Publications and Articles

These publications (including without limitation any content or other part thereof) contains general information only, and we are not, by means of this website, rendering professional advice or services. Before making any decision or taking any action that might affect your circumstances, you should consult a qualified professional advisor.

Carer Visa (subclass 116)

The Carer Visa (subclass 116) (“Carer Visa”) is available for visa applicants who are required to live in Australia to care for a relative in Australia with a long-term or permanent condition or assist a relative to provide care to a member of their family unit with the abovementioned conditions.

The Affected Person:

The affected person must satisfy the following criteria under Clause 1.15AA of the Migration Regulations 1994:
1. usually resident within Australia;
2. an Australian citizen, Australian permanent resident or an eligible New Zealand citizen;
3. provide reason as to why they are unable to acquire care from another relative in Australia and/or from welfare, hospital or nursing community services;
4. have a medical condition causing physical, intellectual or sensory impairment preventing them from daily life activities;
5. impairment must have a rating specified in the certificate in the Impairment Table (defined under s 23(1) of the Social Security Act 1991)
a. certificate must be carried out on behalf of a health service provider specified by the minister and signed by the medical adviser who carried it out. According to the Minister, this certificate rating must be carried out and determined by Bupa Medical Visa Services (“Bupa”); and
6. due to the medical condition, the affected person will require at least two (2) years of direct care determined by Bupa.

Should a person require assistance from the applicant to look after a member of their family unit, the person requesting assistance and the affected person must be living in the same household.

The Visa Applicant (Carer):

The visa applicant must satisfy the following criteria:
1. must be sponsored in the application;
2. be willing and able to provide the care and assistance required by Bupa for the affected person;
3. be able to fully comprehend the type of care and assistance required for the condition of the affected person determined by Bupa;
4. meet the health and character requirements in accordance with Department of Home Affairs;
5. provide a police certificate from each country that they have lived in for twelve (12) months or more during the past ten (10) years after the age of sixteen (16);
6. have no outstanding debts to the Australian Government before the visa is granted; and
7. be the only person able to care for the affected person.
Under Clause 116.511 of the Regulations, the visa applicant will be allowed to stay in Australia indefinitely as an Australian permanent resident, apply for Australian citizenship, travel to and from Australia for five (5) years after the visa is granted.

The Sponsor:

Please note that the sponsor can also be the affected person.
The sponsor must be able to satisfy the following criteria:
1. the affected person or a family member of the affected person living with them;
2. be a relative or partner of the visa applicant, 18 years or older, usually resident in Australia, an Australian citizen, Australian permanent resident or an eligible New Zealand citizen;
3. be able to show that they have accessed all care options available in Australia prior to sponsoring the visa applicant;
4. sign an undertaking to provide support, accommodation and financial assistance (if needed) for the first two (2) years after the person applying for this visa arrives in Australia; and
5. complete Form 40 – Sponsorship for migration to Australia to lodge together with the visa applicant’s application.

The visa application is required to be paid in two installments – first installment of $1625.00 and second installment just before the grant of the visa $2065.00.

Under Clause 116.411 of the Regulations, the application must be made outside Australia.

Upon grant of visa, conditions 8502 and/or 8515 may be imposed on the applicant.

Under condition 8502, the applicant must be outside Australia when the visa is granted.

Under condition 8515, the applicant must not enter into a de facto or marriage before the grant of visa.

It is important not to make any plans to stay in Australia until grant of visa is provided by the Department of Home Affairs.

The above article was written by Loc Le (Clerk at RSG Lawyers) under the direction of Farhan Rehman (Solicitor at Rsg Lawyers).

Footnotes are available upon request.

You may contact us on (03) 9350 4440 if you require any assistance.

Uber Driving and Condition 8105

I have seen various posts regarding Uber driving and breaching condition 8105 (work limitation) on this page.

Similarly, such an issue was raised in Verma v Minister for Immigration & Anor [2017] FCCA 69 (18 January 2017).

You can view the judgement here: http://www6.austlii.edu.au/…/viewdoc/au/cases/cth/FCCA/2017…

It is important to note that the Verma case was related to a taxi driver and not an Uber driver.

What we can learn from the Verma case:

- That any time waiting for a fare is still driving for remuneration and still comes under the definition of "work" under Regulation 1.03.

- However, the Federal Circuit Court (Judge Young) concluded that being available for work is not always work within the definition in Regulation 1.03.

- Judge Young said in his judgement: "It is possible to imagine, for example, a contractor who is available for work throughout the week but willing to undertake actual work for, say, only two days but at variable times. Many people, for example students and persons with young families, would work on such a basis and juggle their work around their other commitments. I would not consider such a person as undertaking work for more than two days in each week."

Conclusion: the law is not entirely clear as Uber driving and it's connection with condition 8105 has not been tested well in the tribunal/courts. It is always safe to work under 20 hours p/w and to obtain legal advice if you feel that you are in breach of the condition.

My duties have changed! Is my position now redundant?

In a recent case (Sensis Pty Ltd v Gundi [2017] FCA 1519), the Federal Court of Australia found that on appeal a sales employee’s position was not made redundant upon change in certain duties of the employee. The appeal overturned the decision of the Federal Circuit Court, which, on first instance, found that due to his responsibilities of looking after a pool of existing clients being disbursed among other staff, his position was in effect made redundant.

The decision considered many terms which are commonly used in redundancy clauses such as “reasonable alternative position”, “suitable position” and “position”. Thus, the decision illustrates the significance of using such terms in the context of redundancy clauses or industrial instrument.

The decision is significant for employers in that they need to ensure that they have considered whether, if changes are proposed to an employee’s role, a redundancy exists within the meaning of the terms within the employment contract, applicable industrial instrument or relevant policies.

Further, the decision now shifts the burden of proof solely on the employee in such redundancy claims in that the employee has the onus of proving redundancy as well as showing that they had not received an offer of a reasonable alternative position or a suitable position.

If you feel that your position has been made redundant and/or you require legal advice on such terms in your employment contract or industrial instrument, please contact us to make an early appointment.

Please note the above information is not to be construed as legal advice and RSG Lawyers advises you to obtain independent legal advice about your matter.

Written by Oguzhan Sheriff
Lawyer at RSG Lawyers.

Contact details
Email: oguzhan@rsglaw.com.au
Direct: (03) 9350 4440
0411 391 849

Footnotes available upon request.

Negligent Migration Law Advice

Migration agents must take reasonable skill and care when they provide you with migration law advice.

Migration Agents are bound by the Migration Code of Conduct.

You can view the Code of Conduct here: https://www.mara.gov.au/media/553229/Code_of_Conduct_April_2017.pdf

There are also a number of offences under the Migration Act and the Migration Regulations 1994 (the Migration Regulations) that deal with the kind of activity covered by the Code.

These activities include misleading statements and advertising, practising when unregistered and misrepresenting a matter.

Provisions of the Crimes Act 1914, the Criminal Code Act 1995 and the Australian Consumer Law may also apply to these activities.

Remember, just because your visa has been refused does not mean that you are not entitled to financial compensation. An assessment will need to be conducted on the instructions you provided to the Migration Agent, the advice given to you, the resultant communication to and from the Department of Home Affairs and all the circumstances in which the advice was given to you.

Indemnity Insurance

It is mandatory that Migration Agents hold valid indemnity insurance.

You may be concerned that the Migration Agent does not have enough money to pay for your claim of compensation but the indemnity insurance covers their liability to pay compensation (if the damage can be proven).

Legal Action and or Complaint to OMARA

You may also be able to pursue a complaint against the Migration Agent at the Tribunal or Courts to seek an order against the Migration Agent.

Further, you may be able to make a formal complaint to the Migration Agents Registration Authority (MARA) about wrongful conduct of the Migration Agent.

Obtain Independent Legal Advice

Our office has assisted many visa applicants who have been given negligent migration law advice by their former migration agent and we have successfully recovered financial compensation on behalf of our clients.

You can contact our office at any time for a confidential discussion regarding your matter (see contact details below).

Please note the above information is not to be construed as legal advice and it is always advisable you obtain independent legal advice about your matter.

Written by Farhan Rehman
Lawyer and Registered Migration Agent at RSG Lawyers.

Contact details
Email: farhan@rsglaw.com.au
Direct: (03) 9350 4440
0401 393 770

Footnotes available upon request.

Student Visa and Financial Requirements

In order to be granted an Australian Student Visa (Subclass 500) you must meet the financial requirement.

The financial requirement is a means of showing the Department of Home Affairs that you are able to afford your course fees and living costs while studying in Australia.

As you may know, the Department of Home Affairs regulates Immigration and Border related functions and agencies.

There are fundamentally two options to meet the financial requirement:

-12 months of funds
-annual income

This publication will summarise the 12 months of funds option.

You will need to show evidence of your financial capacity as follows in order to meet the 12 months of funds option (unless you are considered as low risk):

Living costs

From 1 February 2018, the 12 month living cost is:
• student/guardian – AUD20,290
• partner/spouse – AUD7,100
• child – AUD3,040.

Course fees

Your course fee is the first 12 months of your course fees or the total costs of your course if it is for a duration of 12 months or less.
You must then deduct any costs you have prepaid and provide evidence of such pre-payments.
Usually your confirmation of enrolment lists any payments you have made.

A few examples (supplied by the Department of Home Affairs):

Example 1: if your course fee is AUD50,000 for three years, determine the fee for one year (12 months) by dividing the total amount by the number of years. The amount will be AUD16,666. Deduct any pre-paid amounts.

Example 2: If your course fee is AUD15,000 for ten months, and you have already paid AUD5,000, deduct this prepaid amount from the total amount. The amount will be AUD10,000.

Example 3: if your course fee is AUD20,000 for 18 months, determine the fee for one year (12 months) by dividing the total amount by the number of months, then times by 12 (20,000 / 18 x 12). The amount will be AUD13,333. Deduct any pre-paid amounts.

Travel costs

If applying outside Australia, include AUD2,000 (except if applying from East or Southern Africa, include AUD2,500; West Africa include AUD3,000).

If applying in Australia, include AUD1,000 (except if returning to Africa, include AUD1,500).

You can show funds by showing evidence of one of the following:

• Deposits with a bank or financial institution
• Loan from a financial institution or government
• Scholarship

Who can show funds

Generally anyone, how the assessing case officer will consider the following:

• the nature of the relationship between you & the person providing the funds
• your income, assets, and employment, and/or the same of the other person providing the funds
• your previous visa history, and/or that of the person providing the funds

Please note this publication is to serve as general information.

We always urge that you obtain legal advice before relying upon any of the information stated in this publication.

Footnotes are available upon request.

By Farhan Rehman
Partner at RSG Lawyers

Ph: 9350 4440
Direct: 0401 393 770
Email: farhan@rsglaw.com.au

Your right to cooling off

The underlying principle of contract law is that, once parties enter into a contract, it is binding. In the sale of property, there is an additional requirement that the contract be in writing and signed by the parties.

Therefore, the prospect of one party to a binding contract being able to avoid the contract is contradictory to this principle of contract law. However due to society’s desire to protect consumers the Sale of Land Act 1962 (the Act) has created this statutory right of protection for purchasers known as ‘cooling off’.

The Act provides for a statutory cooling off period of three clear business days after signing the contract of sale of real estate. Clear business days mean that the day of signing is not counted and the right may be exercised right up until the end of the third business day. A business day is a day other than a weekend or public holiday. For example, if a contract is signed on a Saturday, the first day for calculating the period is Monday and the purchaser will have until the end of the third business day (Wednesday) to exercise their right to cooling off.

There are however exclusions to this right, being if:

• the property was purchased at auction;
• the parties have previously entered into a contract in relation to the property; and
• the purchaser is an estate agent or company.

Although, a purchaser who exercises the right to cool off is entitled to a refund of the deposit, they are still required to a penalty which is the greater of $100 or 0.2% of the purchase price. $100 is 0.2% of $50,000 for sales over $50,000 the penalty will be 0.2%. Further, the penalty is payable even if the deposit has not been paid.

It is therefore important to note that, if you are entering a binding contract that you actually intend on being bound by that contract, because attempts to avoid the contract, even though you may have a statutory right to cooling off, will be costly.

By Oguzhan Sheriff
Footnotes available on request.

 

New changes to the Administration and Probate Act 1958 (Vic)

The Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017 (Vic) received royal assent on 19 September and is scheduled to come into operation on 1 November 2017 unless proclaimed earlier.

This bill seeks to amend certain laws of probate by adding new Part IA on intestacy to the Administration and Probate Act 1958 (Vic) (the Act).

The new law sets out who is to receive the estate in the event of intestacy (where the deceased has no Will).

Below is a summary of some of the changes:

• Where the intestate (a deceased person that dies without a Will) leaves a partner and there are children that belong to the intestate and the partner, then the partner receives the whole estate.

• Where the intestate leaves a partner and there are children that belong to the intestate but not the partner, then the partner will receive a defined amount known as a partner’s statutory legacy, any personal chattels of the intestate, interest on the partner’s statutory legacy and half of the balance of the deceased estate. The remaining half of the balance of the estate will be divided equally between the children.

• The partner’s statutory legacy will be set at $451,909 and indexed every year. The formula for the indexing is in the Act but the Minister will need to publish the new figure every year.

• A partner may elect to acquire property from the deceased’s estate. A personal representative must give the partner a notice of their rights within 30 days of the grant of administration. The partner must then exercise the right within three (3) months of receiving the notice or three (3) months from the grant of administration in cases where the partner is the personal representative.

• If there are more than one partners the estate must be dealt with either through a distribution agreement, a distribution order, or in equal shares. If after giving the notice and no application is made or agreement reached within three (3) months, the personal representative must distribute the estate equally between the partners.

• If there is no partner or children, the hierarchy of distribution is as follows: parents, siblings, grandparents, uncles, aunts and cousins.
The majority of the changes will only affect anyone who dies after the amending Act comes into force. It is, nevertheless, advisable to always have a valid and updated Will.

Written by Oguzhan Sheriff, Solicitor at RSG Lawyers.
Foonotes are available upon request.
oguzhan@rsglaw.com.au
(03) 9350 4440

The New Vacant Residential Land Tax

As of 1 January 2018, the vacant residential land tax will come into effect in Victoria. This new tax seeks to address the lack of housing supply within Victoria. This issue arose due to the numerous properties held vacant by investors in an attempt to collect capital gains benefits.

With the new vacant residential land tax, investors will incur a fee if their properties are left vacant for too long. The new tax states that properties that are vacant for more than a total of six months in the preceding calendar year will satisfy its criteria. Investors must ensure that their property is occupied for a total of more than 6 months every calendar year (1 January – 31 December).

The vacant land tax will be applicable to all homes in inner and middle Melbourne. A list of areas that may be affected by the new tax has been published on the SRO site as a guideline. The tax amount will be calculated as 1% of the Capital Improved Value of the vacant property. Capital Improved Value is assessed via a valuation of the property. Under Section 13H of the Valuation of Land Act 1960, all properties must undergo a valuation every two years.

It should be noted that the vacant residential land tax is not applicable to every home. If properties meet certain criteria, owners may be exempt from tax regardless of whether their property has been unoccupied for more than six months. Also, properties that are exempt from land tax will also be exempt from the vacant residential land tax.

Footnotes available on request

Written by Loc Le.

Changes to stamp duty and the First Home Owners Grant

As you may well be aware by now, the government introduced changes to both stamp duty for first-home buyers as well as the First Home Owners Grant (FHOG).

The new stamp duty measures for first-home buyers, that entered a contract on or after 1 July 2017, abolishes the 50 per cent duty reduction for the purchase a home with a dutiable value of not more than $600,000 and replaces it with a full exemption – meaning you will not have to pay stamp duty.

Also, for a purchase of a home with a dutiable value between $600,001 and $750,000, stamp duty will be phased-in, which means that duty will be calculated on a concessional rate.

The FHOG has also changed to include further incentives for homes purchased in regional Victoria. The FHOG has increased from $10,000 to $20,000 for new homes built in regional Victoria and valued up to $750,000. This change will last for 3 years and applies to contracts signed from 1 July 2017 to 30 June 2020.

The current FHOG for eligible first-home buyers and its requirements are still applicable for home buyers in metropolitan Melbourne.

On a side note, the government will further be introducing a Vacant Residential Property Tax from 1 January 2018 for residential properties located in inner and middle suburbs of Melbourne that are unoccupied for more than six months a year. This tax will not apply to all vacant residential properties and we advise checking with your local council to see if your vacant residential property is affected by the new laws.

Footnotes available on request.

Oguzhan Sheriff

Foreign Investment Approval Exemptions

Australia’s legal framework generally requires foreigners to apply for foreign investment approval before purchasing residential real-estate in Australia.

However, under the Foreign Acquisitions and Takeovers Amendment Act 2015 (Act), certain people and transactions are exempt from the usual requirement for notification under the Act.

In summary, the following criteria must be met to be exempt from FIBR approval:

an Australian citizen (regardless of whether they are ordinarily resident in Australia or not);

• a New Zealand citizen;
• the holder of an Australian permanent visa; or
• foreign persons purchasing property as joint tenants with their Australian citizen spouse, New Zealand citizen spouse, or Australian permanent resident spouse.
Note, the above-mentioned exemption does not apply to those purchasing property as tenants in common.

Further to the above, foreigners do not require FIBR approval to obtain interest in residential real estate that is:

a new or near-new dwelling purchased from a developer that holds a new or near-new dwelling exemption certificate that allows the developer to sell dwellings in the specified development to foreign persons.
• an aged care facility, retirement village or certain student accommodation provided the interest is not above the relevant threshold. For more information, see Guidance Note 14.
• a time share scheme where the foreign person’s total entitlement (including any associates) to access the land is no more than four weeks in any year;
• acquired by will or devolution of law;
• acquired directly from the Commonwealth, a State, a Territory, or local governing body, or an entity wholly owned by the Commonwealth, a State, a Territory or a local governing body; and
• an interest in certain residential real estate in designated Integrated Tourism Resorts.

Please contact us if you have queries in relation to this information note or any another legal matter.

By Farhan Rehman
Partner at RSG Lawyers
Direct email: farhan@rsglaw.com.au
Tel: 9350 4440
Footnotes available upon request

Removing a Caveat

In a previous publication, one of our lawyers wrote about the consequences of lodging a caveat without having a registrable interest. You can view that publication here: http://rsglaw.com.au/?p=2543

However, sitting on the other side of the fence, this publication will touch on one of the ways to remove caveat on title in Victoria.

There are two primary methods of removing a caveat in Victoria, those being:

1. an Application to the Registrar of Titles; and
2. an Application to the Supreme Court of Victoria for Removal of Caveat.

Each of the above methods have their pros and cons.

Today, I will briefly touch on the process for removing a caveat by making an Application to the Registrar of Titles.

An application can be made to the Registrar of Titles in the approved form to remove a caveat on a title.

The procedure is set out under the Transfer of Land Act, Section 89A which states as follows:

" (1) Subject to the provisions of this section, where a recording of a caveat (not being a caveat lodged by the Registrar) has been made pursuant to section 89(2), any person interested in the land affected thereby or in any part thereof may make application in an appropriate approved form to the Registrar for the service of a notice pursuant to subsection (3).

