Freedom of expression vs work obligations
Can you sack an employee for expressing their political opinions? The answer is not clear cut, but if that expression constitutes breach of policy or failure to follow a lawful and reasonable direction, it is likely that you can show that employee the door. 
In previous articles, we have explored the consequences of a failure to follow an employer’s lawful and reasonable direction and the line between reasonable and unreasonable directions. We have also compared the implied freedom of political communication and consequences of expressing religious views on social media if that expression constitutes a breach of a policy or code of conduct.
So, what happens when an employee’s failure to follow a lawful and reasonable direction to stop breaching the employer’s policies, which happens to be the expression of a political opinion, results in termination of employment? 
According to a recent authority, an employee’s expression of political opinion is irrelevant in circumstances where that expression constitutes a failure to follow a lawful and reasonable direction to stop breaching an employer’s policies. 
While this is not to say that expression of political or religious views may constitute grounds for dismissal in particular circumstances, it is a steadfast reminder for employers and employees that failure to follow a lawful and reasonable direction may justify termination of employment.
What happened?
In Rumble v The Partnership trading as HWL Ebsworth Lawyers [2019] FCA 1409, the Federal Court upheld an employee’s dismissal after he criticised clients of his law-firm in an opinion piece in the Sydney Morning Herald and the Canberra Times. 
Rumble was a lawyer who was employed on a casual basis at HWL Ebsworth’s Canberra office. In 2011 to 2012, Rumble led a government-commissioned review into historical sexual and physical abuse in the Australian military. The Defence Department and Department of Veterans’ Affairs were among HWL Ebsworth’s clients.
Rumble felt that the Government was not doing enough to implement the review’s recommendations. In fact, he made a number of public remarks to that effect in December 2016, when he wrote an article about the issue criticising the “continuing disgrace” that victims of abuse in the military were not receiving veterans’ benefits.
Rumble’s actions irritated the firm’s managing partner, and Rumble was expressly told to stop publicly criticising the firm’s clients. Further, in 2014 the firm put in place a policy requiring its partners and staff not to engage in criticisms of the firm’s clients without the permission of the firm’s managing partner. 
Despite this, Rumble continued to publicly disparage the firm’s clients from time to time without approval. This eventually caused the firm to hit the send button on an email to Rumble at 10.57pm on Monday 20 February 2017, terminating his employment.
Rumble argued that he was unlawfully dismissed and that he had been discriminated against based on his political opinion. HWL Ebsworth argued that it did not dismiss him for his political opinion, and was entitled to terminate him without cause, which was what it had done.
What did the Court decide?
The Court decided in favour of HWL Ebsworth and dismissed Rumble’s application. The Court found Rumble was not terminated because of his political opinion (to which the Court noted his employer was at least “indifferent and quite possibly in fact sympathetic”). Instead, it terminated his employment because he repeatedly disobeyed a reasonable direction to cease from criticising the firm’s clients.
Crucially, the Court observed that the firm did not require any legal basis to terminate Rumble’s employment, which it could do without cause, because there was a clause in Rumble’s employment agreement stipulating that either party could terminate the employment relationship without cause on three months’ notice. 
Interestingly, the Court commented that the firm could have decided to terminate Rumble’s employment because he had expressed a political opinion but that is not, as a matter of fact, what it did. 
Is there such thing as free speech for Australian employees?
Freedom of speech has recently been in the news as an employment law issue (for example, the Israel Folau litigation against Rugby Australia, and the recent High Court decision of Comcare v Banerji). 
Compare the Rumble decision to circumstances where there exists an express freedom of expression in an industrial instrument or law. This is what happened in Ridd v James Cook University. 
In that case, the Court found that the University took unlawful action against Professor Peter Ridd by censuring, making adverse findings against, and ultimately dismissing him for, expressing concern about the quality of scientific research published on the physical state of the Great Barrier Reef. 
The Enterprise Agreement included clauses to the effect that the University was committed to acting in a manner consistent with the protection and promotion of intellectual freedom, including the right of academic staff to participate in public debate and express unpopular or controversial views.
The Court found that the University’s actions were inconsistent with the guarantee of academic freedom provided for in the University’s Enterprise Agreement. 
What does this mean for employers?
The Rumble decision is not a green light for employers to terminate employees who express political views. It’s a reminder for employers and employees that a failure to follow a lawful and reasonable direction may be justification enough for termination of employment (depending on the circumstances of the case). Employers need to be mindful of the employment and industrial landscape within which they operate, such as in the Ridd case. 
For employers, Rumble reinforces their possible capacity to control employees’ expression of certain views through implementation of policies, and take appropriate disciplinary action like termination of employment. However, this should be balanced, where appropriate, with considerations such as those in the Ridd case. For employees, the Rumble case is a reminder that there are consequences for breaching an employer’s policies and failing to follow their lawful and reasonable directions.
As always, expectations should be clearly communicated to employees, and employers should assist their staff to understand the consequences of a breach of policies, or failure to follow a lawful and reasonable directions. 
 
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This article is part of a regular employment law column series for HRM Online by Workplace Relations & Safety Partner Aaron Goonrey and Lawyer Isabel Hewitt. It was first published in HRM Online on 13 September 2019. The HRM Online version of this article is available here.

Termination of employment by text message found to be “unconscionably undignified", even for small businesses
Two recent decisions from the Fair Work Commission serve as a warning to employers that advising employees via text message that their employment has been terminated is rarely appropriate or considerate.
Case one: Kurt Wallace v AFS Security 24/7 Pty Ltd1
AFS Security 24/7 Pty Ltd (AFS) is a small business employer providing security services in New South Wales. 
Mr Wallace was employed by AFS for approximately two years as a casual security guard. He had previously been verbally counselled regarding his work performance.
A couple of days after Mr Wallace raised a query about AFS’s failure to pay him for a particular shift, he received a text message from Brooke Everett, the wife of AFS’s director, which said, "Effective immediately we no longer require your services as a casual patrol guard with AFS Security".
Mr Wallace attempted to contact AFS via text message and telephone to obtain an explanation for his dismissal. He then went to AFS’s office and was told by Ms Everett that as he was a casual employee, AFS was not required to provide an explanation.
Mr Wallace did not receive any paperwork regarding the termination of his employment and proceeded to bring an unfair dismissal claim to the Fair Work Commission.
The Commissioner considered that Mr Wallace was a regular and systematic casual employee and, therefore, covered by the unfair dismissal protections in the Fair Work Act 2009 (Cth). The Commissioner found that Mr Wallace had been unfairly dismissed for reasons including that:

there was no reason for the dismissal given to Mr Wallace or established on the evidence and, therefore, no valid reason for the termination;
Mr Wallace did not have an opportunity to respond to any underlying reason for the dismissal relating to his performance and conduct; and
Mr Wallace was notified of the dismissal by text message only, and did not receive documentary confirmation (such as by letter).

In respect of the decision to dismiss Mr Wallace by text message, AFS’s director submitted that text message was the normal method of communication at AFS and that, as a "generational thing", people do not use emails these days.
The Commissioner described the method of dismissal as "repugnant", stating that (emphasis added):
"Notification of dismissal should not be made by text message or other electronic communication.Unless there is some genuine apprehension of physical violence or geographical impediment, the message of dismissal should be conveyed face to face. To do otherwise is unnecessarily callous".
The Commissioner considered that "basic human dignity" requires that dismissal be conveyed personally. This is the case even for small business employers and in circumstances where text message or email is ordinarily used by an employer to communicate with employees.
Mr Wallace did not seek reinstatement and was awarded compensation of $12,465.
Case two: Van-Son Thai v Email Ventilation Pty Ltd2
Email Ventilation Pty Ltd (Email Ventilation) is a small business employer which produces and supplies roof ventilation fittings for commercial and industrial construction jobs. 
62-year-old Van-Son Thai had been employed by Email Ventilation as a sheet metal worker for 12 years.
Email Ventilation’s owner, Javier Vilches, asked Mr Thai to agree to a reduction in his hourly rate of approximately 20% per hour. At around the same time, the Australian Manufacturing Workers Union raised concerns with Mr Vilches about whether Mr Thai was being properly paid by Email Ventilation. 
Mr Thai’s employment was terminated shortly thereafter. Mr Thai was notified of the termination by a text message from Mr Vilches, which said:
"Effective immediately I give notice of termination of your employment, please note you are required to work your notice period".
Mr Vilches objected to Mr Thai’s unfair dismissal application on three conflicting grounds:

that Mr Thai’s employment had been terminated due to redundancy;
that the employment had not been terminated at the Email Ventilation’s initiative; and
that Email Ventilation had complied with the Small Business Fair Dismissal Code.  

All of these objections were dismissed by the Fair Work Commission.
The Commission found that Mr Thai’s dismissal was unfair, and it was satisfied that there was no valid reason for the dismissal, noting that the reasons provided by Mr Vilches were not only capricious and fanciful, but also contradictory and irreconcilable. 
The Commission noted the complete lack of natural justice afforded to Mr Thai and the "disgraceful and grossly unfair" manner in which the dismissal was carried out. In respect of notification of dismissal by text message, the Commission’s Deputy President commented (emphasis added):
"It is not the first time I have had cause to point out that informing an employee of their dismissal by phone, text or email is an inappropriate means of conveying a decision, which has such serious ramifications for an employee. I consider it would only be in rare circumstances that a decision to dismiss an employee should not be conveyed in person".
The fact that Email Ventilation is a small business employer with only a few employees and no industrial relations expertise was no excuse.
Mr Thai sought reinstatement, which the Fair Work Commission did not consider appropriate in the circumstances. Further evidence and submissions from the parties regarding compensation has been requested, which is yet to be determined.
Key takeaways

In considering whether a dismissal is unfair, the Commission will have regard to whether an applicant was afforded procedural fairness. The way in which the employee is informed of the decision to dismiss them will be relevant here.
These decisions demonstrate the importance of communicating any termination of employment decision in a considerate and sensitive manner. This will usually mean a face-to-face meeting with the employee, providing an opportunity for the employee to respond to the proposed reasons for termination, and confirming the decision in writing.
While there will be limited exceptions (such as where there is a safety risk, the employee does not want to meet face-to-face, or there is a geographical barrier to meeting face-to-face), termination of employment by text message or email will rarely be appropriate, even if this has been a common mode of communication during the employment relationship. 

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Background
In February 2017, Dr Tavakoli, plastic surgeon, performed a series of procedures (rhinoplasty, buccal fat procedure and fascia graft) on a patient, Mrs Imisides.
In May 2017, Mrs Imisides returned for a steroid injection to reduce swelling in her nose. She was advised that the swelling would take 18 months to settle and that she would need regular injections. Despite this, Mrs Imisides failed to attend any further scheduled appointments.
In July 2017, Mr Imisides (the patient’s ex-husband) called Dr Tavakoli’s rooms, when it is alleged that he accused Dr Tavakoli of being a fraud and threatened to go to the media. On 8 August 2017, Dr Tavakoli’s solicitors sought an undertaking that Mr and Mrs Imisides would not follow through with their media threat.
On 1 September 2017, Mrs Imisides published a Google review in which she alleged Dr Tavakoli charged her for a buccal fat procedure he had not performed.  Subsequently, Dr Tavakoli’s website recorded a drop-in visitor traffic of 23.61%.
The Google review was removed on 24 September 2017 – the same date Mr Imisides was served with a Statement of Claim relating to his phone call. This matter was later settled, with Mr Imisides agreeing to pay $80,000 in damages.
In November 2018 – and in contravention of Court orders – Mrs Imisides published a second Google review which focused on her rhinoplasty. Dr Tavakoli’s solicitors wrote to Mrs Imisides requesting that the review be removed. Mrs Imisides responded: “Piss off. I don’t have any more money to give you greedy people". Proceedings against Mrs Imisides were issued.
Supreme Court decision
The Court found that the second Google review imputed that Dr Tavakoli was:

incompetent, in that the rhinoplasty was unsuccessful
cruel, in that he did not provide support to patients who are unhappy with results
a bully, in that he intimidates patients.

The Court held that the reviews were untrue and defamatory, and went to Dr Tavakoli’s reputation as a surgeon. The court also held that  the tort of injurious falsehood had been committed by Mrs Imisides and that her conduct was malicious.
Aggravated damages
Dr Tavakoli gave evidence that the review left him extremely distressed and embarrassed, put strain on his marriage and impacted his family. He also said it caused him significant concern and worry, given the success of his surgical practice depended on his reputation as an honest and competent surgeon.
Damages for non-economic loss are normally capped at $398,500. However, the Court followed the reasoning in Wilson v Bauer Media Pty Ltd [2017] VSC 521 where it was held that the cap can be exceeded if aggravated damages are awarded. The Court held that aggravated damages were warranted because Mrs Imisides deliberately published a factually untrue review to punish Dr Tavakoli. She then refused to apologise and published a second untrue review in contravention of court orders.
The court awarded a sum of $530,000 to Dr Tavakoli – although this may have been higher had he claimed special damages for loss of income. The Court also awarded:

indemnity costs against Mrs Imisides on the basis that she completely ignored court orders and in doing so caused significant additional cost to Dr Tavakoli
a permanent injunction preventing Mr and Mrs Imisides from publishing defamatory material about Dr Tavakoli.

