdiction of state and territory governments, with the majority of jurisdictions having relevant legislation relating to the legal transfer of parentage following surrogacy. Additionally in most jurisdictions, altruistic forms of surrogacy are legal, while surrogacy arrangements that have a commercial aspect are illegal.

The transfer of legal parentage of children born via a surrogacy arrangements will be recognised for the purposes of any proceedings as noted in the Family Law Act 1975(Cth) under orders of a state or territory court (s 60HB).

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Employment in Australia may take many forms that can include full-time, part-time, casual or via labour hire arrangements. There are a number of distinguishing characteristics of each type of employment which this piece will outline.  

Full-time employees

Full-time or permanent employees are generally contracted to work at least 38 hours per week and the contract of employment is usually ongoing. Full-time employees also receive the following benefits:

• paid personal/carer’s leave, holiday pay, and sick leave just to name some benefits;
• mandatory minimum notice requirements if their contract of employment is terminated, and redundancy payment in the case of redundancy;
• redundancy pay if the workplace employs at least 15 employees.

Part-time employees

Generally speaking, those who are considered as part-time employees will usually work less than 38 hours and the contract of employment is usually ongoing. Additionally, the weekly hours for part-time employees usually remain the same. Finally, benefits for part-time employees are the same as for full-time employees, however, the benefits are calculated on a pro-rata basis.

Casual employees

The hallmark of casual employment is that the hours of work are irregular, and there are no expectations or certainties when it comes to weekly hours, designated shifts or employment that is ongoing. Theoretically speaking, casual employees are only hired for the duration of their shift, and they also do not enjoy the same entitlements as full or part-time employees. However, with that being said, casual employees may be paid at a higher hourly rate which is known as casual loading.

One of the things to bear in mind when talking about casual employment, is that there are no expectations for regular work hours, and designated shifts.

Labour hire

Labour hire arrangements usually refer to a person being employed by a firm, who then sends the worker to perform work for a client agency. The client agency will pay the relevant fees to the firm.

In relation to pay, the worker will be paid by the firm even though they are undertaking work for a client agency, and any entitlements owed to the worker will also be paid by the firm.

Some workers may also be deemed as independent contractors, which mean they are neither an employee for the firm or a client agency, and can be referred to as labour hire workers.

We should take the opportunity to make a distinction between those undertaking labour hire arrangements and recruitment services. Recruitment service agents will find a worker for a client organisation, with the prospect that the worker will be offered a contract with the client organisation. If the worker is offered a contract with the client organisation, the agent will receive a fee. It’s important to note that in such instances, the worker is at no time employed by the recruitment organisation.

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Broadly speaking, any reproduction, publication and communication rights may be infringed upon if the reproduction of a copyright work is unauthorised, and if the reproduction is supplied to secondary public marketplace, as outlined in ss 31 and 38 of the Copyright Act 1968 (Cth). The general position in Australia when looking at the transfer, sale or sharing of digital content may attract copyright infringement if the action involves any reproduction of the relevant material.

In Australia pursuant to any law, the online transfer, sale, or sharing of digital content may attract copyright infringement if the action involves reproduction of the relevant material. On the flipside, the publication right grants the copyright holder the ability to publish or authorise another party to supply reproductions of the relevant work to the public. However, this is only related to first publication of the material. 

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Section 165 of the Australian Consumer Law sets out multiple pricing offences that are the same as the civil pecuniary penalties. Additionally, a body corporate or other persons committing an offence against s 165 is one of strict liability. Therefore, intent is not a consideration for a person committing the offence.

We can turn to the Secondary Explanatory Memorandum for more context in relation to the offence:

“The strict liability nature of the offence reflects the potential for widespread detriment, both financially for individual consumers and for its effect on the market and consumer confidence more generally, that can be caused by a person that breaches this provision, whether or not he or she intended to engage in the contravention.

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When registering a design, one or more people may be able to file an application and when an application is filed, it must specify the person or persons who are entitled to be entered into the Register as the registered owner or owners, as outlined in s 22 of theDesigns Act 2003 (Cth) (the Act).

The design application may be in respect of one design relating to one product or several products. Additionally, the application may also be in respect of multiple designs relating to one product or several products if they belong in the same classification category, as outlined in s 22 of the Act.

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The decision in Ponce v DJT Staff Management Services Pty Ltd t/as Daly’s Traffic[2010] FWA 2078 in some ways paved the way for casual employees to bring an unfair dismissal claim in reliance upon s 384(2)(a) of the Fair Work Act 2009 (Cth) (the Act).

The applicant in the case, Cori Ponce, worked for the respondent company daily and nightly over a 21 month period, satisfying the s 384(2)(a) requirement of employment on a regular and systematic basis, while also meeting the six month minimum employment period set out in s 383(a) of the Act. Commissioner Roe who oversaw the matter, articulated the principles attached with employment on a regular and systematic basis, which included the following observations:

·         Regular and systematic does not necessarily mean the hours and days must be regular and systematic: Commissioner Roe found that ‘regular and systematic’ under the Act, meant that there must be “sufficient evidence to establish that a continuing relationship between the employer and the employee has been established” – which is the reason why the Act has included within its provisions, that an employee must also have a reasonable expectation of continuing employment.

·         If the hours worked are small, and the gaps between days and times worked is long, other evidence must be produced to demonstrate regular and systematic employment:in instances where there is no clear pattern of employment, evidence of employment on a regular and systematic basis can also include the following: the employer regularly offered work when suitable work was available at the times when an employee has made him or herself available to work for the employer; and work had been offered and accepted on a sufficient basis where it can be no longer regarded as simply occasional or regular.

·         Hours worked by the employee were similar or exceed full-time ordinary hours can also be deemed as strong evidence of regular and systematic employment.

·         The reasonable expectation of continuing employment is not only about having that expectation at the moment of termination, but the expectation during the period of service as well.   

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For a person to be found liable of contravening the s 35(1) of the Australian Consumer Law (the ACL) provisions of bait advertising, is dependent on the person’s knowledge during the time of when the advertising was directed to the consumer. The s 35(2) provisions, creates an absolute liability towards the advertiser, by obliging him or her to offer the goods and services which is advertised to be supplied.

One of the elements of the s 35 provisions is that of reasonableness, and reasonableness will be dependent on the nature of the product that is being advertised, as well as the length of the sale of the advertised product. In ascertaining reasonableness, past practices may also be taken into account.

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Trying to define who is a consumer is surprisingly complex, however in broad terms, a consumer is any person who has acquired goods or services where the goods or services supplied are the kind ordinarily acquired for personal, domestic or household use or consumption of where the contract price is not in excess of $40,000. 

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Although white collar offences generally do not involve instances of violence, that fact still does not have an impact in relation to sentencing considerations. In R v McLean (2000) 2 VR 118 (CA), Tadgell JA, with agreement from the other judges, rejected the notion that white collar criminals should expect favourable treatment because they have no prior convictions is misguided, but rather, the person will still be sanctioned by the courts where appropriate(at 139 [48]):

“[A]ny principle to the effect that those with no criminal record who chooses to engage in serious “white collar” crime can expect to be sentenced as though they form a privileged class. Where appropriate, these people are liable to find themselves condignly dealt with, even as first offenders.”  

Additionally, good character may also have little significance for a person found to have committed a white collar crime, as McClellan CJ said when imposing sentence in R v Lo (2007) 74 A Crim R 451 (at 461 [28]):

“In the context of “white collar” offences, good character cannot be given undue significance as a mitigating factor... Even if evidence as to character is afforded some weight, the need for general deterrence may be strong enough to outweigh good character as a significant mitigating factor...”

One important consideration when sentencing a person for any criminal offence is that of general deterrence, and white collar offences are no exception, as Charles JA noted in DPP v Bulfin [1998] 4 VR 114; (1998) 101 A Crim R 40 (CA) where his Honour said (at 13 and 132):

“In the case of white collar crime, the lives of the offenders and their families will frequently have been devastated by the consequences of discovery and punishment. The present case is a very good example. It would be difficult not to feel great sympathy for the respondent’s wife and family and, indeed, for the respondent himself. But I think there is a serious risk that the consequences of discovery and punishment, and the havoc that a custodial sentence usually wreaks on the lives of the white collar criminal and his or her family, may have a tendency to distract attention from the importance of general deterrence ought to carry in the imposition of sentences for crimes such as the present...

Whatever the motivation, offences of the kind here in question almost invariably involve a carefully calculated course of conduct over a long period, repeated deliberate acts of dishonesty, substantial amounts of money, and, frequently, losses (often tragic in their impact) to large numbers of small investors. The offender often holds a position making it possible, or has the ability, to disguise or camouflage the conduct in question. Detection is difficult, the investigation of the crime usually lengthy and very expensive, and the problems of trial and proof will frequently be extreme...”

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Except for New South Wales, all Australian jurisdictions have statutes that bind any partner undertaking acts on behalf of the business. For example, s 5 of the Partnership Act 1958 (Vic), states the following:

“Every partner is an agent of the firm and his other partners for the purpose of the business of the partnership, and the acts of every partner who does any act for carrying on in the usual way business of the kind carried on by the firm of which he is a member bind the firm and his partners, unless the partner so acting has in fact no authority to act for the firm in the particular matter and the person with whom he is dealing either knows that he has no authority or does not know or believe him to be a partner.”

In summation, this section holds that any act undertaken by a partner for the purpose of the business partnership binds the other except if the outside party knows that the partner lacks the authority to act for the business in the particular matter, or is unaware that the person is a partner.

Within partnerships, a partner can be both an agent and a principle of the partnership. As such, one partner can bind the other, while the partners may also be bound by each other.

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Section 32(1) of the Australian Consumer Law (ACL), prohibits a business from offering “any rebate, gift, prize or other free item with the intention of not providing it.” The courts having recognised the magnetism of the word “free” and have ruled that the appropriate qualifications need to be clearly spelled out as to avoid contravention of s 32(1) of the ACL, along with ss 18 or 29(m) of the ACL governing misleading conduct, as Lindgren J observed in Nationwide News Pty Ltd v Australian Competition and Consumer Commission (ACCC) (1996) 71 FCR 215. Nationwide News Pty Ltd v ACCCwas a matter where purchasers who wished to acquire a “free” mobile phone had to enter into a 15 month contract with Smartcom Telecommunications, which granted purchasers access to the Vodafone network. The “free” mobile phone would end up costing purchasers more than $2000. Lindgren J said the following in relation to the use of “free” in this instance (at 228):

“Any respect in which goods or services offered as “free” may not be free should be prominently and clearly spelled out so that the magnetism of the word “free” is appropriately qualified...An offer to a newspaper reader of a “free” mobile phone without any reference to conditions is, in my view, an offer to cause the reader to become the owner of such a phone without his or her first having to outlay money or to undertake to do so.”

In contrast, in ACCC v Telstra Corporation Ltd (2004) 208 ALR 459, Telstra placed advertisements promoting “$0*” and “$0 upfront*” handsets and mobile telephone services. The Australian Competition and Consumer Commission (ACCC) asserted that the statement was indistinguishable from the use of the word free, and the principles established in relation to products described as “free” were also applicable in this instance. Giles J did not accept the ACCC’s assertion and his Honour held [at 53]:

“In my opinion, a reasonable reader of the class concerned would understand that the offer was only made in connection with the supply of telephony and would inevitably involve signing up with Telstra for that purpose. It would be known that Telstra’s primary business is telephony, not providing mobile phones. The presence of the asterisk and the words adjacent “Telstra Mobile $20 (or other amount) Member Plan for 24 months” would underline that reading. It is not necessary for that purpose to go to the fine print at the bottom.”   

For offers relating to financial products and services, s 12DE of the Australian Securities and Investments Commission Act 2001 (Cth) mirrors s 32 of the ACL.

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Under the provisions of the Corporations Act 2001 (the Act), companies can either implement their own constitution, use the replaceable rules found in the Act, or have a combination of both in regards to the rules that will guide the internal management of the company.

Section 136(1) of the Act outlines the following ways in which a company can adopt a constitution:

•  a company may adopt a constitution on registration if each person specified in the application, who consents to being a member, agrees in writing to the terms of the constitution before the application is lodged; or
• a company registered without a constitution, may adopt one upon the passing of a special resolution.

Alternatively under s 233 of the Act, the court can also make an order requiring the company adopt a constitution (the oppression remedy).

Public companies that have a constitution are required to lodge a copy and any relevant special resolutions with the Australian Securities and Investments Commission (ASIC) within 14 days.

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Like all other property interests, commercial leases should contain the following details:

• the parties to the agreement
• the property to be leased
• the date of commencement
• the length of the agreement
• how the premises will be used.

Similar to residential leases, a commercial lessee has the right for quiet enjoyment of the property, but must also allow a lessor to enter and inspect the property, carry out repairs, and finally, to re-enter and take possession if necessary.

Although commercial leases are more businesslike in its construction, the reasonable person should still be able to understand the substance of the agreement, as well as the purpose and object of the transaction.

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Information in Australia generally isn’t considered as property, and the High Court has on numerous occasions rejected the notion that information characteristics of property, as was the case in Victoria Park Racing & Recreation Ground Co Ltd v Taylor (1937) 58 CLR 479 for example.

Although information may not be considered as property, if the confidential information is captured in a form that may ordinarily attract copyright protection, such as in photographic or document form, property rights may come into effect.

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• all parties in the partnership share in the profits and losses
• all parties have a voice in the management as proof of agency.

• co-ownership, joint tenancy, or tenancy in common does not signify a partnership, and the prime example being is when a number of people buy and sell property together for profit
• sharing of gross returns is not a hallmark of a partnership
• sharing of profits and losses is prima facie evidence of a partnership.

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Strict laws govern pool safety

A swimming pool surrounded by shady trees is a popular element of the quintessential Australian dream of owning a home in the suburbs.

It has, over the decades, become a status symbol and a welcome refuge from Australia’s often unbearably hot summers.

But many people forget owning a pool or outdoor spa is no longer a “construct and forget” proposition. In some Australian states, there are safety requirements that must be followed, particularly if the property is for sale or available for lease.

In this age of pool safety awareness, all Australian states and territories have strict laws governing construction, placement, and safety of private backyard swimming pools.

They stipulate strict fencing requirements, including minimum heights, spacing between vertical rails, and the ground and lower rails; access restrictions; and even what trees can be planted in gardens within two metres of pool barriers.

New pools cannot be filled with water until they have been inspected and certified as compliant by an authorised inspector. In the past, once a pool was certified, homeowners had little else to do but regular maintenance and keep the water clean.

New safety laws

Queensland, New South Wales and Western Australia have, in the past five years strengthened pool safety and barrier laws, making it compulsory for homeowners to maintain standards.

New measures include surprise inspections by local government authorities, the potential to be fined for compliance breaches, and mandatory inspections and compliancy certificates before homeowners can sell or lease properties with pools.

Pool owners who breach safety regulations can receive on-the-spot fines or be taken to court. Often the penalty will exceed the cost of repairs. For example, repeat Queensland offenders can face a maximum court-ordered penalty of $20,814.

New laws mostly concern fencing, self-closing gates, and access, but can also restrict certain trees and bushes near pools and require child-proof doors and window locks on houses near pools.

In Queensland, WA and NSW, pools must be registered with state governments and municipal councils, and the onus is on homeowners to ensure their pools meet the jurisdiction’s safety standards. All three have local government inspection regimes where poolowners can be issued with non-compliance notices and, if faults are not rectified, on-the-spot fines

If faults still exist when the pool is again inspected, owners can be taken to court for enforcement notices and further fines.

Inspection and certification

In Queensland and New South Wales, inspections are random but more likely to occur if the relevant council receives a public complaint. In Western Australia, mandatory local government inspections are conducted every four years.

If the home is being sold or rented, homeowners in all three states must have the pool certified by an independent safety inspector before new owners or tenants can move in.

The certification must be attached to the sale contract or rental agreement and submitted to the state government.

Other jurisdictions

In May 2017, Victoria announced it was reviewing pool safety laws after a coroner investigating a child’s drowning recommended tighter rules and regulations. There has yet to be any further action.

Other states and territories are yet to introduce stricter private pool safety laws, relying on certification at construction and owner self-management.

Check first 

Pool safety advocates recommend homeowners implement strict maintenance regimes to avoid tragedies and unexpected fines, regardless of the laws in place in their region.

Information on state and territory pool safety laws is on government websites or contact your municipal council.

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Australian strata title laws can be a source of stress for many unit owners but become even more complex for people or businesses with properties in more than one state or territory.

