What does the restaurant booking you just made, your tenancy application, and the latest app for your customers all have in common? Personal information and privacy.
Privacy and data breaches are hot topics here and overseas.
On 8 July 2019, the UK Information Commissioner announced its intention to fine British Airways a record £183.39 million (or A$329million) for a serious data breach under the EU General Data Protection Regulation (GDPR), where details of passengers’ credit cards, travel details and other personal information were stolen by use of a fraudulent website imitating the British Airways website. The UK Information Commission said a variety of information was compromised by poor security arrangements at the company.
So far, while fines of this magnitude have yet to be levied in Australia (the highest damages awarded being $60,000) there are proposals to increase the fines to align with those under the GDPR; see Future Developments below.
Moreover, the Office of the Information Commissioner (OAIC) now has an expanded role under the Notifiable Data Breach (NDB) scheme, which mirrors the mandatory data breach reporting requirements under the GDPR. The NDB scheme is over one year old. In the first 12 months, 964 data breaches were reported, many caused by human error.
Prior to the NDB scheme businesses were not required to report when personal information was lost or stolen. Given the value of this information, the introduction of the scheme was long overdue in order to incentivise businesses to take privacy seriously and protect individuals.
Although a year has passed, many businesses are unprepared, and worse, many are yet to properly consider their privacy and data protection obligations. Sound familiar?
Privacy and Data Protection Framework
For most people, ‘privacy’ is any information about them as an individual; but ‘what is private’, and what is subject to privacy laws, can be different.
When we speak of privacy or data protection, we are usually referring to the rights and protections an individual has under the Privacy Act 1988 (Cth) (Act). The Act covers all individuals in Australia and how their personal information is treated by government, companies, sole traders and associations including large charities. The Act also deals with the protection of an individual’s credit information which will be the subject of a separate article.
The Act includes 13 Australian Privacy Principles (APP). These govern how personal information is collected, held and used; disclosed; requirements for sending information overseas; and information security. There are additional requirements for ‘sensitive information’ (health data, race, religion, sexual preferences, etc) and for Government Identifiers (e.g. Medicare or Tax File Numbers).
Small businesses with less than $3m in annual turnover and individuals are exempt from the Act, but they can still suffer a loss of goodwill or reputational damage due to a disregard for privacy.
Personal Information – the Heart of Privacy
‘Personal information’ is a key concept for privacy and data protection, defined as:
…information or an opinion, whether true or not, and whether recorded in a material form or not, about an identified individual, or an individual who is reasonably identifiable.
This includes a person’s name, signature, addresses, contact number, date of birth or bank account details.
If your business is not exempt, then it must have a privacy policy. This policy must set out how you handle personal information, be clearly expressed, be up-to-date, and contain seven key pieces of information reflecting the APPs. The policy must also set out the kinds of personal information, and how this information will be collected and held.
A core feature of the APPs is fully informed consent. Several of the APPs require consent to either allow or prohibit personal information to be used in a particular way.
Valid consent requires that the consent be current and specific. The individual giving consent must be:

adequately informed beforehand;
doing so voluntarily; and
able to understand and communicate their consent.

If you have invalidly obtained consent and disclosed an individual’s personal information to a third party, you may have a Notifiable Data Breach.
What about Notifiable Data Breaches?
The NDB scheme requires entities to report data breaches. A breach occurs any time personal information is lost, inappropriately disclosed, or accessed by an unauthorised source. This includes if you lose the data (leaving a USB of customer data on the bus), the data is incorrectly disclosed (misfiring an email containing personal information), or your systems are breached by a third party.
If you suspect a breach has occurred, you must determine:

How the breach occurred;
what personal information, if any, has been accessed or disclosed;
whether the breach is likely to result in serious harm; and
whether this risk can be remedied.