Comment
This case illustrates why negative online reviews are becoming an increasing area of concern to health practitioners and their insurers. Dr Tavakoli’s website experienced a drop in traffic of almost 25% in one week and costly legal proceedings were required to seek relief.
We recommend that all health practitioners implement complaints processes and regularly seek feedback from patients to mitigate the risk of negative online reviews. When writing an online response to a negative review, practitioners must be careful to avoid publishing a reply that could breach patient confidentiality or the Australian Privacy Principles.
Often, the best way to have a negative review removed is to try and resolve the issue by contacting the patient directly. We also recommend health practitioners notify their professional indemnity insurer, given the potential for a negative review to result in an insurance claim.
Furthermore, Dr Tavakol’s operation report (proving the performance of the buccal fat procedure), illustrates the importance of keeping good clinical records that can be relied upon to disprove negative imputations in online reviews.
 
Authors
Rob Muir, Partner Anna Murray, Graduate 
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It will soon be much easier for transgender and gender-diverse individuals to change their birth certificates, thanks to new laws passed this week by the Victorian Government.
Previously, Victorian laws required individuals to undergo sex-reassignment surgery before amending their official gender. This requirement existed to ensure consistency with the definition of marriage as being between man and a woman – but this is no longer the case since the legalisation of same-sex marriage in 2017.
Many transgender people forgo the surgery because it’s expensive and invasive. The new laws will enable people to define their gender as male, female, or a gender-diverse or binary descriptor of their choice – regardless of whether they’ve had the surgery.
While children will be allowed to change their gender marker, they will need parental consent (or a Court order) and a supporting statement from a doctor or psychologist confirming that the decision is in the child’s best interests.
According to Attorney-General Jill Hennessy:
“These important new laws are about ensuring everyone can live their life as they choose, and that includes having a birth certificate that reflects their true identity. The current surgery requirement sends a painful and false message that there is something wrong with being trans or gender diverse that needs to be fixed…"
These law reforms complement another recent reform that allows children to receive gender dysphoria treatment without needing a court order. These are significant and important steps toward achieving equality for transgender and gender-diverse Victorians.

The outcome of this case could impact nearly two million public servants across the country.
In one corner, we have the 27-year-old constitutionally implied right to freedom of political communication. And in the other corner, the challenger, we have the Australian Public Service (APS) Code of Conduct. Who wins the fight?
According to all of the High Court judges, the APS Code of Conduct wins.
In a judgment where one High Court judge labelled the Code as “cast[ing] a powerful chill over political communication”, the Court recently delivered a body blow to the implied freedom of political communication.
All seven judges accepted the argument that the provisions of the APS Code of Conduct (which is found in the Public Service Act 1999 (Cth)), “did not impose an unjustified burden on the implied freedom of political communication”.
The case likely impacts almost two million local, state, and federal public servants. However, the case is unlikely to have an impact on private sector employees, and does not sanction private sector employers to terminate employees who express political views, especially on social media. 
What happened?
At the time in question, Ms Banerji was an employee of the Department of Immigration and Citizenship. Between 2006 and 2012, she began tweeting using the handle @LaLegale. She anonymously posted more than 9,000 tweets – at least one of which was broadcast during working hours and many of which were harshly critical of the Department, her colleagues, the Federal Government, and members of Parliament. At no point did Banerji reveal her identity or that she was a public servant.
The Department terminated Banerji’s employment after an investigation found that she was the holder of the relevant Twitter account. It concluded that  Banerji’s conduct was in breach of the APS Code of Conduct and social media guidelines. The Code requires all employees to uphold APS values “at all times”. The APS social media guidelines also render it inappropriate for employees to make unofficial public comments that harshly criticise the government, politicians, or their policies.
Banerji filed a Comcare application contending that her dismissal and the events preceding it caused her to suffer from post-traumatic stress disorder. When Comcare rejected her claim, she sought a review from the Administrative Appeals Tribunal (AAT). The AAT was in Banerji’s favour, ruling that the relevant provisions of the Public Service Act containing the Code impeded on the implied freedom of political communication. 
In the AAT’s view, the Department’s actions could not be characterised as reasonable administrative actions conducted in a reasonable manner. Comcare appealed the decision, which is how the case ended up being taken to the High Court.
What did the High Court decide?
The High Court decided in favour of Comcare and set aside the AAT’s decision. It found that the Tribunal had incorrectly approached the question at hand. The real issue was whether the relevant provisions of the Public Service Act unduly infringed on the implied freedom of political communication as a whole, rather than just for Banerji. 
The Court held that the limitations placed by the Code were legitimate and necessary to ensure the provision of an “apolitical and professional public service”. In doing so, the Court concluded that:

the fact that  Banerji tweeted anonymously was not relevant, as the communications could later lose their anonymity;
even if the communications remained anonymous, they could still damage the reputation of the public service; and
the implied freedom was not a mandatory consideration in deciding the appropriate disciplinary action to be taken – the implied freedom only prevents the legislature from passing statutes that unduly impinge on the public’s right to communicate freely about political mers.

In short, the High Court placed greater weight on the Federal Government’s ability to rely on an apolitical and effective public service than a single public servant’s perceived ‘right’ to free speech. 
What does this mean for employers?
The Banerji decision will mean different things for different people.
For government employers, this case reinforces their capacity to control their employees’ expression of political views and take appropriate disciplinary action, including termination of employment, where such views are harshly critical of the public sector and the government.
This will still be the case where such views are expressed anonymously. For public sector employees, this is an opportune reminder about the perils of airing one’s political views in public.
But for private sector employers and employees, the effect is negligible. It is unlikely that the decision in the Banerji case will represent a stamp of approval for private sector employers to terminate their employees for expressing their political views or otherwise. 
One thing that is certain: cases such as Banerji are focussing the public’s attention and debate on the individual rights that Australians have –and the absence of a national bill of rights.
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This article is part of a regular employment law column series for HRM Online by Workplace Relations & Safety Partner Aaron Goonrey and Lawyer Keifer Veloso. It was first published in HRM Online on 15 August 2019. The HRM Online version of this article is available here.

Our workplaces need to change the culture of silence around sexual harassment. Legal experts offer their advice.
In Australia the general practice for resolving disputes (other than going to court) has a standard formula: 

the parties negotiate terms of settlement that are acceptable to them; 
the terms of settlement are incorporated into an agreement; and
the settlement agreement includes, among other things, confidentiality provisions prohibiting the parties from discussing the settlement as well as the circumstances surrounding the settlement.

Non-disclosure agreements (NDAs) are routinely used in resolving claims of sexual harassment. Such agreements are perceived to be advantageous — the employer avoids litigation and protects its reputation, while the victim avoids having to take legal action which often means reliving a traumatic experience.
However, in the wake of the #MeToo movement, and revelations that notorious alleged serial-harasser Harvey Weinstein frequently entered into NDAs to resolve claims of sexual harassment against him, the inclusion of secrecy clauses in sexual harassment settlement agreements has come under scrutiny around the world.
The global perspective
In the UK, a recent inquiry into the use of NDAs by the UK parliament’s Women and Equalities Committee resulted in the Solicitors Regulation Authority of England and Wales issuing a warning notice on the use of NDAs. A report by the inquiry, which was issued on 11 June 2019, also recommended legislation to outlaw NDAs that restrict “legitimate discussion” of unlawful harassment and discrimination. 
This has coincided with laws being introduced in a number of US states, including New York and California, to restrict the use of NDAs in sexual harassment cases unless they are requested by the employee, as well the US Congress introducing the EMPOWER bill in March earlier this year. The EMPOWER bill, if passed, would require public companies to report on settlements in sexual harassment claims and impose regulations on the use of NDAs.
Australia’s stance
So, given these recent developments, what is the current status on the use of NDAs in Australia?
At present, there is minimal guidance in Australia on the way NDAs should be drafted and used in settlement agreements, including in relation to claims of workplace sexual harassment. 
NDAs generally allow dispute settlements, and the circumstances surrounding them, to remain secret unless disclosure is “required by law” or for the limited purpose of the parties obtaining legal or financial advice. Case law authorities have made it clear that confidentiality agreements cannot be used to prevent disclosures related to crimes and fraud, or to obstruct the administration of justice. 
Parties may also be required by law to disclose confidential information if, for example, a court issues a subpoena for such information or its disclosure is required or allowed under specific legislation (such as under Australia’s new whistleblowing laws which took effect on 1 July 2019). Additionally, certain regulatory bodies such as the ATO and ASIC have the power to compel individuals to disclose information in certain circumstances regardless of the terms of a confidentiality agreement. 
However, apart from these circumstances, the use of NDAs in settlement agreements in Australia is subject to minimal guidance and regulation. 
Will Australia follow in the US/UK’s footsteps?
As with the recent developments in the UK and US, it is possible that the use of NDAs in cases of workplace sexual harassment in Australia may soon change in light of the National Inquiry into Sexual Harassment in Australian Workplaces which is currently being undertaken by the Australian Human Rights Commission (AHRC), and headed up by the Australian Sex Discrimination Commissioner, Kate Jenkins.
As part of the Inquiry, (which was commissioned after the AHRC’s fourth survey showed that 39 per cent of women had experienced sexual harassment in the workplace in the past five years) victims have been encouraged to make confidential submissions regarding their experiences. However, the AHRC found many victims reluctant to come forward due to fear of breaching their NDAs and the potential legal consequences of this.
Late last year, Commissioner Jenkins sought support for the Inquiry by calling on Australian employers to grant limited waivers of victims’ confidentiality obligations under settlement agreements so that they could make submissions. To date, less than 40 organisations have agreed.
This has led to increased consideration about the role of NDAs in workplace harassment cases and calls to prohibit, or at least regulate, the use of such agreements in Australia. 
Institutional amnesia
Commissioner Jenkins and the former Minister for Jobs, Industrial Relations and Women, Kelly O’Dwyer, have said that NDAs make victims “invisible” and prevent the government from addressing the issue of sexual harassment in the workplace since people do not know that sexual harassment is still taking place and bodies such as the AHRC are prevented from obtaining data needed to advocate for reforms to sexual harassment laws. 
Critics of NDAs, such as professor Judith Bessant from RMIT’s School of Global, Urban and Social Studies, have also argued that NDAs are a form of “secondary victimisation” and against the public interest, as silencing victims means little or no learning can happen which aids “institutional amnesia“.
Unlike safety incidents in the workplace, for example, where employers will often hold toolbox talks to discuss what happened and what can be learned moving forward, because of confidentiality obligations in settlement agreements, workplaces are often not learning from sexual harassment incidents, argues Commissioner Jenkins. The Harvey Weinsteins of the world are also allowed to stay on or move to other workplaces where they can continue to act unchecked. 
Given these concerns, it is likely there will be calls for increased regulation when Commissioner Jenkins releases the report from the Inquiry later this year. There may also be extended scrutiny over lawyers’ professional duties when negotiating such agreements in sexual harassment disputes.
What can employers do in the meantime?
Employers should be aware of the increased global scrutiny of NDAs in the context of workplace sexual misconduct and consider whether confidentiality provisions should always be included as standard terms in settlement agreements. While victims have the right to request confidentiality, there may be circumstances where victims don’t want the matter to remain private, but  feel compelled by their employer to do so.
Employers should also consider possible alternatives to NDAs in settling disputes. For example, the inclusion of mutual non-disparagement clauses which prohibit the parties from making disparaging or defamatory comments about each other. Settling a sexual harassment dispute without a NDA may also enable employers to send a strong workplace message against any tolerance of sexual harassment, which could be attractive from a reputational point of view, among other things.
 
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This article is part of a regular employment law column series for HRM Online by Workplace Relations & Safety Partner Aaron Goonrey and Lawyer Jenni Mandel. It was first published in HRM Online on 8 August 2019. The HRM Online version of this article is available here.

Our M&A Deal Highlights FY19 showcase what a busy year it has been for our clients and M&A team across a range of sectors. We could not have achieved all this without the passion and commitment of our team and the support from all our clients and referrers.
Please click here to download the summary of our M&A Deal Highlights for FY19.

What is the CDR regime?
The CDR Bill establishes the right for consumers to direct a supplier to share designated data about the consumer with another supplier or with the consumer themselves. The supplier is also required to make certain generic product data publicly available.
The regime is designed to give consumers greater control of their personal information and to make it easier to compare services or switch to a new provider. The goal is to drive competitiveness and innovation between businesses in the sector.
The CDR regime will initially apply to the banking sector, with other sectors such as energy and telecommunications, to follow.
Regulatory framework
The CDR Bill sets up an underlying regulatory framework made up of:

Legislation;
Rules; and
Technical Standards.