The responsibilities of owners, renters and owners’ corporations differ widely from state to state, with owners’ committees and strata managers in some jurisdictions required to navigate up to eight different laws or regulations to determine who is responsible for what part of a property.

This can include financial responsibility for repairs within individually owned units and in common-property areas; if and when owners’ committees are mandatory or optional; and whether property owners or tenants can smoke within their units or own pets.  

And the differences could soon vary even more, with New South Wales, Queensland, Victoria and Western Australia currently reviewing strata title legislation or implementing reforms.  

The Strata Community Association (SCA), which advises strata managers, owners and renters, says the complexity of strata laws across Australia, plus the construction of larger, more complex unit developments, is leading owners away from self-managed strata schemes to professional managers.

A successfully run strata scheme requires management of complex legislative requirements; rising costs; ageing infrastructure; owner engagement; tenant responsibilities; and support services.

Managers need expertise and experience in the legal, financial, realty, and human relations. They conduct meetings; collect and bank levies; arrange property maintenance; advise on asset management; buy insurance; and maintain financial accounts.

Most importantly, they must run properties in accordance with state or territory laws and regulations.

“Many owners’ corporations are moving away from self management and turning to professional strata managers,” SCA says. “Occasionally they are appointed to solve intractable problems, including those involving relationship breakdowns between lot owners.

“Strata managers are experts in the administration of all aspects of owners’ corporations. They work to ensure owners’ corporations are compliant with their legal responsibilities and strive to protect owner assets.”       

The rules and requirements for each state or territory can be daunting to people without experience or skills. For example, NSW strata schemes operate under eight separate pieces of legislation or regulations. The Northern Territory has six; Qld, five; Victoria and the Australian Capital Territory, four each; South Australia, three; and WA and Tasmania, one each.

Differences include:

·         For new strata schemes in NSW, when model by-laws are adopted, fixtures, such as showers, baths and plumbing within individually owned units, are usually a body corporate responsibility.

·         In Qld, unit owners are responsible for maintenance and repairs.

·         Victoria has few smoking laws under strata schemes, although they are under review.

·         For new strata schemes in NSW, model by-laws generally prohibit smoking on common property and allow it within units, but only if smoke does not penetrate into common property or other units.

Owners’ committees are mandatory in NSW, Qld, WA, the NT and the ACT. In Victoria, owners’ committees are mandatory only in developments of 13 or more units; while they are optional in SA and Tasmania.

NSW, Qld, Victoria and WA are currently reviewing aspects of their strata scheme regulations. NSW is developing more succinct by-law regulations; Qld has issued a discussion paper on new owners’ entitlements and body corporate governance; Victoria is considering NSW’s strict non-smoking rules; and WA is considering improved strata management procedures and simplified dispute resolution procedures.        

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The ideal way for a tenancy agreement to come to an end is that both the tenant and the landlord will end their agreement amicably, and no further issues will arise. Sadly, there may also be instances where the relationship has deteriorated and the landlord feels compelled to take a drastic course of action such as eviction. There are a number of questions that arise when a landlord decides to evict a person, and for any tenant out there who has any questions relating to eviction, please, read on!

Evicting a tenant

When trying to evict a tenant, landlords generally speaking cannot lock out a tenant and they may be fined, and required to compensate the affected tenant.

If a landlord decides to evict a tenant, there are certain procedural requirements that need to be met, such as following the statutory notice requirements of the relevant State or Territory. If the tenant does not vacate the property following notice, they may be able to apply to the relevant State or Territory tribunal for an order of termination, and an order of possession. If an application has been made, the tenant will receive notice of the action.

Can a tenant defend eviction proceedings?

Tenants are able to defend any eviction proceedings made against them on a number of grounds, and can include no actual breach of the rental agreement, or the action was undertaken in a manner that was not in accordance with the relevant Act.

Any matter before a Tribunal will be considered on the facts and merits of the matter, and in accordance with the relevant legislation. Depending on the jurisdiction, tenants may be provided between seven to 14 days before an order of termination takes effect. If a decision goes against the tenant, they may be able to demonstrate that the period may cause hardship and there is a possibility that the period may be extended.

Can a tenant be evicted if they are behind in their rent?

If the only reason that the landlord has chosen to evict a tenant is due to rent being in arrears, and it is also the only reason outlined within the termination order, the effect of the order can be nullified in two ways:

• the tenant pays the landlord the full amount owed, or
• the parties enter into an agreement for payment of the amount owing, and the tenant is in full compliance with the terms of the agreement.

Generally speaking, if either of the above actions has been undertaken between the parties, a tribunal may not make a termination order. However, if the tribunal finds that the tenant has had a prior history of failing to pay rent on time, an order may be made to uphold the action of eviction.

Can the landlord physically remove a tenant?

The only person that has the power to remove a tenant from the property is a Sheriff, and only if they are in possession of a warrant of possession. The Sheriff may be able to physically remove a tenant with the assistance of the police.

For any tenant who is facing the possibility of eviction, please seek the advice of a legal practitioner who may be able to assist. 

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Possession under property law is a fundamental concept, and for the most part if we have a particular good, or land under our control, we would generally consider the property ours. However, what happens if there are multiple claims to property? How does the law deal with competing claims to possession? Possession is considered as such an essential property right, that a person who is found to be wrongly interfering with another person’s right to possession, will be committing a breach of duty under the law. The most common torts in regards to interference with possession, are trespass, conversion and detinue. Each tort has different elements, and this article will give readers a brief overview of how a breach may occur in regards to the various torts.

The tort of trespass

Most readers would be aware of what trespass constitutes, and you would be correct in your assumptions, because trespass is indeed the wrongful interference by one person, with the property or goods belonging to another party. In order for trespass to be considered wrongful, it must be done voluntarily, is unauthorised, and the trespass must be direct.

Perhaps the most fundamental aspect of trespass, is that there must be a direct link between the actions of the person committing trespass, and the interference with the other person’s property or goods.

The tort of conversion

Trespass as a tort can be committed against property and goods. However, in contrast, the tort of conversion can only be applied to goods. Conversion involves a voluntary act, causing interference against another person’s goods. Furthermore, conversion can also be committed even when a person has no intention to commit the tort.

Conversion – unlike trespass – does not require a direct link to be established for a person to commit the tort, as an indirect link is considered sufficient for a finding of a breach under certain circumstances.

The final element of conversion is if the person who is committing the tort, purports to deal with the goods that belong to another party for their benefit which may involve the selling, giving away, or lending of goods in which the tortfeasor has no legal title over.

The tort of detinue

Similar to conversion, detinue is also a tort that can only be committed against a good, rather than property.

When someone commits a tort of detinue, they are considered to be wrongfully withholding goods from a person that has an immediate right of possession.

The other element of detinue is that the person committing the wrongful act is also denying the innocent party rightful possession of their property, and with full knowledge of the person’s rights to their goods. The final element of detinue is if the tortfeasor fails to deliver the goods as required by law.

Can a person commit more than one breach of duty?

There is a possibility that a person can commit all three torts at once in regards to the same property. However, generally speaking, the breaches of trespass, conversion and detinue are different types of wrongs that have differing elements in order for the tort to be considered a wrongful act. 

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One of the general requirements for tenants is the payment of a rental bond before moving into a property. Once the bond is paid, the money will then lodged with the appropriate state or territory body and the amount of bond will generally be no greater than four weeks rent. The purpose of a rental bond is to cover any costs that may be incurred by the landlord if a tenant fails to pay rent, or there is damage to the property. However, beyond the payment of the bond, there are a number of other aspects relating to bond money that this piece will cover.

The bond

Lodging the bond: either the real estate agent or the landlord must forward the money to the relevant body that holds the bond money within 10 business days. In the event that a bond is not lodged, the agent or landlord may be fined. Upon receiving the bond, the relevant body will provide details of the bond money to the tenant with an advice slip, and a rental bond number. For tenants who have not received the advice, they should contact the relevant state or territory body requesting the advice.

Third parties cannot act as guarantors: landlords cannot ask any family members or friends of a tenant to act as guarantors, or put the names of family members or friends, who are not intending to reside in the property, on a tenancy agreement in order to make the person liable for any debts that a tenant may incur. Such actions are illegal and we can turn to s 160(1) of the Residential Tenancies Act 2010 (NSW) as an example:

“(1) A landlord, landlord’s agent or any other person must not require or receive from a tenant or another person anything other than a rental bond as security for any failure by a tenant to comply with the terms of a residential tenancy agreement.”

One agreement per property: tenants should be aware that for each agreement, only one rental bond is required, or for successive agreements. Additionally, if there is an increase in rent, the agent or landlord cannot ask for more money reflecting the increase in rent.

Getting your bond money back

At the conclusion of the tenancy, the tenant will be able to claim back their bond money and any interest that the bond money has attracted. However, tenants will only receive their bond back if:

• there is no rent in arrears;
• they have provided proper notice that they intend on vacating the property;
• they have vacated the premises in a similar or better condition when compared to the beginning of their tenancy allowing for fair wear and tear;
• they have not broken the agreement in such a manner that costs the landlord money.

It should be noted that the property must be inspected by either the agent or landlord, and a condition report is to be completed in the presence of the tenant at a mutually agreeable time after termination of the rental agreement. If either the agent or landlord does not complete an inspection at an agreed upon time, it may be a good idea for the tenant to complete an inspection report themselves in the presence of a witness, and any documentation should be signed and dated.

Disputes in relation to the rental bond

If a dispute arises in relation to the rental bond, the tenant can make an application to their state or territory fair trading body requesting a return of the bond without the signature of either the agent or landlord. Tenants should be aware that there are time requirements in the making of an application if there is a dispute relating to their bond, and they should check when an application for the return of their rental bond is to be made.  

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After children, perhaps the most pressing issue when a marriage comes to an end involves the division of property. The property the court is able to deal with must arise out of the “marital relationship”, as outlined in s 4(ca) of the Family Law Act 1975 (Cth) (the Act).

One of the things to keep in mind before further exploring the topic, is that a divorce order does not include the division of property.

What property can the court deal with?

Some of the properties that the court can deal with may include:

• property purchased during the marriage;
• property owned by the parties before the marriage;
• assets built up in a business;
• gifts and inheritances received by either party;
• superannuation;
• redundancy;
• compensation.

When talking about property in relation to trusts or a company, the court may treat such property as belonging to one of the parties if it appears that they have benefitted from the ownership of the trust or company.

What property may not be dealt with by the court?

The court for the most part, cannot deal with property for future expectation in relation to trusts or wills – unless there is a level of certainty of the receiving of the benefit or inheritance.

Additional property that may not be able to be dealt with, may involve entitlements relating to long service leave, or actions involving personal injury – unless the spouse nursed the other party through their injuries.

How does the court decide on what property orders to make?

When dealing with property settlement proceedings, s 79(1) of the Act states that the court may make an order it considers appropriate.

There is no hard and fast formula on how the court makes a decision, however, some of the factors that may be looked into when making an order can involve the property that the parties hold and consideration into the contributions by each party to the marriage. Additionally, the court will consider the present and future needs of the parties, and whether the division is just and equitable.

How are contributions measured?

In assessing the contributions made to the relationship, the court can look beyond tangible contributions, and may also take into account indirect contributions, such as the contributions made to the welfare of the family, and the maintenance of the household.

This piece is only a general outline in relation to property division. However, if you require any assistance, please seek the help of a legal practitioner. 

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Traditionally, equitable intervention in relation to unconscionable conduct was connected with mortgages. However, the decision in Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447, paved the way for the equitable doctrine of unconscionability that was distinct from undue influence, while providing for a wider application than contracts of mortgage, and contracts of loan.

The doctrine of unconscionable conduct under the common law

Unconscionable conduct is generally applied in instances where one party is disadvantaged by another, and is unfairly taken advantage of.

The doctrine was affirmed in Amadio where the plaintiffs had executed a mortgage, favouring the bank as a guarantee for the extension of credit that was granted to their son. The plaintiffs were unaware of the difficult financial position of their son, while also having no appreciation of the nature of the mortgage, and the guarantee was made even though they had a limited grasp of the English language. As a consequence, the plaintiffs were almost wholly dependent on their son in relation to their understanding of the agreement. Meanwhile, the bank understood that any understanding of the agreement by the plaintiffs was derived from their son.

Ultimately, the court held that both the mortgage and guarantee should be set aside due to the fact that if the plaintiffs had understood the nature of the agreement as well as the financial state of their son, they would not have entered into the agreement. Mason J outlined the common law doctrine of unconscionability with the following statement (at 502):

“Relief on the grounds of unconscionable conduct will be granted when unconscientious advantage is taken of an innocent party whose will is overborne so that it is not independent and voluntary, just as it will be granted when such advantage is taken of an innocent party, who, though not deprived of an independent and voluntary will, is unable to make a worthwhile judgment as to what is in his best interest.”

Corporations and unconscionable conduct

In the event that it is a corporation, or an individual who is engaged in a trade or commerce who is involved in unconscionable conduct, s 20 of the Australian Consumer Law (ACL), gives effect to the common law, and more generally, statutory relief is also provided by the provisions found in both the ACL, and fair trading legislation across all jurisdictions in Australia.

Complimenting the ACL, the National Credit Code (NCC) can also be applied in circumstances where relief in respect of unconscionable terms or excessive interest in relation to consumer credit contracts is required. 

For consumers, s 21 of the ACL prohibits unconscionable dealings and provides that a corporation shall not, in trade or commerce, in connection with the supply or possible supply of goods or services, engage in conduct that is in all the circumstances, unconscionable. Meanwhile, fair trading laws extends the prohibition to individuals dealing in trade or commerce.

When determining whether a person is in contravention of s 21, s 22(1) of the ACL outlines the types of conduct that may be considered unconscionable by the courts which includes the following:

“(1)  Without limiting the matters to which the court may have regard for the purpose of determining whether a person (the supplier ) has contravened section 21 in connection with the supply or possible supply of goods or services to a person (the customer ), the court may have regard to:

(a)  the relative strengths of the bargaining positions of the supplier and the customer; and

(b)  whether, as a result of conduct engaged in by the supplier, the customer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier; and

(c)  whether the customer was able to understand any documents relating to the supply or possible supply of the goods or services; and

(d)  whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the customer or a person acting on behalf of the customer by the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the goods or services; and

(e)  the amount for which, and the circumstances under which, the customer could have acquired identical or equivalent goods or services from a person other than the supplier; and

(f)  the extent to which the supplier's conduct towards the customer was consistent with the supplier's conduct in similar transactions between the supplier and other like customers; and

(g)  the requirements of any applicable industry code; and

(h)  the requirements of any other industry code, if the customer acted on the reasonable belief that the supplier would comply with that code; and

 (i)  the extent to which the supplier unreasonably failed to disclose to the customer:

 (i)  any intended conduct of the supplier that might affect the interests of the customer; and

(ii)  any risks to the customer arising from the supplier's intended conduct (being risks that the supplier should have foreseen would not be apparent to the customer); and

(j)  if there is a contract between the supplier and the customer for the supply of the goods or services:

(i)  the extent to which the supplier was willing to negotiate the terms and conditions of the contract with the customer; and

(ii)  the terms and conditions of the contract; and

(iii)  the conduct of the supplier and the customer in complying with the terms and conditions of the contract; and

(iv)  any conduct that the supplier or the customer engaged in, in connection with their commercial relationship, after they entered into the contract; and

(k)  without limiting paragraph (j), whether the supplier has a contractual right to vary unilaterally a term or condition of a contract between the supplier and the customer for the supply of the goods or services; and

(l)  the extent to which the supplier and the customer acted in good faith.”

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In order for a building to be declared defective, a number of elements need to be shown, especially if the defect is deemed to be major.

Building defects may arise from:

• defective design;
• defective or poor quality of work;
• defective materials;
• a failure to comply with the performance requirements as outlined in the National Construction Code (the Code).

What is considered as a major defect?

Using s 18E of the Home Building Act 1989 (NSW) as our example, a major defect is defined as a defect in a major element of a building that is attributable to defective design, defective or faulty workmanship, defective materials, or a failure to comply with the structural performance of the Code.

A major element in relation to a building can mean the following:

·         internal or external load-bearing components of a building that is essential to the stability of the building, or any part of it, that can include, but not limited to foundations, footings, floors, walls, roofs, columns, beams;

·         fire safety systems;

·         waterproofing;

·         any other element that is prescribed by the relevant statute.