(2) An application under this section shall—

(a) specify the land and the estate or interest therein in respect of which it is made; and

(2)(b) amended by No. 35/1996 s. 453(Sch. 1 item 83.10).

(b) be supported by a certificate signed by a person for the time being engaged in legal practice in Victoria, referring to the caveat and stating his opinion that, as regards the land and the estate or interest therein in respect of which the application is made, the caveator does not have the estate or interest claimed by him."

As read above, the Application must be made in an approved form, must specify the land and the interest which the application relates to and must be accompanied by an approved certificate.

Once the Registrar receives the application and the accompanying certificate, the Registrar must give notice to the caveator. The notice from the Registrar will specify that the caveat will expire on a specified day which will be not less than 30 days.

Unless the caveator commences proceedings to substantiate the basis of the caveat, the caveat will lapse and the Registrar will make required amendments to the register.

Written by Farhan Rehman.
Farhan is a Partner at RSG Lawyers.

Footnotes are available upon request.
Contact: Farhan@rsglaw.com.au
Mobile: 0401 393 770
Tel: (03) 9350 4440

Terminating or setting aside a Binding Financial Agreement

Binding Financial Agreements (BFA) are, as the name suggests, binding on each party that enters into such an agreement. However, in the case where one party, or both, do not want to follow its terms or want to terminate the BFA, they will need to either:

1. Make an application to the court to have the BFA set aside; or
2. Terminate the BFA by mutual agreement.

Where an application is made to the court to have a BFA set aside, the court will first want to determine whether the terms of the BFA represent the intentions of the parties at the time of entering into the BFA in its entirety. The court will further see whether the BFA is comprehensive and able to be read on its own without any additional understandings or agreements between the parties.

There are three key reasons the court may decide to have a BFA set aside:

1. Since entering the BFA, there has been a material change in circumstances and that if not set aside, a party may suffer hardship or be prejudiced.
2. If the BFA was signed under duress. For example, if one party was pressured into signing the BFA.
3. The BFA was obtained by fraud, such as failure to disclose all financial circumstances.

However, the court will not simply set aside a BFA because one party feels it is unfair. This is because, before a BFA is signed, each party must obtain independent legal advice from a lawyer and each party and lawyers sign and confirm receiving and giving advice on the BFA before it is entered into.

If parties mutually wish to terminate or amend a BFA, they will need to terminate the existing BFA by an agreement before they enter into a new agreement or have the BFA terminated all together.

If you or someone you know require assistance writing, setting aside or terminating a BFA or would like advice on your rights regarding BF s, please contact one of our lawyers today for an obligation free consultation.

By Oguzhan Sheriff
Footnotes available upon request

Reasonability and Calderbank Offers

In this week’s publication I will be revisiting the topic of Calderbank Offers.

You will recall that one of our solicitors wrote about What a Calderbank Offer is in one of our previous edition.

I would like to further expand on why it is case critical that such an offer is clear and reasonable before it is served on another side based on the principles observed in Meldov Pty Ltd v Bank of Queensland No.2 (Case).
In the Case the Plaintiff was unsuccessful in claiming Calderbank and had to pay the other-sides costs up until the expiry of the offer and further on an indemnity basis until judgement (which was nearly a whole year).

I will not go into the particulars of the Case rather summarise some observations by Justice Slattery:

-if you are making an offer of Calderbank, the time you give to the other-side to consider the offer must be “reasonable”.
-if the offer is refused, and the matter proceeds to court, you must be able to prove to the court that the rejection of the offer by the other-side was unreasonable.
-what is or isn’t considered unreasonable is based on the circumstances present at that particular time the offer was made.
-issue pertaining to costs must be clearly dealt with in the offer, that being the offer should clearly state whether the offer is inclusive or exclusive of costs.

In summary: be sure to obtain legal advice, what may seem reasonable to you may well not be construed as reasonable to the courts.

By Farhan Rehman

Footnotes available upon request.

Your rights when pulled over by police

If you’re a licenced driver in Australia, chances are at some point you have seen the flashing blue and red lights in your rear-view mirror indicating for you to pull over. Whether or not you have committed an offence, it is important to know your rights when pulled over by the police. Police procedures can generally differ from state to state and therefor it’s important to familiarise yourself in the specific legislation in your state or territory.

When can you be pulled over?
In the past, police needed a reason to stop a motorist, such as probable cause (speeding, erratic driving, suspicious behaviour etc). However, since the introduction of the random breath test, police can pull you over anytime they’d like to apply the breath alcohol exam, even if you are not suspected of committing an offence.

What are my rights when pulled over?
You are not under any obligation to answer any questions or provide any personal information other than your name and address, however you are required by law to tender your driver’s licence when asked so police can verify those details. A prudent judgement call is required when choosing not to answer questions, as this may needlessly inflame the situation.

Can I film the police?
The simple answer here is yes. There is no law prohibiting you from recording police in public. Police are not allowed to confiscate your phone or camera, delete footage or require you to do the same just because you are filming them. If police forcible confiscate your phone or device merely because you’re recording them, the can possibly face civil charges for assault or trespass to the person.

What can I do about police harassment?
Complaining to the police about police harassment can seem ironic. A good first step of any case of police harassment is reporting the incident to the Local Area Commander. If this action fails, you can always make a complaint to your state Ombudsman. You should note that the Ombudsman is generally inundated with similar complaints and this process can be quite lengthy. The most appealing approach could be consulting a civil lawyer in order to initiate legal proceedings.

Footnotes available upon request.

By Guner Hussein.

Consenting to a Medical Procedure – Part 2

In our last issue (Part 1) we looked into the legal requirements needed for obtaining informed consent to medical treatment and circumstances for when a patient cannot consent to treatment. We mentioned the four legal requirements that must be satisfied in order to give valid consent, which are: the patient must have the mental capacity to consent to the procedure; consent must be given voluntarily; consent given must be related to the procedure in question; and the patient must be given proper information about the procedure before giving consent. These will now be discussed in turn.

Mental capacity to consent
In order for you to consent to medical treatment, a doctor must first determine whether you possess the mental capacity and understand the nature of the decision. For instance, a child under the age of 14, a person with a mental disability, a person with brain injury or anyone affected by drugs or alcohol are not considered to possess the mental capacity to give consent. Consent can be conveyed to you orally, in writing, or by your actions.

Voluntary consent
To be considered valid, your consent must be given voluntarily with your own free will. This means that your decision must not be affected by duress, deception or manipulation of any kind. Your family members may assist you in making a decision as long as the assistance does not constitute under pressure.
Consent in relation to the procedure in question
The consent to medical treatment can be limited to a single procedure if that is all the patient has expressed their consent to. For example, a patient can wish to have a specific operation done without any further associated treatment. Anything beyond what is expressed can lead to a breach of your personal rights.

Informed consent
In order to obtain your informed consent, a doctor must ensure your understanding of the procedure. This can be done by discussing a combination of: the diagnosis; the recommended treatment; any possible risks involved with the treatment; and any possible risks to you as an individual.

Foonotes available upon request.

By Kirollos Greiss, Solicitor at RSG Lawyers.

Are Schools Vicariously Liable?

Vicarious liability is a form of secondary liability where the superior becomes responsibility for the acts of a subordinate as provided by the common law doctrine of agency. So, could schools be vicariously liable due to the actions of their employees?

In a number of High Court cases, the scope of a school’s non-delegable duty of care and vicarious liability as a result of their employee’s actions were assessed.

The scope of the ‘non-delegable duty of care’ doctrine was found not to cover every injury that is sustained at school, whether inadvertently or intentionally inflicted by a teacher upon a student as this would be too burdensome on a school. Rather, the High Court test on schools is that they must just do what is reasonable to avoid foreseeable risk of injury. Therefore, schools are vicariously liable for the actions of its employees during the course of employment

In a NSW case where the pupil initiated a vicarious liability action against a school whose teacher sexually abused the victim, the court referred to the scope of the teacher’s employment as an indication to whether a school is vicariously liable. The court noted that schools are not simply vicariously liable for their teacher’s abuse of a student, but rather that courts should consider whether the school has assigned their teacher in a special role, which may give occasion for the abuse. Courts look into the specific nature of the role such as the extent of authority, power, trust, control and ability to achieve intimacy with the victim. If a teacher is found to take advantage of their position to abuse a pupil, a court may find that the abuse occurred during the course of employment.

Schools cannot make the excuse that they had a lack of knowledge of the misconduct to avoid vicarious liability; schools are expected to remain vigilant and proactive in terms of removing risks to students and reducing the possibility of harm. This could be ensured by undertaking thorough and frequent performance reviews of staff and maintaining strict policies in relation to the professional relationship between teachers and students.

Please do not hesitate to contact one of our lawyers if you have any queries on (03) 9350 4440.

Footnotes available upon request.

By Guner Hussein, Solicitor at RSG Lawyers.

Visa Cancellation: Can I leave detention?

Permanent Residents of Australia committing “significant” offences are sent to immigration detention once they have received a notification that their visa has been cancelled.

Visa holders who face such cancellations have already spent long jail terms in prison. Upon release they are subject to the jurisdiction of the Department of Immigration and Border Protection and taken directly to immigration detention.

Those who are detained may have a right to review the cancellation of their visa at the Administrative Appeals Tribunal however are generally not able to leave immigration detention even during the review process. Such detainees are prevented from making an application for any visa to allow them to leave detention as a result of Section 501 of the Migration Act 1958 (Act).

Section 501 of the Act relevantly provides that 'A person is not allowed to make an application for a visa at a particular time (the application time) that occurs during a period throughout which the person is in the migration zone if at an earlier time during that period, the Minister made a decision under section 501 to cancel a visa that has been granted to the person and that decision was neither set aside nor revoked before the application time'.

The Act however does not prevent a person in such circumstances from making an application for Protection or WR-070 Bridging Visa (Removal Pending) (RPBV). However, the RPBV is only available to a person after an invitation is extended to them by the Minister.

Footnotes are available upon request.

By Farhan Rehman, Partner at RSG Lawyers.
Experience areas: administrative law, migration law, compensation law, corporate compliance/restructuring and commercial litigation.
Contact information: Email: farhan@rsglaw.com.au Tel: (03) 9350 4440

Genuine Temporary Entrant Requirement

The genuine temporary entrant (GTE) requirement is an “integrity measure” which has been designed by the Government to ensure the student visa programme is not used as a way to maintain ongoing residency in Australia.

In turn, the most common reasons why student visas are refused is due to an applicant unable to meet the GTE requirement.

Ministerial Discretion no 69 under Section 499 states the factors a case officer must consider when making a decision on whether an applicant is classified GTE.

These include (but are not limited to):

-The circumstances in the applicant’s home country.
-Any circumstances or potential circumstances in Australia
-How much value the course will have to the applicant’s future.
-Immigration history of the applicant and if there is any history of non-compliance.

If the student visa application is prepared in a proper manner, and the applicant is able to provide legitimate information which covers the above factors, there is a good chance a student visa will be granted.

Please contact our office on 9350 4440 for further information.

This note was prepared by RSG Lawyers.
Footnotes are available upon request.
admin@rsglaw.com.au

Time Limits & Legal Claims

A legal claim cannot be initiated by a plaintiff at any infinite time, any legal claim is subject to limitations from the cause of action until the commence of legal proceedings.

As an example, take the 6 year limitation period stated in the Australian Consumer Law. Under the ACL, if an applicant claimed unconscionable conduct, and the conduct occurred on June 2001, the applicant could only succeed in bringing legal proceedings before a court or tribunal by 30 June 2007. Any further time after this period, the defendant could successfully defend the application by pleading expiry.

There is no uniform law, each Australian State has specific legislation that deals with limitation periods in each area of law and each area of law has different limitation periods.

For instance, in tort, the cause of action generally will accrue from the time the damage was suffered. Whereas, in contract, the cause of action accrues from the time of the breach.

You may have a legal claim however it is imperative to ensure that your claim is not barred by a time limitation.

Therefore, it is advisable you obtain legal advice before filing your application.

By Farhan Rehman, Partner at RSG Lawyers. Footnotes are available upon request.

Email: farhan@rsglaw.com.au Ph: 03 9350 4440 Direct Ph: 0401 393 770

Charged By The Police?

If you receive a charge notice from the police it will usually eventuate into criminal proceedings. The Magistrates’ Court of Victoria has jurisdiction to makes findings on all summary offences and some indictable offences.

Summary offences are those that are less serious in nature which include minor assaults, traffic offences, offensive behaviour and property damage.

Indictable offences are those of a more serious nature which are heard either by a judge or judge and jury of the County or Supreme Courts. Certain indictable offences that may be heard in the Magistrates Court include burglary and theft upon the accused wishes. Other indictable offences such as murder and rape must be heard in the higher courts.

Prosecutions is usually lead by the police but could also be instigated by Corrections Victoria, Department of Primary Industry, local councils, VicRoads and Victorian WorkCover Authority (WorkSafe).

The test used by the court to find an accused guilty is that a magistrate, judge or judge and jury must be satisfied beyond reasonable doubt of the person’s guilt. The type of hearings that an accused may be subject to include:

• Mention: All summary matters begin as a mention and if the accused doesn’t plead guilty, the mention hearing is adjourned to a contest mention.

• Contest Mention: Parties and the judge try to decide whether a case can be resolved by finding commonalities.

• Summary Hearing: This hearing proceeds if the accused pleads not guilty to the charges. The Magistrate determines the outcome.

• Filing Hearing: First hearing in the committal process. A timetable is set for exchange of information between the prosecution and defence team.

• Committal Mention: Permission to cross­examine witnesses may be given, and matters in dispute are discussed. The Court may hear and determine some charges on a plea of guilt.

• Committal Hearing: Magistrate, judge or judge and jury hear evidence of the prosecution and decide whether a properly instructed jury finds the accused guilty or not.

If you are charged by the police, it is imperative you consult a lawyer. Do not hesitate to contact our criminal lawyers for a consultation on (03) 9350 4440.

By Guner Hussein, Solicitor at RSG Lawyers.
Footnotes available upon request.

Risk: Self-Sponsored Business Nomination

As of December 2015, Department Policy states that a nomination application may be refused if it is found that a position was created solely to secure only a migration outcome.

Where the Director is also the visa applicant, or the visa applicant is a relative or person associate of an officer of the sponsoring business, it is likely a refusal will be imminent.

Consistently, the Department may request current and historical ASIC extracts which will show the Directors and Shareholders of the Company in question.

The Department will also closely scrutinise applications where:

- the business has been operating for a short period.
- the business has a low business turnover.
- the business has no Australian employees.

Considering the above is only Department Policy, there have been some decisions in the Administrative Appeals Tribunal which have set aside such refusals by the Department in such cases. However, the exact circumstances of the applicants in each of these cases need to be considered very carefully.

Thus, there is no umbrella approach to self-sponsored applications (as yet) and those considering self-sponsored applications should obtain legal advice from a well-informed migration practitioner before proceeding with such an application.

By Farhan Rehman, Partner at RSG Lawyers.
Footnotes available upon request.
Contact: Farhan@rsglaw.com.au, (03) 9350 4440, 0401 393 770.

Consenting to a Medical Procedure – Part 1

In NSW and Victoria it is unlawful for a medical practitioner to treat an adult without their express consent. Unless it is a case of emergency, common law supports the right of an adult to give their doctor consent if that adult is of sound mind a has the capacity to understand the nature and effect of their decision. This is essentially because of the notion that everyone has a right to determine what happens to their body.

Legal requirements for obtaining consent

Before a doctor treats you, they must establish that you have given your informed consent to the treatment. This can be established verbally, by writing, or through implied consent. The four legal requirements that must be met to give valid consent are:

• The patient must have the mental capacity to consent to the procedure;
• Consent must be given voluntarily;
• The consent given must be related to the procedure in question; and
• The patient must be given proper information about the procedure before giving consent.

As part of their duty of care, a doctor must explain to their patients the nature of the medical problem; their method of treatment; any foreseeable risks that may occur; and the cost of the procedure if applicable.
When a patient cannot consent to treatment

In Victoria, the laws concerning medical treatment have been supplemented by legislation allowing people to make arrangements for medical treatment decisions when they are unable to make their own decisions. Since 1986 the Guardianship and Administration Act has permitted a tribunal to appoint a guardian to make medical treatment decisions for a person with impaired decision-making capacity. A child under the age of 14, a person affected by a brain injury of mental disability, dementia suffers, or a person affected by drugs are not considered to have the capacity to give valid consent.

You should be aware of your rights and the laws of consent when undergoing a medical procedure. Next week, we will elaborate on the four above mentioned points that lead to valid consent.

Written by Solicitor Kirollos Greiss.
Footnotes are available upon request.

Can I Refuse a Breath Test?

In Victoria, a police member has the power to require you to undergo a Preliminary Breath Test (PBT) if they believe that you:

* were or you are driving or in charge of a motor vehicle;

* had driven a motor vehicle in the last 3 hours;

* are sitting in the driver’s seat of a motor vehicle with the ignition turned on;

* instructing or sitting next to a learner licence holder who is or was driving a motor vehicle.

Generally, you must comply with a police officer’s direction to conduct a Breath Test. Failure to do so is an offence and you could face a conviction with a penalty of a substantial fine and a disqualification of your licence for 2 years and possibly prison if you have prior drink driving offences or failures to comply.

There are some defences to refusing to undergo a Breath Test in Victoria. The main defence being the refusal for medical reasons, which requires substantial expert medical evidence. Further, if the police do not have lawful grounds for requiring you to undergo a PBT, then you may have a defence for refusing to comply.

It is advisable to comply with the directions of a police officer if they require you to undergo a Breath Test, as the consequences of refusing are quite severe. However, if you believe you have substantial grounds for your refusal you should seek legal advice immediately.

By Oguzhan Sheriff, Partner at RSG Lawyers.
Footnotes available upon request.

Your Permanent Residency and Travel

A number of my clients have various assumptions regarding their visa before obtaining legal advice from me.

To ensure no false presumptions arise in the first place, I tell all my client every Australian visa comes with various rights and many conditions that must be understood.

In one of my prior publications I covered some of the obligations to maintain character during your Permanent Residency (PR).

In today’s publication, I will be summarising travel facility under a PR.

It is correct that your PR generally gives you indefinite stay in Australia. However, if you wish to travel to and from Australia after the initial 5 years of your PR grant, you must obtain a Resident Return Visa (RRV).

You can obtain an RRV for 5 years or 12 Months subject to your particular circumstances.

5 Years
To obtain a 5 year RRV you would need to prove you have been in Australia for at least 2 of the last 5 years physically in Australia.

12 Months
In order to obtain a 12 month RRV, you could show:
-Evidence that you have established residence in Australia – for instance leased accommodation, enrolled children in school, Australian bank accounts or move the build or your assets to Australia.
-Close family members in Australia.