The Australian Competition and Consumer Commission (ACCC) is responsible for developing rules which set out the operation of the CDR across designated sectors. On 29 March 2019 the ACCC released an exposure draft of the rules for consultation.
In addition to rules, the Consumer Data Standards body, supported by Data61 (part of the CSIRO), is tasked with developing technical standards which specify how CDR data is to be shared via application programming interfaces (APIs) with organisations accredited by the ACCC. The Consumer Data Standards team has been working closely with the ACCC (as lead regulator) and the Office of the Australian Information Commissioner (OAIC).
The OAIC has recognised significant implications for the handling of individuals’ personal data and the importance of ensuring that a strong framework for protecting privacy is in place. This is important not only for protecting consumer personal data, but also for maintaining public confidence in the CDR regime.
Working groups have been established to support Data61 to design and test the open standards. Input from the specially formed Advisory Committee alongside draft guidance materials, API specifications and implementation materials are being shared on the Consumer Data Standard’s Body’s website and on GitHub.
What’s next?
The open banking regime is underway already with the Government having launched its pilot program with the big four banks (Westpac, CBA, ANZ and NAB) on 1 July 2019. The big four were required to make generic product data available on credit and debit cards, transaction and deposit accounts to start the process of testing the performance and security of the CDR regime as it relates to open banking. Formal commencement of open banking will occur once the open banking designation instrument (where the banking sector will be a designated sector) is issued.
Formal implementation of the CDR Bill is expected to begin in February 2020 with the big four banks being required to provide CDR data on mortgages, credit and debit cards, transaction and deposit accounts. Other banks and financial institutions will be required to comply from July 2020 onwards.
What do you need to do?
Businesses in the banking, energy and telecommunications sector should be thinking about the following:

Keeping up to date with changes, including the rules to be issued by the ACCC.
Considering whether they will be required to comply with the CDR regime Those in the energy and telecommunications sectors should be closely watching how things unfold with open banking.
Considering how to best leverage CDR data and position themselves in the market as a business that proactively engages with customers.
Developing consumer and employee awareness campaigns and thinking about how to train staff to comply with the new laws.
Reviewing and updating internal systems to ensure compliance (and functional capability), including establishing procedures for how to handle and respond to customer requests for access to, and transfer of CDR data.

Quick links

Casual Employees 
Paid Parental Leave 
Worker Exploitation
Sham Contracting 
Labour Hire Licencing
Enterprise Agreements
Religious Freedoms
National Inquiry into Sexual Harassment
Whistleblowing
Modern Slavery
What do all of these proposed changes mean for employers?

Now that employers have been given some time to digest the, according to the polls, unexpected result in Australia’s 2019 Federal Election, many are still left questioning — what does the Coalition victory mean for the industrial relations and employment law landscape?
The Coalition Government’s industrial relations policies were limited in terms of changes, with the primary focus being on strengthening the existing system. In the future, it is likely that changes will be broader, with the newly appointed Industrial Relations Minister, the Hon. Christian Porter MP, launching a major review of the national industrial relations and employment law framework.
Here we outline the implications that employers need to be aware of following the recent election.
Casual Employees 
The way in which employers manage and facilitate the employment of casuals is on the Coalition Government’s agenda for change. The decision in Workpac v Skene [2018] FCAFC 131 raised concern throughout the business community, principally that casual employees may be able to ‘double dip’ into casual loading and then claim annual leave entitlements. The Coalition has previously acted to clarify this, implementing the Fair Work Amendment (Casual Loading Offset) Regulation 2018 to offset casual loading from other entitlement claims, such as annual leave. This issue is likely to be the dominant focus of the upcoming review. 
It is expected that the Coalition government will move to further its casual employment agenda by reintroducing the Fair Work Amendment (Right to Request Casual Conversion) Bill 2019 (Cth) to legislate the right for all casual workers to request to become permanent workers after twelve months of regular and continuous employment (there is a model casual conversion provision in most modern awards, including a modified version). The Bill was introduced by the former Industrial Relations Minister, the Hon. Kelly O’Dwyer MP, but has since lapsed. This will likely be up for parliamentary action. 
Paid Parental Leave 
The Coalition Government has also made a clear stance on the paid parental leave scheme. It has maintained that it will implement legislative changes to allow parents to take government-paid parental leave in smaller six-week blocks, to be used over the course of a two-year period, rather than the single 18-week consecutive period. 
Worker Exploitation 
Additionally, in March 2019, the Migrant Workers Taskforce Report was released, which investigated ways to improve the systems of protection for migrant workers. The government accepted, in-principle, all 22 recommendations included in the Report, and announced several measures in the 2019-2020 Budget to respond to these recommendations. Accordingly, it is expected that the Coalition Government will attempt to introduce criminal sanctions for exploitative conduct against migrant workers that is clear, deliberate, and systematic. The government has also promised to improve resourcing for the Fair Work Ombudsman (FWO) to ensure that it has appropriate powers and tools to effectively address worker exploitation. 
Sham Contracting
The Government has also signalled a commitment to introducing tougher penalties for sham contracting, including by providing further funding to the FWO to establish a dedicated sham contracting unit. 
Labour Hire Licensing 
Following the implementation of the Queensland and Victorian labour hire licensing schemes, the government is investigating the possibility of introducing a National Labour Hire Registration Scheme. This scheme would focus on ‘high-risk sectors’ including horticulture, meat processing, cleaning, and security. The proposed scheme would make it mandatory for labour hire operators in those industries to register with the scheme, which would impose regulatory obligations on the operators to regularly report. It is proposed that, to be granted and maintain a licence, labour hire operators will need to show that they are complying with the Fair Work Act, health and safety legislation, as well as their superannuation, taxation, and, if applicable, immigration law obligations. 
Enterprise Agreements 
The review announced by the new Industrial Relations Minister, the Hon. Christian Porter MP, will also closely examine the current framework for enterprise agreements, specifically the ‘better off overall test.’ The ‘BOOT’ is the present test that an enterprise agreement must satisfy before receiving approval from the Fair Work Commission (FWC). The review will seek to reinforce recent legislative amendments that allow the FWC to look more broadly at the substance of an agreement when making a determination. 
Practically, this will likely mean that the FWC can overlook minor technical and procedural errors in enterprise agreements when granting approval. Further, the review will seek to identify ways that the FWC can streamline and speed-up the approval process. 
Religious Freedoms 
Looking towards the future, there are a raft of changes that may be introduced by the government. In 2018, the findings of an inquiry into religious freedoms was released, of which the government accepted 15 of the 20 recommendations. The government endorsed the development of a dedicated piece of legislation to enshrine protections for religions and to establish a Religious Freedoms Commissioner. 
This particular issue has become extremely topical  in light of the Israel Folau and Australian Rugby Union proceedings. 
National Inquiry into Sexual Harassment 
The current National Inquiry into Sexual Harassment in Australian Workplaces is being conducted by the Sex Discrimination Commissioner, Kate Jenkins. The Inquiry commenced in June 2018 and is the first of its kind in the world. It is proposed to operate for 12 months, with the intention of investigating, among other things, the drivers of sexual harassment in the workplace, and the effectiveness of current laws and policies to address it. 
When the findings of the Inquiry are released later this year, it is expected that many of the recommendations will be adopted by the government and will likely receive support from all sides of the political divide. 
Whistleblowing 
From 1 July 2019, the Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 commenced. For employers, this means that whistleblowers no longer need to reveal their identity before they can receive the benefits of the legislative protections. The following points are also of importance to the business community: 
(a) Whistleblowers covered by the protections cannot be liable for any civil, criminal, or administrative liability arising out of the making of the disclosure, which also includes disciplinary action. Also, no contractual or other remedy can be enforced against the whistleblower on the basis of the protected disclosure. 
(b) Prohibited victimisation of whistleblowers, meaning conduct that causes detriment to an eligible whistleblower, is an offence. The offence of victimisation also covers persons other than the whistleblower themselves, such as the person who receives or investigates a disclosure. What constitutes detriment? Detriment has been defined to include, but not be limited to, matters such as the dismissal of an employee, damage to reputation, and alteration of an employee’s position to their disadvantage. 
If an employer meets the definition of a large proprietary company, then they are obliged to have a whistleblowing policy. If a company satisfies at least two of the following criteria, it is considered to be a large proprietary company:

Consolidated revenue for the company, and any entities it controls, of $50 million or more in the company’s financial year; or 
Consolidated gross assets value of $25 million or more for the company, and any entities it controls, at the end of the company’s financial year; or 
The company has 100 or more employees at the end of its financial year. 

Modern Slavery 
From 1 January 2019, the Federal Modern Slavery Act 2018 came into effect. The Act essentially provides that reporting entities must provide a statement that deals with how their organisation is ensuring that they are not contributing to modern slavery. The following are reporting entities under the Act:
a. An entity that has a consolidated revenue of at least $100 million for the reporting period, if the entity:
i. is an Australian entity at any time in that reporting period; or 
ii. carries on business in Australia at any time in that reporting period.
b. The Commonwealth.
c. A corporate Commonwealth entity, or a Commonwealth company, within the meaning of the Public Governance, Performance and Accountability Act 2013, which has a consolidated revenue of at least $100 million for the reporting period.
d. An entity which has volunteered to comply with the requirements of the Act. 
If your organisation is a reporting entity for the purposes of the Act, then you must prepare a modern slavery statement, and that statement must include, among other things, the following:

the identity of the reporting entity;  
a description of the structure, operations and supply chains of the reporting entity;  
a description of the risks of modern slavery practices in the operations and supply chains of the reporting entity, and any entities that the reporting entity owns or controls;  
a description of the actions taken by the reporting entity and any entity that the reporting entity owns or controls, to assess and address those risks, including due diligence and remediation processes;  
a description of how the reporting entity assesses the effectiveness of such actions;  
a description of the process of consultation with:(a) any entities that the reporting entity owns or controls; and (b) in the case of a reporting entity covered by a joint statement, the entity giving the statement; and 
any other information that the reporting entity, or the entity giving the statement, considers relevant.

The NSW Government has also passed the Modern Slavery Act 2018 (NSW); however, it is yet to commence and was recently referred to a parliamentary committee. It is unclear when this Act will commence and whether there will be substantial changes to its current content.
What do all of these proposed changes mean for employers?
The prevailing effect of the Coalition’s election victory is the need for businesses to understand the current changes to the law, as well as those expected in the future, and how these changes could impact the management of their workplaces. 
In summary, employers will need to:

be conscious of their long-term casual employees, and the implications to their business of the casual conversion proposal and Workpac v Skene; 
regularly address workplace culture and be clear on their practices and policies — this will include how they handle the sensitive issue of religious freedoms, how they manage and prevent occasions of sexual harassment, and how they deal with whistleblowers; and 
be mindful of their employment arrangements with migrant workers, contractors, and potential labour hire workers to not just be compliant, but to also be proactive in their actions as law abiding corporate citizens. 

The Coalition’s term in government is at a time when employers should be keenly aware of their shifting legal, regulatory, and ethical obligations, where they will need to increase their focus on the employment arrangements they enter into, and the protections in place for their employees. 
Authors 
Aaron Goonrey | Partner Matt Anderson | GraduateSam Rowling | Graduate 
 
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You may have read about the UK Information Commissioner’s Office (ICO) proposal to fine British Airways £183.39M (AU$320M) for infringements of the European General Data Protection Regulation (GDPR).
The ICO has also recently announced its intention to fine Marriott International £99,200,396 (AU$178M) for similar data breaches. Each case involved a sophisticated cyberattack which exposed large volumes of customer information over an extended period.
ICO investigated each of these cases as lead supervisory authority on behalf of other EU Member State data protection authorities. Under the GDPR ‘one stop shop’ provisions, the data protection authorities in the EU whose residents have been affected will also have the chance to comment on the ICO’s findings.
Failure to secure information
The conduct for which British Airways and Marriott are being fined is a failure to implement appropriate security arrangements for the personal data they each held.
British Airways
The British Airways incident in part involved the diversion of user traffic from the British Airways website to a fraudulent site. Through this false site, customer details were harvested by the attackers. Personal data of approximately 500,000 customers were compromised in this incident, which lasted for some months in 2018.
Marriott International
The Marriott incident is believed to have started when the systems of the Starwood hotels group were compromised in 2014. Marriott subsequently acquired Starwood in 2016, but the exposure of customer information was not discovered until 2018. According to the ICO, this breach involved approximately 339 million guest records globally, of which around 30 million related to residents of 31 countries in the European Economic Area, the area regulated by the GDPR.
 
Failure of due diligence
The ICO’s investigation found that Marriott failed to undertake sufficient due diligence when it bought Starwood and should have done more to secure its systems. According to the ICO:“The GDPR makes it clear that organisations must be accountable for the personal data they hold. This can include carrying out proper due diligence when making a corporate acquisition, and putting in place proper accountability measures to assess not only what personal data has been acquired, but also how it is protected.”
How will this affect Australian organisations?
Australian organisations which do business in the EEA, and collect personal information of individuals located there, are likely to be subject to the GDPR with respect to that information.
It is not necessary for an Australian company to have a permanent presence in the EEA or to have representatives there in order to be caught. For instance, companies which supply products and services online and which target customers in the EEA are likely to be subject to the regulation.
A warning for all organisations that hold data
What the decisions indicate is that the European privacy regulators are prepared to come down hard on breaches of the GDPR which have wide impact and that inadvertence is no defence. Companies are expected to implement satisfactory security controls to prevent the types of incidents which affected British Airways and Marriott.
In relation to Marriott, this is a warning to all companies which are acquiring other businesses. Due diligence must include a thorough review of the target’s IT systems and any evidence of past cyber incidents which have resulted in personal data being compromised.
 