The limitation period for major and other defects

Again using the New South Wales Act as our example, the limitation period at the time of writing for a breach or statutory warranty that has resulted in a major defect is six years from when the work was completed.

For a breach of a statutory warranty that is not considered as a major defect, the limitation period is two years from when the work was completed. 

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Rental affordability is a hot button issue in Australia and for many people, any increase in rent can amplify any cost pressures that a family may be facing. For anyone who may have questions relating to rental increases, this piece will provide a broad outline to some of the more general questions that may arise in such a situation.

Under what circumstance are landlords not allowed to increase rent?

Generally speaking, for fixed term contracts of less than two years, a landlord cannot increase rent unless 60 days’ written notice has been provided, and that the rental agreement either specifies the increase in rent, or there is an outline of the method for which the increase will be calculated.

In relation to fixed term agreements of two years or more in duration, the 60 days’ written agreement can be applied, and a maximum of one increase is allowable for a 12 month period.

Can tenants end a rental agreement due to an increase in rent?

For fixed term agreements that are at least two years in duration, tenants usually can terminate an agreement on the grounds of an increase in rent provided that 21 days’ written notice has been given to the landlord. In specifying a date, tenants may state a date of termination of the agreement, and they may not be liable for any additional amount related to the early termination of the agreement.

If an agreement becomes a periodic tenancy, any increases in rent may be done so provided the landlord has given the tenant 60 days’ written notice. Failure to provide notice, may not make the increase binding, and the tenant may be reimbursed for any excess rental payments.

What if rent has been increased illegally?

In the event that an increase is illegal, the tenant may make an application to the relevant State or Territory administrative tribunal for an order for a refund of up to 12 months of the overpayment after notice was given. Failure of a tenant to bring any action before a tribunal after 12 months may mean that the increase may be considered valid. However, the tenant may take action in the Local Court for a refund of overpayment of rent.

What if the tenant believes that the rent increase is too high?

If a tenant believes that the increase is too high, then it may be useful for the tenant to negotiate with the landlord. If the landlord is unwilling to negotiate and the tenant still believes that the increase is too high and is excessive when compared to other rental properties in the area, they can make an application to the relevant State or Territory Tribunal for an order that the increase is excessive within 30 days upon receiving notice of the rent increase.

The Tribunal may make an order in agreement with the tenant that the increase is excessive, and that rent may not exceed a specified amount. Such orders may have an effect for up to a year and may only apply to the tenants rather than the property.

If a tenant is unsuccessful in either reaching a compromise with the landlord or in their appeal to the Tribunal, the new rental amount may take effect after 60 days.

Please keep in mind that this is only a broad outline and that if you have any tenancy issues, please seek the help of a lawyer who will be able to help with your matter. 

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One aspect of renting property is that tenants may not always be completely satisfied with some of the fixtures that may form part of the property. For the most part, tenants generally have no recourse in changing aspects of the property of which they may be unhappy with, but with that being said, there may be occasions where changes to fixtures may be required: So what are the laws in relation to amending fixtures in the rental property? Read on to find out.

What happens if a tenant wishes to add a fixture?

If a tenant wishes to add a fixture or make any changes to the rental property, they are required to seek written permission from the landlord prior to adding the fixture, or they must ensure that the terms of the rental agreement makes an allowance for the fixture to be added. Broadly speaking, the landlord may not unreasonably withhold permission of adding a fixture or making a renovation that is minor in scope. For such alterations, it may be the tenant who is responsible for the costs of making such improvements, unless the landlord agrees to cover the costs themselves.

What happens if a tenant wishes to remove a fixture?

For fixtures where the relevant Act allows for installation, or in conformity with the tenancy agreement, the tenant may remove such fixtures before vacant possession. If any damage occurs in the removal of the fixture, the tenant must repair the damage or pay compensation to the landlord for any reasonable expenses incurred when repairing the damage.

Tenants may not remove any fixtures without the approval of the landlord if the fixture was installed by the landlord, or the tenant benefitted from a fixture that was equivalent in cost of the fixture.

What if a fixture is the cause of a dispute between the tenant and landlord?

If a relevant Act allows a tenant to install, alter, or renovate a fixture, and the landlord does not allow the action, then the tenant may apply to the relevant administrative tribunal body for an order. However, the landlord may also make an application to the relevant body as well, prohibiting a tenant from removing a fixture, or to seek compensation for the cost of fixing the work, irrespective if the work was done with or without the consent of the landlord.  

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Not only are property prices sky high in Australia at the moment, but renting a property in some capital cities can also be an expensive proposition. Therefore, many people choose to live in shared housing to spread the financial burden and makes sound financial sense. However with that being said, it’s also not uncommon for issues to arise between people in shared accommodation, and in situations where the relationship cannot be salvaged and eviction of one tenant is the only option: What are the procedures? Are there any laws relating to eviction from shared housing? Such questions are important to ask, and this piece will provide a broad explanation of the laws relating to eviction from shared accommodation.

Evicting a co-tenant

In circumstances where a co-tenant or co-tenants wish to end the tenancy relationship with another tenant, generally speaking, an application must be submitted to the relevant state or territory body, and must outline the special circumstances warranting the eviction of the person. However, it should be noted that common issues such as the person never doing the dishes for example may not be seen as a sufficient reason for evicting a co-tenant.

Evicting a sub-tenant

When choosing to evict a sub-tenant, the head tenant may be required to follow the same statutory eviction procedures for landlords as outlined in the Residential Tenancies Act if there is a written agreement. 

Evicting boarders and lodgers

For boarders or lodgers, providing reasonable notice to the person may be the only requirement and generally speaking, boarders and lodgers don’t usually possess many statutory rights.

If someone wishes to evict a boarder or lodger, the obvious question would be: What constitutes reasonable notice? For the most part, reasonable notice may encompass the rent payment period. So, if the boarder or lodger pays rent on a weekly basis, then one week’s notice may be considered reasonable. However, evicting a boarder or lodger who has resided at the property for a significant period of time may require more notice. Perhaps the best approach in such a situation is to negotiate with the person on an agreed upon date in which the boarder or lodger should leave the premises. 

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Disagreements between neighbours can range from issues of relative significance such as noise complaints, to seemingly minor issues such as the encroachment of trees onto an adjoining property. Although disputes centred on branches falling onto a neighbouring property or the encroachment of roots may seem insignificant, such disagreements are a regular occurrence, and can be a source of tension between neighbours. So with that being said, what actions can a person undertake in such situations? It’s a good subject matter that is worth further exploration. However, before going further, the best approach to any issue with a neighbour would be to have a dialogue with them first.

Trimming trees

Generally speaking, a person may be able to cut any overhanging branches or roots that are protruding from a neighbour’s tree back to the boundary of the land of the person’s property. Any trimmings may still be considered as the property of the neighbour and may need to be returned. Yes, we know that may be hard to fathom, but that may be the case and again, always check with the neighbour. However, what isn’t a great idea is throwing the trimmings back onto the property of the neighbour.

It’s also important to consider that any damage to the tree caused by trimming may result in the person who has trimmed the tree to be responsible for the damage. Therefore, if extensive work is required, it may be a good idea to get the help of a professional. Additionally, a person is not allowed to enter the land of the neighbour to carry out any work unless permission has been obtained beforehand.

What happens if a neighbour’s tree is causing damage?

Damage from either a tree or branches may make the neighbour liable in negligence for any damages if the neighbour fails to address any dangers.

In circumstances where a tree or branches that were not overhanging onto the adjoining property fell onto the adjoining land after trimming, or purposely put onto the property, the person whose land the tree or branches came from may be liable for damages in trespass.

Legal action       

Initiating legal action over a tree may be time consuming and expensive. Additionally, proving negligence, trespass or nuisance may be difficult. Therefore, it’s best to have an open dialogue with your neighbour. However, for anyone who wishes to pursue legal action on the grounds that the tree has caused, is causing, or is likely to cause damage to the property in the near future, or that the tree is likely to cause injury to a person, then there are a number of things that the court may consider, such as:

·         where the tree is located in relation to the boundaries;

·         whether council consent is required;

·         whether the tree has any historical, cultural or social significance;

·         whether the tree affects soil stability or any other natural features of the land;

·         if the owner has taken steps to rectify any damage to property or injury to persons in relation to the tree.

In the event that the court makes an order, broad powers may be exercised if there is a belief that the order will prevent property damage or injury to a person. The type or orders the court can make may include:

• making an order to the owner of the tree to undertake specific actions;
• entry into the property to carry out the order;
• ordering costs for any works made under the order;
• payment of compensation for any damage to the property.

It’s worth mentioning one final time that for anyone who is undergoing a dispute with a neighbour involving a tree, the best course of action may be to negotiate with the person before any further action is taken.

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Many people will probably have seen a story on one of those nightly current affair programs exposing the unscrupulous behaviour of a landlord who refuses to comply with their obligations to make the necessary repairs in regards to a rental property. However, allow us to take a moment to make the point that we’re not for one moment suggesting that all landlords are immoral, nor are we saying that all tenants are angelic. There are many shades of grey – but with that being said – landlords do have an obligation to keep the premises in a reasonable state of repair and fit for its designated purpose, which may be an issue that many tenants may experience from time to time.

The obligation to keep the premises in a reasonable state of repair

All States and Territories have laws in place which require lessors (landlords) to keep property in reasonable shape, and using s 72(2) of Queensland’s Residential Tenancies Act 1997 as our example, the landlord at the start of a tenancy must ensure:

• the premises and inclusions are clean;
• the premises are fit for the tenant to live in;
• the premises and inclusions are in good repair;
• the lessor is not in breach of a law dealing with issues about health and safety of persons using or entering the premises.

Section 72(3) of the Queensland Act further requires while a tenancy continues, that the lessor:

• maintain the premises in a way that remains fit for a person to live in;
• must maintain the premises and inclusions in good repair;
• ensure any law dealing with issues about health or safety of persons using or entering the premises is complied with;
• any common area must be kept clean.

Turning to case law, in the matter of Proudfoot v Hart (1890) 25 QBD, 42, the Queen’s Bench stated that keeping a premises in a reasonable state of repair, such repairs will “… have regard to the age, character and locality of the house, would make it reasonably fit for the occupation of a reasonably minded tenant of the class who would be likely to take it…”

What happens if a repair is urgent and the tenant is required to pay?

There’ll of course be circumstances where repairs are urgently required and there is no choice but for a tenant to arrange for repairs to be made immediately. Looking towards s 72 of Victoria’s Residential Tenancies Act 1997 for example, a tenant may arrange for urgent repairs to be carried out to the rented property if the tenant:

• has taken reasonable steps to arrange for the landlord or the landlord’s agent to immediately carry out the repairs; and
• is unable to get the landlord or agent to carry out the repairs.

If a tenant does have to use their own money in undertaking any urgent repairs, in New South Wales and Victoria, tenants can be reimbursed for up to $1000 or such other prescribed amount, and within 14 days, must provide written notice to the landlord about the costs associated in organising for the urgent repairs to be undertaken.

This piece is only a general overview of the laws regarding rental properties and if you do need assistance with any tenancy matter, please seek the help of a lawyer who will be able to help. 

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A large proportion of the Australian population are renters, and as a consequence, many people will be subject to the various tenancy laws across the country.  One of the important aspects of leasing a residential property is the condition report, and there are a number of essential elements that readers should keep in mind in relation to such reports.

The law requires that either a landlord or real estate agent must provide a condition report outlining the state and repair of the rental property, and also details of fixtures, fittings and appliances.

Tenants should ensure that the condition report is scrutinised closely before returning the report to the landlord or agent within seven days. It’s also important that both the tenant and the landlord possess a copy of the report as well.

What happens if a tenant disagrees with the condition report?

It’s not unusual for a tenant to disagree with what the landlord may have written in a condition report, and in such a scenario, the tenant should make note of their disagreement. If it’s possible, taking photographic evidence may be a good idea and can be used as evidence for the tenant. It may also be handy to have the photo dated and signed by a witness in the event of a dispute. Additionally, a tenant can also apply to the relevant body to have the condition report amended.

If a landlord fails to provide a condition report, then a tenant may be able to produce their own report and have it signed by a witness. A copy should also be provided to the landlord or real estate agent.

Condition reports and Australian Consumer Law

The Australian Consumer Law (ACL) has been incorporated into the relevant State or Territory Fair Trading Act, and has an effect on residential tenancy agreements, in particular laws pertaining to any landlord or real estate agent offering a service in the course of trade or commerce. Landlords or real estate agents who misrepresents the property, or completes a condition report with little or no regard to its accuracy, may be in breach of the clause 18, “misleading or deceptive conduct” provisions. In addition to the “misleading or deceptive conduct” provisions, a landlord or real estate agent who offers a service in the course of trade or commerce rents a property that is not fit to live in, may be in breach of clause 6 of the ACL guaranteeing, “fitness for a particular purpose.” 

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When two people decide to get married, one of the assumptions made in relation to property and debts are that such burdens will be shared between the parties. However, this may not always be the case, and this piece will look at the general approach the law may take in relation to property ownership and debts between spouses.

Who owns property acquired before marriage?

Any property owned before marriage, will generally still belong to the person, even after the formal arrangements have taken place. A person is able to transfer any property from their sole name to joint ownership, while not incurring any stamp duty. However with that being said, there is no legal obligation for a person to transfer any sole property to joint ownership.

Who owns property acquired after marriage?

Property obtained after a marriage for the most part, belongs to the person in whose name the property was purchased under.

Property jointly owned

Married couples often purchase property together that usually takes the form of either a joint tenancy, or a tenancy in common.

Joint tenancy: a couple who is either married or part of a de facto relationship, will have an equal share in ownership of a property in a joint tenancy. As a consequence of the equal ownership in a joint tenancy, the property cannot be sold without the consent of the other party. In the event that one party passes away before the other, the surviving party gains ownership of the whole property. Ownership of a joint tenancy property passes to the surviving spouse due to the fact that title never forms part of the estate of the deceased.

Tenancy in common: parties who own tenancy in common property, will have an individual share that can be equal or in another proportion. In contrast to a joint tenancy, upon the passing of one of the parties, ownership does not automatically pass to the surviving party due to the fact that each tenant in common may deal with their share of the property in any way they see fit. This means that the deceased person may leave their share of the property to another person besides their spouse.

Loan security

Security for a mortgage or loan can be obtained from property owned individually or by both parties.

Can both parties to a marriage be responsible for the debts of their spouse?

Debts incurred under one name of a party to the marriage will generally be the responsibility of that party. The husband or wife of the debtor may not always have any legal responsibility of the debt.

What happens in the event of a marriage break down?

If the marriage comes to an end, the court under the Family Law Act 1975 (Cth) can assess the property owned by the parties, and make an order to transfer the property or debt from one party to the other, depending on the circumstances surrounding the case. 

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It’s amazing to think that Australia’s housing market is still relatively healthy when compared to other places around the world and for the most part, the great Aussie dream  of home ownership still remains and the majority of people will be more than happy to take out a mortgage to achieve their dreams. There are generally two types of mortgages in operation in regards to property, which are: security that involves the actual conveyance of a legal estate to the mortgagee; and a mortgage where the lender acquires an enforceable charge against the property. A person who is borrowing the money is usually referred to as a mortgagor and they usually also have the right of equity of redemption: But what does that exactly mean? Well, read on and find out.

Mortgagor’s rights: Equity of redemption

There exists with the mortgagor an equitable right to redeem (also referred to as equity of redemption) and will occur upon the securing of a loan contract amounting to a mortgage. When an equitable right of redemption does arise, it gives way to a proprietary interest, rather than a personal contractual right which can be alienated, and be dealt with in the same way when reference is made to other equitable property interests.

When can the equitable right of redemption be enforced?

Once the mortgagee accepts payment, the equitable right of redemption is enforceable – even in instances where payment is made after the due date. Additionally, the equitable right of redemption can also be enforced by a Torrens title mortgagor even though they retain legal title, as Finkelstein J stated in Australian Securities and Investments Commission v GDK Financial Solutions Pty Ltd (in liq)(No 3) (2008) 246 ALR:

“In my view a mortgagor of Torrens land has a legal right to obtain a discharge of mortgage on payment of the amount secured by the mortgage (or, subject to any rights of foreclosure, a lesser sum if the proceeds are insufficient to cover the debt) and equity applies the appropriate remedy, usually in the form of a mandatory injunction or specific performance.”