Absence for more than 5 Years

If you have not returned back to Australia for more than 5 years, you would need to show compelling reasons for your absence.
Precedent in Lorenzo Paduano v Minister for Immigration & Multicultural & Indigenous Affairs & Migration Review Tribunal [2005] FCA 211 (10 March 2005) established the following test to demonstrate compelling reasons:

• “The applicant is the one who must have been compelled by the reasons for absence
• Applicants do not need to demonstrate an involuntary element, involving circumstances beyond a person's control or involving physical or legal necessity
• Compelling is to be interpreted broadly - forceful reasons for an absence may involve moral necessity or other circumstances which are convincing by reason of their forcefulness”.

If you need advice regarding your particular visa conditions or circumstances, please use the below details to contact me.

By Farhan Rehman

Partner RSG Lawyers
Australian Lawyer & Registered Migration Agent
Footnotes available upon request
Farhan@rsglaw.com.au
(03) 9350 4440
(+61) 401 393 770

My Gift Card Has An Expiration Date. Is This Legal?

Gift Cards are perhaps the easiest gift you can give to someone. This is perhaps why Australians spend around $2.5 Billion a year on Gift Cards. Gift Cards act like a store credit that can be used at certain stores in a similar way as cash. Unlike money, though, they generally have an expiry date.

The short answer to whether expiration dates on Gift Cards are legal or not is that they are legal in Australia. The Australian Competition & Consumer Commission (ACCC) acknowledges that if the expiry date of a Gift Card has passed, businesses are not required to honour them after this date. The ACCC also directs that businesses must clearly state all conditions and restrictions on how Gift Cards are to be used. You can usually find this at the bottom of the Gift Card in fine print or on business’s website.

Unfortunately, the Australian consumer law does not impose any minimum period of expiry for Gift Cards, which means businesses are free to set their own time limits for their Gift Cards. Usually, Gift Cards have an expiry period of around 12 to 24 months after the initial activation. This limit may be extended but businesses are not legally obligated to do so.

There are some Gift Cards that do not have an expiration date. This does not, however, mean that you can use the Gift Card whenever you want, for example 10 years later. If a Gift Card does not specify an expiry date, it must be used within a reasonable time from the date of first activation. Reasonable time has not been defined.

A word of warning though, businesses are not legally required to honour the life of a Gift Card. This is especially relevant to business that collapse (an example being Masters or Dick Smith Electronics), where consumers can be left with a Gift Card that cannot be redeemed.

Gift Cards are a great alternative to actual gifts as many people prefer to buy what they want rather than received something they will never use. It is imperative that you read the terms and conditions on a Gift Card as soon as you receive one so that you are aware of time limits and conditions of use.

By Oguzhan Sheriff

Footnotes available on request.

Proposed new changes to Stamp Duty and First Home Owners Grant for first home buyers

The Victorian government announced last Sunday that they propose new changes to stamp duty and first home owners grant (‘FHOG’) laws as a measure to increase affordability of homes for first home buyers.

The announcement of proposed reforms include:
• That first home buyers will not have to pay stamp duty for properties valued at $600,000 or less, potentially saving first home buyers $15,535 stamp duty on a $600,000 (‘Exemption’);
• That there will be discounts on stamp duty on properties between the value of $600,000 and $750,000 on a sliding scale (‘Discount’);
• That both the Exemption and Discount will apply to both new and established properties;
• That off-the-plan stamp duty concessions will only apply if you intend to live in the property;
• That a Vacant Residential Property Tax will be introduced that will tax properties being left empty across Melbourne which will be levied at one per cent multiplied by the capital improved value;
• That FHOG will increase from $10,000 to $20,000 for first time purchasers for the purchase of a new dwelling in regional areas.
• That there will be exemptions if it is a holiday house, a deceased estate or if the owner is overseas.
• That as part of a pilot scheme worth $50 million, the Victorian Government will purchase up to 400 homes, taking a 25 per cent share in the properties. Hence purchasers will need a smaller deposit and can enter the market sooner. Eligible applicants will need to earn $95,000 a year for couples or $75,000 for singles.
• That the Victorian Government will contribute $5 million to a shared equity scheme to help low to medium-income families get a foothold in the property market.
• That at least 10 per cent of all properties in government-led urban renewal programs will be reserved for first-time buyers, such as in the Arden development where the plan to develop the 56-acre site could house up to 15,000 people, and 1,500 could be first home buyers.

The proposed suite of changes are planned to come into force from 1 July 2017.

Please do not hesitate to contact one of our specialist property lawyers for any of your conveyancing needs.

By Oguzhan Sheriff.

Footnotes available upon request.

The Office Christmas Party

It’s that time of year again and Christmas party season is in full swing. As such we remind everyone of their rights and responsibilities regarding the sobering reality of the work
Christmas party.

Both employers and employees need to be mindful of their continued responsibilities and the duty of care owed to their colleagues.

Some helpful tips to remember:

• It is important to remember that employees should regard their end of the year party like any other day at work and behave accordingly, as it is still considered a ‘work function’.

• If your workplace has a drug & alcohol policy it is prudent to review the policy and familiarise yourself with it. This will ensure that employees are trained in their content.

• Drinking to excess is no excuse for an employee’s actions or comments.

• Posting content on social media should be thought about carefully. Nothing on the internet is private and can always work its way into the public eye. Liability of inappropriate
posts can arise for an employee even with maximum privacy settings.

• Make any necessary travel arrangements to get home safely at the end of the work function keeping in mind the legal alcohol driving limits.

• Employers need to practice responsible service of alcohol by limiting the employee intake at open bars. In Keenan v Leighton Boral Amey Joint Venture (2015) it was found that ‘it is contradictory and self­defeating for an employer to require compliance with its usual standards of behaviour at a function but at the same time allow the unlimited service of alcohol.

The holiday season does not serve as an excuse for inappropriate behaviour, and both employers and employees should be well advised to ensure that they are aware of their obligations to each other at any work function. From all of us at RSG Lawyers we wish you a safe and merry Christmas.

By Kirollos Greiss, Solicitor at RSG Lawyers.

Footnotes available upon request.

Australia's Refugee And Humanatarian Programme

The world is experiencing a refugee crisis like never before. The latest statistics on the number of displaced people around the world has risen to an unprecedented 65.3 million. Almost one third of them (21.3 million) are refugees, of which half are children under the age of 18 years. There are also 10 million stateless people who are denied citizenship preventing them from access to education, employment, health care and freedom of movement. Its is important more than ever to familiarise ourselves with Australia`s humanitarian programme.

Australia`s humanitarian programme is made up of two critical components:

1. Its onshore protection scheme ensures that Australia meets its obligations under the UN Convention to shelter refugees presiding on its shores.

2. Its offshore protection scheme places Australia to go above and beyond its obligations to settle refugees for whom is the most appropriate option.

The offshore protection option offers for two categories:

1. Refugee: this category is for people experiencing persecution inside and outside their home country and need to settle to a safer place. UNHCR identifies and refers people under a number of streams including the Refugee, In­-country Special Humanitarian, Emergency Rescue and Woman at Risk visa subclasses.

2. Special Humanitarian Programme: this category is a subclass on its own which caters for those who are outside their home country due to gross discrimination and persecution as well as immediate family members of applicants granted protection.

If you feel that you, a family member, or a person you know fits into these categories, it is vital to seek legal advice to navigate your way through the application process.

By Guner Hussein, Solicitor at RSG Lawyers.

Footnotes available upon request.

Migration Agent Did Not Attach Documents!

If your migration agent does not attach a document or fails to provide certain information to the Department (even if you have instructed the Agent to do so), and your visa application is refused, it will generally not give you a reason to vitiate a decision made.

However, where your participation in a decision-making process is affected by the material dishonesty of an Agent which conveys a false impression to the decision-maker, then that dishonesty may be said to have distorted or vitiated the approach and to have affected the decision.

Lessons:

1. You will be liable for what your Agent does or doesn't do (unless dishonesty can be clearly established subject to your circumstances).

2. Be weary (therefore) of who you retain as an Agent or Migration Lawyer.

3. Ensure you follow your application to it's finalization.

Short note compiled by Farhan Rehman, Partner at RSG Lawyers.

Footnotes are available upon request.

(03) 9350 4440.

Available Defences for Directors' Breach of Duty

A director of a company has many responsibilities, one of which is a duty towards the company and its members. Under the Corporations Act 2001 (Cth) (the Act) directors and/or officers of a company must exercise their powers and fulfill their duties with a degree of care and diligence that is reasonably expected from a person in such a position.

There are three main sources where a liability may be imposed on a director.

These are:
1. The Corporations Act 2001;

2. Statutory provisions; or

3. Common law and equitable principles.

There are also fiduciary duties imposed on directors to act for a proper purpose, to act in good faith and to act in the best interests of the company. This duty requires the director to avoid conflicts of interest and to not misuse their position in the company to gain an advantage for themselves. So, what defences are available for directors? There are three main defences available to a director for a breach of duty and or fiduciary duty. These are: the business judgement rule; reliance on others; and use of a delegated power.

The business judgement rule requires a director to have:

• made a decision in good faith and for a proper purpose;

• no personal interest in the subject matter of the decision;

• informed themselves with regard to the subject matter of the decision to the extent they reasonably believed to be appropriate; and

• rationally believed the decision was in the best interests of the company.

AVAILABLE DEFENCES FOR DIRECTORS’ BREACH OF DUTY

The reliance on others defence usually involves receiving of advice from an accountant or lawyer in making a decision for the company. To be absolved of wrongdoing, the director must have believed on reasonable grounds, and in good faith, and after making proper enquiries in the circumstances, that the advice given to them was prepared by a reliable and competent person.

In some circumstances, a director can rely on the fact that another person was responsible for the decision and judgement – use of a delegated power. Similarly, the director will need to show that they believed on reasonable grounds and in good faith that the person was reliable and competent for power to be delegated to them.

The above was a brief overview of the defences available to directors for breach of duty. If you or someone you know has any concerns about any breaches of duties owed to a company, please call us to discuss the matter further.

By Oguzhan Sheriff, Partner at RSG Lawyers.

Footnotes available upon request.

Workplace Rights & Entitlements For 457 Visa Holders

Under the Migration Act People working in Australia, including both sponsored and non sponsored visa holders, have rights and entitlements at work.

These rights cannot be revoked or taken away regardless of the worker’s contract or agreement because they are set by Australian law. Under the Migration Act your sponsor/employer is required to meet certain obligations which are part of the standard terms and conditions of employment in Australia.

The employer is required to:

• Provide you with equal compensation to that of any other Australian employee in the same occupation as you in the workplace.

Ensure you only work in the occupation or activity to which you were nominated.

• Pay you reasonable travel costs to allow you and your family members to leave Australia. This should be requested in writing.

• Provide you with equal conditions of employment to those provided to an Australian performing the same work in the same location.

Under the Fair Work Act

Employers are also liable to meet certain obligations under the Fair Work Act, including the National Employment Standards (NES), which apply to all employees regardless of
the award, agreement or contract in place. There are certain minimum standards that are covered under the NES which cannot be revoked.

These include:

• A maximum standard work week of 38 hours for full­-time employees, including ‘reasonable’ additional hours.

• The right to request parental leave of 12 months, with the right to request an additional 12 months.

• The right to request flexible working hours to care for a child.

• An annual paid leave of 4 weeks; 10 days personal/carers leave; community service leave (unpaid); long service leave.

• Paid day off for public holidays.

Everyone in Australia is entitled to the above basic rights and protections. The Fair Work Ombudsman is responsible for ensuring employers are meeting the legal requirements of Australian workplace laws. If you feel that your workplace rights are not being met, contact your solicitor for the right advice.

By Kirollos Greiss, Solicitor at RSG Lawyers

Footnotes available upon request.

Racial Vilification Under Section 18C & 18D Of The Racial Discrimination Act 1975 (Cth)

You may have recently seen or heard about “section 18C” and “section 18D” (‘Sections’) in parliamentary debates, news feeds, topics of debate on TV programs and other media
outlets.

This is because a number of senators are pushing the agenda of removing these Sections from the Racial Discrimination Act (‘Act’).

Section 18C of the Act (‘Offence’) makes it unlawful (but not a criminal offence) for someone to do a public act that is reasonably likely to “offend, insult, humiliate or intimidate” a person because of their race or ethnicity.

Section 18D of the Act, on the other hand, provides for exemptions to the Offence where there are artistic works, scientific debate and fair comment on matters of public interest, as long as they are said or done reasonably and in good faith.

These sections were introduced:

• as Australia’s commitment to prevent the spread of racial hatred pursuant to the International Covenant on Civil and Political Rights (ICCPR) and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), and;

• in response to recommendations of major inquiries including the National Inquiry into Racist Violence and the Royal Commission into Aboriginal Deaths in Custody.

Striking the balance

The courts have consistently treated sections 18C and 18D as a balancing act between freedom of speech and freedom from racial vilification. The courts decide on which acts fall under section 18C and look for actions that pose serious and profound effects on its victims rather than the victim merely being offended. The consequence for an offender under section 18C only includes providing an apology or paying monetary costs. There are no criminal charges associated with such an offence.

Australian Human Rights Commission (‘Commission’) Complaints under these Sections can also be lodged with the Commission. During the 2012/­2013 financial year, the Commission received a 59 per cent increase in complaints under section 18C. 53 per cent of racial vilification complaints in 2012/­13 were resolved at conciliation. 4 per cent of complaints made under section 18C were terminated or declined for being trivial, misconceived or lacking in substance. And less than 3 per cent of racial hatred complaints proceeded to court.

If you have been the victim of racism, or are being accused of racially vilifying someone, please do not hesitate to contact one of our anti­-discrimination lawyers.

By Guner Hussein, Solicitor at RSG Lawyers.

Footnotes available upon request.

 

Trust Structures

Many people choose to form a trust for various reasons, especially for investment purposes. 

There are many benefits of using a trust which includes:

• Asset protection: assets under a trust structure are protected if one is sued, since the assets under the trust are held in trust for others. Trust structures are particularly useful for professionals who are at high risk of being sued such as surgeons, lawyers and engineers.

• Tax minimisation: trust structures allow for structuring income derived from owned assets for tax minimisation purposes as well as transferring assets between beneficiaries without attracting tax. Most trust structures are also eligible for the 50% Capital Gains Tax on any capital gains if they have held on to the asset for at least 12 months.

• Control: you have full control of assets under the trust, even though you do not own it.

There are a few types of trust structures that one may choose from to suit their own personal circumstances.

They are:
• Unit trusts: This type of structure apportions assets under it into defined units. The amount that each beneficiary owns is determined by the portions of each unit and how many units that they hold. Flexibility is provided in the distribution of income and capital. However, variation of this distribution requires formally amending the trust deed that outlines this distribution. Also, each beneficiary has absolute discretion as to who they transfer their unit to on their passing as per their wills.  • Family trusts: Trustees of this trust structure have absolute discretion as to how the income and capital is distributed unlike a unit trust, which is determined by its units. Also, the trustees are usually only family members, namely husband and wife. Beneficiaries do not have control as to who the income and capital under the trust are transferred to on their passing since the trust deed usually states that the beneficiaries of the trust are the husband and wife, their children and children’s spouses, and their grandchildren. • Hybrid trusts: this structure is a combination of both unit and family trusts where the assets are apportioned into units, but the trustees have absolute discretion to the distribution of income and capital. Hybrid trusts are little more expensive to set up.

If you need further advice on setting up a trust or which trust structure suits your needs best, contact one of our legal professionals for a consultation.

By Guner Hussein, Solicitor at RSG Lawyers.

Footnotes available upon request.

 

Making a Claim with the TAC

The Transport Accident Commission (TAC) is a Victorian Government insurer that provides compensation payouts for personal injuries that are a direct result of a road and transport accident.

If you’re involved in an accident that leaves you injured, immobile, incapable of caring for yourself or your children or in need of medical treatment, you may be eligible to make a claim. This also applies
to all types of public transport (trams, trains and buses), pedestrians and cyclists as well as motorists.

At the scene After an accident, you should attempt to gather as much information as possible, including: the other driver’s information (licence details, vehicle & registration details and insurance policy details); obtain witness details; and take photos of the scene if possible.

How & when to make a claim To make a claim contact the TAC and request a claim form.

Complete the form including as much detail as possible and return the form to the TAC. It may be advisable to seek legal assistance in completing the form. A person can lodge a claim up to three years after the accident occurred. However, it is recommended to lodge within 12 months otherwise you may be required to provide an explanation for the delay. A decision of the claim will generally be provided within 21 days of receipt.

If your claim is rejected There are several reasons why the TAC may reject a claim.

For example, if it believes the accident did not occur, if the accident is outside its jurisdiction or if the accident does not meet the definition of a road or transport accident. If the claim is rejected, you have 12 months to appeal the decision to the Victorian Civil and Administrative Tribunal.

If someone dies If you have lost a family member in a transport accident, the TAC can assist financially. This includes obtaining
support for funeral/burial or cremation expenses; support for travel & accommodation expenses to attend the funeral/burial or cremation; support for a dependant spouse or partner; support for dependent children; and support with family counselling.

Most TAC claims are for medical assistance and other support services such as ambulance cover, hospital fees, domestic assistance, etc. If an accident leaves you dealing with a specific need, you can put a special request to the TAC.

By Kirollos Greiss, Solicitor at RSG Lawyers.

Footnotes available upon request.

Do I Need A Will?
Your final message or duty to your loved ones is often your last will and testament. No matter the circumstances, having a will helps to ensure that your loved ones are provided for and that they understand what you would like done with your estate. A will is essentially a legal document that sets out how you would like your estate (i.e. your real and personal assets and liabilities) to be managed and how it is to be distributed. It safeguards your assets, in that it ensures your assets go to those you wish. It also provides an opportunity to appoint a guardian for your children. A will further requires an executor or trustee who will be responsible for administering or managing the estate by carrying out your wishes. Having a will is important, as it is your voice after you are gone. Having a will that is current, well written and explained will help ensure that your loved ones are provided for and that your assets are distributed according to your wishes. It ensures that the people responsible for managing your estate and carrying out your wishes understand how you would like your affairs to be managed. A will can also give you the ability to provide gifts (bequeath) to charities and organisations, thus further maintaining your legacy after you have passed. You should write or update your will whenever your life changes to ensure your loved ones are looked after. Some of these changes can include significant events like:
  • Travelling overseas;
  • Buying or selling a house or business;
  • Getting married or divorced;
  • Having a child; or
  • Deciding to change or update the details of your will.
We tend to say to ourselves that “I will draft a will when I am older”. However, tomorrow is never guaranteed and the realisation that a will is necessary may be too late. If you wish to avoid the added stress on your family during this already emotional time, see your estate planning lawyer to draft a basic will now. No matter how straightforward or complicated your estate is, RSG Lawyers can assist you to ensure your final wishes and how you would like them to be carried out is recorded. By Oguzhan Sheriff, Partner at RSG Lawyers. Footnotes available upon request.
Considering Alternative Dispute Resolution
While many may want to issue proceeding as a matter a principle, let’s consider some basic advantages of Alternative Dispute Resolution (ADR). Before I do summarise a few benefits, what is ADR? ADR are various processes (rather than judicial determination) in which an impartial person assists those in a dispute to resolve the issues between them. You may know such processes as mediation, conciliation and arbitration. Now, let me quickly mention a few advantages of ADR (in opposition to court):
  • Save time by allowing resolution in weeks as opposed to court which can take years.
  • Therefore, save money, including fees for lawyers and experts, and work time lost
  • The parties to the matter are more in control (instead of the lawyers) as the processes give the parties an opportunity to tell their sides of the story
  • The issues of each person become more focal rather than just the legal rights and obligations.
  • The disputes can remain private unlike court where the proceedings are usually on public record and where the media may have access.
  • There is a high chance of settlement through ADR, many cases are resolved through the processes.
If you have any questions regarding this publication, please call(03) 9350 4440 or alternatively you may email me directly on farhan@rsglaw.com.au. By Farhan Rehman, Partner at RSG Lawyers. Footnotes available upon request.
Phoenix Companies, What Are They?