There is an increasing trend toward creating a discretionary family trust for the purpose of asset protection and tax minimisation. In light of this, it is important to understand how family trusts may be treated in family law proceedings.
What is a family trust?
A family trust is a vehicle that families often use to hold income generating assets and distribute that income to beneficiaries, who are often family members. The beneficiaries are set out in the trust deed and generally include classes of beneficiaries connected to those named persons. For example, their spouses, their children, any company or other trust/entity connected to that person.
In a family trust, the trustee has the discretion to decide which beneficiary will be distributed income and the appointor of the trust has the power to remove and appoint trustees. It is often the case that one party will hold the position of both appointor and trustee (or director of the corporate trustee) and will therefore have the power to control the trust’s assets. Often, the assets of the trust are assets which, but for the trust, would otherwise be property of the parties.
So, what happens when the party in control of the trust separates with their spouse? Does the trust get included in a property division for family law purposes or is it protected?
How is a family trust relevant for family law purposes?
In family law, the Court identifies all property interests of the parties in the relationship. This extends to interests held by either party in a family trust. In many cases, a trust will be property of the marriage, where the parties hold the roles of appointor, trustee and beneficiary.
Even where a party is only a mere discretionary beneficiary (i.e. with no present entitlement to trust assets), the Court will still take that into account as a financial resource of that party when determining the overall property settlement.
Mansfield & Mansfield [2018]
In the recent case of Mansfield1, the Wife claimed that the Husband had access to significant wealth, including properties held through trusts established by his father, Mr Mansfield Senior. The Wife therefore sought to join Mr Mansfield Senior and his related entities as third parties to the proceedings.
In considering whether Mr Mansfield Senior and his related entities should be joined to the proceedings, Judge Brown confirmed that “each case, involving issues relating to discretionary trusts, must turn on an examination of its circumstances". The Husband and his sister, being the only children of Mr Mansfield Senior, were named beneficiaries under the trust deed of the relevant trusts and minority shareholders of the corporate trustee. The Wife, through her relationship with the Husband, was also a beneficiary of the trust. However, Mr Mansfield Senior was the appointor of the trusts, director and majority shareholder of its corporate trustees, and only distributed income from the trust to himself.
Judge Brown therefore dismissed the Wife’s application, finding that Mr Mansfield Senior had absolute control of the trusts and its assets. His Honour found that the Husband had a lack of control in relation to the trust assets and had never received any distributions from the trust. In this case, the trust was not a "sham" or "alter ego" of the Husband, as was found to be the case in Kennon v Spry where the Husband was a trustee, appointor and beneficiary and therefore had control over the trust’s assets.
Interestingly, Judge Brown made a costs order against the Wife in the sum of $20,632.802, as a result of the degree of separation between Mr Mansfield Senior, his associated entities and the matrimonial proceedings. His Honour confirmed "suspicion and coincidence alone are not sufficient to create control over the assets concerned in the husband".
Lessons learned
This case highlights the need to be clear as to who has control of a trust, and indicates the need for a cautious approach where the parties to the relationship are mere beneficiaries of the trust.
Mansfield also highlights the risks for trustees of family trusts being involved in family law proceedings, to clarify how such a trust should be treated.
Whilst in many cases a family trust will not be contentious, we recommend obtaining legal advice in any separation where trust structures may be an issue.If you or someone you know is going through a separation involving complex property structures, we recommend you seek legal advice.
 

Quick links:

Consumer law contraventions remain a key focus
Cartel proceedings are a target area
Regulator focus on data and digital platforms
Mergers continue to be a contested area
Lessons for business
Further information

Consumer law contraventions remain a key focus
Misleading conduct is a target area for the ACCC, with at least nine separate proceedings initiated this year alleging that a business has engaged in misleading or deceptive conduct, or made false or misleading representations. Of particular note:

Optus is in the firing line again for allegedly misleading consumers about the need to move to the NBN or risk being disconnected. This follows on from previous proceedings in 2018 where Optus was ordered to pay $1.5 million in respect of similar allegations.
The ACCC is alleging that Sony misled consumers about their consumer guarantee rights on its website and in dealings with its Australian PlayStation customers. Sony allegedly told consumers that it did not have to provide refunds unless the game developer had told the consumer that the game was irreparably faulty or otherwise authorised a refund. Sony also allegedly told consumers that it could provide refunds using virtual PlayStation currency instead of money.
Online retailer Kogan is facing proceedings in which it is alleged that Kogan ran a misleading 10% discount promotion, where Kogan had in fact raised the prices of more than 600 of its products immediately before the promotion, in most cases by at least 10%. The ACCC has secured penalties for “was / now" pricing on multiple occasions before.

The regulator has expressed its disappointment at the recent decision of the Court dismissing allegations brought against Kimberly-Clark that it had misled consumers about the suitability of its wipes to be flushed down the toilet. However, the ACCC has had its share of success in 2019:

It secured penalties against Birubi Art for $2.3 million, Jetstar for $1.95 million, Click Energy for $900,000 and Activ8me for $250,000, all for misleading conduct; and
It received judgment in cases against Viagogo, GSK and Novartis for misleading conduct, with penalties to be determined at a later date.

Cartel proceedings are a target area
Consistent with its enforcement priorities, the ACCC appears to be driving a broader push towards prosecution of domestic and cross-border price fixing. The ACCC investigates cartel conduct and may refer serious cartel conduct to the Commonwealth Director of Public Prosecutions (CDPP) to consider criminal prosecution.
Current investigations underway include:

Following charges laid in February 2018 (the first criminal cartel charges of their kind under the Competition and Consumer Act), Country Care Group, its Managing Director and a former employee were committed to stand trial in the Federal Court. The charges relate to alleged cartel conduct involving assistive technology products used in rehabilitation and aged care, including beds, mattresses, wheelchairs and walking frames.
Criminal charges were also laid against Vina Money Transfer (a money transfer business) and five individuals for allegedly fixing the exchange rate for the Australian dollar / Vietnamese dong. It is alleged that the exchange rate and fees charged were fixed for when money was sent from Australia to Vietnam between 2011 and 2016. The proceedings arose following a comprehensive joint investigation by the ACCC and AFP. The charges relate to remittances totalling approximately $700 million per year.
It is interesting to note that a private cartel class action was also commenced by Maurice Blackburn in May 2019, alleging that a group of banks manipulated the forex benchmark rates, control spreads’ pricing, and trigger client stop-loss orders and limit orders. The banks targeted in this class action are UBS, Barclays, Citibank, Royal Bank of Scotland and JP Morgan.

This will certainly be of interest given the ACCC’s publicly stated aim, outlined earlier this year by its Chairman, to bringing two or three new criminal cartel cases each year, along with three to be referred to the CDPP in 2019 alone.
As part of the long-running air cargo cartel investigation, the Federal Court ordered PT Garuda Indonesia Limited to pay penalties of $19 million. The investigation has so far resulted in penalties of $132.5 million against 14 airlines since 2008.
However, the ACCC’s appeal in the laundry detergent cartel case was dismissed. The Full Court of the Federal Court upheld a ruling that there was insufficient evidence to find that PZ Cussons engaged in cartel conduct in relation to alleged agreements to stop supply standard concentrate laundry detergent in favour of ultra-concentrate detergent.
Regulator focus on data and digital platforms
Recent ACCC publications, speeches and guidance shows an increasing focus on emerging issues of data and digital platforms, and how consumer rights and corporate merger activity may be affected by their development. We believe that going forward the regulator, at least in the short to medium term, will continue to carefully monitor these electronic platforms as evidenced by, amongst other things:

Consumer Data Right (CDR): The CDR is a reform announced by the Australian Government in July 2017, aiming to allow consumers to easily obtain access to their data and have it transferred to service providers they trust. Following a substantial consultation process, on 29 March 2019, the ACCC published the draft rules for the CDR to seek feedback from consumers, businesses and community organisations. The CDR will be implemented in the banking sector first, and then in the energy and telecommunications sectors. Further consultation is ongoing.
Digital Platforms Inquiry: The final report of the ACCC’s digital platforms inquiry was anticipated to be released by 30 June 2019. This report promises to detail how digital search engines, social media platforms and their ilk affect competition in media and advertising services markets. In particular, the inquiry is looking at the impact of digital platforms on the supply of news and journalistic content, and the implications for media content creators, advertisers and consumers.

Mergers continue to be a contested area
The ACCC has made several high-profile decisions on proposed mergers throughout 2019, most notably opposing the proposed $15 billion merger between TPG and Vodafone. The ACCC concluded that the proposed merger would preclude TPG from entering or disrupting the market as a mobile network operator and reduce competition in the mobile services market.
Somewhat embarrassingly, the ACCC inadvertently disclosed its decision on the merger a day early, which resulted in both Vodafone and TPG’s share price immediately plummeting. Both entities have vowed to bring legal action to pursue the merger.
Additionally, the ACCC released a statement of issues which raised preliminary competition concerns about Nutrien’s (which operates through its wholly owned subsidiary, Landmark) proposed acquisition of Ruralco, stating that a merged entity would be "by far the largest retail and wholesale supplier of rural merchandise in Australia, with Elders the only other large national chain".
Conversely, GSK’s acquisition of Pfizer’s consumer healthcare business in Australia was not opposed. The acquisition covers the majority of their over-the-counter products, including Panadol and Voltaren (produced by GSK), and Advil (produced by Pfizer).
Lessons for business
We had previously reported on the ACCC’s enforcement priorities for 2019. It is interesting to observe the heavy focus on ACL contraventions since those enforcement priorities were released.
The continued focus on cartel and anti-competitive conduct is certainly a target area for the ACCC, and businesses should take care to ensure that their compliance strategies are operating effectively.
For further information or support, please contact our Commercial Disputes team.
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English
与党自由・国民党連合政権は、大方の予想を裏切ってゴールになんとか駈け込み、連邦選挙に勝利しました。豪州労働党（労働党）が 「負けるはずがない」選挙に敗北を喫した理由については、メディアで様々な意見が飛び交っていますが、以下の2点が鍵であったと考えられます。

まず労働党の政策は、富の再分配、増税、規制強化など成長戦略とは言い難く、またその上複雑であったため、豪州の資産の多くを所有する大部分の高齢者層のみならず、将来的に自分達もそのような資産を保有したいと願う向上心の強い中間層からも拒否されたこと。
次に「クィーンズランド 要因」の対応に労働党が失敗したこと。クィーンズランド州の鉱山産業に対する姿勢に関し同党が発したメッセージは矛盾しており、同産業に従事する労働者にとって将来の選択肢に希望を持たせるものではありませんでした。

選挙直後の狂騒から与野党共に回復し、内閣（影の内閣）の陣容が発表された現在、Lander & Rogers 法律事務所発行の連載『豪州総選挙2019 年』の最終号となる第３号では、今後3年間の連邦政府の政策が豪州で投資を行う外国人や外資系企業にとって何を意味するかを見ていきます。『豪州総選挙2019 年』の過去の連載記事をお読みになっていない方はここでご覧いただけます。
 
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連邦政府
豪州の外国人投資家や外資系企業に最も影響がある政策
労使関係政策
エネルギー政策と温暖化ガス排出削減
石炭
交通運輸インフラ
銀行・金融サービス
移民とビザ
研究開発 (R&D)
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連邦政府
スコット・モリソン首相は総選挙で予想外の勝利を納めた実績を盾に、次回選挙までの3年間、首相の座を維持する公算が高いと言えます。モリソン首相の新政権では、主要閣僚（財務相、蔵相、雇用相、インフラ相、資源相、エネルギー相、外務相、内務相、法務相、移民相、貿易相、科学技術相）はそれぞれポストを維持し、連邦首相の交代を繰り返してきた豪州の政治は落ち着きを取り戻すと予測されます。
一方、外国人投資家や外資系企業に重要ないくつかの省庁で、以下のように新大臣が任命されました。

労使関係：自身が弁護士でもあるクリスチャン・ポーター法務相が兼任。豪州の労使関係の基盤となっている法体制が、いかに法的に複雑であるかを示しています。
温暖化ガス排出削減：アンガス・テイラーエネルギー相が兼任。エネルギー政策と温暖化ガス排出削減政策の双方を担当することになるのは論理的でしょう。
環境：前任者のメリッサ・プライス大臣が総選挙直前にアダニ炭鉱開発に連邦政府の許認可を出したことでクィーンズランド州以外では概ね不評）、論争を引き起こした環境行政ですが、スーザン・レイ大臣がこのポートフォリオを担当することで、政府は「心機一転」を狙っています。

国会の野党側でも労働党が「影の内閣」を発表し、後に触れますが、既にいくつかの政策変更を明確にしています。
与野党共に閣僚（影の閣僚）のラインアップが確定したことにより、政府の焦点は選挙の主要政策綱領実施に向けた詳細の詰めに移っています。具体的には、経済運営、エネルギー政策、インフラ開発などです。
マクロ面では、ジョシュ・フライデンバーグ財務相は以下の2点を重点課題として発表しています。