The loan contract

For an equitable right of redemption to be enforced, all of the terms of the loan contract must have been complied with, and compliance may mean the following:

• the mortgagor tenders payment on the contractual date for repayment, therefore, they will be will exercising their contractual and legal right to redeem;
• the mortgagor has money payable on demand,  which means they can repay the amount at any time a valid demand has been made;
• upon the passing of the contract date for repayment, the right to redeem the secured property can only be enforceable in the equitable jurisdiction.

What relief can be sought before, and after the contract date?

Before the passing of the contract date, the relief that can be sought will be specific performance in aid of the contractual right. On the other hand, upon the passing of the contract date, if the mortgagee accepts payment, then the mortgagor will be entitled to enforce their equitable proprietary right of redemption.

When can the equitable right be extinguished?

There are various situations where the right to redeem in equity can be extinguished, and can be generally done so under the following circumstances:

• the mortgagee chooses to foreclose a property;
• the mortgagor has not enforce their right within the statutory limitation period;
• the mortgagee has purchased the right of redemption.

However, we should note, that equitable jurisdictions may be reluctant in interfering with the enforceability of the right of redemption. One such example that may be considered as interference in the enforceability of the right of redemption will be a situation where either a right or option to buy a mortgaged property extinguishes the right to redeem. Such a right can only be done so via a separate and independent agreement. 

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Marriage equality demystified

The debate on same-sex marriage identified major differences of opinion in the Australian community and spread much misinformation.

In a postal plebiscite, 62% of Australians who voted said yes to amending the Marriage Act 1961 to enable same-sex couples to marry, granting them the same legal rights as married heterosexual couples.

On 9 December 2017, the Act was changed to define marriage as a “union between two people” rather than a “union between a man and a woman”. The Act’s incest prohibition changed from “brother and sister” to “two siblings”.

While many Australians celebrated, the divisive debate has left some more technical aspects of the change shrouded in mystery. 

Civil unions: New South Wales, Victoria, Queensland, Tasmania, and the Australian Capital Territory each have legislation enabling people to commit to each other in civil unions, including same-sex partners.

Non-heterosexual couples registered under state civil unions are not automatically married under the new Australian law. Civil unions are state functions and not recognised as marriages under federal law. A marriage ceremony is still required.

Foreign same-sex marriages: Same-sex marriages conducted overseas are now recognised in Australia, if they were conducted according to the originating country’s law.

All future legal overseas same-sex marriages will be recognised in Australia. That amendment also makes it easier for non-heterosexual couples who married overseas to divorce in Australia.

Wills: Like all married couples, same-sex couples need to revise their wills to ensure they recognise their spouses, clearly express their wishes, and comply with Australian laws. 

Celebrants: Same-sex couples should shop around for celebrants because of protections that enable existing celebrants to refuse to officiate on religious grounds.

The Federal Government has separated existing marriage celebrants into two classes – civil and religious marriage celebrants. Religious celebrants have a right of refusal.

Existing celebrants have had to register as one or the other, and all religious marriage celebrants need to identify that in marketing materials.

Anyone who became a celebrant after 9 December 2017 and all future celebrants will be considered civil celebrants and unable to refuse to marry gay couples.

Religious institutions: Church or religious wedding officiators have the same legal status as religious marriage celebrants. They cannot be compelled to marry gay couples or to rent church halls or other facilities for same-sex weddings or provide any goods or services.

 Other service providers, such as bakers, florists or photographers, are bound by Australia’s anti-discrimination laws and cannot refuse service on gender grounds.

The Federal Government has initiated a review of the new legislation to ensure it adequately protects religious objections. The panel is due to report to Parliament in March 2018.

The same-sex marriage bill passed the Senate and the House of Representatives largely unchanged, partly through respect for the Australian people’s wishes — expressed in the postal survey’s overwhelming yes vote — but also because its provisions had been developed by a Senate Select Committee after consultation and three public hearings.

But some politicians remain unhappy and former immigration minister Philip Ruddock and a panel of experts will investigate whether religious freedoms are adequately protected in the revised Act. Findings are expected by the end of March 2019. 

In particular, there have been attempts to enable people with “conscientious belief” to refuse to be part of same-sex marriages, for example, a baker who does not want to provide a cake for a gay couple’s wedding.

There also has been a push to enable parents to remove children from schools or lessons that teach material inconsistent with their views of marriage, and to protect doctors, teachers and other professionals from being deregistered for their beliefs.

But critics argue those issues have been considered and rejected by the Senate Select Committee; are unnecessary; could give rise to discrimination against same-sex couples; and may have other unintended consequences.

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The Family Court in Western Australia has ordered a father to pay his ex-wife’s costs in her partially successful attempts to have two of their seven children returned to her custody after school holidays.

The decision sends a message to families that temporary custody orders would be enforced despite children’s demands; and warns children they could not determine their own living arrangements, WA Family Court Chief Justice Stephen Thackray said.  

In a long-running custody dispute between the Perth-based mother and the father, who lives in a northern WA country town, Justice Thackray decided the former husband had to pay the mother’s costs for an appeal against a Family Court magistrate’s 2016 decision to allow the two children to live with him until a trial could be held.

The children, a 14-year-old boy and a 12-year-old girl, had wanted to remain with their father on their grandparents’ farm. The magistrate ruled there was no compelling reason to issue an interim order for their return to Perth before the custody trial.

The mother appealed to the Family Court to overturn the ruling and have the children returned. She argued the couple had signed a temporary custody agreement, which stipulated the children would live with her in Perth and visit their father during school holidays. The father had breached the order when he refused to return the two children.

The father argued he had three children for the holidays, the two involved in the appeal and the girl’s twin sister. The twin had wanted to go back to Perth and he had returned her to the mother.

But he said the boy and the other girl wanted to stay on the farm.

Last June, Justice Thackray accepted both children had wanted to remain with the father, but said allowing the girl to do so was unacceptable. He said her absence from the family unit could have an adverse impact on the other siblings, particularly her twin sister.

But he found the boy was older and could decide which parent he wanted to live with. That was in line with the father’s argument the boy was old enough to decide for himself.

Justice Thackray was concerned about the impact enabling older children to live with a preferred parent might have on younger siblings. In Renald v Renald (No 2) [2017] FamCAFC 133, he said:

“[A] message [may] be sent, especially to younger children, that they too can decide to live where they like, even if their wishes are based on a desire to ride horses, go surfing or whatever takes their fancy. They will do so knowing their father will encourage and support them, even in the face of court orders. This would not be in their best interests.

 “[The June ruling should] send a message to the legal profession and their clients that the court is willing to enforce its orders, and parents should not take matters into their own hands where there is no evidence of risk.”

In deciding costs in January, Justice Thackray said he accepted the father had been partially successful by getting an order for the boy to make his own decision but that did not mitigate the fact the father’s actions had caused the temporary custody hearing and appeal.

Justice Thackray ordered the father to pay his ex-wife’s $24,413 appeal costs.

Renald v Renald [2018] FamCAFC 4

Renald v Renald (No 2) [2017] FamCAFC 133

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It’s never easy when a marriage comes to an end and beyond the emotional difficulties that individuals must face, there are also a number of additional practical considerations that need to be taken into account as well, such as the division of property. When it comes to the law, misconceptions are not unusual, and property entitlements after the end of a marriage are no exception. Therefore, we here at FindLaw will try and dispel some of the more common myths when it comes to property settlement at the end of a marital relationship.

Any property owned before the marriage remains with the purchaser

Generally speaking, any property owned prior to the marriage may still belong to the party who purchased the property. However, the law may also treat the property as a contribution to the relationship, and the longer the marriage, the less important a factor pre-marriage property ownership becomes. There are no hard and fast rules as to the minimum length of time parties need to be married to one another for the property to be considered as jointly owned, and it will be up to the court to decide on the facts of each case whether the property forms part of the marital relationship, or still belongs to an individual spouse.

Any gifts and inheritances will belong to the party who has been bestowed with the property

A party to a marriage who receives any gifts or inheritances may generally keep such entitlements with spouses not automatically entitled to ownership of the property. However, similar to pre-marital property ownership, the longer the parties remain married, the less important individual ownership may become for gifts and inheritances.

A person who chooses to leave the marriage will lose their property rights

Just because a person chooses to end a marriage, does not mean that they lose any ownership rights over property. The spouse still retains any property rights they have acquired over the course of the marriage, and will generally not lose such rights just because they do not wish to remain in the relationship any longer.

All property obtained during the marriage will result in an even split

There is no automatic 50-50 split of property assets when marriages come to an end, but rather, the court considers the needs of the parties based on the facts of each individual case.

It’s none of their business

Many individuals may embark on successful business enterprises during the marriage, and may believe that their spouse isn’t entitled to a share of the business. However, if a spouse has assisted with business affairs, such as answering phones, entertaining clients, or designing a logo for example, the court may view such behaviours as contributing factors to the success of the business. Alternatively, if a spouse has taken care of the household duties, such as maintaining the home or providing care to children in order for the other spouse to conduct their business, such actions may also be considered as an indirect contribution to the success of a business.

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Having children changes a person’s worldview, and formerly unimportant issues all of the sudden take on a different complexion when we have kids of our own. There’s nothing quite like being responsible for another person to overhaul someone’s life, and all of the sudden matters such as schooling and kid friendly restaurants seem to take prominence. Because parents are responsible for a child’s wellbeing, issues such as what happens if the parents of a child unexpectedly pass away becomes a matter that needs to be dealt with – irrespective of how uncomfortable the subject may be. Anyone who has a child under the age of 18 must consider the prospect of appointing a testamentary guardian to look after their child if the worst does happen. Deciding who should be your child’s testamentary guardian if you and your partner pass away, may prevent additional heartache if the worst case scenario does arise, while ensuring that the child will be properly cared for.

What is a testamentary guardianship?

A testamentary guardian is a person who is responsible for taking care of the child’s daily and long term needs if there is no surviving parent, and there are no other court orders stating who the child shall live with.

If a testamentary guardian does take up the role of a primary carer, he or she will generally have the same types of powers, rights and duties of a natural parent – such as the ability to make important life decisions on the child’s behalf. Additionally, testamentary guardians also need to  ensure that the child is adequately housed, clothed, and educated.

Similar to the types of considerations you would make in the best interests of your child, deciding who is to be your child’s testamentary guardian is extremely important. Therefore, it’s essential that you have an in-depth discussion with a potential guardian addressing issues such as; how you wish your child to be raised, which may include matters such as, religious and educational considerations. Having such a discussion will ensure that your child will be properly looked in accordance with the wishes of you and your partner.

Who can be a testamentary guardian?

Any adult can be a testamentary guardian, and there is no requirement that the person must be related. Additionally, more than one testamentary guardian may be appointed, however, disputes may arise in such a circumstance and any surviving parent, or any other testamentary guardian can apply to the courts to have the appointment cancelled.

Can my choice of testamentary guardian be overruled?

The courts will always strive to fulfil the wishes and intentions as expressed in your will. However, the courts can also exercise their discretion to appoint another person as the child’s guardian if it considers it to be in the child’s best interests to do so.

Do testamentary guardians have the power to administer my estate?

No, testamentary guardians do not have the power to administer the estate. The power to administer an estate rests with a trustee who is nominated in the will. However, testamentary guardians may have the ability to retrieve funds from the estate to support the child up until the age of 18.

It may be uncomfortable to deal with the subject matter of death, but it is essential that such issues are dealt with, especially if you have kids. Appointing a person to be your child’s testamentary guardian is an important undertaking, therefore, it is crucial that you talk to a lawyer to ensure that your child is properly cared for in the event of your unexpected passing. 

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It’s probably a fair assumption that many Australians and migrants have not married within the country, but instead have been married overseas. It may seem like a no-brainer that marriages solemnised overseas should be recognised under Australian law and it is in most instances, however, there may be certain situations when a marriage solemnised overseas may have no effect under Australia’s Marriage Act (the Act), and therefore, cannot gain recognition under the current incarnation of the Act.

What makes an overseas marriage valid?

In order for a marriage solemnised overseas to be valid in Australia, the marriage must conform to the legal requirements of the country in which the marriage is held. If no such laws exist, then the vows must be performed before an episcopally ordained priest and generally should also include the following:

·         the ceremony was documented and witnessed

·         vows were exchanged before an ordained priest.

If the basic common law parameters are met, then the marriage will usually be recognised in Australia as valid.

On the other hand, if the marriage took place during a period of civil strife such as the breakdown of the civilian authority, or during a period of armed conflict within the country in question, then it may be impossible to conform with the local requirements, and as a consequence, the marriage may not be recognised as valid in Australia.

Under what circumstances may an overseas marriage not be valid?

One of the important things to consider – especially when at least one of the parties to the marriage conducted overseas is Australian – is that the provisions of the Act are still applicable. So for example, if a person was below what is considered as the legal marriageable age under the Act – which is 18 years of age – then the marriage may not be recognised in Australia.

It should also be noted, that a marriage conducted in which neither of the parties are Australian citizens, and if one or both of the parties to the marriage is underage, the union may also not be legally valid under Australia law for as long as one of the parties is under the age of 16.

If anyone is experiencing complications in regards to any issue involving marriage or family law, always seek the help of an experienced legal practitioner. 

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The current Australian position in relation to marriage is that it must be a union between a man and a woman as stated in the Marriage Act 1961 (Cth) (the Act), but how does the law treat marriages that involve a transgender person? Are the marriages valid? It’s an important question to ask and one that is worth exploring. 

The current Australian position  

The question of the validity of a marriage involving a person who underwent a transition was considered by the Full Court of the Family Court in the matter of Re Kevin FLC 93-127.

The Full Court rejected the approach adopted in the English decision of Corbett v Corbett (orse. Ashley) in particular the notion that one of the purposes of marriage is that of procreation. The Full Court in Re Kevin stated (at 78,143):

“[W]e reject the argument that one of the principal purposes of marriage is procreation. Many people procreate outside of marriage and many people who are married neither procreate, nor contemplate doing so.”

Additionally, the Full Court also held the term ‘man’ in the Act should be afforded its “contemporary ordinary everyday meaning” (at 78,139).

Ultimately, the Court upheld the validity of Kevin’s marriage and should be regarded as a man for the purposes of marriage as defined in the Act due to some of the following reasons (at 78,170):

• Kevin had always perceived himself to be a male;
• Kevin was perceived by those who knew him to have had male characteristics since he was a young child;
• Kevin undertook sex reassignment surgery;
• at the time of marriage, Kevin’s appearance, characteristics and behaviour was perceived as a man by his family, friends and fellow employees;
• Kevin was accepted as a man for a number of social and legal purposes;
• Kevin’s marriage as a man was accepted in full knowledge of his circumstances by his family, friends and work colleagues.

It should be highlighted, that the Full Court left open the question of whether a person who has yet to undertake a surgical procedure, should be regarded as a member of their psychological gender. 

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People who wish to adopt a child have to meet a number of legal requirements before an adoption order can be granted. There are a number of aspects to the criteria requirements that this piece will cover. 

Who can adopt?

Using the Adoption Act 2000 (NSW) as our guide, adoption orders can be made in favour of:

• married couples;
• de facto couples, including same sex relationships, where the relationship is at least two years’ duration, unless the court finds that there are special circumstances;
• applicants who are single.

Except in circumstances where the child is adopted by either step-parents, relatives, or in exceptional circumstances, adoption orders cannot be made by the court if the applicant is under the age of 21, or less than 18 years older than the child.

What are the character requirements?

It probably goes without saying, but we’ll say it anyway, applicants who the court will consider as suitable candidates to adopt must be of good repute, and fit and proper persons to fulfil the responsibilities of being a parent.

Adoption by a step parent

In order for a step parent to adopt a child, the following requirements must be met:

·         the child is at least five years of age;

·         the step parent must have lived with the child and the birth or adoptive parent of the child for a continuous period of at least two years;

·         the Court is satisfied that the adoption order is clearly preferable in the best interests of the child to any other action.

Adoption by a relative

In order for a relative to adopt a child, the following requirements must be met:

·         the child must have had a relationship with the relative for at least two years;

·         the Court is satisfied that the adoption order is clearly preferable in the best interests of the child to any other action.

For anyone wishing to adopt a child or has any other family law related enquiry, please contact a lawyer who can help. 

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The only ground for divorce in Australia is “irretrievable breakdown of the marriage”. When demonstrating that the marriage has irretrievably broken down, the Family Law Act 1975 (CTH) (the Act) outlines a number of things that need to be proven in order for a divorce to be granted.

How is irretrievable breakdown proven?