The concept phoenix activity is typically centered on the notion where directors of an indebted or failed company transfer the assets and business of the said company into a newly formed company of which they are also directors.

The phoenix activity here is to intentionally exploit the corporate form at the detriment of any unsecured creditors such as government authorities and employees. This is achieved by placing the indebted company into liquidation with no assets to pay its creditors, while the directors continue their business using the new company. This is illegal, and those intentionally trying to exploit unsecured creditors face dire consequences.

It is important to note that not all phoenix activity is illegal. It can be done to rescue the business by forming a new entity while also maintaining the worth of the indebted company’s assets and its employees retain their jobs and entitlements. However, repeatedly resurrecting a business can become problematic and considered illegal phoenix activity. Engaging in illegal phoenix activity is serious and can have further consequences for directors involved in such activity as they are also likely to have breached several director’s duties both under legislation and general law. Both ASIC and the Federal Government take phoenix activity very seriously and those that breach their duties as directors can face serious penalties.

By Oguzhan Sheriff, Partner at RSG Lawyers.
Footnotes available upon request.

Landlords Have Responsibilities To Repair Premises
Under the Residential Tenancies Act 1997 (Vic) (the Act), landlords have a duty to maintain their rental premises. In a recent appeal from the Residential Tenancies list of VCAT, the scope of this duty was further clarified by the Supreme Court of Victoria in its decision. The decision places landlords under a positive duty to ensure rental premises are in good repair at the beginning of a tenancy and throughout the tenancy. The matter The case involved a tenant, Shields, seeking compensation under section 452 of the Act for the landlord’s breach of section 68 of the Act. Section 68 places a landlord under a duty to ensure that the rented premises are maintained in good repair. Shields entered into a residential tenancy agreement with the landlord, Deliopoulos, for the house located in Port Albert. The house was in a poor state of repaid at the commencement of the tenancy. There were significant defects, such as a leaking roof, mould on the ceiling and walls of the building, bad electrical wiring and the previous tenant had not removed all their belongings. During the five­ year tenancy period, the state of the house deteriorated even further to a point that it was almost uninhabitable. The initial VCAT application by Shields was rejected on the basis that the member was of the view that a landlord cannot be in breach of its obligations under s. 68 of the Act if a tenant is occupying and remains in occupation of the premises. Shields appealed the decision to the Supreme Court of Victoria (the Court) on grounds that VCAT misinterpreted the duties of a landlord under s. 68 of the Act. In her decision, Associate Justice Daly defined the scope of a landlord’s duty under s. 68 of the Act to extend to the landlord having to ensure that the premises are in good repair at the commencement of a tenancy. The Court interpreted the language in s. 68 as being a positive duty on the landlord in that landlords must ‘make sure’ or ‘make certain’ that the premises are in good state of repair. What this means The Court and the Act place a positive duty on landlords to take steps to ensure that any rented residential premises are in and maintained in a good state of repair. As such, if landlords fail to meet the requirements of s. 68 they may facean order to pay compensation to any tenant that is affected because of the failure. Landlords should seek legal assistance if they are unsure of their responsibilities towards tenants. By Oguzhan Sheriff, Partner at RSG Lawyers. Footnotes available upon request.
The Introduction of Night Court in Victoria

Following the tragic events on Friday 20 January 2017, the state of Victoria will review its current bail system and introduce a night court to hear matters after normal court hours.

Following investigations of the Bourke Street mall incident, where the accused used his vehicle to drive into and over pedestrians, killing as many as five people and injuring many others, it was found that the accused had been out on bail, which was granted by a bail justice just a few days earlier. The state of Victoria uses bail justices, who are volunteers that hear after­hours bail applications, in contrast to a magistrate who has extensive experience in the legal field.

In Victoria, when an individual is arrested, the Police will usually determine whether that person will be released on bail or remain in police custody.

If the court or a bail justice are not available to hear the matter within 24 hours, the police must release the offender unless there is a public interest for the offender to remain detained such as the risk of reoffending. The perpetrator of the Bourke Street tragedy was granted bail on the presumption that he was deemed not to present an unacceptable risk of reoffending.

The Victorian government has now made a move to reevaluate its current bail laws, starting with the establishment of a night court where magistrates with professional legal qualifications will hear after­hours bail applications of people accused of committing violent crimes, rather than bail justices. The Victorian government will also consider the possible amendment of the Bail Act 1977 in balancing the rights and innocence of the accused against the public interest criteria; the current tests of determining an unacceptable risk to the community; and the role of bail justices and whether to abolish the service entirely.

By Kirollos Greiss, Solicitor at RSG Lawyers.
Footnotes available upon request.

Susan Kiefel Appointed Australia's First Female Chief Justice of The High Court

Apart from being Australia’s first female Chief Justice of the High Court, Susan Kiefel left school at the age of 15 years old and is a true inspiration to many aspiring to make it big in the Australian legal arena.

She completed her high school part-time while simultaneously working as a legal secretary and studied law part­-time before she was admitted to the Queensland Bar in 1975. For your information, the Chief Justice of Australia is the presiding justice of the High Court of Australia and is the highest ranking judicial in the Commonwealth of Australia.

The “Kiefel Career” is made up of various ground breaking achievements including: the first woman in State of Queensland appointed as Queen’s Counsel, the first woman in the state’s Supreme Court and the third woman appointed to the High Court.

Prime Minister Turnbull stated that Justice Kiefel’s appointment will be effective from 30 January 2017 and that her appointment demonstrates that even “paralegals” can make it to the top.

RSG Lawyers takes pride in congratulating Justice Kiefel on her new appointment and looks forward to her term.

Some serious glass ceilings broken!

By RSG Lawyers.

Footnotes are available upon request.

Is Your Trademark At Risk?

You may think that by having a trademark registered, you are ensured that the use and control of the trademark is solely with you and that ultimately you are its owner. However, under Australian law, if you are not using a trademark or do not properly control the use of your trademark by a licensee for a period of 3 years and 1 month before an application to remove it is filed, you will be at risk of losing your trademark.

In the recent case of Lodestar Anstalt v Campari America LLC [2016] FCAFC 92, the Federal Court’s decision highlighted that if you want a control clause over your trademark, you need to show you have actual control over its use and not just a theoretical one. Therefore, as a trademark licensor, you will need to show you are actively engaged in the control of your mark’s use by any licensee, otherwise you run the risk of losing it.

It is advisable that all trademark licence agreements are carefully examined and amended accordingly together with the procedures for control of the marks under these agreements.

Whether the Federal Court’s decision will be appealed is yet to be known, however we advise all our clients to be cautious and hence advise them to examine and scrutinise their licence agreements to ensure no such action be brought against them.

Should you require further assistance or advise in relation to the above, please contact us for an appointment now.

Footnotes available upon request.

By Oguzhan Sheriff, Partner at RSG Lawyers.

Measures To Safeguard Your Personal And Financial Assets After Separation
Going through a divorce can be an emotionally stressful and financially demanding time. Parties are often caught up in the legal proceedings surrounding separation that they tend to overlook some common actions to safeguard their personal assets. Here are some helpful measures that one should take in anticipation, during and following separation:
  • Change your passwords
This includes personal PIN numbers on you mobile, bank key card, internet banking passwords, email, social media etc.
  • Inform your bank that you have separated and frequently check your account
In anticipation of any unauthorised withdrawals, you should consult with your bank to implement extra security measures that require your approval for withdrawals on joint accounts. TO JUSTICE
  • Change your will
Separating from your partner does not necessarily mean that your partner won’t be a beneficiary to your will if you pass away. In essence, separation will not affect the will currently in place.
  • Keep your financial and important documents safe If you’re suspicious that your valuable documents may disappear, it would be prudent to keep these safe or with someone you can trust. If there are children involved, keep their passports safe as well.
In addition, some other prudent measures to take are to revoke any power of attorney, change your postal address (perhaps consider a PO Box), keep you sentimental valuables safe. By Kirollos Greiss, Solicitor at RSG Lawyers.
Why Use A Law Firm Rather Than A Migration Agency?

1. Greater protection for you

Migration Agents are only answerable to the Migration Agents Registration Authority and are only governed by its Code of Conduct.

A Migration Agent who is also a practicing lawyer must additionally observe the stringent requirements imposed on legal practitioners by a separate legislative regime in respect of ethical and professional conduct and standards

2. Access to a wide range of services

Lawyers who are also migration agents have the benefits of interacting with lawyers, in and out of the firm, and where the need arises, seeking opinion on legal matters relating not only to immigration but also to personal, business, and family aspects of their client’s problems.

3. More control over your money

There is a regulated trust account system which protects clients’ moneys from being inter­mingled with a lawyer’s own accounts. This account is subject to annual audits and random inspection by Trust Account Inspectors from the Law Society.

A satisfactory audit is a requirement for the renewal of the legal practice’s registration.

4. Higher insurance protection

Even though Migration Agents can purchase professional indemnity insurance for about 20% of what it costs lawyers in VIC, there is currently only a minimal requirement for migration agents to have professional indemnity insurance to cover losses caused by their negligent advice.

In turn, lawyers who are also migration agents are covered by their legal professional indemnity insurance. Recover any lost money

By using a law firm you may recover monetary loss from a fidelity fund administered by the Victorian Legal Services Board, the body regulating solicitors. Migration Agents do not have a fidelity fund.

If you feel its time to make the switch to Migration Agent lawyers, do not hesitate to contact us for a consultation.

By Guner Hussain, Solicitor at RSG Lawyers.

Home Invasion and Self Defence

You may often wonder where the law stands if an intruder enters into your house and you take action. When it comes to these situations, homeowners/residents are tempted to fight the intruder or even to use a weapon. After all, a man’s home is his castle. That is also the doctrine (the Castle Doctrine) applied in most states in the US, where a person can use lethal force to protect their family and home without facing legal prosecution. In Australia, the law is somewhat ambiguous and not always black and white.

You may not automatically have the right to attack a home intruder or hit them with a cricket bat just because they are standing in your living room.

However, even though we don’t have the Castle Doctrine, under criminal law, self ­defence is a complete defence if an occupant/homeowner is brought to court over charges of causing death or bodily harm.

Under the NSW Home Invasion (Occupants Protection) Act 1998 a person is defined as an intruder if a;

(a) the person makes an unlawful entry into a dwelling house and

(b) an occupant of the dwelling ­house believes that the person has committed or is committing a crime in the dwelling ­house against an occupant or the property of.

Other Australian jurisdictions offer similar provisions. An occupant is usually allowed to act in self ­defence against an intruder if the occupant believes on reasonable grounds that it is necessary to do so. This extends to the defence of another person or even property. An occupant who acts within the provisions of self ­defence of him/herself, another person or even property as set out under the Home Invasion (Occupants Protection) Act is immune from criminal liability resulting from his/her acts.

Footnotes available on request.

Written by Kirollos Greiss, Solicitor at RSG Lawyers.

What is "Supervised Time" in Family Law
The need to maintain a meaningful relationship between children and each of their parents is a primary focus of the Family Law Act 1975, which works to strike the balance with the need to protect children from the risk of harm. Supervised time is designed to ensure a safe environment is facilitated for the children. The Courts are likely to order supervised time in various situations, including where:
  • The child may be placed at a risk of physical or psychological harm, through spending time with a parent alleged to be violent;
  • There is a risk of child sexual abuse; or
  • The behaviour and conduct of a parent may not be in the best interests of the child (e.g. if the parent has significant drug and/or alcohol addictions).
The parent’s time with the child can be supervised by:
  • Family and friends;
  • Contact Centres; or
  • Private supervision organisations.
It is not appropriate for the other parent to be the supervisor of the parent’s time with the child, given the potential for conflict. What are the duties of a supervisor? The primary role of any supervisor is to ensure that children spend time with their parents in a safe environment where any risk of harm can be alleviated. Supervisors are required to monitor all interaction and conversations between children and their parents. Professional supervisors usually take detailed notes on what is said during these supervised visits and on how the time progressed between the parent and child. Supervision is usually only ordered on an interim (temporary) basis given the inherent difficulties in sustaining the arrangement in the long term. If you are thinking about seeking a child order for supervised time, or if this has been sought against you, it is essential that you obtain specialist advice as soon as possible. Footnotes available upon request. Written by Guner Hussein, Solicitor at RSG Lawyers.
Can Evidence Derived from Hypnosis be Used in an Australian Court?

Many of us will have seen shows where hypnosis was used as a tool for triumph of the greater good, because the innocent party could not, or would not, recall the events of their hardship accurately. Following this same logic, one would wonder whether hypnosis be applied to a real life situation? Do Australian Courts allow it?

The law and hypnosis.

Essentially, any party who is reliant on the evidence of a person who has been hypnotised, must be able to demonstrate the reliability of the evidence, as well as providing a prima facie reason for admitting the evidence gained from the procedure.

Guidelines for evidence induced from hypnosis The requirement for introducing evidence gained from hypnosis was addressed in the case of R v Jenkyns in New South Wales, in which Chief Justice Hunt, adopted the approach of R v McFelin [1985] 2 NZLR 750 at 751 (CA) on the admissibility requirements for evidence derived from hypnosis.

Generally speaking, in order for evidence gained from hypnosis to be admissible, the evidence must be limited to matters that the witness can recall, and made prior to the procedure. In other words, evidence that is first brought to one's attention during, or after hypnosis, shall not be admissible in most instances.

There are additional requirements that need to be demonstrated in order for evidence gleaned from hypnosis to be considered admissible, and are as follows:

• there is documentary evidence of the original recollection from the witness concerning the subject matter

• the witness consented to undergoing hypnosis

• the hypnosis was performed by an experienced hypnotist, and who is independent from all parties involved in the matter

• the hypnosis was performed without the presence of all relevant parties to the matter and must also be recorded.

The reasoning behind the approach taken in R v Jenkyns is to avoid the dangers of suggestibility that a person undergoing hypnosis may be prone to. However, it should be noted, that the weight of the evidence gained from hypnosis is counter balanced with all other facts surrounding the matter, and that any recollections of the witness which has surfaced for the first time during hypnosis, will mean that it is less likely the evidence would be considered admissible.

Footnotes available upon request.

Written by Guner Hussein, Solicitor at RSG Lawyers.

Maintaining Records of Business Dealings

RSG Lawyers recently acted on behalf of a business that had relied upon a “mates” word in a business transaction. The business had failed to take accurate records of services provided by them to a customer and therefore did not have a solid claim for the moneys owed to them.

The commercial litigation department at RSG Lawyers has many clients who have come to see us as a result of poor bookkeeping or inadequate invoicing. Even though keeping accurate records may seem quite tedious when you are trying to maximize your businesses potential, the costs to your business by failing to keep accurate records however can be disastrous.

It is always good practice that when dealing with “mates” in business or any business transaction to have a formal agreement in place. This is because, even though it may seem awkward to make such a request from a “mate”, it is better than appearing against them as former “mates” in lengthy and expensive court proceedings

A bonus of keeping accurate records and maintaining formal agreements between business “mates” is that should the need for litigation arise your legal costs will be reduced drastically, as time is not consumed retracing your company’s business practices and arrangements.

For information about avoiding litigation by maintaining good business practices and what constitutes a potentially litigious arrangement or any other questions about your organizations dealings please feel free to contact us.

Footnotes available on request.

Written by Oguzhan Sheriff, Partner at RSG Lawyers.

Contributory Negligence

The world of compensation is often not as black and white as one might think. This is largely due to the courts weighing up all the facts surrounding the circumstances of the case. Whether one sustains an injury at their workplace, a public place, or on the road, there are usually a number of factors a court will consider before they grant damages to one or more parties.

In order to access common law damages, one needs to prove the suffering of serious or significant injury and that the suffering was caused by someone else's negligence.

Imagine the following scenarios:

1. A worker sustains injury from falling off from the second floor of a building.

2. A pedestrian, while walking on an asphalt pavement, slips and falls from an opening in the concrete and dislocates their shoulder.

3. A motor vehicle driver who is injured after another motor vehicle hits their vehicle.

These scenarios seem to clearly show the ones who are at fault, however there are other factors that the Courts may discern that add a level of complexity to the circumstances.Now consider these facts:

1. The worker did not strap themselves with a safety harness belt despite being trained in the area and being part of the workplace's policy.

2. There were signs placed in and around the opening in the pavement warning to take note of the hole.

3. The driver was speeding.

A recent decision in the New South Wales Supreme Court saw the plaintiff sue a church in relation to injuries she sustained after falling down a flight of stairs.

Despite her success, the court reduced the damages payable to the plaintiff by 50% for contributory negligence. The Church was found guilty of failing to repair or replace the broken nose tile which was known to the caretaker of the premises for about four years prior to the incident. However, the plaintiff was also negligent as she failed to use the handrail and failed to keep a proper lookout for hazards on the staircase when she was a person acutely aware of the connection between falling over and suffering personal injury.

Whilst each matter will turn on its own facts, suffering an injury alone will not be enough for a plaintiff to claim 100% damages as defendants will try to persuade the courts that the plaintiff failed to take care of their own safety or has added to their own risk of injury in some way.

Footnotes available upon request.

By Guner Hussein, Solicitor at RSG Lawyers

 

Restraint Clause

Restraint of trade clauses are a great way for businesses to prevent employees from taking clients or competing with the business interests for a specified period. However, beware of using a generic clause as courts in most Australian jurisdictions have not allowed a restraint clause where it's interpretation is "unreasonable".

In the State of New South Wales the Restraints of Trade Act 1976 allows for a court to 'read down' the terms of a restraint to modify it until it may become reasonable. However, courts in other States and Territories do not have such a discretion.

Thus, a cascading clause will allow for alternatives so the clause may not be seen as unreasonable, simply speaking a cascade clause is a clause which provides for different levels of restraint in a contract.

For instance, the restraint clause may allow for various periods of restraint (ie 1, 2 or 3 years and cover Melbourne, Victoria, Australia or which ever is reasonable).

Think about:
a) The court will consider each case individually in order to determine whether the restraint clause in question is reasonable.
b) A generic restraint of trade clause must be avoided as they may not be seen as reasonable or fit for the particular circumstances.
c) Always consider obtaining legal advice to ensure enforceability of the restraint clause.

Footnotes available upon request.

By Farhan Rehman, Partner at RSG Lawyers.

Experience: Migration Law, Contracts, Commercial Litigation,
Corporate Compliance and Restructuring.