選挙前の予算案で提案された、1580億ドル相当の所得税減税（法人税は含まず）と1000億ドルに上るインフラ案件を含む経済成長政策の遂行。
技能訓練プログラムの改善、技術革新、官僚主義の是正などを通じた労働生産性向上のための改革。

豪州の外国人投資家や外資系企業に最も影響がある政策
1.   労使関係政策
選挙前にスコット・モリソン首相は、労使関係制度に大きな改革は予定していないと示唆していました。この発言に沿って、新労使関係大臣は現行システム、特に労働協約の分野での効率改善には構造改革ではなく手続的な変更が必要に過ぎないとしています。いかなる措置を取るにしても、先立つ２−３ヶ月は利害関係者との徹底した事前協議を行う意向を表明しています。
ここでの重要な問題は、景気停滞を解消するためにより急進的な政策が採用されるかどうかです。豪州連銀総裁は、経済成長のためには賃金の伸びが必要と指摘しています。政府がこの分野で直接的な介入を行ったことは今までなく、現時点でもその可能性は低そうです。財務相が今月初旬に発表した生産性改善計画では、企業の収益性改善、ひいてはより良い就業機会の提供と賃金の伸びに繋がるような職場改革を検討する必要性が指摘されています。しかし、このように議論を求める声はあげているものの、現政権の３年間の任期中に労使関係制度に重大な変更が導入される可能性が高いことを示すものではありません。
2.   エネルギー政策と温暖化ガス排出削減
選挙後、アンガス・テイラー大臣はエネルギー相のポストに加え、温暖化ガス排出削減政策の担当閣僚となりました。再生可能エネルギーへのシフトは温暖化ガス排出削減に向けて最も明確で経済的な方策であることを考えると、この兼任は道理にかなっています。豪州では発電が、33.2%（2018年12月までの１年間）と温暖化ガスの最大の国内排出要因だからです。
同分野には相反する二つの重大な課題があります。一つは国内のエネルギー 価格の引下げであり、もう一つは地球温暖化対策に関して国民の要望に応えることです。
国内エネルギー価格の引下げ：豪州の企業と家計が負担するエネルギー 価格の引下げは、政府が次回選挙に勝利するための重要戦略であり、テイラー大臣はこの課題に取り組むことを公約としています。彼の提案には以下のようなものがあります。

エネルギーの供給確保と価格改善のためにエネルギー供給量の増加と一層の競争導入。具体的には

NSW州のスノウイー水力発電所の第２次開発など、政府援助の対象として候補に選抜されている12のプロジェクトの正式調印
タスマニア州の水力発電所開発における融資保証の可能性
クィーンズランド州北部での新たな石炭火力発電所開発に向けてのフィージビリティスタディ実施

2019年7月1日から導入される基準価格制度の法制化による卸売価格水準の是正。

政府は選挙前からのエネルギー政策を継続して推進しており、反競争的な行為に従事、あるいは卸売り価格下落分の消費者移転を拒んでいる事が判明したエネルギー会社の強制分割を可能にする「威圧的（big stick）」な法案の成立を目指しています。 この法案が成立すると、政府は供給増とガス価格下落を促すために、豪州東部の天然ガス輸出企業にガスの供給を強制的に国内消費向けに振り向けさせることができます。労働党とグリーン党がこの法案に反対することを年初に表明しているため（この野党の姿勢はエネルギー産業が強く支持）、この法案が成立するかどうかは依然として不透明です。選挙後、野党労働党は、政府が提案する温暖化ガス排出削減目標を直接的にも間接的にも支持しないことを明言しており、温暖化ガスの排出削減策を含まないエネルギー 価格政策に野党の支持を取り付ける事は困難と考えられます。
地球温暖化、温暖化ガス排出削減： 政府与党のターゲットは、2030年までに炭素排出量を2005年の水準から26%引き下げるという迫力にかけるもので、選挙中多くの批判を浴びました。政府はエネルギー価格の引下げ、電力供給の安定性と温暖化ガス排出削減の間には二律背反の関係があると主張し続けています。高コストでの温暖化ガス排出削減政策は国内レベルでは不評と考えられます。更にテイラー大臣は、エネルギー供給の安定性確保のためには風力発電や太陽光発電が多すぎるとして、この二種類の発電に反対する姿勢を過去に表明しています。代わりに政府は水力発電を支持し、これへの継続投資の姿勢を明示しています。現時点では政府がこの方針を変更し、今後３年間で他の再生可能エネルギー源を支援していくようになるかどうかは不透明です。一方で各州政府は、それぞれの再生可能エネルギー政策と蓄電投資を推進し続けていく事が予想されます。
テイラー大臣は今後、より積極的な地球温暖化対策を求める強い世論の圧力を受けることになり、少なくともコスト、供給の安定性、排出削減と三つの要素のトレードオフのバランスを取る作業において、気候変動という課題により重点を置くように求められるでしょう。今月初めに発表された温暖化ガス排出統計によると、豪州の温暖化ガス排出量は増加し続けており、2018年の12月四半期には突出した伸びを記録しています。政府はこの統計を受け入れ、対策を講じるように迫られています。 2019年9月に予定されている国連地球温暖化サミットが重要な試金石となるでしょう。この時の対応で、政府がより大胆な温暖化ガス排出削減政策を採用する用意があるかどうか、ひいては政府が推奨するエネルギーミックスの概要がかなり明確になると予測されます。現時点での政府目標は、2020年までに再生可能エネルギーが占める割合を23.5%にまで引き上げるというものです。
現状ではテイラー大臣は、温暖化ガス排出削減目標を、政府の温暖化ガス排出削減基金（新しく「気候変動解決基金（Climate Solutions Fund）」と改名）への支援により大方達成しようと試みています。同基金は農業、エネルギー効率（発電所は含まず）、鉱業、廃棄物処理などの分野で低コスト手法をモットーに、広範囲の温暖化ガス排出削減プロジェクトを支援しています。
3.   石炭
地球温暖化を巡る議論で避けて通れないのが、エネルギーミックスにおける石炭の果たすべき役割です。
選挙後も資源・北部オーストラリア相に留まったマシュー・カナヴァン大臣は、石炭業界に対する政府の支持を奨励、特にクィーンズランド州における石炭火力発電所の新規開発と石炭火力発電産業への投資継続への支援を重視しています。自身の選挙区がクィーンズランド州にある同相は、クィーンズランド州中部に対する影響が最も強いという理由で、炭素税導入を求める声を最近も拒絶しています。同相は「汚染者負担」の原則を好まず、豪州国民の全てが石炭火力発電所の開発と使用から恩恵を受けているという理由で、温暖化ガス排出削減のコストは全ての納税者が負担すべきとの立場を取っています。上述した気候変動解決基金（Climate Solutions Fund）への支援が、より公正な対応と同相は見ています。
選挙結果を受けて、カナヴァン相は資源産業を擁護する語調を強めています。豪州のエネルギーミックスを考える上で、石炭の将来性の問題に対する同相の立場は極めて明らかです。
労働党の敗北原因の一つが、特にクィーンズランド州における同党の石炭産業への支持欠如にあると広く非難されていることから、労働党の影の閣僚の中には、豪州経済における石炭の継続的な重要性を認めるメンバーも出てきています。特に豪州炭に対する世界的な需要の高まりが予想されることもこの変化の背景にあります。ただし、石炭依存は引き続き非常に大きな政治問題です。現政権初期のメッセージは石炭業界にとって明るいものですが、今後もこの姿勢が保持されるとは限りません。
4.   交通運輸インフラ
政府与党、野党労働党共に、交通運輸インフラへの大規模投資を公約に掲げ選挙戦に臨みましたが、選挙後も大規模インフラ投資が成長戦略の鍵と財務相は既に明言しています。 2019年3月末までの年間成長率が1.8% と９年ぶりの低水準だったことを考慮すると、この発言は当然でしょう。実際のところ、経済成長のさらなる減速を避けるために、政府はどれほど早く一部の公共投資案件を前倒しできるか検討しています。ただし、ビクトリア州、ニューサウスウェールズ州の両首相は早速、インフラプロジェクトの優先順位を決定するのは州の管轄と主張しているため、連邦政府が自身の目的達成のために、一方的にインフラプロジェクトを主導して進めていくことはできないかもしれません。
選挙前の政府与党のインフラ計画は、旅客鉄道などの公共交通インフラ整備（130億ドル）より道路インフラの整備（270億ドル）に重点が置かれていました。しかし、連邦政府の公共投資案件を前倒しする必要性から、 長期の大規模プロジェクトより中小規模のプロジェクト（道路、鉄道、地域社会インフラ）が早く実施される可能性が高くなっています。メガ案件を切望してきた外資大企業は、辛抱強く待つ必要がありそうです。インフラ案件の実施スケジュールは、政府の独立諮問機関であるインフラストラクチャー・オーストラリアにより開示されています。2019年2月には、優先プロジェクトリスト が公表されていますが、3月四半期の軟調なGDP統計を背景に、リスト内の順番が変わる可能性も大きいでしょう。
5.   銀行・金融サービス
金融市場は自由・国民党連合政権の勝利を好感、株価上昇を受けて４大銀行の時価総額は選挙後２日間で330億ドルも増加しました。この一部は、退職年金制度、賃貸住宅に関する損金算入税制（negative gearing）、フランキング配当制度（dividend imputation）などの変更を通じ1200億ドルにものぼる富の再分配を公約に掲げ、市場には悪材料とされていた労働党の勝利が株価に織り込まれていため、安堵の結果かも知れません。
政府は早速、金融サービス業界に対するヘイン王立調査委員会からの提言履行に取組み始めると予測されます。金融商品アドバイス業界の商慣行改善が大きな焦点となるでしょう。アドバイザーの利益相反構造の払拭と質の良い金融サービスを誰もが享受できるような手数料設定が求められています。業界は改革案立案への協力に熱心で、政府との緊密な連携により新規制導入によるインパクトに対処していきたいと考えています。
退職年金基金への改革も優先事項と捉えられており、政府は27兆ドルの年金市場全般の見直しを発表する公算が高いでしょう。
6.   移民とビザ
選挙結果を受けて、移民政策の大きな変更は予想されておりません。政府は選挙に先立ち、今後4年間に受け入れる永住移民の数を合計で12万人削減する事を提案していました。この政策は実際に、現行のビザ発給率と整合性があるため、結果として大きな変更は考えられません。
将来のビザ申請者に対しては、大都市シドニー、メルボルンへの移民流入を制限したい意向を反映し、継続して地方での定住が重視されていくでしょう。飛行機で到着した難民申請者に比してボート難民に対しては、引き続き国外での難民審査が義務付けられ、ビザ発給は厳しく制限されていく見込みです。また政府は、国外難民審査センターで病気になった申請者を、医療手当のために豪州国内に移す「医療移送法（medical transfer law）」を無効にしたい旨をすでに明らかにしています。
日本の従業員を豪州に出向させたいと考える日本企業には、日豪間の貿易協定「日豪経済連携協定（EPA）」の存在により、引き続き通常の労働市場テストが免除され、４年間の就労ビザが発給されます。
7.   研究開発 (R&D)
研究開発分野では、カレン・アンドリュース大臣が産業・科学技術相のポストに留まりました。特筆すべきは、マルコム・ターンブル前首相の下で短期間創設された技術革新（Innovation）担当の閣僚ポストがなくなったことです。技術革新はアンドリュース大臣のポートフォリオに含まれています。
今期政権の主要課題を生産性向上とする財務相と足並みを合わせ、アンドリュース大臣も担当分野の優先政策課題は、AI 技術に対する豪州のアプローチ決定、財政支出の産業界に対する有効性を高めるための政府調達改革、そして「技術革新・科学に関する国家政策（National Innovation and Science Agenda）」の再考としています。
2018年度の連邦予算で政府は、主にスタートアップ（年間売上が2000万ドル未満の企業に限定）向けに研究開発投資に対する現金還付制度を導入したものの、その額を僅か400万ドルに制限したため、スケールアップ企業の期待は外れテクノロジー産業全体では冷ややかな反応しかありませんでした。
2019/20年度予算案では、 ジョシュ・フライデンバーグ財務相は「未来の産業」を支援すると表明し、医療研究の商業化やゲノム科学研究などの特定分野への財政資金援助を明確にしています。同予算案では、豪州の「医療研究投資計画（Medical Research Investment Plan）」に既存の15億ドルに加え、12億ドルの追加支出も決定しています。これはバイオテクノロジー分野にとっては明るいニュースですが、他のテクノロジー分野にとっては依然として資金源を模索する状況に変わりはありません。研究開発費に関する税額控除制度と継続中のその見直しについても、選挙前も後も政府の公約にはありません。
次の動きは?
予想外の選挙結果を考慮すると、現在は消費者、産業界ともに今後３年間の与野党の動向（両党の協力分野も含めて）を見極めようとしているところです。
Lander & Rogers 法律事務所のチームは、日本人投資家や日系企業の皆様の投資計画策定や投資戦略の準備・遂行、現行業務の見直しや外国投資のスケジュール設定などの面でお手伝いさせていただいております。今回の選挙結果に関しましてご質問や懸念事項などがございましたら、ご遠慮なく当法律事務所の担当弁護士あるいは以下のチームメンバーまでご連絡ください。
「豪州総選挙2019年」過去の連載記事
第1号： 知っておきたい政治動向と政策 | 選挙　最新情報 11 February 2019
第２号：知っておきたい政治動向と政策 | 連邦予算 16 April 2019
Deanna Constable （ディアナ・コンスタブル） – 法人部　エネルギー＆資源、ジャパン・クライアント・グループ議長Hon. Andrew Thomson （アンドリュー・トムソン）– ジャパン・クライアント・グループ顧問Derek Humphery-Smith （デレク・ハンフリー-スミス）- 雇用労働関係、国際部長Alex Ding （アレックス・ディン）- 法人部　エネルギー＆資源Tony Woods （トニー・ウッズ）– 雇用労働関係、 移民ビザJulian Olley （ジュリアン・オリー） 不動産、プロジェクト、インフラストラクチャーMark Lindfield  (マーク・リンドフィールド） 金融サービス、事業保険、退職年金基金向けアドバイスMonique Morgan  (モニーク・モーガン) 法人顧問弁護士     
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A recent Federal Court decision has held that an employee working in two “separate and distinct" part-time roles for the same employer was not entitled to over $195,000 of claimed backpay.
In Lacson v Australian Postal Corporation1, the Federal Court of Australia dismissed an appeal lodged by an Australia Post employee for a considerable sum of entitlements (overtime, rest relief and meal allowances) purportedly accrued over a four-year period.  In dismissing the appeal, Justice Mortimer held that the proper construction of section 52(2) of the Fair Work Act 2009 (Cth) (FW Act) permitted one enterprise agreement applying to two concurrent — but distinct — employment agreements entered into by the same parties.
Background
Mr Lacson was originally employed as a ‘Postal Delivery Officer’ (PDO Role), which involved sorting mail at Australia Post’s Collingwood Post Office.  His hours of work in this role were between 6.00 am to 9.00 am, Monday to Friday.
Mr Lacson subsequently applied for and secured a permanent part-time ‘Postal Services Officer’ (PSO Role), where he sorted bulk parcels at Australia Post’s Melbourne Parcel Facility.  Initially, his hours of work in this role were 3.00 pm to 7.00pm, though this was subsequently increased, at his request, to 3.30 pm to 11.30 pm.
Accordingly, for nearly four years, Mr Lacson would start his day sorting mail in the PDO Role at 6.00 am until 9.00 am in Collingwood.  He would then go home to rest until his shift in the PSO Role at the Melbourne Parcel Facility began at 3.30 pm and ended at 11.30 pm. 
The 2010 Australia Post enterprise agreement (and the replacement agreement in 2013) applied to both the PDO Role and the PSO Role.
Over an approximately four-year period:

Mr Lacson worked with less than a 10-hour break in between his shifts; and
any overtime was calculated only on the total hours he worked in the PSO Role and did not include his three-hour shift as a PDO Role in Collingwood.

It was this unusual mixture of facts that led Mr Lacson to later claim he was entitled to over $195,000 in unpaid entitlements.  The essence of his claim was that Australia Post failed to consider the hours of his multiple roles cumulatively in determining these entitlements. He claimed neither of the enterprise agreements allowed for multi-hiring arrangements and their proper construction supported a cumulative assessment
The first Judgment
At first instance, Judge McNab of the Federal Circuit Court found that Australia Post did not breach the enterprise agreements in failing to aggregate the hours worked by the Appellant in his two "separate and distinct part-time positions which were obtained at separate times". Judge McNab held that the entitlements and hours of each role were separate, and Australia Post was right to not consider them in tandem.
What was the issue on appeal?
Mr Lacson appealed the decision and argued Judge McNab had incorrectly interpreted section 52(2) of the FW Act in failing to consider the PDO Role and the PSO Role as one "particular employment".  Such a construction would mean that Mr Lacson’s two roles must be considered unified for the purpose of calculating his entitlements under the Australia Post enterprise agreement. 
Section 52(2) of the FW Act provides: "[a] reference in this Act to an enterprise agreement applying to an employee is a reference to the agreement applying to the employee in relation to particular employment" (emphasis added). 
Judge McNab had determined that "particular employment" captured separate and distinct roles or positions occupied by one employee in relation to the same employer.
"Particular employment" may cover two roles with one employer
Justice Mortimer carefully considered the terms of section 52(2) of the FW Act, its statutory and curial context, and the inferred purpose of the provision.  In particular, her Honour:

considered other provisions of the FW Act that used the phrase "particular employment";
considered other cases that construed the use of the phrase "particular employment" in the FW Act; and
referred to the explanatory memorandum accompanying section 52.

Ultimately, her Honour held that the proper construction of "particular employment" is to enable the precise identification of an employee’s job or position at any given time.  This construction, in her Honour’s view, was consistent with the text, context and purpose of the provision, as described above. 
As such, s 52(2) of the FW Act allows for one enterprise agreement to apply to two or more discernible jobs or positions occupied by the same employee at differing times.
In summing up her reasoning, Justice Mortimer referred to Mr Lacson’s predicament as being, to some degree, self-imposed.  Her Honour observed that he:
"… found himself performing two different jobs, at two different locations, with two different kinds of work, for one employer, [and this] was a function of choices he had made. It does not appear he made those choices believing, or having it represented to him, that they would be treated as one job and he should secure the considerable additional sums of money he is now seeking. Rather, he appears to have made those choices on the basis … that he had two separate employment arrangements with Australia Post, each one regulated separately by the enterprise agreements."
As a corollary, her Honour also considered that Australia Post acted with integrity and the dual-roles occupied by Mr Lacson was not a "device" implemented by it to underpay him.
Bottom line for employers:

Although somewhat obscured by the systematic and thorough doctrinal analysis undertaken by the Court, Justice Mortimer appears to have been influenced by the view that Mr Lacson was the instigator of his own demise — he had requested the additional overtime hours and applied for a second part-time role at Australia Post. 
Employers should still exercise caution in employing an employee in two (or more) part-time roles to ensure that such arrangements cannot be perceived as devices to avoid paying employees cumulative entitlements under their relevant enterprise agreements.  If care is not taken, this judgment leaves open the possibility that an employer could be exposed to a considerable backpay application by an affected employee.
Notwithstanding the unique facts and decision in this case, an employer is still likely to have difficulty in establishing that engaging an employee to do two jobs under a single instrument is not a device to avoid paying cumulative entitlements or a prohibition on split shifts. 
For such an arrangement to be legally available, the duties performed by the employee in each role should be sufficiently distinct (e.g. different classifications and rates of pay under the enterprise agreement) and each arrangement should be reflected in a separate employment contract.
Employers should familiarise themselves with the terms of any applicable modern award or enterprise agreement, particularly where those instruments contain clauses that require an employee to be classified (and paid) at the highest level of duties they perform or prohibit multi-hiring arrangements.

For many people, the fear of not being able to survive financially prevents them from taking that final step to separate. For others, separation occurs out of the blue, and they are suddenly left without a regular source of income or any earning potential. There are, however, options available.
What is spouse maintenance?
Spouse maintenance includes payments that are made after separation from one spouse to another. This is a different and independent remedy to child support (which is paid for the maintenance of children) and property settlement.
Spouse maintenance applies to married and de facto relationships.
What types of spouse maintenance are available?
There are three types of spouse maintenance orders that can be made by the Court:

Urgent spouse maintenance;
Interim spouse maintenance; and
Final spouse maintenance.

Who is eligible for spouse maintenance?
The Court considers two issues when determining eligibility for spouse maintenance:

Whether the party seeking spouse maintenance has a need for assistance, and is unable to support him/herself adequately. This need may arise if one spouse has been out of the workforce for a significant period of time, either to support their former spouse’s career, to manage the household and care for children, or for any another particular reason; and
Whether the other spouse has a capacity to pay.

Is there a time limit to apply for spouse maintenance?
There is a 12 month time limit, from the date of divorce, for a spouse who has been married to apply for spouse maintenance.
If you have been in a de-facto relationship, the time limit is 2 years from the date of separation.
Applications brought outside these time limits require the Court’s permission. This adds another step to the process, and does not guarantee that permission will be granted.
Does the Court need to be involved?
It is possible to negotiate a Financial Agreement in relation to spouse maintenance without the need for Court Orders.

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The facts2
The appeal 
Lessons for employers: know the workplace surveillance laws that apply to you

The Full Bench of the Fair Work Commission has considered the issue of when illegally obtained workplace surveillance becomes evidence in a case which raises “new and novel issues in the Commission’s unfair dismissal jurisdiction".1
The facts2
Saar Markovitch was employed as the manager of the Bondi Junction Krav Maga gym in Sydney. The gym was owned by Mr Markovitch’s best friend Ron Engleman. Both were previously officers in the Israeli army. The Israeli army teaches and practices Krav Maga which is a martial art/self defence system.
Mr Markovitch was the only full-time employee at the gym, managed the gym, worked as an instructor and, twice a week, conducted classes at another Krav Maga gym owned by Mr Engleman.
Surveillance cameras were installed at the gym and Mr Markovitch was observed, in the respondent’s view, not providing appropriate supervision to his students which created a serious occupational health and safety issue.  
The Small Business Code applied to the gym which provides that:
it is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficientlyserious to justify immediate dismissal. Serious misconduct includes…serious breaches of occupational health and safety procedures.
Mr Markovitch’s employment was terminated summarily on 21 May 2018.
As the Gym was in New South Wales, the NSW Workplace Surveillance Act 2005 (NSW) (Surveillance Act) applied. The Surveillance Act requires that an employee be given at least 14 days’ notice prior to workplace surveillance commencing and, in the case of camera surveillance, there must be signs notifying employees that they may be under surveillance clearly visible in each entrance.
Mr Engleman gave evidence that he had not said anything to the employees about his ability to watch the gym from an external location nor had he told the employees that they could be subject to disciplinary action as a result of what was captured on the surveillance cameras.
Mr Engleman also gave evidence that Mr Markovitch knew that the cameras were going to be installed because he had authorised the payment but that they were installed while Mr Markovitch was overseas. Mr Engleman also said that the cameras were primarily installed  for the protection of employees and students, all of which the Commission took into account.
Mr Engleman told the court that signs notifying employees that video cameras were operating were posted in the gym but did not produce any evidence of this. The Commission accepted Mr Markovitch’s evidence that such signs did not exist.
Having regard to all of this, the Commission found that:
The Respondent’s decision to terminate the Applicant was based on evidence obtained from the CCTV recordings of the gym. These recordings were not conducted in accordance with the NSW Workplace Surveillance Act 2005. This means that the recordings were obtained illegally. As a result, the Respondent has no evidence to infer that a serious safety incident has occurred. Therefore, the provisions of the Small Business Code have not been met.3 
The appeal
Mr Engleman appealed the decision. The Full Bench stated that this case raised ‘new and novel issues in the Commission’s unfair dismissal jurisdiction’.4
The Full Bench held it was arguable that the Commission had answered the question of ‘whether the CCTV footage had been obtained illegally under the Surveillance Act’5 rather than ‘whether the appellant had a belief on reasonable grounds that the respondent’s conduct was sufficiently serious to justify immediate dismissal’.6
The Full Bench also noted that the Commission has powers to inform itself in any manner it considers appropriate and that it was not bound by the strict rules of evidence. The Full Bench went on to state that while the Evidence Act 2008 (Cth), which includes a discretion to exclude improperly or illegally obtained evidence, was ‘a useful guide’, it ‘would not ordinarily be strictly applicable to matters before the Commission’.7
The Full Bench granted Mr Engleman permission to appeal. Watch this space!
Lessons for employers: know the workplace surveillance laws that apply to you
This case does not exactly provide a deterrent for employers from using illegally obtained footage (as the footage may ultimately be allowed to be admitted into evidence) and the Full Bench highlighted the statutory flexibility the Commission has in the evidence it considers.
However, to avoid the risk of losing an argument about illegally obtained evidence (and any other legal consequences related to workplace surveillance!) employers should know, and comply with, the surveillance laws that apply in the state or territory in which they operate.
Specific workplace surveillance laws only exist in New South Wales, the Australian Capital Territory and Victoria:

the Workplace Surveillance Act 2005 (NSW) which applies to computer surveillance, camera surveillance and tracking surveillance of employees;
the Workplace Privacy Act 2011 (ACT) which applies to optical devices, tracking devices and data surveillance devices of employees; and
the Surveillance Devices Act 1999 (Vic) which makes it an offence to use an optical device or listening device to carry out surveillance of the conversations or activities of workers in workplace toilets, washrooms, change rooms or lactation rooms.