Generally speaking, the irretrievable breakdown of a marriage is deemed to have occurred when:

·         the parties have lived separately and apart for at least 12 months;

·         there is no reasonable likelihood that the parties will get back together.

In order for a divorce application to be signed, the 12 month separation period must be complete.

Does separation also mean living apart for other reasons?

Separation in the sense used within the Act does not encompass periods where the parties are living apart for other reasons, such as one person has been transferred overseas for work for example. In order for the court to construe that a period of separation has begun, some of the considerations can include:

·         one party informing the other that they consider that the marriage has come to an end;

·         evidence that demonstrates separation, such as one party taking steps to end financial arrangements or one party has cohabitated with another person for example.

What is the effect of cohabitation?

If a couple makes one attempt at cohabitation for an intervening period of less than three months, but the attempt at conciliation did not work out, the date in which separation was recognised will not be affected in relation to the s 48(2) requirements of the Act.

In Todd (No 2) (1976) 25 FLR 260, Watson J noted that:

“… casual acts of sexual intercourse do not constitute an interruption of separation. An agreement to resume cohabitation, which is not carried out, is insufficient. Just as intention (or acceptance) and action thereon are ingredients in the element of separation, so intention (or acquiescence) and action thereon are necessary ingredients in the termination of separation.” 

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It’s generally accepted that parents are responsible for the care, protection and upbringing of a child. Matters to do with children and the family are usually dealt with under the Family Law Act 1975 (Cth), or alternatively, by the Federal Circuit Court. However, if a child has been charged with a criminal offence, is suffering from abuse, or is in need of care, the states and territories have the authority to act in respect to the maltreatment of a child. Therefore, the question that needs to be asked is: What are the general laws relating to the reporting of child abuse? Are reporting requirements voluntary or mandatory? There are a number of elements related to reporting of child abuse which this piece will broadly cover.

Voluntary reporting

The ACT, New South Wales, Queensland, Tasmania, and Victoria provide for voluntary reporting to an authoritative body if a child is being maltreated or requires care. The provisions differ slightly between the jurisdictions. For instance in New South Wales, s 24 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) provides that a person believing on reasonable grounds that a child is at risk of harm, may notify the Director-General of the Department of Community Services. Additionally, some jurisdictions provides that any person acting honestly and without recklessness in their reporting, will not be been deemed to have breached their professional ethics and is protected from civil liability, such as s 874 of the Children and Young People Act 2008 (ACT).

Although there are no specific provisions in South Australia and Western Australia for voluntary reporting, both jurisdictions still provide for those who have acted in good faith when reporting maltreatment of a child to the relevant authority, and will generally be protected from civil or criminal liability.

Mandatory reporting

Although the majority of jurisdictions provide for mandatory reporting of maltreatment of a child, all States and Territories in Australia makes it an offence for certain professionals who fail to report suspected child abuse to the relevant authority. Similar to a number of the legislative instruments related to voluntary reporting, professionals that are legally compelled to report child abuse will generally be protected from civil or criminal liability and will not be seen to have breached professional confidentiality if they have acted in good faith.

Professionals who may be mandatorily compelled to report child abuse are generally in occupations that deliver health care, welfare, education, children’s services, residential services, or law enforcement, wholly or partly to children. Additionally, any person who holds a management position in organisations that are directly responsible for the provision of the aforementioned services wholly or partly to children are also required to mandatorily report child abuse (per s 27 Children and Young Persons (Care and Protection) Act 1998 (NSW)).

How are abused children cared for?

All States and Territories allow either the police or an authorised officer to enter any premises and remove a child from immediate danger, and to provide for their protection and welfare. If the child requires hospital care or immediate treatment, legislation provides that a child can be detained for a specific period of time before an application for an order for the provision of further care is required.

Depending on the situation, a child may also be removed against the will of a parent and be made a ward of the court.

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Any instance of family violence that occurs is treated seriously in Australian legislation, and protection orders can be issued to guard children and other family members from further acts of violence. Before going any further, this piece will only be primarily focused on how family violence is defined in legislation – more specifically within the Family Law Act 1975 (Cth) (the Act), while also providing a brief introduction to protection order laws at a federal level.

The definition

Family violence as defined under s 4AB(1) of the Act means, “violent, threatening or other behaviour by a person that coerces or controls a member of the person's family, or causes the family member to be fearful.”

Examples of family violence can include, but not limited to (s 4AB(2):

• assault; or
• sexual assault or other sexually abusive behaviour; or
• stalking; or
• repeated derogatory taunts; or
• intentionally damaging or destroying property; or
• intentionally causing death or injury to an animal; or
• unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
• unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
• preventing the family member from making or keeping connections with his or her family, friends or culture; or
• unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.

Section 4AB(4) also sets out instances of where a child may be exposed to family violence which can include, but not limited to:

• overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
• seeing or hearing an assault of a member of the child's family by another member of the child's family; or
• comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
• cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
• being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.

Protection orders

All jurisdictions in Australia have legislation in place to prevent perpetrators of domestic violence from committing any further acts of violence.

Looking to the laws at the federal level, the Act sets out an injunction process that restricts the behaviour of one person towards another. Injunctions under the Act are similar to domestic violence orders at the state or territory level which prevents a person from molesting, threatening, abusing or harassing another person, including children. The personal protection order is applicable in all states and territories except Western Australia, and can protect:

·         any children, their parent or carers (s 68B);

·         a party to a marriage, with or without children (s 114).

For Western Australia, the s 68B equivalent can be found under s 235 of the Family Court Act 1997 (WA). However, there is no s 114 equivalent.

Are those who are in de facto relationships afforded personal protection?

At the federal level, there are no laws in place where those in de facto relationships are afforded personal protection. However, s 114(2A) of the Act may apply to a de facto relationships restricting one party from entering, using or occupying a residence of one or both parties to the de facto relationship.

Former de facto partners may be eligible for an s 68B personal protection order if they are a parent of a child of the relationship, a person where the child is living under the parenting order, or any other set of relationships as defined under the section in relation to the child.

This piece is only a brief introduction to the laws relating to family violence and protection orders. For anyone needing assistance for any family law related manner, please seek the help of a lawyer who will be able to help with your matter. 

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Many individuals choose to provide for the future possibility that they may be incapacitated either through illness or a mental issue that will prevent them from making sound decisions on their own behalf. When providing for the possibility of future incapacity, there are a number of options a person can take, such as Enduring Power of Attorney, enduring guardianship or living wills which are some options that a person may take, and which this piece will broadly cover.

Enduring Power of Attorney

When a person (principal) authorises another (Attorney) to undertake financial transactions on their behalf, they must have the mental capacity to do so when bestowing the Power. The laws relating to the Power may differ between the States and Territories, and using New South Wales as our legislative example, the Powers of Attorney Act 2003 (NSW) and its Regulations has two different forms of the Power which are the General Power of Attorney, which is terminated if a person no longer has mental capacity, and an Enduring Power of Attorney, which will still be valid even if a person loses mental capacity. There are a number of requirements that need to be fulfilled in relation to the Power and it’s important that anyone considering the Power, to talk to a legal practitioner beforehand.

Enduring guardianship

Enduring guardianship permits a person to appoint someone to make decisions on their behalf relating to where the person will reside, the type of health care the person is to receive, and consent to medical treatment are just a few of the matters related to enduring guardianship. The powers of enduring guardianship kick in when the person can no longer make decisions for themselves, as opposed to Power of Attorney which is primarily focused only on financial matters.

For an enduring guardianship to take hold, the person and the guardian must sign the necessary documents, and it must be witnessed by a legal practitioner who is licensed to practice in Australia or overseas, otherwise a Registrar in a local court can also be a witness.

Living wills

The term ‘living will’ is somewhat misleading in that it is not a document related to how a person’s assets are to be dispersed upon their passing, but rather, it is a written document relating to how a person is to be treated in the future if they are incapacitated. The more accurate descriptor for a living will is ‘Advance Care Directives’ and there may be some differences between the States and Territories in relation to such documents.

For any person wishing to make plans for the possibility of future incapacity, it’s essential that you talk to a legal practitioner to ensure that your interests are properly handled. 

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How does the relationship registry work?

Using the Relationships Register Act 2010 (NSW) as our statutory example, two adults who are in a relationship can register if:

• at least one of the partners resides in the State;
• neither person is married, in a registered relationship, or in a relationship as a couple with any other person; and
• the parties are not related by family.

What effects does registration have?

Once a relationship is registered, the partners are commonly seen as a de facto under State and federal legislation. Registration of a relationship is for the most part, seen as conclusive proof of the relationship status of the couple. 

• the parties aren’t legally married to each other;
• the parties aren’t related by family; and
• having regard to all the circumstances of their relationship, the parties are a couple living together on a genuine domestic basis. 

What happens if a couple does not live together?

One of the primary benefits of registering a relationship is that the parties to the relationship are not required to live with one another. A registered relationship may be recognised as a de facto relationship under some laws. However, other laws, such as property division after a relationship breakdown for example, may still require a couple to live with each other.

Void registered relationships

A registered relationship will be considered void if prohibited by legislation – such as the parties are related to one another, or alternatively, one of the partners in another relationship. Additionally, a registered relationship will be void if it was obtained by fraud, duress, or other improper means. Finally, if either party is considered mentally incapable of understanding the nature and effect of registration, then registration may be void.

Ending a registered relationship

Upon marriage, death or revocation of the relationship either by the courts, or the parties themselves, will bring the registered relationship to an end. Applications to revoke the relationship can be done at the Registry of Births, Deaths and Marriages. 

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When a marriage comes to an end, there are a number of matters that need to be considered, with one of the biggest issues related to how property is to be dealt. Property matters can be dealt with privately or the court can issue a property order. In the event that the court has to make a decision in relation to a property order, there will be a process that will be undertaken which this piece will cover.

The just and equitable threshold

Prior to the High Court decision in Stanford v Stanford (2012) 247 CLR 108; HCA 52, the courts relied on the four step process based on s 79(4) of the Family Law Act 1975 (Cth) (the Act) which provided guidance as to how the court should apply a “just and equitable settlement”. However, with the decision in Stanford, there is now a threshold question that also needs to be raised before the application of the four step process.

The High Court in Stanford recognised for the first time that it shall not make a property settlement order unless it is satisfied that it is “just and equitable”. The Court came to this conclusion because it recognised that property orders can potentially modify legal and/or equitable rights to property, and it can also have an impact on third parties.

In Stanford, the Court outlined three fundamental propositions that must not be obscured, which were:

• consideration whether it is just and equitable to make a property settlement order by identifying according to ordinary common law, and equitable principles, the existing legal and equitable interests of the parties;
• in relation to property settlement, there is no special right to a settlement that arises from family law;
• when determining what is just and equitable, the court isn’t exclusively reliant on s 79(4) of the Act, but rather, the surrounding circumstances of the parties.

The four step process

Stanford did not alter the four step process as stated in s 79(4) of the Act, but rather, it makes it a condition that when applying the process for a property order, it is to be just and equitable.

The four step process briefly encompasses the following:

1. The identification and valuing of all assets and liabilities which form the global pool of property subject to settlement.
2. Assessing the financial contributions of all relevant parties to the assets of the family. Also, the non-financial contributions such as caring for the child to name one example. Finally, some assessment of negative contributions, which can include matters such as family violence or substance abuse issues.
3. Consideration of the future needs and resources of the relevant parties.
4. The answers relating to the first three steps and the consequences of any relevant orders that may be made taking into account the fairness, and the surrounding circumstances of the relevant case.

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The Family Law Act 1975 (Cth) (the Act) outlines the following type of enforceable agreements:

• caring for children;
• division of property;
• spousal maintenance payments;
• some child support payments;
• binding financial agreements;
• consent orders.

Binding financial agreements

Binding financial agreements may be created before, during and after a marriage has come to an end. Binding financial agreements can deal with any, or all of the property or financial resources of the marriage. For any property or financial resources not dealt with in the agreement, the provisions found under s 90B, 90C, 90D and 90G of the Act, sets out how property and financial resources of the marriage are to be dealt with.

Binding financial agreements can be terminated at any moment if a new binding financial agreement has been entered into between the parties, therefore, terminating the old agreement, or by order of the court.

Agreements before a marriage: s 90B of the Act states that a couple before a marriage, may enter into a written agreement before a marriage in relation to how any, or all of the property or financial resources of either party is to be dealt with in the event of the breakdown of the marriage. If an agreement is created, it can deal with:

·         property owned prior and acquired during the marriage;

·         maintenance during, or after, or both during the marriage, and after divorce;

·         other matters.

Agreements during a marriage: s 90C of the Act states that a couple during a marriage, may enter into a written agreement either before or after separation, but before a divorce, in relation to how any, or all of the property or financial resources of either party is to be dealt with in the event of the breakdown of the marriage. If an agreement is created, it can deal with:

·         property owned prior and acquired during the marriage;

·         maintenance during, or after, or both during the marriage and after divorce;

·         other matters.

Agreements after a divorce order: s 90D of the Act states that once a divorce order has been made, the parties may enter into a binding financial agreement. If an agreement is created, it can deal with:

·         property owned prior and acquired during the marriage;

·         maintenance during, or after, or both during the marriage and after divorce;

·         other matters.

Additionally, a separation declaration signed by at least one of the parties must also be attached.

Creating binding financial agreements

Section 90G outlines the circumstances when financial agreements are binding. The requirements are strict, and all parties must have been provided with independent legal advice about the effects of the agreement on the rights of the party, and the advantages and disadvantages of making the agreement. Additionally, the parties must be provided with a signed statement that independent legal advice had been sought, and that the agreement has not been terminated. After both parties have signed the agreement, both parties will be provided with either the original document, or a copy.

The Act provides the court a wide range of powers to make orders that the court deems necessary to enforce any agreements. 

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When serving an application for divorce, there are certain steps that must be followed, unless service is dispensed with by the court.

Upon the making of an application, the court will keep the original document while providing two copies. One is for the applicant, while the other must be served on the other party (respondent), along with a pamphlet outlining the effects of divorce, which is available from the Family and Federal Circuit Court registries in multiple languages.

Service of the application must be made to the respondent at least 28 days before the hearing, or 42 days if the person is overseas.

The personal service process

When serving an application to the respondent personally, any person above the age of 18 is able to serve the documents, except the applicant, as outlined in r 6.07(3) of the Federal Circuit Court Rules 2001 (Cth). Therefore, a friend, relative or a professional process server may be able to personally serve the documents to the respondent. For service using a professional process server, the documents must be handed in person to the respondent, and not with any other person who may reside with, or is employed with the respondent.

Serving the respondent

It may be the case that a professional process server, or other person tasked with serving the document to the respondent, may not be fully aware of who they should be serving the document to. Therefore, a server should ask the respondent for their details, such as their full name, name of their spouse, and when they were married. It may also be handy to provide a photo of the respondent as well.

If the respondent does not wish to take the documents, they should be placed in the presence of the respondent with words to the effect that the applicant wishes to seek a divorce from them, and the papers are from the Federal Circuit Court which will hear the application on the relevant date.

Once the documents have been served, the person who has served the documents should complete an affidavit of service that shows the time, date, and place where the documents were served. Furthermore, the affidavit must be signed and affirmed to be true either in the presence of a justice of the peace or a solicitor. It would also be advantageous if the respondent were to sign the affidavit of service as well.

The signed acknowledgement should then be attached (annexed) to the affidavit, and in circumstances where the respondent has refused to sign the form, the applicant may use the affidavit as evidence that the documents were personally served to the respondent.

Applicants who are able to identify the signature of the respondent, may complete an affidavit proving signature in the presence of a justice of the peace or solicitor.

Once everything has been completed, the applicant may post the documents, along with a postage-paid self addressed envelope, so the documents can be returned to the applicant. Upon the return of the form, the applicant should complete and sign an affidavit of service by post with all the relevant details.

Service to an overseas respondent

If the respondent is based in another country, it is important to find out whether Australia has an agreement with the other country in relation to civil proceedings, and such countries are referred to as a Convention country, as set out in reg 21AE of the Family Law Regulations 1984 (Cth). The other important detail, besides whether the respondent resides in a Convention country, is also whether the person is a citizen of that country.

If the respondent is in a Convention country, the documents may be sent to the registrar of the Family Court, who then forwards the documents to the respondent in the Convention country. For anyone who is unsure about the requirements of overseas service, they should check the Commonwealth Attorney General’s guide to Serving a legal document across international borders on their website.