Door to Door Sales in NSW and VIC - What You Need to Know

Door­to­door sales involve salespeople who visit your home to sell products or services. Usually the salespeople will apply pressure tactics to persuade you into purchasing their product, albeit you may not need it or can’t afford it. For example, if they are selling an internet or phone service they may ask to see your previous bill and convince you that you’re overpaying. Or they may offer you some kind of discount if you sign up for their service or purchase their product on the same day. These sales methods can result in you agreeing to an unsolicited consumer agreement and you should be aware of your rights.

Hours

Door­to­door sales must not contact you: on a Sunday or public holiday; before 9am or after 6pm on a weekday; or before 9am or after 5pm on a Saturday. However, a supplier or agent may visit a consumer at any time if an appointment has been arranged with the consumer.

Requirements:

If a door­to­door salesperson knocks on your door, you have the right to ask them to: disclose the purpose of their visit; provide their identification, including name and address; tell you the name of the company they represent, including name and address. You can also request that they immediately leave. If they are told to do so, they can’t return again for at least 30 days on behalf of the same seller.

The agreement

If you decide to buy something from a door­to­door salesperson, you must be given a written copy of the agreement as soon as it’s signed. The agreement must also provide: Important Notice to the Consumer; your rights to cancel the agreement in 10 days (cooling­off period); full terms of the agreement; total price (including GST) and how it is calculated; rights to cancel the agreement if you change your mind.

Supplier responsibility

If the salesperson has failed to comply with the above laws, a supplier cannot enforce the agreement. A supplier should ensure that their salespeople are aware of their legal obligations when approaching a consumer, or both the supplier and salesperson may be liable for any breaches. And remember, it’s okay to say no. You are not obliged to buy or agree to anything or sign any agreements if approached by a door­to­door salesperson.

Footnotes are available upon request.

By Kirollos Greiss, Solicitor at RSG Lawyers

What is a Bankruptcy Notice?

If someone owes you a debt more than $5,000 (judgement must be obtained for same), and has committed an act of "Bankruptcy" (as defined under Section 40 of the Bankruptcy Act), you may be able to serve the debtor a formal bankruptcy notice.

A bankruptcy notice is a formal demand requiring a debtor to make payment within 21 days of being served the notice by the creditor.

If the payment prescribed in the notice is not made within the 21 days the noncompliance will give the creditor the right to initiate Bankruptcy proceedings against the debtor in the Federal Court or the Federal Circuit Court of Australia.

There is also a prescribed format for the notice and there are various time limits that must be adhered to per the Act.

Footnotes available upon request.

By Farhan Rehman, Partner and Solicitor at RSG Lawyers.

Farhan is primarily experienced in Migration Law,
Commercial Litigation, Dispute Resolution, Contract Law
and Corporate Restructuring.

farhan@rsglaw.com.au

Having Trouble Recovering Money Owed to You?
This is a common issue not only for new businesses, but also for established, long ­standing businesses that have been trading for many years. It is important that any new or established business has effective debt recovery strategies in place to guarantee swift payment of such debts. This article will outline some debt recovery strategies for you to consider to ensure you get paid for your hard work. Recovery Strategies 1. Make direct contact with the debtor. Speak to them personally and find out the reason for the delay. It could be a simple oversight, mistake or misunderstanding that prevented the settling of the account in a timely manner. Be friendly when you speak to your debtor, which assists in reinforcing your business relationship, but ensure you obtain a commitment to settle the debt by a specified date. Follow up the phone/meeting call with an email, which notes the content and outcome of your discussion. This is also very good evidence, should it be required at a later date. 2. If payment has not been received, follow up the phone/meeting call, and be friendly, firm and persistent. Your tenacity and attention to detail with following up theunpaid account will generally speed up payments. However, be careful not to harass the debtor, which can cause the debtor to act defensively or worse give rise to a complaint about this behaviour. 3. If the account has been settled, contact the debtor and thank them for their prompt attention – again, this builds business relationships. 4. Arrange a face­to­face meeting. Be friendly as this can aid in settling of the outstanding payment. 5. If possible, introduce a late fee into the terms of your contract. Bookkeeping and administration expenses do add up, and there is no reason why you should have to bear these costs. Note that you may have to vary the terms of the contract (if one exists) and give ample notice of the late fee introduction. 6. Do not let your business be dependent on too few customers – have a well balanced strategy that can survive a bad debt and the loss of one or two customers. 7. You can also consider issuing a letter of demand requesting the payment, but be careful not to send a letter which is designed to look like a court document, which can be considered misleading. 8. Consider a ‘do­it­yourself’ legal action via the small claims division of your local tribunal. The tribunals offer a simple debt recovery procedure, which is relatively informal and cheap. However, note that there is a ceiling amount in respect of these types of claims, and you should check the definition of ‘small claims’ before going down this path. 9. Engage the services of a debt recovery company/lawyer to help you to recover your debt. 10. Once judgment is obtained it is highly unlikely that the money will roll in straight away. You may need to enforce the judgment which means going back to court to obtain an order or warrant from a range of options available to creditors such as:
  • Warrants;
  •  Instalment arrangements;
  •  A Garnishee order;
  • Bankruptcy;
  • Winding up; or
  • Oral examination (not strictly an enforcement optionbut it enables the creditor to find out what the debtor has).
Each option has different advantages, disadvantages and costs. Legal advice should be sought before deciding to carry through with one of these options. 11. Examine your existing agreements and contracts. There are some issues here you need to be mindful of, including: (i) Your contracts terms should prevail over your debtors terms if any (in particular there should be a term in your contract which excludes all other terms, dealings and arrangements); (ii) Incorporate termination provisions which allow you to terminate the contract if the debtor is insolvent – care must be taken when exercising this right, so as not to unlawfully repudiate the contract; (iii) Include set­off provisions, giving you the right to set off debts owed to you with debts that you owe thedebtor; (iv) Have a retention of title clause, where ownership of goods does not pass to the debtor until full payment has been received. 12. Consider obtaining security for the debtor’s obligations ­ and if this is not an option, consider a personal guarantee from directors or shareholders of a debtor. For more information about this topic, feel free to contact RSG Lawyers on (03) 9350 4440 or admin@rsglaw.com.au. Footnotes available on request By Oguzhan Sheriff, Partner & Solicitor at RSG Lawyers. Oguzhan primarily leads our property and commercial department with years of experience dealing with commercial and real estate matters
The Drawbacks of Do-It-Yourself Wills

DIY will kits are becoming easily obtainable through online providers, some post offices and newsagencies. It is important to consider some of the pitfalls of a cheaper DIY kit when contemplating your will. It is imperative to first consider that your needs, wishes and requirements will be met by a DYI kit. If the kit does not meet your requirements or complexities of your needs, the result could be catastrophic.

It is a common misconception that a single slightly amendable will could cater to all possible scenarios. In many cases your needs may be simple and straightforward without any complexities or ambiguities. In some cases, a standard online will can deal with your essential needs.

However, the danger is in making that assessment single handedly and unassisted. Consider some of the common issues that arise, including having a blended family, having a beneficiary who is disabled, having a beneficiary who is in financial difficulties or a beneficiary who cannot handle their own finances. Other important factors to consider may include appointing a reliable trustee, dealing with your superannuation, dealing with jointly owned assets or company owned assets just to name a few.

It is therefore prudent to treat your legal will with the importance it holds, as it is the document that will ensure your legacy and assets to your loved ones. For more information about wills, come and see our legal team for an initial consultation.

Footnotes are available upon request.

By Kirollos Greiss, Solicitor at RSG Lawyers

New Entrepreneur Subclass

The Australian Government is to unveil a new visa subclass which will encourage entrepreneurs to base their start­ups in Australia. This is great news as the role of new science, research and technology is important to Australia as they are are critical drivers of productivity and building of future industries.

The Australian Government announced the National Innovation and Science Agenda (NISA) on 7 December 2015.

Under the NISA, a new entrepreneur visa will exist allowing for entrepreneurs with innovative ideas and financial backing from a third party of approximately $200,000 to gain Permanent Residency in Australia. There will of course other requirements to meet the visa subclass.

Five additional points are also now available in the points test for skilled migration for students who have completed Australian postgraduate research qualifications in science, technology, engineering or mathematics or specified information and communication technology fields. The change enhances the pathway to permanent residency for these highly skilled graduates.

The Entrepreneur visa is due to be introduced in November 2016.

RSG Lawyers will be providing further updates on this subclass as they become material.

Please also note our team intends on presenting on the new subclass at a seminar in Wagga in November 2016 and we will provide dates for the proposed seminar in our one of our next publications.

Footnotes are available upon request.

By Farhan Rehman, Partner at RSG Lawyers.

Farhan is primarily experienced in Migration Law, Commercial Litigation, Dispute Resolution, Contract Law and Corporate Restructuring.

farhan@rsglaw.com.au

Consequences of Lodging a Caveat Without Basis

Recently, I wrote an article on the purpose of a caveat. In summary, a caveat acts as an injunction to the Registrar in prohibiting the registering of any dealings with the land without the caveator’s consent. However, there are consequences in lodging a caveat without having a proper reason.

We learn from the case of Sovereign MF Ltd (in liq.) v EOS Janus Holdings Pty Ltd [2013] VSC 347 that indemnity costs (order to pay all reasonable costs incurred by the other party) could be awarded against a Caveator who doesn’t lodge a caveat with a proper basis.

It is important to note that a caveat can only be lodged over another's property if you have a legal or equitable interest in the property. To determine whether any interests exist, one may ask the following questions:

• Does any legal instrument, for example a written agreement, allow for the lodgement of a caveat over another’s property after the satisfaction of particular circumstances?

• Do I have any equitable interest in the property or has the registered proprietor granted me an interest in the property (i.e. an equitable charge to secure debt)?

The Department of Environment, Land, Water and Planning outlines a number of claim categories that are for a grounds of claim, such as an agreement or contract, a certificate of title, charge, court or tribunal order, lease and mortgage.

If you have lodged a caveat without a proper basis, you may be able to withdraw the caveat. However, if the other party has already commenced legal proceedings against you, withdrawing the caveat may not save you from indemnity costs being awarded against you. In consideration of the above, it is prudent to seek legal advice before deciding to lodge a caveat.

Footnotes available upon request.

By Guner Hussein, Solicitor at RSG Lawyers

New Small Business Law

New laws seeking to better safeguard small businesses are set to come into effect soon for contracts entered into, varied or renewed on or after 12 November 2016. The laws cover
contracts for the supply of goods, services, interests in land, financial products or financial services. At least one of the parties to the contract must be a small business and the consideration price being no more than $300,000 or $1m for contracts with a duration of more than 12 months. The standard form contract in question includes factors such as whether the party who prepared the contract has significant bargaining power; whether the contract was prepared before a negotiation between the parties about the transaction; whether the affected party was given an opportunity to negotiate the contract.

The aim of the new laws in the Australian Consumer Law and Australian Securities and Investments Commission Act is to allow small businesses the ability to apply to a Court or Tribunal to dispute unfair terms in the standard form contracts. If the Court or Tribunal decides the term is unfair it will be deemed invalid and unenforceable.

Remedies such as compensation may also be available. Businesses in the small business category are defined as employing less than 20 people at the time the contract is entered into. If a term in the contract causes a significant imbalance in the parties’ rights and obligations under the contract it may be deemed unfair. Contracts remain a complex legal area and a range of factors come into play under the new laws. If you believe your small business is affected by a standard contract term under the new laws you should obtain legal advice.

Footnotes available upon request.

By Kirollos Greiss, Solicitor at RSG Lawyers

Pros and Cons of Working from Home

We all like the idea of working from home because, admit it, who enjoys the morning and evening commutes, the noisy workplace, the office politics, the 9 to 5 run­of­the­mill daily routine and the headache of dealing with people in general. For those that find it difficult coping with these things, working from home appears to be the best solution. But is working from home a viable option for you and your work/business. In this article we will look at some of the pros and cons of working from home.

Pros of working from home:

1. Flexibility – the number one reason for anyone to consider working from home is the flexibility it offers you. You work at your own time and at your own pace. Whether you are an early bird or you like to sleep in, or whether you are in front of your computer in the lounge room or enjoying the sun at the beach, it is up to you really.

2. Fewer interruptions – depending on your workspace, you can ensure that you are working at a productive level without any interruptions from colleagues, clients or your boss.

3. Money saving – despite saving on the commute back and forth from, work working from home can save you a heap, be it rental payments and overheads for an office, eating breakfast and lunch out, the caffeine fixes and car insurance, the savings are quite significant.

Cons of working from home:

1. Isolation and anonymity – with any business your brand and image is everything. Depending on your work or your business, being anonymous and isolated from others might not be the best way to promote your brand.

2. Distractions or interruptions – although we said there will be fewer interruptions, there may be other distractions or interruptions as a result of working from home. Whether it’s your family, home chores or the irresistible urge to sit on your comfy couch and watch television, distractions do exist when you decide to work from home.

3. Lack of collaboration – by working from home, you are limited in the support you receive. You could possibly be faced to deal with situations on your own without the guidance of a more experienced colleague or boss.

There are many benefits and disadvantages to working from home. Ultimately, it all depends on what suits you and your work or business.

Footnotes available on request.
By Oguzhan Sheriff, Partner at RSG Lawyers.

 

Are you free to say whatever you like?
Are you FREE to say whatever you like? You may be inclined to think that because Australia is a liberal democracy, you are afforded a number of personal freedoms such as freedom of speech. However, does this mean that you can speak your mind wherever, however or on whichever medium you wish? There are two key elements that make up freedom of speech in Australia: they are freedom of opinion and freedom of expression.
  • Freedom of opinion is your right to hold opinions and there are no restrictions of exceptions to this right.
  • Freedom of expression, however is not an absolute right as it relates to any medium, including written or oral communication, media publications, social media, public protests, artistic works and advertising, just to name a few.
Unlike the United States, Australia does not have a First Amendment which enshrines free speech as a fundamental right of its citizens. There is no specific right to freedom of speech in our Constitution, however it is an implied freedom within our democratic government. Therefore, the right to freedom of speech cannot override legal restrictions or government action. While you have the right to hold opinions with no interference or restriction, your right to freedom of expression is subject to exceptions or restrictions. For example, publishing defamatory information or racially abusive material on the internet or social media is subject to restrictions. In protecting its citizens’ human rights, our laws strike a balance between preserving our freedom of speech and protecting people from unfair treatment and discrimination. Freedom of speech is not an excuse to harm others. There are laws that protect the community against exposure to obscenities and that protect a person’s good name against false information (the Defamation Act 2005). One cannot say or write things to incite hatred against others because of their race, religion, sexuality or gender identity (Anti-Discrimination Act 1991). Under the Anti-Discrimination Act 1991, it is illegal to incite or urge others to hatred, serious contempt for or severe ridicule of a person or group because of their race, religion, sexuality or gender identity. Furthermore, under the Racial Discrimination Act 1975 (RDA), it is illegal to commit an act that is likely to offend, insult, humiliate or intimidate another person or group if done because of their race, religion, nationality or ethnic origin. The important purpose of the RDA is to ensure that Australia complies with its international obligations pursuant to the International Convention on the Elimination of All Forms of Racial Discrimination (Convention). Article 4 of the Convention condemns all forms of racial vilification, ideologies based on racial superiority, and institutionalised racial discrimination. It is therefore important to note that, although Australia is a democratic nation where its citizens have rights and freedoms, some of these freedoms are curtailed to ensue that there is a balance between protecting people from discrimination and ill treatment and preserving their freedoms. To sum up, you are free to hold an opinion but how you express that opinion is subject to exceptions or restrictions. By Oguzhan Sheriff. Footnotes are available on request.
Centrelink Fraud
Centrelink Fraud Overall Centrelink fraud is a serious offence and there seems to be a particular focus more recently by the Government on couples who lie about their relationship status to Centrelink in order to obtain a financial benefit from Centrelink. From the courts perspective, Centrelink Fraud is viewed as stealing from public funds which have been set aside for people that need it the most. People unfortunately do not realise the adverse repercussions of this offence until they are under investigation. Being found guilty of this offence can include a large fine and or even imprisonment. Examples of Centrelink Fraud
  • Making false statements
  • Lying about your relationship status
  • Providing fake documents to Centrelink
Penalties You may face a fine of up to $10,200 for a minor offence and $102,000 for a major offence. You may be imprisoned for up to 12 months, 5 years or 10 years depending on the offence. What happens If Centrelink believes you have committed fraud it will usually request you to attend a voluntary video recorded interview. Before deciding on whether to attend such an interview it is imperative you seek legal advice. Anything you say in this interview may be used against you in legal proceedings. Once Centrelink has completed it's own internal investigations the matter is referred to the Director of Public Prosecutions (DPP) who then decides whether charges will be laid out against you through court proceedings. By Farhan Rehman, Partner at RSG Lawyers. Footnotes are available upon request.
Victorian Rental Laws Update

A new bill is introduced in the Victorian parliament, which, if passed by both houses, will amend the current laws, making it possible for landlords to issue eviction notices via electronic means.

The bill is welcomed by the Real Estate Institute of Victoria, as it will bring the residential laws in-line with modern technology. The Real Estate Institute of Victoria says tenancy managers are frustrated communicating by mail and that tenants preferred to communicate with tenancy managers via email or SMS.

The new bill has sparked concerns from multiple groups, including the Tenants Union of Victoria, which urged the parliament members to oppose the bill. This is because any service by email is deemed to have been received as soon as it is sent, which could be a potential risk for tenants, leaving them with insufficient time to prepare.

Currently, the laws permit electronic communication between landlord and tenant if they have previously agreed to it. However, the new bill can pose wider issues for tenants not exercising their full rights as tenants in that if these they had their power cut off, they will not be able to receive the notice and hence forgo the right to remedy or respond to the notice, thereby failing to avoid eviction.

The government is further conducting a sweeping evaluation of the current residential tenancy laws.

We advise that tenants should know their rights when it comes to residential tenancy laws. The Consumer Affairs’ ‘Renting a home: A guide for tenants’ is a useful booklet that informs tenants of their rights and responsibilities as tenants. The guide can be downloaded from the Consumer Affairs Victoria website.

By Oguzhan Sheriff

Footnotes available upon request.