Elsewhere is Australia, surveillance in the workplace is subject to general laws that  apply to the use of surveillance devices.
In the event that an employer wishes to conduct lawful surveillance of employees we recommend seeking advice about how the specific laws in the relevant state apply to the type of surveillance they wish to conduct.
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Quick Links

What role did the Applicant play?
The Facts
Was there a mutual intention to contract?
What are the implications of this decision?
Inconsistent Case Law
A note on for-profit businesses

The recent decision of Wieland v Return to Work1 confirms that volunteers can be considered employees and attract the relevant employee protections.
The South Australian Employment Tribunal (SAET) has found that a volunteer coach with Basketball SA was in fact an employee and therefore entitled to compensation for an injury she suffered in the performance of her duties.
What role did the Applicant play?
The SAET noted that the Applicant, Ms Lynette Wieland, had a long association with the sport of basketball and performed a range of roles for Basketball SA.  Analysing the engagement, Deputy President Judge Gilchrist concluded that the Applicant had “four distinct relationships" with Basketball SA, namely:

a referee coordination role that involved rostering referees, referee coaches and court supervisors for basketball matches;
referee coach and court supervisor roles (which she frequently rostered herself on to perform); and
the role of Score Table Commissioner.

The Applicant received a fixed payment  of $500 as an "honorarium" per-season in relation to each role. 
As a referee coach, the Applicant also received payment of $15 per game for junior games and $20 per game for senior games.  She also received $12 per hour plus $1 per game in her capacity as court supervisor and it was noted  by the Tribunal that she would supervise multiple games at any one time.  These payments were made to the Applicant in cash.  No tax was withheld and the Applicant did not declare any of the money as income for taxation purposes.
The Facts
On 15 November 2017, the Applicant attended at the Titanium Security Arena to participate in a quarterly meeting of the Commissioners.  She had rostered herself on as a referee coach for the evening and was due to commence in that capacity after the meeting.  However, the Applicant fell and suffered an injury as she walked from the meeting to the entrance of the arena. 
The Applicant asserted that this was a compensable injury under the Return to Work Act 2014 (SA).  Therefore, the relevant question for the SAET was whether the Applicant was injured "in the course of employment".  To prove she was not just a volunteer,  the Applicant was required to demonstrate that there was a mutual intention between the parties to create a legally enforceable contractual relationship.
Was there a mutual intention to contract?
In undertaking an analysis of the Applicant’s engagement, the SAET had regard to the High Court’s decision in Ermogenous v Greek Orthodox Community of SA Inc2 where the Court stated that the search for the intention to create legal relations requires an objective assessment of the state of affairs between the parties.  It was therefore not decisive that Basketball SA had characterised  the Applicant as a "volunteer".
After examining several further authorities concerning the employee/volunteer distinction, the SAET noted that Basketball Australia is a not-for-profit organisation of the kind that "would be expected to attract and be supported by volunteers".  However, Justice Gilchrist continued, "Basketball SA does not rely exclusively on volunteers.  It employs people."
With respect to the Referee Coordination and Score Table Commissioner roles, the SAET concluded that the Applicant was "acting as a genuine volunteer" and the honoraria that she received for  those positions were "genuinely gratuitous and were not intended to be a quid pro quo for the work done". 
Conversely, in the roles she performed as a court supervisor and a referee coach, there was a direct correlation between the amount paid and the work performed.  Moreover, according to Justice Gilchrist, those amounts were "not trifling".  The work was regular and, although modest, the payments bore a resemblance to a casual rate of pay.  Significantly, the SAET concluded at [14]:
I do not think that when Ms Wieland worked for Basketball SA as a referee coach and a courtsupervisor she did so just for the love of the game. Her performance of these duties involved a regular and serious incursion into her own leisure time. I think she expected to be paid for it and although Basketball SA might not have believed that it was contractually bound to do so, I think it felt obliged to pay her as a quid pro quo for the work that she did.
Therefore, in accordance with the objective theory of contract, the SAET concluded that a "mutual intention to create contractual relations" existed between the parties.  When she fell and suffered an injury, the Applicant was performing work pursuant to a contract of service as a referee coach and was entitled to compensation under the applicable legislation.
What are the implications of this decision?
While this decision concerned the Applicant’s eligibility to receive compensation under the South Australian workers’ compensation regime, the Tribunal’s findings may have broader implications for other not-for-profit organisations and the categorisation of individuals who provide their services on a "voluntary" basis.  This is because there is no statutory or other binding definition of volunteer, such that courts and tribunals must have regard to the decided cases in arriving at a concluded view.
At a high level, the usual features of a voluntary relationship may be summarised as follows3:

a person enters into any service of their own free will, or offers to perform a service or undertaking for no financial gain;
the commitments shared between the parties are usually considered moral in nature, rather than legal; and
payments or benefits unrelated to hours of work or the actual performance of work will not normally by themselves imply that a person is an employee.

Overall, the payment of an hourly rate that resembled a casual rate of pay would appear to have been determinative in this matter. 
Inconsistent Case Law
There is  an unsatisfactory lack of coherence in the decided cases, which is further complicated by determinations such as the Australian Taxation Office’s Class Ruling 2012/35.  In that ruling, the ATO concludes that football umpires engaged by AFL Riverina Incorporated who receive a travel allowance and match fees not generally exceeding $155 per game are "hobbyists" (rather than employees) whose income is not assessable for income tax purposes. 
The Victorian Civil and Administrative Tribunal decision in Eastern Football League v Commissioner of State Revenue (Taxation)4, which determined that the relationship between the league and its umpires was not one of employer/employee, further muddies the waters.  Neither of these decisions, nor the 2016 Fair Work Commission decision of Grinholz v Football Federation Victoria5 finding that a coach in receipt of a $6,000 per-season honorarium was a legitimate volunteer, were considered by the SAET.
Steps you can take to protect your organisation
The common law recognises that a great deal of voluntary work is performed for community, charitable or sporting organisations with no thought of any legal relations being created.   With that in mind, not-for-profit organisations can take additional steps to protect themselves when engaging volunteers, including by:

the use of volunteer "agreements" that define the relationship as a voluntary one (though this will not be determinative);
formulating the amount of an honorarium as an amount to subsidise the cost of participation in the activity (e.g. travel, the need to purchase equipment such as a uniform, etc.) and without reference to hours of work; and
making payments of any honorarium as a lump sum rather than periodically.

A note on for-profit businesses
For completeness, the circumstances in which a for-profit business can use volunteers are far more confined than for  non-profit organisations. Generally, such arrangements are not lawful unless they form part of a genuine vocational placement or are otherwise intended to provide a learning experience to the volunteer, eg school students undergoing work experience.  The performance of productive work for a for-profit entity, particularly over an extended period, will almost always denote the existence of an employment relationship.
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The incumbent Liberal-National Coalition Government scraped over the line to claim election victory, which very few had predicted based on the polls. Plenty has been said in the media about the reasons why the Australian Labor Party (ALP) lost the “unlosable" election, but two factors proved to be key:

Firstly, the ALP’s anti-growth agenda of wealth redistribution, higher taxes, and more regulation was complex and rejected by the large, older demographic who hold a large portion of the country’s assets, as well as the aspiring middle class who want to own the same assets in the future.
Secondly, the "Queensland factor" was not well managed by the ALP, with conflicting messages about the Party’s commitment to the Queensland mining sector and little hope given to the mining workforce about their alternative future.

Now that both sides of politics have recovered from the election frenzy and have announced their senior ministerial (and shadow ministerial) positions, in this, the third and final instalment in our Australian Election Insights series, we look ahead at what the next three years of Federal policy might mean for foreign investors in Australia. If you missed them, you can read our full Australian Elections Insights series here.
Quick Links

Federal Government
The policies that impact most on foreign investors in Australia
Workplace law policy
Energy and emissions reductions
Coal
Transport infrastructure
Banking and financial services
Immigration and visas
Research and Development
What next?
Further information

Federal Government
Prime Minister Scott Morrison will continue to lead the country for the next three years and he seems determined to use the ‘credit’ he has gained from his surprising win to stay in the role until the next election. Mr Morrison has left key top-line ministerial positions unchanged — Treasurer, Finance, Employment, Infrastructure, Resources, Energy, Foreign Affairs, Home Affairs, Attorney General, Immigration, Trade, and Science and Technology — which is expected to stabilise Australian politics after years of change in Federal leadership.
On the other hand, and relevant to foreign investors, there are new ministers in the following key positions:

Industrial Relations – the Attorney General, Christian Porter (himself a lawyer), will hold this portfolio, signalling how complex the underpinning legal regime is in Australia
Emissions Reduction – the Energy Minister, Angus Taylor, is picking this up, thereby logically combining the twin stars of energy and greenhouse emission policy
Environment – Sussan Ley takes this role, giving the government a ‘fresh start’ on environmental topics following her predecessor Melissa Price’s announcement (unpopular to many outside of Queensland) of the Federal Government’s approval of the Adani project just prior to the election.

On the opposition side of the chamber, the ALP has also announced its shadow ministry and has drawn a line through a few policies already, which we cover in this bulletin.
With the ministerial positions on both sides settled, the government’s focus has now turned to building up some detail on the key platforms of its campaign — economic management, energy policy, and infrastructure.
At the macro level, the Treasurer, Josh Frydenberg, has announced that his focus will be on two things:

Delivering on the growth measures announced in the government’s pre-election budget, including $158 billion in income tax cuts (but not for companies) and an infrastructure program costing $100 billion; and
Labour productivity enhancing reforms through improved skills programs, innovation, and cutting red tape.

 
The policies that impact most on foreign investors in Australia
1.   Workplace law policy
Leading up to the election, Prime Minister Scott Morrison indicated that there will be no further reforms to Australia’s industrial relations system. Consistent with this, the new Industrial Relations Minister has identified that only procedural, not structural, changes are needed to increase the efficiency of the current system, particularly in the creation of enterprise agreements. He has foreshadowed some intensive stakeholder consultation will take place over the first couple of months prior to taking any action.
A significant question is whether more radical action may be taken to assist the static economy. The Head of the Reserve Bank has identified the need for wages growth to fuel the economy. The government has not taken any direct action in this area to date, and is unlikely to do so now. The productivity agenda, which the Treasurer announced earlier this month, indicates a need to consider workplace reforms that could generate improved business performance, which could result in increased job opportunities and wages. This call for discussion does not indicate that any significant industrial relations changes are likely to be seen in the Government’s three-year term.
2.   Energy and emissions reductions
Post-election, Angus Taylor continues as the Minister for Energy, with Emissions Reductions being added to his portfolio. This makes sense given that energy and the shift to renewables offers the clearest and cheapest path to emissions reduction — electricity generation is the largest source of emissions in the national inventory of emissions at 33.2% (year to December 2018).
There are two key and opposing forces in this area — reducing domestic energy prices and meeting community expectations on climate change action.
Reducing domestic energy prices for Australian business and families is an important strategy for the government if they are to win the next election, and Mr Taylor has publicly promised to work on this. His proposed tools are:

Increasing supply and competition in the market to improve reliability and price, including by:

signing contracts with 12 projects that have been shortlisted for government’s support, such as the Snowy 2.0 expansion in NSW;
the potential of underwriting more hydro power in Tasmania; and
holding a feasibility study into a new coal-fired power station in north Queensland.

Achieving reasonable wholesale prices by legislating price benchmarks that would commence on 1 July 2019.