If serious harm is likely and the breach cannot be remedied, the OAIC and the affected individual must be notified. ‘Serious harm’ is a wide-ranging concept and includes the risk of identity theft, financial loss, reputation damage, humiliation, damage to relationships and so on.
Failing to report a breach attracts significant penalties, but there is no penalty for the breach itself.
Why does Privacy Matter?
Serious or repeated privacy interferences can result in significant penalties. The OAIC can impose penalties of up to $420,000 per breach. This does not include any reputational loss you might suffer.
An investigation by OAIC may result in the Information Commissioner requiring an enforceable undertaking, making a determination, seeking an injunction, applying to a Court for a civil penalty, or compelling an entity to make a notification under the NDB scheme.
The OAIC takes a dim view of interferences of privacy which demonstrate that an entity is not taking its privacy obligations seriously. For this reason alone, privacy should be a prime consideration in any business risk assessment.
Can an Individual Sue for a Data Breach or a Privacy Interference?
An individual may complain to the OAIC about an interference with an individual’s privacy (including a data breach) but cannot sue under the Act for a breach of their privacy. The OAIC may choose to investigate a complaint or a privacy matter of its own volition.
Complaints to the OAIC are dealt with by confidential conciliation, with the OAIC acting as an independent conciliator, and as such the outcomes are not made public. However, the outcomes agreed between the individual and the organisation have included: an apology, changes to a respondent’s practices or procedures, compensation for any loss (such as a payment of money or a waiver of fees), or other non-financial options such as the provision of a free service from the organisation. These outcomes can be notional, but they can also be costly for organisations if many individuals are affected or significant changes to the organisation’s business practice are required.
Unfortunately for individuals, Australian Courts are yet to recognise a tort of privacy, and several judgments have suggested such a tort is unlikely to be recognised by the Courts without new legislation  (see Kalaba v Commonwealth of Australia (per Heerey J); Chan v Sellwood (Per Davies J); Sands v State of SA (per Kelly J).
Aside from the OAIC complaint process, individuals have limited legal remedies available.
Traditional torts such as trespass to property, negligence and the equitable remedy of breach of confidence are available, but these torts operate in specific circumstances (for example to prevent photos or video recorded on private property being disseminated) and were developed before the digital information sharing era. Negligence is a logical choice for individuals, but difficulty arises in showing a causal link between the act and the damage or loss caused. These torts do little to assist an affected individual with the disclosure of their personal information via information systems.
Practical Effect of the NDB Scheme
Two new features of the NDB scheme will assist an individual wishing to bring a claim against an entity, these being:

Notice – now that an individual must be notified of a breach, they can seek advice on their options and consider remedial action (this could be legal, or it could be simple safeguards such as changing passwords); and
A paper trail – the assessment undertaken prior to giving notice is likely to be of interest in any legal proceedings. Affected individuals may seek to subpoena this information if they believe it would support their claims in Court.

In any complaint or legal proceedings, damage would still need to be proven, but the combination of notice and a new source of evidence may mean affected individuals have an easier time in supporting such claims.
Class Actions
Where several individuals have been wronged, they might consider joining a class action. The problem for privacy-based class actions in Australia is that there must be a cause of action to ground the class action. As there is no tort of privacy or ability for an individual to sue under the Privacy Act, a class action would need to rely on a traditional tort or a breach of other legislation to ground such action.
However, the Privacy Act does allow for individuals to band together to make a ‘representative complaint’ to the OAIC. A representative complaint is essentially where multiple individuals have suffered the same privacy breach and seek the same outcome as a group – similar to a class action.
In the USA and other countries, class actions for data breaches are quite popular (see the Yahoo Data breach and class action) due in part to the different actions available to individuals, and different rules governing class actions in those countries.
In Australia, Centennial Lawyers filed a class action against the NSW Ambulance Service on behalf of staff whose personal information was sold by a third party contractor. Centennial Lawyers is also exploring the possibility of a class action against recruitment and development platform PageUp regarding the well-publicised breach of its systems and the disclosure of information to a third party (rumoured to be a foreign State actor and perhaps prompting this statement by the Australian Signals Directorate).
The NSW Ambulance case is of particular interest in that Centennial is attempting to ground the class action claim on among other grounds tort of invasion of privacy. If they are successful in establishing a tort of an invasion of privacy, then this will open a new avenue for individuals to seek redress.
This case is a reminder that privacy breaches can have a long lead time (here, dating back to 2013) and the associated risk can last well into the future. It also highlights the need for safeguards when contractors perform work on your behalf and how they deal with personal information you have collected.
The PageUp incident highlights the need to have appropriate precautions against external threats. Should this matter proceed, it is likely to raise questions of what is a reasonable standard of security, and does a reasonable standard need to be able to repel an attack by something like a well-resourced foreign entity?
Given these risks, a proactive business should seek technical and legal advice to safeguard their processes for handling personal information. There are privacy associated legal, reputational and financial risks that a business should have a strategy for managing.
Future developments?
On 24 March 2019, the Commonwealth Attorney General announced that the Privacy Act would be amended to include a tougher penalty regime in line with the European GDPR. In summary these amendments would:

Raise the penalties for serious or repeated breaches from $2.1m to $10m, or three times the value of the benefit obtained through the misuse of information or 10% of a company’s annual domestic turnover (whichever is greater);
Give the OAIC increased infringement notice powers, with increased penalties for bodies and individuals which fail to cooperate with efforts to resolve minor breaches;
Give the OAIC options to spread information about a breach to ensure affected individuals are notified (such as forcing notices to be published);
Restrictions on social media companies from using or disclosing a person’s personal information on request;
Add specific rules to protect minors and vulnerable persons.

The OAIC is also to receive a funding boost of $25m over three years to assist with enforcement and investigation activities.
The consultation draft of this amendment is due to be released in late 2019.
The corporate and commercial team at Hunt & Hunt have specific expertise in privacy and data protection matters. To find out how we can help you and your business in relation to privacy contact our privacy team today.
 
Author: Nicholas Commins, Associate
Privacy and Data Protection Fundamentals: Are You Keeping it Private? | Hunt & Hunt Lawyers

In this edition:

Changes to thresholds and rates
Casual conversion
Casual loading and double dipping
Long Service Leave Act
New Victorian Long Service Benefits Portability Scheme
New Labour Hire Licensing Scheme for Victoria
Enhanced Protection for Whistleblowers

Changes to thresholds and rates
A new financial year brings important changes to various thresholds and rates from 1 July 2019.  These include:
High income threshold
The High Income Threshold has increased from $145,400 gross per annum to $148,700 gross per annum.
Award/agreement free employees’ access to the unfair dismissal regime is restricted by the high income threshold.  This threshold also affects which employees may be offered a “guarantee of annual earnings” that will result in no modern award applying to those employees for the period of the guarantee.
Employers must take care when determining whether an employee’s earnings are above this threshold because some amounts paid to the employee may not be counted (for example, commissions, bonuses, overtime, reimbursements and compulsory superannuation contributions).
National Minimum Wage
The National Weekly Minimum Wage that applies to employees not covered by an award or enterprise agreement (“award/agreement free employees”) has increased from $719.20 to $740.80 per week, or $18.93 to $19.49 per hour.
Superannuation contribution
The maximum superannuation contribution base has increased from $54,030 to $55,270 per quarter.  An employer is not required to make superannuation contributions on behalf of employees on earnings in excess of this maximum contribution base.
The superannuation guarantee contribution rate remains at the rate 9.5%.
The ETP cap and Whole-of-income cap
The ETP cap has increased to $210,000 and the Whole-of-income cap has increased to $180,000.
Amounts over this cap are not subject to concessional tax treatment and are taxed at the highest marginal tax rate.
Tax free part of bona fide redundancy payments
The tax-free component of a bona fide redundancy payment has increased to a base limit of $10,638 and $5,320 for each complete year of service.
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Casual conversion
Most modern awards now give regular casual employees the right to request to convert to permanent employment.  Employers can only refuse the request on reasonable business grounds.
The entitlement applies once a casual employee has been employed for at least 12 calendar months providing that over that period they have worked a pattern of hours on an ongoing basis which could continue to be performed on a part-time or full-time basis (without significant adjustment).  An employer may refuse the conversion request on reasonable grounds including that it is known or reasonably foreseeable that:

a significant adjustment to the employee’s hours would be required to accommodate the request;
the employee’s position will cease to exist within the next 12 months; or
the employee’s working hours will significantly reduce or change within the next 12 months.