For respondents in non-Convention countries, documents may be served by post or by using a process server in that country.

When service is not required

If an applicant wishes to have service waived, they must complete a separate application requesting that service of the application for divorce be waived. The application should include details such as when contact was last made between the parties, and any attempts to locate the respondent. The application should outline that all avenues of contacting the respondent have been exhausted, and such an application should be filed with the application for divorce.  

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Parties who are bound by a parenting order must take reasonable steps to comply with the order. However with that being said, how does the law ensure that parties affected by a parenting order comply with such orders? It’s a good question, and this piece will provide a general outline of what happens when someone is in contravention of a parenting order.

The police and the Family Law Courts generally do not manage whether or not parenting orders are followed, but in the event of a contravention, the law generally encourages parties to undertake dispute resolution to resolve any issues that may arise. If dispute resolution is unsuccessful, an application for a court order can be made to deal with the issues and to vary the order if required.

What is a contravention of a parenting order?

A person is deemed to have contravened a parenting order they are bound to abide by if the person:

• breaches the order intentionally;
• does not make a reasonable attempt to comply with the order;
• prevents another party who is bound by the order from complying;
• assists a party who is bound by the order to commit a breach.

Reasonable excuse for a contravention

There may be instances where the court may consider that there is a “reasonable excuse” for contravention of an order with the reasonable excuses outlined in s 70NAE of the Family Law Act 1975 (Cth)(the Act), and are as follows:

·         the party fails to understand their obligations imposed by the order;

·         one party holds the reasonable belief that it was necessary to contravene the parenting order to protect the health and safety of the child, the parent, or another person;

·         the act of contravention was not for a period longer than was necessary to protect the health and safety of the person.

What happens if there is no reasonable excuse?

If the court believes there is a reasonable excuse for the contravention of a parenting order, the court will take into account the surrounding circumstances and can make some of the following orders:

• requiring a person to attend a post-separation parenting program;
• if one party has not had an opportunity to spend time with a child, then time with the child could be made up;
• compensation for any reasonable expenses incurred;
• changing the parenting order.

The court can also order a person to pay a fine, perform community service, be placed on a bond, or in serious cases, imprisonment. 

This piece is only a general introduction to the laws relating to contravention of a parenting order. If you require any assistance for a family law matter, please contact a legal practitioner who will be able to assist. 

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With the introduction of the Family Law Act 1975 (Cth) (the Act), the only grounds for divorce in Australia is the “irretrievable breakdown of a marriage”. When demonstrating that the marriage has irretrievably broken down, a couple must have separated for at least 12 months as outlined in s 48 of the Act. When determining whether separation has occurred, there are a number evidentiary requirements that must be demonstrated to the court in order to satisfy that the “irretrievable breakdown of a marriage” has occurred.

Date of separation

Determining the date of separation is essential for a number of reasons that includes some of the following:

• the date that an application for divorce can be filed;
•  when child support becomes payable;
•  when Centrelink benefits become payable;
• how property settlement will be calculated by the court.

What are the indicators that demonstrate there has been a change in the marital relationship?

There is of course no uniform way in which marriages should be conducted, and the law does not attempt to define how a married couple should behave. Instead, the court will look at evidence showing that there has been a change in the overall character of a relationship.

The reasoning behind why the court will look to any changes in the overall character of a relationship is essential if there is any dispute that may arise in relation to the date of separation. Consequently, the court will look at the entirety of circumstances of the relationship pre and post-separation.

Some of the factors that the court may consider when determining separation can include whether the parties live together, whether they continue to have sexual relations, complete household duties for one another such as cooking and cleaning, present themselves as a couple out in public, jointly care for any children, and whether they support or protect one another may be some of the considerations of the court. Although some of the aforementioned indicators may be considered, it should be reemphasised that the absence of the indicators does not within itself signify that the marriage has come to an end, and that there is no formula which is indicative that the marriage has reached its conclusion.

Is it essential that both parties wish to separate?

It is only necessary for one party to wish for the marital relationship to come to an end, thereby, establishing separation if the process was undertaken in accordance to the law. However, it must be communicated to the other spouse that one spouse wishes to sever the relationship and it must be clearly pointed out that the marriage is unambiguously over.

Can separation under one roof be possible?

In the event that one spouse has communicated to the other that the marital relationship is over, or both parties have accepted that the relationship is over and separation has occurred, there is no requirement that the parties must live separately outside of the marital home. Separation means that it is really a “...departure from the state of things rather than from a particular place”, as was noted In the Marriage of Falk (1977).

Although separation under one roof is possible, parties wishing to count the relevant period towards the 12 month separation requirement must show that the marital relationship had irretrievably broken down, and that separation had occurred at a specific date. It is probably a good idea to obtain evidence of separation if the parties continue to reside in the marital home, and some of the following can be used as evidence:

• moving into separate bedrooms, and informing other parties of the fact;
• informing friends of the separation;
• revising a will;
• informing other parties by letter such as schools or financial institutions that separation has occurred.

Matters relating to separation and divorce are notoriously difficult, and if you have a family law issue that needs to be dealt with, please seek the help of a lawyer who will be able to help.

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ACCC fights for fairness for small business

The Australian Competition and Consumer Commission (ACCC) will this year continue its 2017 push to protect small businesses from aggressive, unscrupulous and unfair traders. 

ACCC took action in 2017 against several large organisations that had issued small business trading partners with contract terms that disadvantaged the smaller entities.

Most of the targeted organisations, including Uber, Fairfax Media, Jetts Fitness, Lend Lease Property Management, and Sensis, had changed their terms and conditions after being approached by ACCC;  others faced court action.

For example, the Federal Court found waste management firm JJ Richards & Sons Pty Ltd (JJR) was in breach of Australian consumer law.

It voided eight “unfair” terms in JJR’s standard small business customer contracts because they:

·        

• Bound customers to subsequent contracts unless they cancelled within 30 days before the term ended
• Allowed JJR to unilaterally increase prices
• Removed any JJR liability if its performance was “prevented or hindered in any way”
• Allowed JJR to charge customers for services not rendered or caused by circumstances beyond customers’ control
• Granted JJR exclusive rights to remove waste from customers’ premises
• Allowed JJR to suspend its service but continue charging if payment was not made after seven days
• Created an unlimited indemnity in JJR’s favour
• Prevented customers from terminating contracts if payments were outstanding
• entitled JJR to continue charging customers for equipment rental after contracts ended.

The court found “the terms exacerbate each other, increasing the overall imbalance between the parties and the risk of detriment to JJR customers”.

ACCC has started proceedings against serviced office provider Servcorp Ltd, alleging 19 terms in its small business client service agreement are unfair. The case is still before the court.

Small business owners and managers who feel their contracts with larger trading partners are unfair should contact ACCC.

ACCC deputy chair Michael Schaper said: “ACCC is serious about enforcing the new laws and we will continue to take action where appropriate to ensure small businesses are protected.

“ACCC engagement has seen tens of thousands of new or existing contracts improved, but this is the tip of the iceberg as Australia’s two million small businesses sign an average of eight standard contracts a year.”

The small business unfair contract laws came into effect in November 2016 as part of a wider package to protect consumers from unscrupulous commercial dealings 

Contract terms are considered unfair if they cause a significant imbalance in the parties’ rights and obligations; are not reasonably necessary to protect the legitimate interests of the party advantaged by the terms; and cause small businesses financial or other detriments, such as lengthy delays.

ACCC has information about the unfair contract terms legislation on its website and has produced an information booklet specifically for small business. 

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Technology has dramatically changed the world of commerce and this is especially so when looking at how cash, and even credit cards are losing some of their relevancy with the increased use of the digital wallet. The ease in which a person can tap and go to make a purchase using their smartphones has given rise to a number of issues that businesses need to have an awareness of if they offer such services.

What is a digital wallet?

For the purposes of this piece, a digital wallet will refer to payments made using a smartphone and can include Apple Pay or Android Pay as the two most obvious examples. Additionally, Australian banks have also embraced payment via digital wallets as well with many financial institutions providing the ability to complete tap and go payments through proprietary apps. 

Legislation

The primary legislative instrument in Australia safeguarding consumers is the Privacy Act 1988 (Cth) (the Act) which regulates how personal information is collected, used, stored and disclosed. More specifically, the Act includes the Australian Privacy Principles (APPs) that govern how the personal information of consumers should be handled.

The APP allows businesses to collect personal information if it is reasonably necessary for the functions or activities of the business (APP3), and that businesses are required to notify consumers that such personal information is being collected as soon as practicable (APP 5).

One of the interesting aspects of the Act is that there is no standard that companies must adopt in relation to security and encryption, but rather, the APP stipulates that the businesses take “reasonable steps” to protect information (APP 11).

Safeguards

There are many associative safeguards that are essential when looking at digital wallets, however, we’ll take a look at transactions and how breaches are to be dealt with in Australia.

Cloud based payments: one of the wonderful features of the internet is interconnected commerce that includes entities such as Google Wallet for example. The primary issue is the cross border nature of Google Wallet and the question needs to be asked is: How does the Act treat cloud based transactions? The Act allows transactions facilitated via the cloud, however, Australian businesses are required to take reasonable steps to ensure that cloud providers not based in the country are not in breach of APP 8 when collecting such information.

Security: arguably the biggest threat to consumers relates to fraud due to a website being compromised or the user suffering from some type of malware for example. However, one of the more interesting aspects of the Act is that there is no obligation for businesses to notify authorities or any consumers of data breaches. The notification is voluntary ad is only applicable where there is a “real risk of serious harm” to the consumer as outlined in the Data Breach Notification: A Guide to Handling Personal Information Security Breaches, published by the Office of the Australian Information Commissioner.

There are many more aspects to the issue of digital wallets and consumer protection laws that is outside the scope of this article. Businesses need to ensure that they are mindful of the APPs in relation to digital wallets.     

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Thousands of Australian small-to-medium-sized enterprises (SMEs) might not be adequately prepared for the Federal Government’s notifiable data breaches scheme (NDBS) that starts on 22 February.

NDBS directly affects businesses or charities with annual turnovers of more than $3 million but extends to a broader range of organisations and professionals in specific fields, for example, financial advisers, doctors, dentists, child care centres and private schools.

Many SMEs not specifically subject to NDBS because of the turnover threshold might need data protection and breach notification procedures simply because they deal with larger businesses and organisations, including all Commonwealth entities.

SMEs cannot assume they are too small to fall within the NDBS and must be prepared.

Procedural and routine changes introduced by SMEs’ larger service providers or their clients could affected them. Service providers could be hacked or accidently release confidential information, inadvertently impacting their SME clients’ data.

SME owners and compliance officers should investigate NDBS requirements before 22 February to ensure they do not get into strife if their information is breached.

What is NDBS?

The Privacy Amendment (Notifiable Data Breaches) Act 2017 has been attached to the Australian Privacy Act 1988 and requires relevant agencies and organisations to report to the Office of the Australian Information Commissioner (OAIC) when customer or other private information has been stolen or inadvertently released.

It is mandatory for affected businesses to report breaches to OAIC and notify those whose personal information has been released or stolen if “it is likely to result in serious harm”.

Formal breach notices must include recommendations on how to manage the breach and actions taken to help those affected.

Data containing personal information that could lead to clients being identified or having their identities stolen is an eligible breach. Data includes names, addresses, phone numbers, dates of birth, tax file numbers, medical records, bank account details and, in some cases, opinions.

Individuals who fail to report breaches face penalties of up to $360,000 and, for organisations, $1.8 million.

SMEs’ obligations

SMEs bound by NDBS include, but are not limited to:

·         entities that provide health services, including private hospitals, day surgeries, medical practitioners, pharmacists and allied health professionals; naturopaths and chiropractors; gyms and weight loss clinics; and child care centres and private schools

·         smaller entities related to larger organisations covered by NDBS obligations

·         credit providers, such as banks, building societies, finance companies or credit unions; retailers that issues credit with sales of goods or services; organisations that defer goods or services payments for seven days or more; and some hiring, leasing and rental businesses

·         entities that trade in personal information, including those that disclose personal information about individuals to anyone else for a benefit, service or advantage; or provide a benefit, service or advantage to collect personal information about other individuals from anyone else

·         employee associations registered under the Fair Work (Registered Organisations) Act 2009

·         organisations providing services to Commonwealth entities under contracts

·         those operating residential tenancy databases

·         entities that ‘opt-in’ to the Privacy Act’s principles.

How do SMEs know if they’re affected?

OAIC has a range of information and NDBS checklists on its website, including specific information to help SME business owners determine their obligations. SMEs should research NDBS requirements before 22 February or seek advice from OAIC.

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A lot of time, effort and money is usually dedicated to designing a product, therefore, it’s important that designs are able to be protected by intellectual property laws. When a design has been developed, registration is essential to ensure that your design is protected.

Making an application

When registering a design, one or more people may be able to file an application and when an application is filed, it must specify the person or persons who are entitled to be entered into the Register as the registered owner or owners, as outlined in s 22 of the Designs Act 2003 (Cth) (the Act).

The design application may be in respect of one design relating to one product or several products. Additionally, the application may also be in respect of multiple designs relating to one product or several products if they belong in the same classification category, as outlined in s 22 of the Act.

Examination of a design

When submitting a design registration at the initial stages, the only thing that will be checked for is whether the formal requirements have been complied with. However, a more substantive examination will be conducted after registration upon the request of a person that can include the owner of a registered design, a third party or the court, or on the initiative of the Registrar, as outlined in s 63(1), (2) of the Act. However, infringement proceedings may not be bought until the relevant design has undergone substantial examination, and a certificate of examination has been issued, as stated in s 73(3) of the Act.

Filing the application

When submitting a design application, it must meet the minimum filing requirements found in the Designs Regulations 2004 (Cth) (the Regulations), and includes representations of the design disclosed in the application.

In the event that the application fails to meet the minimum filing requirements, the applicant will be informed by the Registrar of Designs via written notice, as noted in s 24(2) of the Act. Alternatively, if the application does fulfil the minimum filing requirements, the person will also be informed of the Registrar of this, and the details will be published (s 25).

The priority date of a design that meets the minimum filing requirement is the filing date of the design application, or prior to the filing of the design application, an application for protection of the design had been made in a Convention country in accordance with the Regulations within the previous six months of the date on which the application was made (s 27).

Convention countries are signatories to the Paris Convention for the Protection of Intellectual Property 1883, and are also full members of the World Trade Organisation.

Registering a design

Registration of a design will occur upon the receiving of a disclosed design in a design application, and the Registrar deems that the application satisfies the formalities outlined within the Regulations, and is not a design that the Registrar must refuse under the provisions of the Act.

The matters to be considered in relation to the formalities check as outlined in the Regulations can be found in reg 4.04 if the application is for one design, or reg 4.05 for an application that is for more than one design. The classes of designs that the Registrar must refuse under s 43(1) are prescribed in reg 4.06, and includes designs of medals or any design appropriating the term “Anzac” or the Arms or the flag of the Commonwealth, State or Territory, or another country should be refused.

Once registration occurs, the following classes of persons will be entered into the Register as the registered owner of the design:

·         the creator of the design (the designer);

·         the employer of the designer if the design creation was in the course of the designer’s employment, subject to any contrary agreement;

·         the person who commissioned the design if the design was produced on commission, subject to any contrary agreement;

·         a person who derives title to the design from any of the above mentioned persons, or by devolution by will or by operation of law, or a person who would, upon registration, be entitled to have the design assigned to them; and

·         the legal personal representative of a deceased person in any of the above classes of people as noted in s 13(1) of the Act. 

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Under the provisions of the Partnership Act (the Act), a partnership essentially symbolises the following:

• a business that is being carried on in common; and
• a business that is being carried on with a view to profit.

We should also quickly note, that all States and Territories have the Act within their respective jurisdictions.

There are many forms in which a business can take, with one of the more popular being that of a partnership. However, when undertaking a partnership, there are number of considerations to be aware of to ensure that your business, is indeed a partnership if that is your intention.

How is a business partnership defined?

The definition of a partnership within the various State and Territory Partnership Acts (the Act), essentially means that a business is carried on in common, and with a view to profit.

Partnerships can come into being upon the moment a business plan comes into fruition and can also come before the partnership actually deals with members of the public.

It’s also important to know that a partnership can also be considered as such, in enterprises that aren’t profitable. Generally speaking, the main consideration in the formation of a partnership within the Act is that it is being carried on with a view to profit.

How is a partnership determined?