Foreign Investors - FIBR Approval Required
Many foreign investors are unaware of the requirement of a Foreign Investor Board Review approval before making an investment in Australia. Recently, a wealthy individual from China was forced to sell his asset worth 39 Million within 90 days as it was purchased without the approval of the FIBR. There are strict penalties (including civil and criminal penalties and disposal orders) which may apply for breaches. Exemptions There are various persons and acquisitions that are exempt. Some of these residential real estate exemptions include:
  • an Australian citizen (regardless of whether they are ordinarily resident in Australia or not);
  • a New Zealand citizen;
  • the holder of an Australian permanent visa; or
  • foreign persons purchasing property as joint tenants with their Australian citizen spouse, New Zealand citizen spouse, or Australian permanent resident spouse.
    • This exemption does not include purchasing property as tenants in common
  • “a new dwelling purchased from a developer that holds a new dwelling exemption certificate that allows the developer to sell dwellings in the specified development to foreign persons.”
  • acquired by will or devolution of law;
RSG Lawyers deals in various foreign investment transactions. Please contact us if you require information about the above which is only a summary of the various requirements. Footnotes are available upon request. By Farhan Rehman, PARTNER at RSG Lawyers.
New Terror Laws
New terrorism laws to be introduced by the New South Wales State Government will allow police to be able to detain and question terror suspects as young as 14 for up to two weeks without charge. The new additions labelled “investigative detention” will allow NSW police to detain a suspect for up to 14 days on “reasonable grounds” if they believe the suspect has committed a terrorist attack or is involved in planning one that could occur in the next 14 days. Previously, under NSW law, suspects could be detained up to 14 days, but not questioned. A judge was also required to renew the orders every 48 hours. The new laws will allow police to detain and question suspects without charge. Police will have an initial 4 day detention period and a judge will then be required to extend the holding time in 7 day increments up to 14 days. A terrorist act is defined as an act, or a threat to act, that meets both these criteria:
  • It intends to coerce or influence the public or any government by intimidation to advance a political, religious or ideological cause.
  • It causes one or more of the following:
    • Death, serious harm or danger to a person
    • Serious damage to property
    • A serious risk to the health of safety of the public
    • Serious interference with, disruption to, or destruction of critical infrastructure such as a telecommunications or electricity network.
Advocating, protesting, dissenting or taking industrial action are not terrorist acts where the person doing the activity does not intend to cause serious harm to a person or create a serious risk to public safety. Anyone guilty of committing a terrorist act could face up to life imprisonment. Footnotes are available upon request. By Kirollos Greiss, Solicitor at RSG Lawyers.
Can I be liable as a Director?

A company is a separate legal entity, and is treated as a distinct person which is separate from the persons which have formed it. A company can be sued, can sue, can incur debt and has its own rights and obligations.

Generally, if a Company has been managed “’responsibly’’, the debts will remain with the Company.

There are circumstances however in which directors can become personally liable for certain debts and thus be subject to action against them. Primarily such situations relate to director breaches of law.

Some of these situations are summarised as follows:

Breach of directors’ duties and company losses as a result.

Illegal phoenix activity.

If a director provided security over personal assets or acts as a guarantor.

If the company owes statutory debts such as superannuation.

Debts incurred when the company becomes insolvent.

Failure to perform duties as a director can attract criminal offences up to $200,000 or imprisonment for up to five years or both. Further civil penalties, compensation and other penalties maybe ordered against you.

The above is only a summary of some of the situations in which a director maybe liable. It is always advisable to obtain independent legal advice.

Footnotes available upon request.

By Farhan Rehman, Partner at RSG Lawyers.

Returning to work after parental leave? Know your rights!
There are many concerns that new parents may have about returning to work after taking leave to care for their newborns. The transition of being a full-time parent to returning to work can be a struggle and knowing your rights can ease the stress. Here are some basics to keep in mind:
  •  You have the right to return to work
Under the Fair Work Act an employee who has been on parental leave is entitled to return to the same position immediately after they decide to return to work. If their previous position is no longer available, the employer must provide an available position they are qualified or suited for with similar status and pay.
  •  You are entitled to flexible working arrangements
Parents of children of school age or younger have the right to request flexible working arrangements, including working part-time, changing starting & finishing times, or work from home. Employers must give the request serious consideration but may refuse on reasonable grounds concerning any impact on business.
  •  You must be consulted of any changes to your position
If an employer decides to make significant changes to a position while the employee is on parental leave, they have to:
  • Discuss these changes with the employee
  • Allow the employee the opportunity talk about any changes
  • You are protected from discrimination
Federal legislation such as the Sex Discrimination Act prohibits the unfair treatment of women because they are pregnant, have family commitments, or breastfeed. This provision applies to both direct and indirect discrimination. Footnotes are available upon request. Written by Kirollos Greiss, Solicitor at RSG Lawyers.
Foreign residents to face capital gains withholding
In late February 2016, the Tax and Superannuation Laws Amendment (2015 Measures No. 6) Act 2016 received Royal Assent, introducing the new foreign resident capital gains tax withholding regime. From 1 July 2016, the regime will come into force and will require purchasers to withhold a certain portion of the proceeds of sale for payment to the Australian Taxation Office (ATO) if the vendor is a foreign resident. There are, however, three main conditions that need to be met before the regime applies:
  • The asset must be a relevant asset;
  • The vendor must be a relevant “foreign resident”; and
  • The acquisition must not be an excluded transaction.
Under the regime, all vendors are deemed foreign residents unless proven otherwise through the provision of a “clearance certificate” from the ATO. The regime will apply to real property valued over $2 million as well as to mining, quarrying or prospecting rights. The withheld amount must be paid to the ATO on or before the purchaser becomes the owner of the property as failure to do so may attract penalties equal to the amount that was required to be withheld and paid. The purpose of the withholding obligations in the new regime is to assist the Commissioner in the collection of foreign residents’ CGT liabilities and to address what are stated to be the “current low levels of compliance”. The above is only a summary of the various changes and obligations. Should you require further information, please contact RSG Lawyers. Footnotes available on request. By Oguzhan Sheriff.
Director defences to a breach

In one of our previous articles we discussed in what circumstances a director may be personally liable for debts and liabilities incurred by a company. Following on, we will briefly look at the three main defences that are available to directors where there has been an alleged breach of a duty.

1. The business judgment rule.

Although the success of this defence has been limited in Australia, it can be used by a director to defend a claim for breach of duty of care and diligence. In order to be successful for this defence a director must demonstrate:

that the judgment was made in good faith for a proper purpose; and

that the director had a material personal interest in the subject matter of the judgment; and

that the director informed themselves about the subject matter of the judgment to the extent they reasonably believe to be appropriate; and

that the director rationally believed the judgment was in the best interests of the corporation.

2. Reliance on others

A director may defend alleged breaches if they believed that exercising a power was:

On reasonable grounds; and

in good faith; and

after making proper inquiries in the circumstances, the advice given to the director was prepared by someone who was reliable and competent (ie Lawyers or Accountants).

3. Use of a delegated power

It may be possible to rely on the defence that another person was responsible for the exercise, decision and judgement. In order to prove this the director would need to show they believed on reasonable grounds and in good faith that the person was reliable and competent in relation to the power delegated.

If you would like information regarding director defences in the case there has been an allegation, please contact our office via the details listed on this website.

By Farhan Rehman, Solicitor at RSG Lawyers.

Social media evidence

Social media has become an important feature of human expression. Mediums such as Facebook, LinkedIn and Twitter can be great ways of sharing or exchanging content which may be in the form of text, image or video.

Social media has completely evolved the way society communicates and there have been some Australian cases in which information produced through social media has been used in court proceedings as evidence.

Some commentators in Australia believe that the admissibility of social media is in a state of “flux” as there is limited Australian case law on the issue.

One example of recent Australian case law was Condon -Nixon v Rivers [2012] FamCA. In this case, evidence published on a Facebook page was disallowed for the reason it was not authentic ''in light of very forceful denials''.

As highlighted by the Law Institute of Victoria, some key guiding considerations to establish whether social media evidence is admissible (per the Evidence Act 2008 (Vic) and Evidence Act 1995 (Cth)) are as follows:

• Is the social media evidence relevant?
• Is the social media evidence authentic? Can it be demonstrated that the evidence is what it implicates to be?
• If the social media evidence hearsay? If it is hearsay, is the evidence covered by an exception?

Using social media evidence in court proceedings can be problematic. A number of social media pages for instance may not be authentic and therefore many can easily pretend to be someone else.

For some of the reasons mentioned in this publication, it is always advisable for parties to take extreme care when opposing or introducing social media evidence in litigation.

By Farhan Rehman, Partner at RSG Lawyers.

Footnotes are available upon request.

Leaving children unattended in the car

It is common knowledge (or at least it should be) that children should not be left unattended in the car. Particularly in summertime, the interior of a car can heat up surprisingly quick. The laws that apply to leaving children in the car unattended differ from state to state but the act can always lead to the same devastating result.

For the purposes of our publication, we will briefly look into the laws of New South Wales & Victoria.

In NSW under the Children and Young Persons (Care and Protection) Act 1998:

‘A person who leaves any child or young person in the person’s care in a motor vehicle without proper supervision...that:

a) the child or young person becomes or is likely to become emotionally distressed, or

b) the child’s or young person’s health becomes or is likely to become permanently or temporarily impaired, is guilty of an offence.

Penalty: 200 penalty units.

The Victorian Children, Youth and Famillies Act 2005 provide similar provisions but the penalties differ to include 25 penalty units or six months imprisonment or both. In Victoria, the provisions include leaving a child at home or anywhere else where the child is unattended and that child is left for an unreasonable time and no reasonable provision for the supervision and care of that child has taken place, then ultimately you are in breach of the Act.

When deciding whether to charge a person with this offence, authorities must consider each case individually to determine the reasonableness of the circumstances in which the child was left unattended including the needs of the particular child.

The message here is simple – do not leave children in hot cars!

By Kirollos Greiss.

Solicitor at the RSG Lawyers Wagga Wagga Branch Office.
33 Fitzmaurice Street, Wagga Wagga NSW 2650.
Ph: (02) 6921 7758.

New federal tax avoidance laws

The multinational anti-avoidance law (MAAL) has been established to ensure that multinationals pay their fair share of tax on the profits earned in Australia . The MAAL, which commenced January, affects an estimated 1000 companies with more than $1 billion revenue.

Broadly, the new law will apply if under the scheme, or in connection with the scheme :
• a foreign entity makes certain supplies to an Australian customer
• an Australian entity, that is an associate of or is commercially dependent on the foreign entity, undertakes activities directly in connection with the supply
• some or all of the income derived by the foreign entity is not attributable to an Australian permanent entity and
• the principal purpose, or one of the principal purposes of the scheme, was to obtain an Australian tax benefit or to obtain both an Australian and foreign tax benefit.

The MAAL only applies to significant global entities. A significant global entity is :
• a global parent entity with an annual global income exceeding A$1 billion; or
• a member of an accounting consolidated group, and the global parent entity of the group has an annual global income exceeding A$1 billion.

The MAAL gives the Commissioner of Taxation the power to cancel any tax benefits the foreign entity, and its related parties, obtained from the scheme. Significant global entities are also subject to increased penalties for tax shortfalls arising from the application of this law.

If you are a significant global entity and require legal advice on the impact of MAAL, please do not hesitate to contact us for a consultation.

By Guner Hussein, Solicitor at RSG Lawyers.
Footnotes are available upon request.

New TAC protocols set to come into effect on 1 July 2016

There are new protocols designed to ensure that the compensation process is improved while also minimising litigation and disputes in transport accident claims (TAC).

The protocols replace those developed in 2005 and cover joint medical examinations, impaired assessment, common law and no fault disputes. One of the objectives of the new protocols is to ‘ensure that the process provides an efficient and expeditious method to assess claimants for the delivery of appropriate damages and entitlements as a result of transport accidents’. Also, the need to attend multiple medical examinations is minimised, to reduce the stress imposed on claimants. Further, in matters of serious injury and/or common law claims, the TAC, the claimant and their lawyer are expected to try and resolve such claims early and appropriately before any resulting contested legal proceedings, hence reducing the number of court proceedings.

The new protocols do not apply to applications lodged prior to 1 July 2016, which will still be subject to the 2005 protocols. However, in order to support the transition and to prevent any possible delays for claimants, the TAC will pay the increased rates for all protocol applications lodged on or after 29 February 2016.

Should you require any further information regarding the new protocols, please feel free to contact our office.

By Oguzhan Sheriff, Parnter at RSG Lawyers.
Footnotes available on request.

What does it mean to be named executor of a will?

When somebody dies, an executor is the person who administers the estate. In the majority of wills a person will likely be named by the will-maker as an executor. Acting as an executor essentially involves managing the estate of the deceased according to their will. This may include making funeral arrangements, collecting and managing assets, settling debts and distributing the estate to any named beneficiaries. It may also include applying to the court for a ‘grant of probate’ which is a court order that confirms that the will is valid and that you as the executor have the right to administer the estate.

Even in modest cases, executors can be required to take on certain responsibilities and perform the following services:

• Notify the beneficiaries – The named executor should locate the will and immediately contact the beneficiaries
• Secure the assets of the estate – It is paramount for the executor to ensure that all assets are safe and secure. Insurance protection may be necessary. The immediate needs of the beneficiaries must also be considered to ensure they do not suffer any unnecessary financial hardship.
• Value the estate – The executor must identify and account for all assets and liabilities. The value of assets must be ascertained, typically by getting valuations from licenced professionals.
• Grant of probate – Obtain authority through the Supreme Court to administer the estate if necessary
• Itemise and pay all debts owing – funeral expenses, creditors, income tax etc. It is prudent to seek advice from an accountant regarding income tax returns.
• Divide the estate – when all debts have been paid, the executor is then free to distribute the remaining assets as instructed in the will.

While undertaking these key tasks an executor should keep proper accounts and provide beneficiaries will a full disclosure of the money and property held by them. An executor must act impartially and with due diligence and prudence while discharging their duties.

By Kirollos Greiss, Solicitor at RSG Lawyers Wagga Wagga Office.
Footnotes are available upon request.

Can a Landlord be bound by a lease made in breach of legislation?

Recently, the High Court handed down judgment in the case of Gnych & Anor. v Polish Club Limited [2015] HCA 23, addressing the question of whether a landlord be bound by a lease that has not been reduced to writing and that breaches legislation.

The Polish Club Limited (the lessor) operated a licensed, two-storey building in the suburb of Ashfield, Sydney. The lessor and lessees agreed in principle that the lessees would be granted a lease over part of the first floor (the Premises). However, the lease negotiations were never finalised - no lease term was agreed upon, nor was any written agreement signed. It was also agreed that the lessees would have non-exclusive use of an adjoining hall area for overflow customers of the restaurant which was in breach of section 92(1)(d) of the Liquor Act 2007 (NSW) (Liquor Act).

The lessees maintained that they had a leasehold interest because the lessees had occupied the Premises for one year and had also elected to extend their possession of the Premises to a total of five years in accordance with section 16(1) of the Retail Leases Act 1994 (NSW) (RL Act). The lessor’s primary argument was that the lessees’ right to a leasehold interest was invalidated because any leasing arrangement was in breach of section 92(1)(d) of the Liquor Act 2007 (NSW) (Liquor Act).

The High Court confirmed the Court of Appeal’s finding that a lease had come into existence under general law in relation to the Premises even though there was no concluded agreement between the parties.
The Key considerations the High Court took into account (and which landlords should take into account) when negotiating with prospective lessees are:
1. incomplete negotiations may create enforceable leasehold interests for lessees. Particular caution should be exercised when permitting a lessee to occupy premises before any agreement is reduced to writing in relation to the lessee’s occupancy;
2. illegality may not necessarily form a basis for the invalidation of a lease – that will depend on the particular legislation that has been breached and its purpose; and
3. all states and territories, other than Queensland, require that the term of a retail lease is at least 5 years. Western Australia, New South Wales and the Australian Capital Territory specifically provide lessees with statutory options to extend retail leases to a term of 5 years, where such a lease does not initially provide for a 5 year term. The operation of those statutory options may convert a periodic tenancy into an enforceable lease for a substantial term.

Footnotes available on request.

By Guner Hussein, Solicitor at RSG Lawyers.

Building Law Reforms for Victoria

There are recent amendments to the Building Act 1993 (Vic) that have been implemented and are set to commence on 1 July 2017. The reforms target building practitioners across all building sectors and is said to increase consumer protection by:

• consolidating practitioner registration requirements;
• improving regulation of building practitioners;
• increasing building surveyor independence; and
• providing building surveyors with the power to request builders to fix non-compliant work.

The amendments further change the building practitioner registration requirements in that practitioners will need to reapply to the Victoria Building Authority (“VBA”) and their registration will only last for five years (instead of the current indefinite registration). The assessment of the applications will also be more demanding, where practitioners must pass a new “fit and proper person” test. There is also the introduction of the Continuing Professional Development (CPD) regime, where compliance with the regime along with other prescribed matters being a prerequisite of registration renewal.

There is also a new disciplinary action system that will hold practitioners to a much higher standard of conduct. Some of the existing grounds for disciplinary action are preserved, such as: Unprofessional conduct; Not being a fit and proper person; Gross or recurrent negligence; Working beyond registration class; Failure to maintain insurance, etc. The grounds are extended to include failure to comply with the following:

• Applicable CPD requirements;
• Conditions of registration;
• Direction given by building surveyor, VBA or the Victorian Civil and Administrative Tribunal (VCAT);
• An approved code of conduct;
• An adjudication order under security of payment legislation; and
• A dispute resolution order issued under new conciliation regime.

Building practitioners in Victoria must ensure they can meet the new more arduous registration requirements and fulfil the mandatory CPD programs. Practitioners will further need to be aware of the higher standard of conduct required by them in order to avoid the new disciplinary actions.

Footnotes available on request.

By Oguzhan Sheriff, Partner at RSG Lawyers.

Foreign Investors Stamp Duty Surcharge

Foreign property investors interested in purchasing real estate in New South Wales will now be subject to a 4 per cent stamp duty surcharge beginning on Budget Day 21 June 2016 and will pay an extra 0.75 per cent annual land tax from early 2017. The state of New South Wales is following the lead of Victoria and Queensland which applied similar surcharges, although NSW’s new charges have been pitched slightly lower. Victoria raised its existing stamp duty surcharge from 3 per cent to 7 per cent in April this year. The levy proved to be a successful revenue raiser in those states and both the new foreigner levies in NSW are expected to generate around $1 billion over the next four years.

The surcharge will only apply to foreign investors meaning anyone who is not an Australian citizen, permanent resident or New Zealanders who have stayed in Australia at least 200 days in the last 12 months. As over 20% of property in Australia is sold to foreign investors the NSW Treasurer Gladys Berejiklain is confident the introduction of the surcharges will not deter foreign investors and that foreign purchases will continue.

Footnotes available upon request.

By Kirollos Greiss, Solicitor at RSG Lawyers.

Small Business Restructure Rollover

A business may want to restructure for a number of reasons including: the raising of capital, asset protection, limiting liability, preparing for sale or in order to enable it to stay afloat. Restructuring can often trigger a potential capital gains tax (“CGT”) event. From July 2016, however, under the small business restructure rollover scheme, small businesses will be able to restructure their business without incurring any income tax liability when transferring active assets from one entity to another where certain criteria are met.

The rollover applies when active assets are transferred in the course of a restructure. Active assets are CGT assets, revenue assets, trading stock or depreciating assets that are used or ready to be used in the course of carrying on a business.

To be eligible for the rollover, each party must be one of the following within the income year the transfer occurs:

• A small business;

• A partner in a partnership that is a small business;

• An entity with an affiliate that is a small business; or

• An entity that is connected with a small business.

Further, to be eligible for the rollover, the transaction must not change the ultimate economic ownership of transferred assets, meaning the individuals who directly or indirectly own an asset must remain the ultimate economic owner.