The government is continuing to progress its pre-election energy policy, including its push for "big stick" legislation that could allow the government to force divestment by energy companies found to be engaging in anti-competitive behaviour and failing to pass on price reductions to consumers. This legislation would also allow the Government to force gas exporters on the east coast of Australia to increase supply and lower the price of gas by diverting more resources for domestic consumption. It is still unclear if this legislation will be passed after ALP and the Green Party indicated earlier this year that they would block it — a move that was strongly supported by the energy industry. Since the election, the ALP opposition has made it clear that it will not support, directly or indirectly, the government’s proposed lower emissions reduction targets, making it difficult to get their support for price reduction policies that don’t also involve emissions reductions.
On climate change/emissions reductions, the government set an underwhelming target for Australia — to reduce carbon output by 26% below 2005 levels by 2030 — which attracted much criticism during the election. The government continues to point out that there are trade-offs between the energy cost, energy reliability, and emission reduction. Emissions reductions at high cost is likely to be an unpopular policy at the domestic level. Further, Mr Taylor has a history of advocating against wind and solar farms, arguing there are too many in the system to ensure reliability. Instead, the government continues to advocate for and invest in hydro-electricity schemes, and it is not yet clear whether it will change its policy and provide government support for other renewable energy sources over the next three years. Meanwhile, the state governments are expected to continue with their own renewable and storage investment priorities.
Mr Taylor will face intense pressure to do more on climate change or to at least give it greater weight when balancing up the three trade-off factors: cost, reliability, and emissions. The emissions data released earlier this month shows a continued increase in Australia’s emissions, including a big jump in the December 2018 quarter, and the Government is under pressure to acknowledge and address this statistic. A significant test will come at the UN Climate Change Summit in September 2019. The government’s response at that time will give a strong indication as to whether it is prepared to accept a more robust approach to emissions reduction and, consequently, the energy mix. At the moment, the government has set the renewables part of the energy mix target at 23.5% by 2020.
For now, Mr Taylor is seeking to achieve most of the targeted emissions reductions by continuing to support the government’s Emissions Reduction Fund, newly renamed as the "Climate Solutions Fund". The Fund targets a wide range of emissions reduction projects, including in the agricultural, energy efficiency (but not energy generation), mining, and waste sectors, with a "low cost" approach in mind.                                                                                              >top
3.   Coal 
Unmissable in any climate change discussion is the question of the role that coal should play in the energy mix.Matthew Canavan, who remains as the Minister for Resources and Northern Australia, has promoted the government’s support for the coal industry, particularly for a new coal-fired power station in Queensland and the continued investment in coal-fired power. It is worth noting that the Minister’s electorate is in Queensland and he has recently rejected calls for a carbon tax on the basis that it would hit his own central Queensland region hardest. He is not a fan of "the polluter pays" principle, preferring all taxpayers to bear the cost of reducing carbon emissions given that all Australians benefit from the use and development of coal-fired power. He sees the Climate Solutions Fund, described above, as a fairer response.
Since the election, Mr Canavan has come out strongly to defend the resources sector. It is clear where he sits on the issue of the future of coal in the Australian energy mix.
Noting that the ALP’s election defeat is widely blamed on the party’s lack of support for the coal industry, especially in Queensland, some ALP ministers have now recognised the continued importance of coal to the Australian economy, particularly in light of expected increases in global demand for coal. Even so, the reliance on coal remains a hot political issue — while early signs seem positive for the coal sector under the current government, nothing is certain.
4.   Transport infrastructure
Heavy infrastructure spending was promised by both major parties leading into the election, and the Treasurer has already signalled, post the election, that big infrastructure spending will be a key part of his growth agenda. This is not surprising given that annual economic growth fell to a nine-year low of 1.8% in the year to 31 March 2019. Indeed, the government is now examining how quickly it can bring forward some of the intended public infrastructure projects in order to fill the gap. That said, the state premiers in Victoria and New South Wales have quickly claimed that the decision on infrastructure priorities is a state matter — the government may not, therefore, have the ability to unilaterally drive the infrastructure agenda in a way that meets its federal-level objectives.
The government’s pre-election infrastructure program was more heavily weighted towards road infrastructure ($27 billion) than public transport such as passenger rail ($13 billion). However, the urgency for the government to accelerate infrastructure projects is expected to result in the small-to-medium projects (roads, railways, and local community infrastructure) coming to market before the longer-term, larger-sized projects. It may be that the large foreign investors, who have long supported the mega projects, will need to be patient. The scheduling of projects is signalled by the government’s independent adviser, Infrastructure Australia. It published a priority list of infrastructure projects in February 2019, but it is expected that the ordering of the list may change due to the soft March quarter growth numbers.
5.   Banking and financial services
The market reacted well to the Liberal-National Coalition Government’s win at the election, with the share prices of the big four banks adding $33 billion in the first two days post-election. In part this may have been a sigh of relief after having assumed an ALP win would have negative effects due to its wealth re-distribution policies, such as its proposed $120 billion in changes to superannuation, negative gearing, and dividend imputation.
It is expected that the government will now commence the task of implementing the recommendations from the Hayne royal commission into the financial services sector. Much will focus on improving the financial advice sector — both to remove the conflicts for advisers and to ensure that quality financial advice is priced so that it remains accessible to all Australians. The industry is keen to help shape the proposed reforms and manage their impact through close consultation with the government.
The superannuation industry is also expected to be a priority, with the Government likely to announce a review of the entire $2.7 trillion superannuation industry.
6.   Immigration and visas
Following the election outcome, it is expected that we will see no substantial change to immigration policy. The government went into the election with a proposed decrease in the permanent migration program ceiling by 120,000 over four years. This policy actually aligns with the current visa approval rates, therefore it reflects a no-change outcome.
There will be a continued emphasis on regional work locations for future visa applicants, reflecting the desire to reduce migration to the major cities of Sydney and Melbourne. The barrier to visa status for refugees who arrive by boat, as opposed to these that arrive by plane, will continue along with compulsory off-shore processing. The government has foreshadowed an attempt to repeal the medical transfer law for ill refugees located in off-shore processing centres.
For Japanese companies seeking to transfer Japan-based employees to Australia, the existence of the Trade Agreement between Australia and Japan — the Japan-Australia Economic Partnership Agreement — continues to support these transfers for four years without having to meet the labour market testing requirements.
7.   Research and Development
In the R&D sector, Karen Andrews has been reappointed as Minister for Industry, Science and Technology. Notably, there is no separate Innovation Minister, which was fleetingly a ministerial position while Malcolm Turnbull was Prime Minister. Innovation is subsumed into Ms Andrews’ portfolio.
Aligned with the Treasurer’s productivity agenda for this term of government, Ms Andrews has said that the government’s policy priorities will be: Australia’s approach to AI capability, procurement reform to improve the outcomes of government spending for the industry, and the reconsideration of the National Innovation and Science Agenda.
In the 2018 Federal Budget, the government introduced a somewhat meagre $4 million cap on research and development cash refunds, which was targeted at the startup sector (made available only to companies with an annual turnover of less than $20 million), leaving the scaleup sector feeling a little cold, and the wider tech industry positively chilled.
In the 2019/20 budget, Treasurer Josh Frydenberg said that the government is “backing the industries of the future” and laid out specific funding allocations for medical research commercialisation and genomics research. The budget committed an additional $1.2 billion to Australia’s Medical Research Investment Plan, on top of the existing $1.5 billion investment. This is good news for the biotech sector but leaves other sectors still searching for support. The government has not made any promises about R&D tax incentives, or the ongoing review into the scheme, neither before or after the election. 
What next?
Given the surprise outcome of the election, both consumers and industry are keenly watching both sides of politics for signs as to how they will engage (and how much cooperation there will be) over the course of this next three-year term of government.
Our team at Lander & Rogers can assist in planning for and implementing the strategies necessary to position your investments, consider your existing operations, or set the timeline for foreign investment activities. If you would like to discuss any issues that the election outcome has raised for you and your organisation, please get in touch with your usual contacts at Lander & Rogers or one of our team listed below.
Previous editions of the Australian Elections Insights series
Edition No. 1 | The politics and policies that you need to know – 11 February 2019Edition No. 2 | Elections and the 2019/20 Federal Budget – 16 April 2019 
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Background to Masson v Parsons
In this case, the appellant, Mr Masson, provided his semen to the first respondent, Ms Parsons (with whom he had been friends for many years), to facilitate artificial conception of a child. Mr Masson did so on the understanding that he would be the child’s parent, be registered on the child’s birth certificate as a parent, and support and care for the child.The child was born and lived with Ms Parsons and her female partner. However, Mr Masson was registered on the child’s birth certificate, he had an ongoing role in her financial support, health, education, and general welfare, and he shared an extremely close relationship with the child. Therefore, when Ms Parsons and her partner sought to relocate from Australia to New Zealand with the child, Mr Masson responded by issuing proceedings in the Family Court of Australia seeking parenting orders.
The Primary Judge’s decision and subsequent appeals
The Primary Judge found that Ms Parsons and her partner were not in a de facto relationship at the time of the artificial conception, and that Mr Masson was the child’s legal parent. The Primary Judge came to this conclusion because Mr Masson provided his sperm on the belief that he would take on the responsibilities of parenthood, and also took into account that Mr Masson is the child’s biological father. The Primary Judge’s Orders provided for Mr Masson to spend extensive time with his daughter, restrained Ms Parsons and her partner from relocating with the child to New Zealand and required Ms Parsons and her partner to consult Mr Masson before making long-term decisions regarding the child.Ms Parsons and her partner appealed the Primary Judge’s decision. On appeal, the Full Court of the Family Court held that sections 14(2) & 14(4) of the Status of Children Act 1996 (NSW) (State Act) applied, and therefore, as Mr Masson was neither married to nor in a de facto relationship with Ms Parsons, he was presumed not to be the child’s father. Section 14(2) of the State Act provides that: “If a woman (whether married or unmarried) becomes pregnant by means of a fertilisation procedure using any sperm obtained from a man who is not her husband, that man is presumed not to be the father of any child born as a result of the pregnancy". Section 14(4) of the State Act then states that such a presumption is considered to be irrebuttable.
Mr Masson then appealed the Full Court’s decision, and the Attorney-General of the Commonwealth and the Attorney-General of Victoria intervened in the proceedings. Upon appeal, the High Court held that sections 14(2) and 14(4) of the State Act did not apply. The High Court ruled that Mr Masson is a parent of his daughter, as the primary judge concluded, and made Orders which, in effect, reinstated the Orders made by the Primary Judge.
Being a parent under the Family Law Act
Many consequences flow under the Family Law Act from the finding that a person is a parent of a child, including:

each of the parents of a child have parental responsibility (all of the duties, powers, responsibilities, and authority which, by law, parents have in relation to children) for the child;
when making a parenting order, a Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility;
if a Court makes an order for the parents to have equal shared parental responsibility, the Court must then consider making either an order for the child to spend equal time, or failing that, substantial and significant time with each parent; and
when making a parenting order, a court must treat the child’s best interests as paramount, and in doing so, must consider "primary considerations" and "additional considerations". Some of those considerations only apply to a person who is a "parent". For example, the first "primary consideration" is the benefit to the child of having a meaningful relationship with both of their parents.

When to seek advice
This is a complex area of law and we recommend you seek legal advice if you are uncertain regarding your status as a parent or other person concerned with the care, welfare and development of a child.

Each year in May, the Big Apple is descended upon by bitcoin-traders, cryptographers and emerging technology lawyers for Blockchain Week NYC. The week-long blockchain festival is anchored by 3-day headlining conference, Consensus, held at the Hilton Midtown.
Blockchain: a maturing industry
Those who attended Consensus in 2018 noted a few key differences between last year and this year, which tell us a lot about where the industry is at. First, the number of attendees halved. This is at least partly a symptom of a 12-month cryptocurrency bear-market (which finally turned around in the leadup to Consensus).But perhaps a more insightful observation was the change in audience. The t-shirt and sneaker-wearing crypto traders had been replaced by business men and women in suits. While suits are not always an exciting sign, in this case they are an indicator of a maturing industry, which is a very good thing.
Latest trends
Consensus is so varied in content and participants that you can practically find a discussion or demo on anything you want, from the most obscure research in cryptographic models to the latest off-the-shelf, plug-in-and-go blockchain products from the world’s biggest software providers. However, there were some recurring themes and trends over the course of the conference worth our attention:
Regulation of cryptocurrency
There was plenty of content for us lawyers to get excited about with regulation of crypto being a key topic of discussion. Over the course of the week we saw the full remit of views from legal providers, industry and regulators. The strong sentiment remains that the current approach of trying to regulate blockchain technology (or at least cryptocurrency) using legacy regulatory frameworks — for example, the Howey test to answer the question of whether an investment in an ICO invokes securities laws1 — is unworkable and holding the industry back. Clearly, introducing new regulatory frameworks that are fit for purpose for blockchain technology is no small task. It will require strong understanding, advocacy, and leadership for blockchain within the legislature.
Blockchain-as-a-Service
The blockchain for enterprise space is fertile hunting ground. Traditionally, when it comes to fundamental emerging technologies some of the biggest winners are those who can bring fully-managed software solutions to market for the enterprise space. It happened with cloud computing, it’s happening with machine learning, and if a wander around the showroom floor at Consensus is anything to go by, blockchain could be heading down a similar path. Who is in the arms race? Think Microsoft Azure, Amazon (AWS), IBM, Google, and Oracle.
Security Token Offerings (STOs)
STOs are the industry’s answer to 2017’s brutal wave of Initial Coin Offerings (ICO). ICOs were the issuance of tokens for usage within an application. The argument went that the tokens were utilities for the network, not securities, and thus did not need to adhere to security laws. An STO is an offering of a digital asset which is asset-backed and fully compliant with regulation. The asset could be anything from a bond to a stock or a piece of real estate. One of the interesting things about security tokens is that the legal regulation is baked into the protocol —for example if a security is only to be offered to accredited investors, the token is coded so that it cannot be sold or transferred to non-accredited investors.
Governance
Blockchains are open networks by design. Even permissioned (sometimes called ‘private’) blockchains usually have participation from at least three entities. In a decentralised environment where there is participation from more than one entity, having strong and clear governance processes becomes crucial. More and more we are seeing consortium models used for blockchain projects in the enterprise space — often where the participants or owners of the consortium are traditional competitors. In this case, getting the governance of the network right is paramount to the longevity of the project.
DeFi
Some blockchain commentators have called 2019 the year of DeFi. DeFi (decentralised finance) is the deployment of traditional financial instruments on decentralised networks. Think borrowing, lending, hedging, leveraging and collateralisation… in a peer to peer environment with no bank or financial institution in the middle. An example of a DeFi app gaining some traction is Dharma — a crypto lending platform that allows debtors and underwriters to connect and create crypto loans. DeFi is a step towards re-architecting the banking system in an open environment, and is producing some fascinating innovation.
What’s next for blockchain?
The take-aways from Consensus were promising. A lot of the hype around blockchain has come and gone. What we have left is a growing industry full of intelligent and highly skilled people that believe in the technology and are focused on building out the infrastructure needed to make it work.The next two to three years will be critical for blockchain as a lot of projects are taken from pilot to production. Success will ultimately come when the technology becomes ubiquitous and consumer facing applications reach mass adoption.
This article was written by Joshua Butler. Josh is a lawyer in the Lander & Rogers Corporate team and he is Chair of Lander & Rogers’ Blockchain Working Group.