Just merely stating the fact that a partnership exists may not be enough in determining the existence of a partnership. Alternatively, a partnership may still have formed even in instances where the parties have explicitly stated otherwise. Therefore, if parties share in the net profits of a business may be viewed as evidence of a partnership.

For a more tangible definition of a partnership, s 6(1) of Queensland’s Act outlines the rules in determining the existence of a partnership by having a regard to the following:

“(1) In deciding whether a partnership does or does not exist, regard must be had to the following rules--

(a) joint tenancy, tenancy in common, joint property, common property, or part ownership does not of itself create a partnership as to anything held or owned jointly or in common, whether the tenants or owners do or do not share any profits made by the use of anything held or owned jointly or in common;

(b) the sharing of gross returns does not of itself create a partnership, whether the persons sharing such returns have or have not a joint or common right or interest in any property from which or from the use of which the returns are derived;

(c) the receipt by a person of a share of the profits of a business is prima facie evidence that the person is a partner in the business, but the receipt of such a share, or of a payment contingent on or varying with the profits of a business, does not of itself make the person a partner in the business, and in particular--

(i) the receipt by a person of a debt or other liquidated amount by instalments or otherwise out of the accruing profits of a business does not itself make the person a partner in the business or liable as such;

(ii) a contract for the remuneration of a servant or agent of a person engaged in a business by a share of the profits of the business does not itself make the servant or agent a partner in the business or liable as such;

(iii) a person being a deceased partner's child or spouse, and receiving by way of annuity a portion of the profits made in the business in which the deceased person was a partner, is not by reason only of such receipt a partner in the business or liable as such;

(iv) the advance of money by way of loan to a person engaged or about to engage in any business on a contract with that person that the lender is to receive a rate of interest varying with the profits, or is to receive a share of the profits arising from carrying on the business, does not of itself make the lender a partner with the person or persons carrying on the business or liable as such;

(v) a person receiving by way of annuity or otherwise a portion of the profits of a business in consideration of the sale by the person of the goodwill of the business is not by reason only of such receipt a partner in the business or liable as such.”

 The general requirements in forming a partnership

A business partnership can be formed by agreement between the parties either orally, in writing, created under seal, or inference can be made by the course of dealings among the parties.

Section 115 of the Corporations Act 2001 (Cth) states that no more than 20 people can be part of the partnership unless it is incorporated, or formed within certain professional groups. However, s 103 of the Corporations Act does also states that partnerships exceeding 20 people, does not necessarily invalidate the partnership.

Can a child become a business partner?

It may be difficult to believe, but a minor under 18 years of age can become a partner. So the obvious question is: Can a child enter into a contractual relationship with outside parties? For the most part, a child who enters into a contractual relationship with a third party can do so and may not be liable for any debts of the partnership in relation to private assets. Alternatively, adult partners are able to make an application for the whole of the assets within the partnership, including any capital contributions made by the child in the servicing of all debts of the partnership.

In the majority of jurisdictions, a child in a partnership who turns 18 years of age must repudiate the agreement within a reasonable time or they will eventually incur the same liabilities as an ordinary partner. Although, the position in New South Wales may differ from other jurisdictions due to the provisions found within the Minors (Property and Contracts) Act 1970.

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Employment in Australia may take many forms that can include full-time, part-time, casual or via labour hire arrangements. There are a number of distinguishing characteristics of each type of employment which this piece will outline.  

Full-time employees

Full-time or permanent employees are generally contracted to work at least 38 hours per week and the contract of employment is usually ongoing. Full-time employees also receive the following benefits:

• paid personal/carer’s leave, holiday pay, and sick leave just to name some benefits;
• mandatory minimum notice requirements if their contract of employment is terminated, and redundancy payment in the case of redundancy;
• redundancy pay if the workplace employs at least 15 employees.

Part-time employees

Generally speaking, those who are considered as part-time employees will usually work less than 38 hours and the contract of employment is usually ongoing. Additionally, the weekly hours for part-time employees usually remain the same. Finally, benefits for part-time employees are the same as for full-time employees, however, the benefits are calculated on a pro-rata basis.

Casual employees

The hallmark of casual employment is that the hours of work are irregular, and there are no expectations or certainties when it comes to weekly hours, designated shifts or employment that is ongoing. Theoretically speaking, casual employees are only hired for the duration of their shift, and they also do not enjoy the same entitlements as full or part-time employees. However, with that being said, casual employees may be paid at a higher hourly rate which is known as casual loading.

One of the things to bear in mind when talking about casual employment, is that there are no expectations for regular work hours, and designated shifts.

Labour hire

Labour hire arrangements usually refer to a person being employed by a firm, who then sends the worker to perform work for a client agency. The client agency will pay the relevant fees to the firm.

In relation to pay, the worker will be paid by the firm even though they are undertaking work for a client agency, and any entitlements owed to the worker will also be paid by the firm.

Some workers may also be deemed as independent contractors, which mean they are neither an employee for the firm or a client agency, and can be referred to as labour hire workers.

We should take the opportunity to make a distinction between those undertaking labour hire arrangements and recruitment services. Recruitment service agents will find a worker for a client organisation, with the prospect that the worker will be offered a contract with the client organisation. If the worker is offered a contract with the client organisation, the agent will receive a fee. It’s important to note that in such instances, the worker is at no time employed by the recruitment organisation.

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As music, books, and movies increasingly take digital form, one of the things lost is a second hand market for selling such content. Second-hand markets have long been a feature of consumer culture and the digital age has thrown numerous challenges and the question is, Australia ready? Does a secondary market for digital content exist? It’s a subject area that is worth looking at and which this piece will explore.

The Australian position

Section 31 of the Copyright Act 1968 (Cth) (the Act) outlines the exclusive rights available to Australian copyright holders. However, there is no general right available to control distribution of material that has a copyright. Additionally, there is also no express provision allowing for the exhaustion of the right upon first sale. For copyright holders in Australia, distribution is prevented by relying on the exclusive rights to reproduce, publish, copy, broadcast, or communicate to the public in electronic form, as outlined in s 31 of the Act. Therefore, any use of a copyright work that is unauthorised or unlicensed can be seen as infringement of copyright according to ss 29 and 31 of the Act.

Does a secondary digital market exist in Australia?

Broadly speaking, any reproduction, publication and communication rights may be infringed upon if the reproduction of a copyright work is unauthorised, and if the reproduction is supplied to secondary public marketplace, as outlined in ss 31 and 38 of the Act. The general position in Australia when looking at the transfer, sale or sharing of digital content may attract copyright infringement if the action involves any reproduction of the relevant material.

In Australia pursuant to any law, the online transfer, sale, or sharing of digital content may attract copyright infringement if the action involves reproduction of the relevant material. On the flipside, the publication right grants the copyright holder the ability to publish or authorise another party to supply reproductions of the relevant work to the public. However, this is only related to first publication of the material. 

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A lot of time, effort and money is usually dedicated to designing a product, therefore, it’s important that designs are able to be protected by intellectual property laws. When a design has been developed, registration is essential to ensure that your design is protected.

Making an application

When registering a design, one or more people may be able to file an application and when an application is filed, it must specify the person or persons who are entitled to be entered into the Register as the registered owner or owners, as outlined in s 22 of the Designs Act 2003 (Cth) (the Act).

The design application may be in respect of one design relating to one product or several products. Additionally, the application may also be in respect of multiple designs relating to one product or several products if they belong in the same classification category, as outlined in s 22 of the Act.

Examination of a design

When submitting a design registration at the initial stages, the only thing that will be checked for is whether the formal requirements have been complied with. However, a more substantive examination will be conducted after registration upon the request of a person that can include the owner of a registered design, a third party or the court, or on the initiative of the Registrar, as outlined in s 63(1), (2) of the Act. However, infringement proceedings may not be bought until the relevant design has undergone substantial examination, and a certificate of examination has been issued, as stated in s 73(3) of the Act.

Filing the application

When submitting a design application, it must meet the minimum filing requirements found in the Designs Regulations 2004 (Cth) (the Regulations), and includes representations of the design disclosed in the application.

In the event that the application fails to meet the minimum filing requirements, the applicant will be informed by the Registrar of Designs via written notice, as noted in s 24(2) of the Act. Alternatively, if the application does fulfil the minimum filing requirements, the person will also be informed of the Registrar of this, and the details will be published (s 25).

The priority date of a design that meets the minimum filing requirement is the filing date of the design application, or prior to the filing of the design application, an application for protection of the design had been made in a Convention country in accordance with the Regulations within the previous six months of the date on which the application was made (s 27).

Convention countries are signatories to the Paris Convention for the Protection of Intellectual Property 1883, and are also full members of the World Trade Organisation.

Registering a design

Registration of a design will occur upon the receiving of a disclosed design in a design application, and the Registrar deems that the application satisfies the formalities outlined within the Regulations, and is not a design that the Registrar must refuse under the provisions of the Act.

The matters to be considered in relation to the formalities check as outlined in the Regulations can be found in reg 4.04 if the application is for one design, or reg 4.05 for an application that is for more than one design. The classes of designs that the Registrar must refuse under s 43(1) are prescribed in reg 4.06, and includes designs of medals or any design appropriating the term “Anzac” or the Arms or the flag of the Commonwealth, State or Territory, or another country should be refused.

Once registration occurs, the following classes of persons will be entered into the Register as the registered owner of the design:

·         the creator of the design (the designer);

·         the employer of the designer if the design creation was in the course of the designer’s employment, subject to any contrary agreement;

·         the person who commissioned the design if the design was produced on commission, subject to any contrary agreement;

·         a person who derives title to the design from any of the above mentioned persons, or by devolution by will or by operation of law, or a person who would, upon registration, be entitled to have the design assigned to them; and

·         the legal personal representative of a deceased person in any of the above classes of people as noted in s 13(1) of the Act. 

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When goods are displayed with one price, and the goods supplied are for a price that isn’t the lower price, or not the lowest, or of the displayed price, this practice is referred to as multiple pricing. Section 47(1) of the Australian Consumer Law (ACL) prohibits a person in trade or commerce to supply goods:

• if the goods have more than one displayed price;
• supply takes place for a price that is not the lower or lowest of the price displayed.

Section 47(2) of the ACL defines displayed price in the following manner:

 (2)  A displayed price for goods is a price for the goods, or any representation that may reasonably be inferred to be a representation of a price for the goods:

                     (a)  that is annexed or affixed to, or is written, printed, stamped or located on, or otherwise applied to, the goods or any covering, label, reel or thing used in connection with the goods; or

                     (b)  that is used in connection with the goods or anything on which the goods are mounted for display or exposed for supply; or

                     (c)  that is determined on the basis of anything encoded on or in relation to the goods; or

                     (d)  that is published in relation to the goods in a catalogue available to the public if:

                              (i)  a time is specified in the catalogue as the time after which the goods will not be sold at that price and that time has not passed; or

                             (ii)  in any other case--the catalogue may reasonably be regarded as not out-of-date; or

                     (e)  that is in any other way represented in a manner from which it may reasonably be inferred that the price or representation is applicable to the goods;

and includes such a price or representation that is partly obscured by another such price or representation that is written, stamped or located partly over that price or representation.

Section 47(4) sets out the definition of when a price or representation is not the displayed price, and is as follows:

 (4)  Despite subsection (2), a price or representation is not a displayed price for goods if:

                     (a)  the price or representation is wholly obscured by another such price or representation that is written, stamped or located wholly over that price or representation; or

                     (b)  the price or representation:

                              (i)  is expressed as a price per unit of mass, volume, length or other unit of measure; and

                             (ii)  is presented as an alternative means of expressing the price for supply of the goods that is a displayed price for the goods; or

                     (c)  the price or representation is expressed as an amount in a currency other than Australian currency; or

                     (d)  the price or representation is expressed in a way that is unlikely to be interpreted as an amount of Australian currency.

Retraction of price

A person has the right to withdraw an item from sale in the event of a pricing error, or alternatively, retract a price. However, the retraction of a pricing error in advertising or a catalogue, the publication of the retraction must be equivalent to the original catalogue or advertisement where the pricing error occurred, as outlined in s 47(5) of the ACL.

Enforcement and penalties

Any person found to have contravened s 47(1) of the ACL may be liable to pay a civil pecuniary penalty of up to:

• $1.1 million for a body corporate;
• $220,000 for other persons.

The following enforcement powers and remedies for multiple pricing contraventions may be used for either a body corporate or other persons:

• undertakings;
• substantiation notices;
• public warning notices;
• infringement notices;
• injunctions;
• damages;
• compensatory orders;
• orders for non-party consumers;
• non-punitive orders;
• adverse publicity orders;
• orders disqualifying an individual from managing corporations;
• orders for the preservation of property.

Criminal liabilities

Section 165 of the ACL sets out multiple pricing offences that are the same as the civil pecuniary penalties. Additionally, a body corporate or other persons committing an offence against s 165 is one of strict liability. Therefore, intent is not a consideration for a person committing the offence.

We can turn to the Secondary Explanatory Memorandum for more context in relation to the offence:

“The strict liability nature of the offence reflects the potential for widespread detriment, both financially for individual consumers and for its effect on the market and consumer confidence more generally, that can be caused by a person that breaches this provision, whether or not he or she intended to engage in the contravention.

Defences against criminal proceedings

Part 4-6 of the ACL provides defences for criminal proceedings, and are as follows:

• reasonable mistake of fact;
• an act or default of another person where the defendant can prove that the contravention was due to the act or default of another person, to an accident or to some other cause beyond the defendant’s control, and the defendant took reasonable precautions, and exercised due diligence to avoid the contravention;
• where an advertiser publishes an advertisement in the ordinary course of business and the defendant did not know, and had no reason to suspect that the publication would amount to a contravention of the provision. 

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Small business owners will obviously employ a number of casual employees and one of the things that owners should have an awareness of are laws concerning unfair dismissal. Small business owners should be mindful that yes, some casual employees are protected from unfair dismissal provided the requirements outlined in the Fair Work Act 2009 (Cth) (the Act) are met.

The law

Casual employees must have worked for an employer for the ‘minimum employment period’ referred to in ss 382-383 of the Act. Under the provisions of the Act, the minimum employment period is six months, unless the employer has fewer than 15 employees (small business employer), than the minimum employment period is 12 months (s 383(b)).

If the casual employee has fulfilled the minimum employment period criteria, they then must have been employed on a regular and systematic basis during the period of service, and the employee must also have had a reasonable expectation of continuing employment on a regular and systematic basis as outlined in s 384(2)(a) of the Act.

The meaning of employment on a ‘regular and systematic basis’

The decision in Ponce v DJT Staff Management Services Pty Ltd t/as Daly’s Traffic [2010] FWA 2078 in some ways paved the way for casual employees to bring an unfair dismissal claim in reliance upon s 384(2)(a) of the Act.

The applicant in the case, Cori Ponce, worked for the respondent company daily and nightly over a 21 month period, satisfying the s 384(2)(a) requirement of employment on a regular and systematic basis, while also meeting the six month minimum employment period set out in s 383(a) of the Act. Commissioner Roe who oversaw the matter, articulated the principles attached with employment on a regular and systematic basis, which included the following observations:

·         Regular and systematic does not necessarily mean the hours and days must be regular and systematic: Commissioner Roe found that ‘regular and systematic’ under the Act, meant that there must be “sufficient evidence to establish that a continuing relationship between the employer and the employee has been established” – which is the reason why the Act has included within its provisions, that an employee must also have a reasonable expectation of continuing employment.

·         If the hours worked are small, and the gaps between days and times worked is long, other evidence must be produced to demonstrate regular and systematic employment: in instances where there is no clear pattern of employment, evidence of employment on a regular and systematic basis can also include the following: the employer regularly offered work when suitable work was available at the times when an employee has made him or herself available to work for the employer; and work had been offered and accepted on a sufficient basis where it can be no longer regarded as simply occasional or regular.

·         Hours worked by the employee were similar or exceed full-time ordinary hours can also be deemed as strong evidence of regular and systematic employment.

·         The reasonable expectation of continuing employment is not only about having that expectation at the moment of termination, but the expectation during the period of service as well.   

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Australians are pretty fortunate that for the most part, advertisements will be an accurate reflection of the type of product or service being purchased. However with that being said, there may be unfortunate instances where a corporation or person may advertise a service or product that is designed to gain the interest of the consumer, but instead, the more attractive product or service is really a lure to get the customer to purchase another product or service that may be higher priced: this practice is known as bait advertising and is prohibited under the Australian Consumer Law (the ACL).