Employers must also provide all casual employees with information about the right to request casual conversion under the award.  Failure to make the disclosure within the specified time frame will amount to a breach of the award resulting in exposure to liability for civil penalties.  For example, most awards require employers to give all casual employees a copy of the conversion clause within the first 12 months of their first engagement.  However, for casual employees already employed as at 1 October 2018, employers must have provided them with a copy of the conversion clause by 1 January 2019.
Earlier this year the Morrison Government introduced the Fair Work Amendment (Right to request casual conversion) Bill 2019 to extend the right to request conversion from casual to permanent employment to award and agreement free casual employees covered by the NES.  The bill lapsed following the dissolution of the House of Representatives on 11 April 2019 and it is not clear whether it will be reintroduced following  the review of workplace laws launched by new Industrial Relations Minister, Christian Porter last week.
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Casual loading and double dipping
Casual employees are excluded from various entitlements under the National Employment Standards (“NES”) and applicable awards.  These include, for example, paid annual leave, paid personal/carer’s leave, paid compassionate leave and notice of termination and redundancy pay.  It is generally accepted that casual loading paid to casual employees is instead of these entitlements.
However, in Workpac v Skene [2018] FCAFC 131 the Full Court of the Federal Court found that employers could nevertheless be required to back pay NES entitlements to employees who were incorrectly classified as casuals, but, were in fact permanent employees during some or all of their employment.
In response to employer concerns about this decision, the Federal Government varied the Fair Work Regulations 2009 to provide employers with the right to claim that casual loading payments made to employees incorrectly characterised as casuals should be offset against any NES entitlements they subsequently claim they were entitled to receive because they were not in fact casual employees. This right will only apply where the casual loading paid to the employee was clearly identified as payment to compensate the employee for not having NES entitlements during their employment.  This could include in correspondence, pay slips, contracts and relevant industrial instruments.
The new regulation avoids the employee ‘double dipping’ – that is, receiving payment in lieu of one or more NES entitlements while retaining the benefit of the casual loading previously paid to them in lieu of these NES entitlements.
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Long Service Leave Act 2018 (Vic)
The new Long Service Leave Act 2018 (Vic) commenced operation on 1 November 2018.  It replaced the Long Service Leave Act 1992 (Vic).
The new Act will make a number of changes to the long service leave entitlements of Victorian employees covered by the Act including:

an employee is now entitled to take long service leave after 7 years’ continuous service with one employer
an employee is now entitled to request to take long service leave for a period as short as a day
any period of unpaid parental leave up to 52 weeks will count as service for the purpose of leave accrual
the method by which normal weekly hours of work are calculated when an employee’s working hours have changed prior to taking long service leave.

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New Victorian Long Service Benefits Portability Scheme
Employees in the contract cleaning, security or community services industries will now have access to long service leave after working for seven years in their industry, regardless of any changes to their employer.
Employers in these industries will be required to register themselves and their employees  with the new Portable Long Service Benefits Authority.
Employers will be required to report to, and pay a levy to, the Authority each quarter. The current levy payable by employers, which will be imposed on the ordinary pay of each employee is:

1.65% for community services;
1.80% for contract cleaning; and
1.80% for security