Despite a restructure satisfying the rollover requirements, this does not prevent the possible application of the general anti­avoidance rules. There may also be other potential liabilities such as GST or stamp duty that will need to be considered before restructuring.

Should you require any advice or assistance in restructuring your business, please contact us to make an appointment with one of our lawyers.

Footnotes available on request.

By Oguzhan Sheriff, Partner at RSG Lawyers.

Providing False or Bogus Documents to the Department

A non­citizen must not give, present, produce or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, produced or provided.

Public Interest Criterion (PIC) 4010 enables refusal of a visa if an applicant provides a bogus document, information that is false or misleading in relation to their application or if the Minister is not satisfied of an applicant’s identity.

Many clients have instructed us that they were unaware of the document itself being bogus, false or misleading until investigated and advised by the Department of Immigration and Border Protection. This leaves many clients in a precarious situation as a finding against them under PIC 4010 can result in the cancellation of their visa and a statutory bar of 3 years in re­entering Australia.

If there has been a finding by the Department against you, you will receive a 28 days natural justice letter to respond to the claims. It is imperative at this stage that you obtain independent legal advice as there may be rights to a merits review should you receive such a notice.

Footnotes are available upon request.

By Farhan Rehman, Partner at RSG Lawyers.

Does Your Business Impose a Surcharge for Credit Cards or Other Payment Methods?

Following recent changes to the Competition and Consumer Act 2010, businesses are now prohibited from charging a ‘payment surcharge that is excessive’. The amendments are intended to ensure that businesses are not charging more than what it actually costs them to provide that certain payment method. Under section 55A of the Act a payment surcharge is ‘an amount charged, in addition to the price of goods or services, for processing payment for the goods or services; or an amount charged (however described) for using one payment method rather than another’.

On 26 May 2016 the Reserve Bank published its Standard which relates to surcharges by merchants when charging customers for the use of a credit card or debit card. A payment surcharge is deemed excessive if the amount exceeds the permitted amount as set by a Reserve Bank Standard or the regulations. The Act grants the Australian Competition and Consumer Commission (ACCC) various powers of enforcement in its role to ensure businesses take steps to comply with the law.

Footnotes available upon request.

By Kirollos Greiss, Solicitor at RSG Lawyers.

Offers Of Settlement: Why You Should Think Twice About Calderbank Offers

When you are involved in a dispute, it is more than likely that you will receive a settlement offer. This is where you need to carefully understand the kind of offer it is. Most offers state the words “without prejudice save as to costs” and that the offer is made pursuant to the principles established in Calderbank v Calderbank. This type of offer is known as a ‘Calderbank offer’.

When you receive a Calderbank offer, and you reject it, and if your case is unsuccessful, you may be liable to pay most of the other party’s legal costs.

Usually, the Calderbank offer is made prior to judgement in a dispute, or prior to legal proceedings commencing.

If the one receiving the offer rejects it and the case proceeds to judgement, the offering party may make a claim for or against costs if they can show that given the final result it was unreasonable for the offer to be rejected by the other party. For example, a successful party can claim for their costs to be paid on ‘ordinary’ basis (party/party costs) or ‘indemnity’ basis (includes all reasonably incurred costs).

Conversely, the unsuccessful party can refute payment of any costs if they made a reasonable offer.

It is therefore important to remember that when you receive a Calderbank offer be sure to seek legal advice and understand what the offer may mean for you.

Further, if the offer is reasonable, you should seriously consider whether or not it might be in your best interest to settle.

For any further information listed in this article please contact our office on (03) 9350 4440.

By Oguzhan Sheriff (Partner, RSG Lawyers)

Oguzhan has experience in a range of legal areas. He has mainly practiced in the areas of Conveyancing, Commercial & Corporate, Litigation, Wills & Estates, Family Law and Property Law. Having experience working at a suburban law firm, Oguzhan is well versed in dealing with a vast range of legal issues and clientele.

Compensation for fraudulent migration law advice
If someone has requested or obtained money from you for an Australia visa it may be illegal, dishonest and could be fraudulent. There could be serious legal implications, including pecuniary criminal penalties, for those who have obtained a financial interest unlawfully from you in return for the promise of a grant of an Australian visa. Some examples may include:
  • An Employer who sponsors you under a business for the purposes of a visa grant who does not agree to pay you your wage entitlements.
  • Institutes providing fake or fraudulent completion certificates for large payments.
  • Paying someone for the purposes of obtaining a Partner Visa.
  • A Migration Agent requesting a large amount of money from you to secure you a sponsor employer.
Some key notes that may protect you:
  • Check to see if the Migration Agent is registered on the Migration Agent Authority Register: https://www.mara.gov.au/
  • Always request what they purport to provide to you in writing for example by email.
  • Ensure any service provider discloses their fees, costs and what they are going to do for you in writing.
You may be entitled to compensation. If you believe you are a victim of negligence, misrepresentations or fraud, please contact RSG Lawyers on 9350 4440 for a confidential discussion of your legal options available. By Farhan Rehman Partner at RSG Lawyers
Cancellation and Refusals of Visas on Character Grounds

Cancellation and Refusals of Visas on Character Grounds

There are hundreds of visas cancelled or refused in Australia every year under Section 501 the Migration Act 1958. Section 501 relates to a cancellation or refusal of a non-citizen’s visa if the person does not pass the “character” test.

The character test

The character test is specified under section 501 (6) of the Act and a person in question may fail it if they:

• have a substantial criminal record;
• have been convicted of escaping from immigration detention;
• have committed offences whilst in immigration detention;
• have been a member of, or had associations with, an organisation involved in criminal conduct;
• is reasonably suspected of being involved with people smuggling, people trafficking, genocide, war crimes or crimes against humanity;
• have convictions for one or more sexually based offences involving a child;
• are the subject of an adverse assessment by ASIO;
• an Interpol notice has been issued from which it would be reasonable to conclude that they present a risk to the Australian community.

As one may imagine, the most common cause of failure of the character test is having a substantial criminal record.

What is a substantial record?

A substantial criminal record is defined under section 501 (7) if a person has been:

• sentenced to death
• sentenced to life imprisonment
• sentenced to a term of imprisonment for 12 months or more
• acquitted of an offence on the grounds of mental illness and, as a result, detained in a facility or institution
• found by a court not fit to plead and the court has nonetheless made a finding of guilt on the evidence available and they have been detained in a facility or institution

What is 12 months for the purposes of the Act?

Most non-citizens will fail the character test if they have been sentenced to a term of imprisonment for 12 months or more.

Regardless of the actual length of each individual terms of imprisonment, if the total is 12 months or more then it will count as a substantial criminal record. Therefore if a person is serving concurrent sentences the whole of each term is counted towards the total.

The above is only a basic information summary. If you would like any further information regarding cancellation or refusals of visas please contact us. Please note the above does not constitute legal advice and anyone who has a substantial criminal record or are effected by section 501 of the Act should immediately seek legal advice.

By Farhan Rehman, Partner at RSG Lawyers.

Footnotes available upon request.

Racial Discrimination and the Law in Australia

Freedom of opinion and freedom of expression are imperative to our society. However, the right to freedom of expression cannot be seen as absolute. Both the freedoms need to be balanced with other rights including racial tolerance.

It seems that very few are aware of the implications of racial vilification and acts of racial hatred. Recently the Racial Discrimination Commissioner slammed 'casual racism' on Australian television. In the current context, it is important that people understand the laws surrounding racial vilification and hatred.

There are two significant legislations that prohibit racial abuse at a State level and and at a Federal level: the Racial and Religious Tolerance Act 2001 (Victoria) and Racial Discrimination Act 1975 (Federal).

Some examples of Race and Racial Vilification in Victoria:

Racist comments that are posted in print, via email or online (whether on social mediums such as Twitter/Facebook).

Racist stickers, graffiti or displaying racist posters.

Public statements such as at a protest that in particular incite hatred of people of a particular race or religion.

Exemptions in Victoria

There are exemption to the above which includes work done in private, artistic work, a performance, publications in 'public interest' and a 'fair and accurate' report in the media when done in good faith.

Complaints

Complaints can be made to the Victorian Equal Opportunity or Human Rights Commission or the Australian Human Rights Commission.

It is advisable to seek legal advice before proceeding with a complaint.

By Farhan Rehman, Partner at RSG Lawyers.

Footnotes are available upon request.

Australian Migration Law Update

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Australian Migration Law Update: Changes to processing for family stream visa applications

These changes impact on applicants who are sponsored by people who arrived in Australia as illegal maritime arrivals (IMAs). For clarity, Family Stream visa applications include applications for Partner, Child, Parent and Other Family visas.

Under section 499 of the Migration Act 1958, the Minister for Immigration and Border Protection is able to give direction to the Department to determine the order in which it should consider visa applications under the family stream programme,

On 19 December 2013 the Minister for Immigration and Border Protection issued new processing priorities within the Family stream of the migration programme. Family stream visa applications sponsored by permanent visa holders who arrived in Australia as illegal maritime arrivals (IMAs) will be given the lowest processing priority. This means their applications will not be processed for several years. Lowest processing priority does not apply to applicants who are sponsored by Australian citizens. Processing of these applications will continue as normal.

Lowest processing priority will also be given to family stream visa applications sponsored by a person who arrived in Australia as an IMA and now holds a permanent visa. This means these applications will only be processed after all other Family Stream applications have been processed. There is no exception for affected family members sponsored by an IMA who are facing compelling or compassionate circumstances.

If you are sponsored by an IMA who holds a permanent visa (such as a subclass 866 Protection Visa), you should carefully consider whether to lodge your Family stream visa application. You need to be aware that your application will be given lowest processing priority and will not be processed further for several years. If you decide to lodge your family visa application but then change your mind, there will be no refund of the Visa Application Charge. As noted above, the lowest processing priority does not apply if your sponsor is an Australian citizen.

If you are a permanent protection visa holder who arrived in Australia as an IMA before 13 August 2012, you may still propose family members under the humanitarian programme. However, these applications are given the lowest processing priority and are unlikely to be successful.

If you hold a permanent protection visa and did not arrive as an IMA (for example you came to Australia as a student and were granted a Protection visa), the processing of any family stream visa application sponsored by you will continue as normal. These applications will not be given lowest processing priority.

The Australian Government has also removed 4,000 additional places that were allocated under the family stream of the migration programme, which previously catered for applications by IMAs.

For more information about this visa, or any other legal matter, please contact RSG Lawyers.

RSG Law Update --The Significant Investment Visa

Melbourne

RSG Law Update - The Significant Investment Visa – Pathway to Permanent Residency in Australia

This RSG Law note is about the Significant Investment Visa (SIV) for migrant investors coming to Australia, in order to attract foreign investment in Australia. In summary, the SIV enables a person who invests AUD$5 million over 4 years to receive a provision visa to reside in Australia, with an opportunity to gain permanent residency (PR).

The SIV permits an applicant, over the age of 18 years, with no English language skills and no educational qualifications or work experience in occupations on the skilled occupations list, to obtain an Australian PR. There is a tiered physical presence of 160, 240 or 320 days over 4, 6, or 8 years respectively.

The applicant is not subject to the points test for age, language, skills or experience as per other skilled migrant applicants. However, the SIV applicant is still subject to the health, character and national security background checks. An obvious attraction of the SIV is that once the visa (sc888) is approved, the successful applicant can send their children to school or universities in Australia.

The process for applying for the SIV includes submitting an Expression of Interest (EOI) in Skill Select, whereby the State/Territory agencies are required to nominate the investor in order to meet the criteria of the visa. Once nominated, a minimum of AUD$5 million must be placed in a complying investment(s). Visa holders who satisfy the extension requirement can extend their provisional visa for 2 years, with a minimum of two further extensions.

Successful SIV applicants will be granted a temporary s 188 visa, which is valid for 4 years. At the end of this time, the SIV applicant can apply for the s 888 (Australian PR) provided they meet the criteria set out in Schedule 1 and 2 of the Migration Regulations 1994. In order to comply for PR, the SIV applicant must continue to hold the complying investment(s). The SIV applicant must also show that they have been in Australia for an average of 40 days for each year the s 188 visa was held, which means a cumulative period of 160 days over the 4 year period. Visa holders who do not meet these requirements can request a two-year extension to the s 188 visa, with a maximum of two extensions being granted.

For more information about this visa, or any other migration matter, please contact RSG Lawyers.

Help! My Australian Passport is about to be cancelled

This short note is to provide some information for those who's Australian passport is about to be or has been cancelled.

The Australian Passports Act 2005 (Cth) (Act) came into effect on 1 July 2005. It sought to ‘balance the citizen’s sense of entitlement to a passport’ with the government’s duty to protect Australia. The Act allows the government to refuse to issue passports to criminals, terrorists, persons using false identities, and to children lacking appropriate parental supervision or relevant court sanction to travel, and to cancel passports once issued.

The Act also changed the basis upon which ministerial discretion operated. It prescribed in detail the circumstances where the Minister for Foreign Affairs, or his delegate, may (or must) refuse or cancel a passport. It also makes those decisions reviewable under the Administrative Appeals Tribunal Act 1975 (Cth).

The Minister has discretion to cancel or refuse to issue a passport where a competent authority has reasonable grounds to believe that a person is ‘likely to engage in conduct ... prejudic[ial to] the security of Australia or a foreign country,’ or ‘might endanger the health or physical safety of other persons’, or ‘might interfere with the rights or freedoms of other persons’ or if the person’s conduct might constitute an indictable offence under the Act or another law of the Commonwealth ‘specified in a Minister’s determination.’ In practice, this means offences relating to national and international security (including terrorism), illicit drugs, pedophilia or child pornography, or violent offences.

Australian citizens do not need to obtain a visa under the Migration Act 1958 (Cth) in order to re-enter Australia from overseas. However, this does not necessarily mean that Australian citizens have an ‘absolute right of re-entry’ into the country. Section 4(3) of the Migration Act provides that the Act requires citizens, as well as non-citizens, to identify themselves upon entering Australia — although the purpose of this is expressed as being furtherance of the Migration Act’s object of regulating the entry into and presence in Australia of non-citizens. The key provision to this end is s 166(1), which requires both citizens and non-citizens to present identification evidence for immigration clearance when entering Australia. For Australian citizens, this identification evidence typically consists of the person’s passport.

Refusal or cancellation of a citizen’s passport deprives that citizen of the right to travel abroad. If a person’s passport is cancelled while they are overseas, the cancellation would, in a practical sense, deprive them of the capacity to re-enter Australia.

As noted above, the Act provides for certain decisions made by the Australian Passport Office to be reviewable decisions. The decisions that are reviewable include a decision to cancel an Australian travel document and a decision to demand the surrender of an Australian travel document, amongst other things.

If a review of a decision is requested, the Department of Foreign Affairs and Trade will appoint an internal review officer who has not been involved in the original decision to examine all the facts carefully. The original decision may be affirmed; it may be varied; or it may be set aside and a new decision made in its place, with the applicant notified of the outcome of the review as soon as possible. If an applicant is still not satisfied following the internal review, they may seek to have the decision reviewed by the Administrative Appeals Tribunal.

If you are issued a notice telling you that your passport is about to be cancelled, please contact your lawyer ASAP, as you have 28 days after being notified to apply for a review of the decision.

Criminal charge for a speeding traffic offence

A client with a criminal charge for a speeding traffic offence of 148km in a 100km zone was facing 12 months licence suspension, 20 penalty units (approximately a $3000 fine) and a criminal record.

A solicitor from our office represented the client at the Magistrates Court and had the charges significantly reduced with no conviction.

If you are facing a similar criminal charge, call RSG Lawyers on (03) 9350 4440.

When making an application for an Australian visa

It can be a serious offence to misrepresent one's self when making an application for an Australian visa. Under the Department's Public Interest Criterion, certain applications can be refused upon someone providing false or misleading information. This can lead to criminal prosecution against those alleged to have provided such information. Be weary of fraudulent immigration lawyers and agents.

Alternative Dispute Resolution Clause - Drafting A Simple Mediation Clause

Companies manage how they conduct their day-to-day operations carefully, but surprisingly neglect to manage potentially the most disruptive factor in their business: their disputes. This is often due to lack of information on alternative dispute resolution options. It should be a duty of every lawyer, if it is not, to inform the clients about the benefits of mediation and include mediation clause in the standard template for them to consider. While most will concur on the importance of these clauses, practitioners often spend little time on them when drafting a contract. Many sacrifice the client’s interest by relying on boilerplate contract. Wherever applicable, lawyers should include in the underlying contract an option for parties-conducted negotiation and followed by mediation. Lawyers should do a little more and take advantage of the parties’ positive outlook to engage them in agreeing to a mediation clause.

To begin with, clients should be informed that inclusion of a simple clause in the contract requiring that the parties mediate any dispute that arise, saves much pain, money and time further down the road by avoiding stalled negotiations and litigation. The clients should be informed that all types of disputes can be mediated. In mediation, the clients retain control over their disputes and often solve them the way they solve other issues in their business. They should be informed that in litigation, the clients have no control over the final outcome, as the court decides the case on the merits, not the commercial reality of the situation. A judgment may therefore be damaging in terms of publicity or precedent for more claims, or a client simply may not be able to pay, putting both sides at risk. A well informed client is likely to prefer that the mediation clause be included as a practical need for his business. A poorly advised client is likely to decide litigation as a main option to resolving the disputes that arise.

An option for parties to negotiate first should be included in the alternative dispute resolution clause wherever practical. As such, the parties will agree that they shall first attempt in good faith to resolve any dispute, differences and disagreement arising from or in connection with the underlying contract. Often this clause is followed by a statement that the parties will do so in order to find a solution that serves their respective and mutual interest. Including this step in a dispute resolution clause gives the parties an additional opportunity to maximize their individual and mutual interest and preserve the business relationship. This process is cost friendly and does not demand any participation by a person who is not a party to the contract. A short time limits are advisable with respect to initiation, conduct and completion of the negotiation step so as to ensure that the overall process is not too protracted, and that the subsequent mediation phase is not undermined by the parties hardening their position or becoming more adversarial. However, often this part of clause becomes useless in cases involving complex disputes or parties who have lost faith in each other. These are few reasons among many others that may necessitate the involvement of an independent third party in the dispute resolution process.

In most cases, mediation will be included in the alternative dispute resolution clause as a second steps towards resolving dispute after negotiation but prior to arbitration or litigation. Preceding mediation with negotiation may ensure that the value of mediation is not diminished by moving forward with the process too quickly i.e. before the parties fully understand their position. Deliberate and precise drafting is required for mediation clauses even if mediation’s consensual nature makes the choice of terms less consequential than with a clause committing the parties to a binding adjudicative process. Ambiguous drafting can lead to disagreements about the applicable procedures and time and money wasted on arguing about how a dispute should be resolved. Further, if the clause is too uncertain, the parties’ intention of attempting mediation may be frustrated.