The Australian Consumer Law and bait advertising

Section 35(1) prohibits a person who is involved in trade and commerce to advertise goods or services for supply at a specified price if:

• there are reasonable grounds for believing that the person will be unable to offer the goods or services at that price for a period that is, and in quantities with regards to:

o   the nature of the market in which the person carries on the business; and

o   the nature of the advertisement and the person ought to have been aware of those grounds.

Under the s 35(1) provisions, the element of intent does not need to be shown if a person had reasonable grounds, or ought to have been aware on reasonable grounds, that they would be unable to comply with the advertisement.

Furthermore, the bait advertising provisions also places an obligation on a person who is involved in trade or commerce, to supply the goods or services at the advertised price for a reasonable period of time and in reasonable quantities in regards to goods, as outlined in s 35(2), whilst having a regard to the nature of the market in which the person carries on business, and the nature of the advertisement.

When is an individual considered to be in contravention of the bait advertising provisions?

For a person to be found liable of contravening the s 35(1) provisions of bait advertising is dependent on the person’s knowledge during the time of when the advertising was directed to the consumer. The s 35(2) provisions, creates an absolute liability towards the advertiser, by obliging him or her to offer the goods and services which is advertised to be supplied.

One of the elements of the s 35 provisions is that of reasonableness, and reasonableness will be dependent on the nature of the product that is being advertised, as well as the length of the sale of the advertised product. In ascertaining reasonableness, past practices may also be taken into account.

The definition of consumer

It is important to note that under s 3 of the ACL, a person will be considered as a ‘consumer’ if they are acquiring goods or services only if:

• the amount of the goods or service does not exceed $40,000;
• if the goods or services acquired is greater than $40,000, the goods or services are of the kind ordinarily acquired for personal, domestic or household use or consumption;
• the goods are a vehicle or trailer which is principally used in the transport of goods on public roads.

Punishments for a person contravening bait advertising provisions

A person who is found to be contravening the s 35(1) provisions of the ACL, can face the following civil pecuniary penalties:

• $1.1 million for a body corporate;
• $220,000 for other persons.

The courts can also issue: undertakings; substantiation notices; public warning notices; infringement notices; injunctions; damages; compensatory orders; orders for non-party consumers; non-punitive orders; adverse publicity orders; orders disqualifying a person from managing a corporation; and orders for preservation of property.

A person in breach of the bait advertising provisions may also face criminal liabilities under s 157 of the ACL, with the maximum penalty of $1.1 million for a body corporate and $220,000 for any other person which can be imposed by the court.

Because of the potential detriment of bait advertising, s 157 does not consider intent when determining whether a person has committed an offence and is reflected in the Second Explanatory Memorandum, which states:

“The strict liability nature of this offence reflects the potential for widespread detriment, both financially for individual consumers and for its effect on the market and consumer confidence more generally, that can be caused by a person that breaches this provision, whether or not he or she intended to engage in the contravention.”

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The Australian Consumer Law (ACL) has a number of implied guarantees in relation to business transactions with consumers. The guarantees relating to consumers can be found in Div 1 of Pt. 3-2 of the ACL and when taking a look at the specific laws, there are a number of aspects to consumer guarantee laws that businesses need to have an awareness of.

Who is a consumer?

Trying to define who is a consumer is surprisingly complex, however in broad terms, a consumer is any person who has acquired goods or services where the goods or services supplied are the kind ordinarily acquired for personal, domestic or household use or consumption of where the contract price is not in excess of $40,000.

The guarantees

The types of guarantees covered under the ACL are mainly applicable to supplies that are made within trade or commerce. Some of the guarantees found in the ACL include:

·         guarantee as to title (s 51);

·         guarantee as to undisturbed possession (s 52);

·         guarantee that goods are free from undisclosed securities (s 53);

·         guarantee as to acceptable quality (s 54);

·         guarantee as to fitness of goods for any disclosed purposes (s 55);

·         guarantee that goods supplied by description will correspond with the description (s 56);

·         guarantee in relation to goods supplied by reference to a sample or demonstration model, including that the goods will correspond with the sample or demonstration model in quality, state or condition (s 57);

·         guarantee as to availability of repairs and spare parts (s 58);

·         guarantee that there will be compliance with any express warranties given or made by the manufacturer or supplier of goods (s 59);

·         guarantee that services will be rendered with due care and skill (s 60);

·         guarantees as to fitness of services for any disclosed purpose (s 61);

·         guarantee that services will be supplied within a reasonable time, unless the time for supply is fixed by contract or is to be determined in a manner agreed to by the supplier and the consumer (s 62).

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The term “white collar crime” conjures up a number of images, but what offences are covered when talking about white collar crime? Also, does a person committing a white collar criminal offence have to wear an actual white collar? In answer to the second question, no, a person does not have to wear a white collared shirt to commit a white collar criminal offence, but other than that, there are a number of elements associated with white collar crime which this piece will explore. 

First, there is no specific definition of “white collar crime” within statutory provisions, but rather the expression can encompass a number of offences such as tax evasion, misappropriation of money by a company director, or insider trading to name a few white collar offences. White collar crimes generally centre amongst a professional or clerical setting by a person taking advantage of their particular knowledge or responsibilities in committing financial fraud.

Punishing white collar criminals

Although white collar offences generally do not involve instances of violence, that fact still does not have an impact in relation to sentencing considerations. In R v McLean (2000) 2 VR 118 (CA), Tadgell JA, with agreement from the other judges, rejected the notion that white collar criminals should expect favourable treatment because they have no prior convictions is misguided, but rather, the person will still be sanctioned by the courts where appropriate(at 139 [48]):

“[A]ny principle to the effect that those with no criminal record who chooses to engage in serious “white collar” crime can expect to be sentenced as though they form a privileged class. Where appropriate, these people are liable to find themselves condignly dealt with, even as first offenders.”  

Additionally, good character may also have little significance for a person found to have committed a white collar crime, as McClellan CJ said when imposing sentence in R v Lo (2007) 74 A Crim R 451 (at 461 [28]):

“In the context of “white collar” offences, good character cannot be given undue significance as a mitigating factor... Even if evidence as to character is afforded some weight, the need for general deterrence may be strong enough to outweigh good character as a significant mitigating factor...”

One important consideration when sentencing a person for any criminal offence is that of general deterrence, and white collar offences are no exception, as Charles JA noted in DPP v Bulfin [1998] 4 VR 114; (1998) 101 A Crim R 40 (CA) where his Honour said (at 13 and 132):

“In the case of white collar crime, the lives of the offenders and their families will frequently have been devastated by the consequences of discovery and punishment. The present case is a very good example. It would be difficult not to feel great sympathy for the respondent’s wife and family and, indeed, for the respondent himself. But I think there is a serious risk that the consequences of discovery and punishment, and the havoc that a custodial sentence usually wreaks on the lives of the white collar criminal and his or her family, may have a tendency to distract attention from the importance of general deterrence ought to carry in the imposition of sentences for crimes such as the present...

Whatever the motivation, offences of the kind here in question almost invariably involve a carefully calculated course of conduct over a long period, repeated deliberate acts of dishonesty, substantial amounts of money, and, frequently, losses (often tragic in their impact) to large numbers of small investors. The offender often holds a position making it possible, or has the ability, to disguise or camouflage the conduct in question. Detection is difficult, the investigation of the crime usually lengthy and very expensive, and the problems of trial and proof will frequently be extreme...”

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A large number of Australian commercial entities are partnerships that frequently need to deal with third parties and other external entities in the course of business. When an issue of liability occurs, the nature of the partner relationship may dictate that the actions of one person in the partnership impact on the other. Accordingly, both partners must remember that their actions in relation to outside parties may affect all persons involved in a partnership. 

What actions are binding?

Except for New South Wales, all Australian jurisdictions have statutes that bind any partner undertaking acts on behalf of the business. For example, s 5 of the Partnership Act 1958 (Vic), states the following:

“Every partner is an agent of the firm and his other partners for the purpose of the business of the partnership, and the acts of every partner who does any act for carrying on in the usual way business of the kind carried on by the firm of which he is a member bind the firm and his partners, unless the partner so acting has in fact no authority to act for the firm in the particular matter and the person with whom he is dealing either knows that he has no authority or does not know or believe him to be a partner.”

In summation, this section holds that any act undertaken by a partner for the purpose of the business partnership binds the other except if the outside party knows that the partner lacks the authority to act for the business in the particular matter, or is unaware that the person is a partner.

Within partnerships, a partner can be both an agent and a principle of the partnership. As such, one partner can bind the other, while the partners may also be bound by each other.

Partner representations

A partner making representations concerning the affairs of the partnership that is in the ordinary course of business, may be used as evidence against the partnership if a matter arises. Except in cases of fraud, any notice provided to one partner, can also be considered as notice against the partnership.

Debts of the partnership and liabilities

As a rule, if a debt is incurred, the liability is joint. As such, a creditor can only bring a single action against the partnership. Any partner can request a stay on any action until all partners are a party to the action. In this instance, the debt should be joint rather than joint and several.

If judgment is in relation to one partner, no action can be taken against the other members of the partnership.

Deceased members of the partnership

In the case that one member of the partnership has died, the estate of that partner is severally liable for the debts of the partnership contracted before the death of the partner. However, the debts may first be subject to prior payments of any debts incurred by the partner separately.

Ultimately, it’s crucial to be mindful that the actions of a partner in the ordinary conducting of a business can affect the other partner. 

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There are many jobs where employees are privy to confidential information, therefore, it’s essential that there are laws in place that protect an employer against unauthorised disclosure by an employee during, or after the term of employment – especially when talking about highly sensitive information. There are a number of elements in relation to the laws associated with confidential information, however, this piece will primarily focus on the contractual obligations of confidentiality.

The sources of the obligation of confidentiality can be created by statute, such as s 183 of the Corporations Act 2001 (Cth) for example, or the general law.

Confidentiality and contractual obligations

Generally, a contract of employment will have both express and implied obligations to ensure the employer’s confidence. In Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd [1979] VR 167, Fullagar J said that express and implied contractual obligations protecting confidential information of the employer will (at 190), “depend for their existence and their attributes solely upon the law of contract. They are obligations at common law, although of course equity may act in their enforcement if the ordinary conditions for equity’s intervention are met.”

Express covenants

In Deta Nominees, Fullagar J noted that “[e]xpress contracts not to divulge confidential information are made every day...between employers and employees”. Additionally, there are generally no formal rules in the construction of express covenants, nor restrictions that may be imposed on either the use of said information, or its disclosure.

One of the things to keep in mind is that express covenants which contends that it is protecting confidential information, but is not in fact confidential, may not always be considered as such, as Kirby P said in Wright v Gasweld Pty Ltd (1991) 22 NSWLR 317 (at 333):

“Merely because a person says that something is regarded as confidential or a “trade secret” does not make it so...” However, his Honour did further note, “[c]ourts should, nevertheless, exercise a modest disinclination to hold that information is not confidential when parties have taken the trouble to say that it is.”

Implied contractual obligations

The implied contractual obligation for an employee is “not to divulge confidential information or to use it in a way that could be detrimental to the employer” (per Del Casale v Artedomus (Aust) Pty Ltd (2007) 165 IR 148 at [32]), or without the consent or against the wishes of the employer (per Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at 214).

The implication arises by operation of law, and is associated with the implied duty of good faith because confidentiality in many ways, is an essential element of the employer, employee relationship as was highlighted in Merryweather & Sons v Moore[1892] 2 Ch 518 (at 524): “[A] confidence arising out of the mere fact of employment, the confidence being shortly this, that the servant shall not use, except for the purposes of the service, the opportunities which that service gives him of gaining information.”

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Duty of care is implied

Due to the fact that the duty to take reasonable care is implied in a contract of employment, the fundamental obligation owed by employers towards employees is to ensure his or her safety. Failure to fulfil the obligation, may be considered as a breach of contract, and may give rise to an action for damages due to negligence in the common law. The High Court in O’Connor v Commissioner for Government Transport (1959) 100 CLR 225 at 229 imposes upon every employer, a duty to take reasonable care for the safety for employees:

“[B]y providing proper and adequate means of carrying out his work without unnecessary risk, by warning him of unusual or unexpected risks, and by instructing him in the performance of his work where instructions might reasonably be thought to secure him from danger of injury...The standard of care for an employee’s safety is not a low one.”

An employer’s duty of care is non-delegable, and the obligation resulting from the contract of employment is also personal in nature.

What does ‘reasonable care’ mean?

The duty of an employer to take ‘reasonable care’ to avoid foreseeable risk or injury is an important test, and it is usually enough if the circumstances were as such, that injury to an employee was a possibility which would have occurred to a reasonable employer. Additionally, the duty to take reasonable care also extends to harm that may occur due to inattention or misjudgment by an employee carrying out their work duties, as was held by the High Court in Ferraloro v Preston Timber Pty Ltd (1982) 56 ALJR 872. 

The duty of reasonable care is not a guarantee of safety

It is important to note, that the standard of reasonable care is not the same as a guarantee of safety for employees. In Liftronic Pty Ltd v Unver (2001) 75 ALJR 867, Gummow and Calinan JJ emphasised the need for employees to take personal responsibility, and observed that “...too ready a judicial inclination to absolve people in the workplace from the duty that they have to look out for their own safety which will often depend more, or as much, upon their own prudence and compliance with directions as upon any measures that a careful employer may introduce and seek to maintain.”

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The offer of a “free” item is a powerful selling incentive, and for any businesses who wish to use the offer of a free item as a lure should be mindful of the laws relating to anything promoting a “free” product.

What is meant by “free”?

Section 32(1) of the Australian Consumer Law (ACL), prohibits a business from offering “any rebate, gift, prize or other free item with the intention of not providing it.” The courts having recognised the magnetism of the word “free” and have ruled that the appropriate qualifications need to be clearly spelled out as to avoid contravention of s 32(1) of the ACL, along with ss 18 or 29(m) of the ACL governing misleading conduct, as Lindgren J observed in Nationwide News Pty Ltd v Australian Competition and Consumer Commission (ACCC) (1996) 71 FCR 215. Nationwide News Pty Ltd v ACCC was a matter where purchasers who wished to acquire a “free” mobile phone had to enter into a 15 month contract with Smartcom Telecommunications, which granted purchasers access to the Vodafone network. The “free” mobile phone would end up costing purchasers more than $2000. Lindgren J said the following in relation to the use of “free” in this instance (at 228):

“Any respect in which goods or services offered as “free” may not be free should be prominently and clearly spelled out so that the magnetism of the word “free” is appropriately qualified...An offer to a newspaper reader of a “free” mobile phone without any reference to conditions is, in my view, an offer to cause the reader to become the owner of such a phone without his or her first having to outlay money or to undertake to do so.”

In contrast, in ACCC v Telstra Corporation Ltd (2004) 208 ALR 459, Telstra placed advertisements promoting “$0*” and “$0 upfront*” handsets and mobile telephone services. The Australian Competition and Consumer Commission (ACCC) asserted that the statement was indistinguishable from the use of the word free, and the principles established in relation to products described as “free” were also applicable in this instance. Giles J did not accept the ACCC’s assertion and his Honour held [at 53]:

“In my opinion, a reasonable reader of the class concerned would understand that the offer was only made in connection with the supply of telephony and would inevitably involve signing up with Telstra for that purpose. It would be known that Telstra’s primary business is telephony, not providing mobile phones. The presence of the asterisk and the words adjacent “Telstra Mobile $20 (or other amount) Member Plan for 24 months” would underline that reading. It is not necessary for that purpose to go to the fine print at the bottom.”   

For offers relating to financial products and services, s 12DE of the Australian Securities and Investments Commission Act 2001 (Cth) mirrors s 32 of the ACL.

What are the exemptions?

Section 32(3) of the ACL states that if the business’ failure to provide the rebate, gift, prize or other free item was in accordance with the offer, was due to an act or omission of another party, or the cause of the failure was beyond the control of the business, and the business took reasonable precautions and exercised due diligence to avoid the failure, s 32(2) of the ACL would not be applicable.

Section 32(4) allows a customer to accept a different prize, rebate or other free item if they agree to do so. The section allows a business that has genuinely attempted to provide something but could not, even with the existence of an appropriate substitute. The section allows a business to make an offer of another product in lieu of the original item, however, the customer is not obliged to accept the offer, or if they wish to retain other rights to compensation, they may. In the event that the customer accepts the substitute, the business is still obliged to provide the product within a reasonable time. 

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