An agreement to mediate can be in the form of a mediation clause in a contract or in the form of a separate contract that makes mediation a condition precedent to pursuing arbitration or litigation. A mediation clause typically begins by specifying the types of disputes subject to mediation. Most clauses will aim to provide that any and all disputes relating to or in connection with the agreement will be subject to mediation. Whether mediation is mandatory or not should be specified unambiguously. A clause can explicitly provide that the parties must mediate or that the attempt to resolute by mediation is mandatory for the parties. Alternatively, it may specify that mediation will occur only if the parties wish to seek an amicable settlement at the time the dispute arises. Where mediation is made mandatory, it should also provide an avenue for the parties to avoid mandatory participation in mediation if a party believes that initiating arbitration or litigation proceedings is necessary to preserve its rights (for example: expiry of limitation period). An alternative remedy for a breach of the mediation clause in the clause itself should also be provided (such as liquidated damages) just in case the courts or arbitral tribunals, based on the jurisdiction, do not enforce it.

While the preceding paragraph indicates the party’s intention to mediate, it leaves many issues unresolved. Issues such as when, where, how and before whom a dispute will be mediated may become subject of disagreement once a dispute has arisen. Some or more important elements that should be kept in mind when drafting mediation clause are: applicable mediation rules, selection of the mediator, place of mediation, time limit, language, disclosure and confidentiality, and apportionment of costs.

The easiest way to identify the mediation process is to incorporate an established set of rules by reference, including by noting the rules of a certain year or those - then in force. Many reputable dispute resolution institutions provide local and international mediation rules, including some for subject-specific disputes. If adjustments to the rules are sought, the clause can provide that the rules apply except as otherwise provided. If the parties do not wish to refer to established rules, then the clause should set forth the basic process, including, in particular, how the mediator will be selected, the venue, the time limit, and the mediator’s authority to determine the date, time, and conduct of meetings.

The process by which the mediator will be selected should be determined in advance. Given that party autonomy is a fundamental principle of mediation, the mediation agreement should allow the parties to select their mediator and the mediation procedures. The mediation agreement should facilitate selection of the mediator by the dispute resolution institution, so that if the nature of the disputes makes it impracticable to have more than one mediator, the process is not hindered by the failure of the parties to agree on a mediator. Alternatively, the mediation agreement may provide for each party to select someone and the selected two picks the actual mediator.

There is inevitably friction between the need for parties to disclose information in the mediation process and the parties’ interest in protecting their positions in subsequent arbitration or litigation. At the least, it should be clear that the parties must maintain the confidentiality of the mediation and not introduce or rely on as evidence in any later proceeding, any conduct or statements made by the parties or the mediator in the mediation process. It should also be made clear that the mediation process shall continue until the case is resolved, one of the parties wishes to terminate the mediation, or the mediator makes a finding that there is no possibility of resolution. Indeed, until the end of the process, the parties are always free to reject the reached solution. This flexibility should be demonstrated in the agreement.

Finally, it seems possible and even appropriate to add an obligation for the professional to endorse the reached solution found with the mediator if it is accepted by the consumer, in order to make the mediation clause appear as much more serious in the eyes of the private individuals who subscribe it.

In conclusion, the mediation enables the parties to maintain their full freedom and autonomy of will. In mediation, the parties are presented with an opportunity to resolve the dispute, from business perspective. While arbitration and litigation are options that would be open, parties should be encouraged by lawyers to attempt mediation first by highlighting its benefits over litigation. To ensure client’s confidence in mediation is maintained, it is essential to incorporate a mediation clause that would lead the parties to the doors of mediation without serious disagreements.

For information about mediation clauses and ADR please feel free to contact us at RSG Law.

Common Mistakes Made By Those On Student Visas

The Australian Migration system has a number of obligations for those people who are in Australia on a valid Student Visa.

The Migration Regulations 1994 describes a “Student Visa” is one of the following subclass of visa:

(a) 570 (Independent ELICOS Sector) visa;

(b) 571 (Schools Sector) visa;

(c) 572 (Vocational Education and Training Sector) visa;

(d) 573 (Higher Education Sector) visa;

(e) 574 (Postgraduate Research Sector) visa;

(f) 575 (Non-Award Sector) visa;

(g) 576 (AusAID or Defence Sector) visa.

This article will focus on the 573 (Higher Education Sector) visa. Under the Migration Act, s.137J, it is headed that, “Non-complying students may have their visas automatically cancelled”. There is a process which the Registered Education Provider and the Department must follow to comply with this process, including the issuing of a notice of the breach and the particulars.

So, what are the common mistakes made by Student Visa holders:

1. Working more than 40 hours per fortnight while a course is in session, when the Student Visa holder is not permitted (that is being other than being enrolled in Master by Research or Doctoral degree (sc574). These courses generally have greater flexibility for working).

2. Family members working more than 40 hours per fortnight when the Student Visa holder has not commenced the course of study.

3. Not having the correct understanding of a “fortnight” – which means to begin on Monday and ending the second following Sunday.

4. Not having the correct understanding of when a “course is in session”. The Department considers this to mean: (i) for the duration of the advertised semesters, including periods when the exams are being held, (ii) if you have completed your studies and your Confirmation of Enrolment (CoE) is still in effect; and (iii) if you are undertaking another course, during a break from the main course and the points will be credited to your main course.

5. Not upholding any visa conditions, while studying and living in Australia (such as non-compliance with the Australian Values Statement).

6. Not making satisfactory course progress for each study period, including course attendance.

7. Not advising the education provider and/or the Department of change in circumstances, such as home address or the number of dependants living with you.

These are just some of the common pitfalls. If you have any questions or queries, please contact RSG Lawyers on (03) 9350 4440.

Are your debtors not paying you when their debts are due?
This is a common issue not only for new businesses, but also for established, long-standing businesses that have been trading for many years. It is important that any new or established business has effective debt recovery strategies in place to guarantee swift payment of such debts. This article will outline some debt recovery strategies for you to consider to ensure you get paid for your hard work. Recovery Strategies Make direct contact with the debtor. Speak to them personally and find out the reason for the delay. It could be a simple oversight, mistake or misunderstanding that prevented the settling of the account in a timely manner. Be friendly when you speak to your debtor, which assists in reinforcing your business relationship, but ensure you obtain a commitment to settle the debt by a specified date. Follow up the phone/meeting call with an email, which notes the content and outcome of your discussion. This is also very good evidence, should it be required at a later date. If payment has not been received, follow up the phone/meeting call, and be friendly, firm and persistent. Your tenacity and attention to detail with following up the unpaid account will generally speed up payments. However, be careful not to harass the debtor, which can cause the debtor to act defensively or worse give rise to a complaint about this behaviour. If the account has been settled, contact the debtor and thank them for their prompt attention – again, this builds business relationships. Arrange a face-to-face meeting. Be friendly as this can aid in settling of the outstanding payment. If possible, introduce a late fee into the terms of your contract. Bookkeeping and administration expenses do add up, and there is no reason why you should have to bear these costs. Note that you may have to vary the terms of the contract (if one exists) and give ample notice of the late fee introduction. Do not let your business be dependent on too few customers – have a well balanced strategy that can survive a bad debt and the loss of one or two customers. You can also consider issuing a letter of demand requesting the payment, but be careful not to send a letter which is designed to look like a court document, which can be considered misleading. Consider a ‘do-it-yourself’ legal action via the small claims division of your local tribunal. The tribunals offer a simple debt recovery procedure, which is relatively informal and cheap. However, note that there is a ceiling amount in respect of these types of claims, and you should check the definition of ‘small claims’ before going down this path. Engage the services of a debt recovery company/lawyer to help you to recover your debt. Once judgement is obtained it is highly unlikely that the money will roll in straight away. You mayneed to enforce the judgement whichmeans going back to court to obtain an order or warrant from a range of options available to creditors such as:
  • Warrants;
  • Installment arrangements;
  • A Garnishee order;
  • Bankruptcy;
  • Winding up; or
  • Oral examination (not strictly an enforcement option but it enables the creditor to find out what the debtor has).
Each option has different advantages, disadvantages and costs. Legal advice should be sought before deciding to carry through with one of these options. Examine your existing agreements and contracts. There are some issues here you need to be mindful of, including: Your contracts terms should prevail over your debtors terms if any (in particular there should be a term in your contract which excludes all other terms, dealings and arrangements); Incorporate termination provisions which allow you to terminate the contract if the debtor is insolvent – care must be taken when exercising this right, so as not to unlawfully repudiate the contract; Include set-off provisions, giving you the right to set off debts owed to you with debts that you owe the debtor; Have a retention of title clause, where ownership of goods does not pass to the debtor until full payment has been received. Consider obtaining security for the debtor’s obligations - and if this is not an option, consider a personal guarantee from directors or shareholders of a debtor. For more information about this topic, feel free to contact RSG Lawyers on (03) 9350 4440 or admin@rsglaw.com.au. Farhan Rehman Partner & Solicitor
Changes to the definition of a charity

For the very first time in Australia the legal meaning of a charity has been formally defined. The Commonwealth Parliament passed the Charities Act 2013 (Cth) (the Act) which came into effect in January 2014 this year. While the Act has no major effect on existing registered charities, any new charity applications received after the 1st of January 2014 will be assessed under the Act.

The Act provides clarifications that to be recognised as a charity, an organisation must:

  • be not-for-profit
  • have only charitable purposes that are for the public benefit
  • not have a disqualifying purpose
  • not be an individual, a political party or a government agency.

Most of the registration process has remained the same, although there is now a new registration form to be filled by applicants. The Act has also further strengthened existing advocacy laws and political activities by charities.

Interestingly, the new law may well be short lived as the current government has proposed to abolish the Australian Charities and Not-for-Profits Commission (ACNC). Plans to abolish the ACNC are likely to be revealed over the coming months.

Should you require any advice on non-profit organisation legal compliance please contact RSG Lawyers on (03) 9350 4440.

Written by Celal Sahin under the direction of Oguzhan Sheriff

Volunteer at RSG Lawyers

NB: None of the content in this or previous publications constitute or are intended to constitute legal advice.

Personal Property Security Register (PPSR)

The PPSR is a national online register for buyers, sellers and the finance industry which allows security interests in personal property to be registered and searched. Personal property is all property other than land and fixtures.

The PPSR is the single authority for recording registered security interests in all types of personal property and has replaced all Commonwealth and State registers including the former ASIC Register of Company Charges. This reform was introduced with the Personal Property Securities Act 2009 and the PPSR has been active since the 30th of January 2012.

A personal property security is created when a secured party (eg a supplier or lender) takes an interest in personal property of a grantor (eg a borrower), as security for a loan or other obligation, or enters into a transaction that involves the supply of secured finance.

This gives creditors the right to recover particular items that are registered in the case a debtor defaults on a loan or payment. If your business sells products on terms such as retention of title or leases out valuable goods, the PPSR can help you claim them back if a customer fails to pay or becomes insolvent. By registering property with the PPSR a creditor can be considered as a ‘secured creditor.’ Registering an interest during business transactions can also help circumstances where the debtor sells on goods before paying the supplier, allowing recovery of the lost products or even the right to the revenue made to the value of the goods sold.

Consumers can also make use of the register by searching whether any second hand item of value being purchased such as a car, stock, equipment machinery or boat, is debt free and safe from repossession.

Personal property securities could affect your business in a number of different ways. Should you require any advice on registering personal property on the PPSR please contact RSG Lawyers on (03) 9350 4440.

Written by Celal Sahin under the direction of Oguzhan Sheriff

Volunteer at RSG Lawyers

NB: None of the content in this or previous publications constitute or are intended to constitute legal advice.

Case Study - Protecting Your Business

We recently advised our client, who owns an upcoming franchise restaurant concept, to immediately trademark his business logo and name. The trademark was lodged and approved. A business interstate, unaware of the Trademark, started trade with an identical or a very similar business name, logo and concept. After obtaining instructions from our client, we contacted the interstate business who immediately upon receiving our demand notice desisted from further use of a name which may be construed as using our clients Intellectual Property rights.

It is extremely important to protect your business and many new business owners fail to understand the importance of adequate IP protection. Developing a sound IP strategy is imperative in making the most of your business.

Section 189 of the Migration Act 1958 - Australian Border Force Officers

We have received a number of questions regarding the Migration Act 1958 and Australian Border Force Officer powers.

To clarify our previous post, Section 189 of the Migration Act 1958 states:

"(1) If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person."

Some believe the wording of "reasonably suspects" may allow an ABF Officer to lawfully detain an Australian citizen who may have been reasonably suspected to be a non-citizen.

Case law may impose an undefined duty upon the invoking officer to make "serious efforts of search and inquiry that are reasonable in all circumstances" to support a decision under Section 189.

In saying the above, there have been cases of wrongful detention as a result of the exercise of Section 189 and in these cases the "different ethnicity" of the Australian citizens "were apparent" . We will provide more insight into these cases in our posts to follow.

By RSG Lawyers.

Administrative Appeals Tribunal?

The Administrative Appeals Tribunal is an independent review body that has the authority to review decisions made by the officers of the Department of Immigration and Citizenship (DIAC). Decisions, which could have been reviewed in the former Migration Review Tribunal, are now reviewed in the Migration and Refugee Division of the Administrative Appeals Tribunal (AAT). In particular, visa refusal and cancelation decisions can be reviewed but they also have the right to review decisions relating to the approval or cancellation of sponsorship and nomination. In the case that you have had a visa application refused and wish to have the decision reviewed, the AAT offers this opportunity with the potential to have the decision reversed.

The tribunal represents a ‘last chance’ opportunity for visa applicants and holders of cancelled visas to have an independent assessment of their case based on its merits. During this review process, you may introduce new evidence to support your visa application or argue against cancellation. It is viewed as a new review of your case and offers an opportunity to remedy any problems in your original application. Visa applicants are given a chance to address whatever problems caused by the visa refusal. It is important that an AAT review is carried out with the best possible written submissions and supporting materials as applicants only get one chance at this review.

It is important to know your rights and the right to an AAT review. You must be aware of the strict time limits imposed by the AAT which cannot be extended. At RSG Lawyers we can advise you of your options to pursue an AAT review, your time limits and how we will prepare and lodge your case documents with the AAT for the best possible chance of success. We offer a service which is designed to legitimately present your case in the best possible way, this includes:

* A review of your case and the reasons for refusal or cancellation

* Review of your supporting documents and suggestions for improvement

* Assistance with preparation of further supporting documents and statements

* Preparation of strong written submissions for the AAT review

* Preparation of all relevant review forms

* Lodgement of the review

* Communications between the Migration and Refugee Division regarding your case.

If you require any further advice or wish to proceed with the review process, please contact us today.

 

High Risk Country Applicants

Before engaging our legal services, our client had been refused a Visitor Visa (Subclass 600) on numerous occasions.

The most recent decision record made references to the Applicant being from a country that has been classified by the Department of Foreign Affairs and Trade as 'High Risk".

Based on our client's instructions, and our legal opinion, we lodged an application for review at the Administrative Appeals Tribunal. After providing a detailed and concise legal submission, and two at length hearings, we demonstrated to the Tribunal Member that our client was a genuine entrant under the proposed visa.

The Member decided in favour of the Applicant.

As in this case, a Refusal is not always necessarily the end of the road.

Protect Your Business Through Intellectual Property

We recently advised our client, who owns an upcoming franchise restaurant concept, to immediately trademark his business logo and name.

The trademark was lodged and approved. A business interstate, unaware of the Trademark, started trade with an identical or a very similar business name, logo and concept.

After obtaining instructions from our client, we contacted the interstate business who immediately upon receiving our demand notice desisted from further use of a name which may be construed as using our clients Intellectual Property rights.

It is extremely important to protect your business and many new business owners fail to understand the importance of adequate IP protection.

Developing a sound IP strategy is imperative in making the most of your business.

The Victorian State Government Update
The Victorian State Government has made the following announcement: Updates to Victoria’s State Nomination Occupation List and State Nomination Occupation List for Graduates were published on 10 September 2013.
These lists detail the occupations and eligibility criteria for state nomination of skilled migrants. They are updated twice a year and reflect the dynamic labour market in Victoria and the current occupations in demand. Changes include:
1. The removal of occupations:
  • Accountant (General)
  • Carpenter
  • Carpenter and Joiner
  • External Auditor
  • Joiner
  • Plumber (General)
  • Surveyor.
Applications in these occupations will continue to be accepted until 24 September 2013
2. The addition of occupations:
  • Child Care Centre Manager
  • Health Information Manager
  • Metal Machinist (First Class)
  • Nuclear Medicine Technologist
  • Physicist (Medical Physicist Only)
  • Primary School Teacher (with specialisation in languages).
There are also changes to the IELTS (International English Language Testing System) requirements and specialisations for other occupations.
Please contact RSG Law if you require advice re migration law.
3. 14 Sept 2013 - Greetings All. We just assisted a senior academic at a leading University with a bogus letter of demand claim, from a non-existent lawyer/law firm. If you get this type of letter, please consult your trusted lawyer. Aussie woman fined $1,000 after pretending to be a lawyer: http://www.qt.com.au/news/fake-lawyer-fined-1000/2005502/
4. 7 Sep 2013 - We recently advised a client about VCAT (http://www.vcat.vic.gov.au/). VCAT’s purpose has been to provide Victorians with a low cost, accessible, efficient and independent tribunal delivering high quality dispute resolution. It tries to do this via a variety of means including mediation, conference and hearing, some of where clients may represent themselves without a lawyer. Here is a short note to help you if you are fronting VCAT:
The Hearing is a very limited time for you to be telling your story and putting any documents or expert evidence you have to the Member (the decision-maker). At VCAT, different Members will have different approaches about how to resolve the dispute. Be prepared that the Member may ask you to negotiate a settlement with the other side. The Member may decide that an agreement between the parties will be best in your case. If you have already done this before, and the other side hasn’t responded, you should tell the Member this – that you have tried to negotiate, that this has failed, and that you are now here for the Member to make a decision.
(1.) Often VCAT will only have a limited time to hear your case – so be concise. Write down what you want to say beforehand.
(2.) Remember the Member will not know the facts like you do. You need to clearly explain the key points to the Member and draw the Member’s attention to any evidence you have to support your claim.
(3.) It is useful to have written reasons from the Tribunal for why in made its decision. You need to request the Tribunal to provide these at or before the time the Tribunal gives notification of its decision
* We recommend that you get a lawyer to check your submission and explain the process. To be forewarned is to be forearmed.
5. Are you involved with a Charitable Organisation - if so, you will be interested in the following RSG Law Update: A statutory definition of charity has been introduced in Australia via the Charities Act 2013 (Cth) (the Act). The passing of the Act means for registered charities and not-for-profit organisations and organisations proposing to apply for charitable status, the statutory definition will become the primary test used by the Australian Charities and Not-for-profit Commission (ACNC) and other Commonwealth agencies including the Australian Taxation Office (ATO) to determine whether an organisation may be registered as a charity.
The ACNC will use the Act’s definition to continue its review of organisations registered with the Government regulator to determine whether they may be registered as charities and whether they should be entitled to charitable tax concessions with the ATO. The consequences of organisations failing to satisfy the statutory meaning of a charity are severe and may involve an organisation becoming deregistered with the ACNC and losing its charitable tax concession entitlements.
We recommend that all Charities reassess, revive and if necessary align their organisation. Please contact RSG Law if you require further information.