This new scheme commenced operation on 1 July 2019.  We recommend that employers in the contract cleaning, security or community services sector immediately seek advice on whether they are covered by the new scheme. Penalties apply for a failure to comply.
Certain “contract workers” in the contract cleaning, security or community services industries may also be covered by the new scheme.  In this situation, it is the contract worker who will be required to report to and pay the applicable levy to the Authority. The levy will be  imposed on the ordinary pay of the contract worker.
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New Labour Hire Licensing Scheme for Victoria
The new scheme regulates the provision of labour hire services and imposes significant civil and criminal penalties on unlicensed providers and users of unlicensed providers.  The main purpose of the scheme is to provide barriers to entry to the labour hire sector, ensuring that all providers are legitimate businesses and can meet strict licensing standards.  The scheme potentially covers a very wide range of arrangements from traditional labour hire to those which recruit or place their own workers for or with another business.
All labour hire providers who want to continue operating in Victoria will have until 29 October 2019 to apply for a licence.  All users of labour hire providers will need to take steps to ensure that their providers have a licence from this date.  There will be a register of licensed providers on the Labour Hire Authority Website.
If you believe that you may be covered by the new licensing scheme (whether because you are a provider or a host of labour hire services) we recommend you obtain advice now.  Significant penalties exist, with breaches exposing unlicensed providers and users of unlicensed providers to maximum penalties of $516,000 in Victoria.
There is a separate labour hire licence scheme already operating in Queensland and   labour hire service providers must now have or have applied for a licence.  There has already been a conviction of a Queensland labour hire provider who supplied workers to a business without a licence.  The business was found guilty and fined $60,000 for operating without a licence.
Further, applications for licences under the South Australian labour hire licensing scheme re-opened on 14 June 2019.  Labour hire service providers within the South Australian scheme must lodge their applications by 31 August 2019.
Finally, the Federal Government in this year’s Budget has also allocated $26.8 million over four years and $6.2 million per year ongoing to establish a national labour hire registration scheme.  The scheme will require the registration of labour hire operators in high-risk sectors such as horticulture, cleaning, meat processing and security.
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Enhanced protection for whistle blowers
The Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019  commenced operation on 1 July 2019.
The Act repeals the existing financial sector whistleblower regimes contained in the Banking Act, Insurance Act, Life Insurance Act and Superannuation Industry (Supervision) Act and brings them into the Corporations Act 2001 (Cth) (Corporations Act).
The Act amends the whistleblower protections in the Corporations Act so that a single strengthened whistleblower protection regime covers the corporate, financial and credit sectors.  Key changes include:

An eligible whistleblower can now be an individual who is or has been in a relationship with a regulated entity about which the disclosure is made.  Eligible whistleblowers include current and former officers, employees, suppliers of goods and services and their relatives or dependents. The motivation of the eligible whistleblower is no longer relevant and disclosures are protected even if they are anonymous.
The type of entity that may be subject of a qualifying disclosure has been expanded.  These entities are defined as “regulated entities” and include all companies, foreign corporations and trading and financial corporations formed within the limits of the Commonwealth, banks, life insurers, general insurers, superannuation entities and trustees of superannuation entities.
The type of conduct that may be the subject of a qualifying disclosure has been expanded and now includes actual or suspected conduct by a regulated entity that is:

misconduct, or an improper state of affairs or circumstances in relation to a regulated entity;
contravention of any law administered by ASIC and/or APRA; or
conduct that represents a danger to the public or the financial system; or
an offence against any other law of the Commonwealth that is punishable by imprisonment for a period of 12 months or more.

However, disclosures that concern personal employment grievances of the discloser only, and do not have significant implications for a regulated entity, have limited protection.

Disclosures to legal practitioners for the purpose of obtaining legal advice or legal representation now expressly qualify for protection.  Public interest disclosures and emergency disclosures to members of Parliament or journalists also qualify for protection.
The level of protection provided for whistleblowers has been increased including by requiring public companies, large proprietary companies and registerable superannuation entities to have a whistleblower policy from 1 January 2020, and to make the policy available to their officers and employees.  Failure to have and make available a whistleblower policy is an offence of strict liability which will be enforced by ASIC.
The remedies and protections available to whistleblowers and other individuals who suffer detriment or a threat of detriment in relation to a qualifying disclosure have been expanded.

The Act also creates a new whistleblower protection regime in the Taxation Administration Act 1953 (Cth) for disclosures of information by individuals about breaches or suspected breaches of tax laws or misconduct relating to the entity’s tax affairs.
We can assist employers understand their obligations under the new laws and to prepare an appropriate and compliant whistleblower policy.  We can also provide training to staff including officers, senior managers and other authorised recipients of qualifying disclosures.
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Recent Changes to Employment Legislation and Regulations | Hunt & Hunt Lawyers

It’s estimated 49,200 people will sleep rough on the street across Australia this year, and the number is increasing.
The Public Interest Advocacy Centre (PIAC) was launched in 1982 with just four staff. Over the following years, PIAC has pioneered public interest advocacy in Australia and tackles difficult social problems that impact on the lives of many Australians.
The organisation plays a leading role in breaking the cycle of disadvantage for people experiencing homelessness by assisting with legal problems. Established in 2004, the PIAC Homeless Persons’ Legal Service (HPLS) brings together 500 pro bono lawyers from leading law firms to provide legal assistance at 15 locations around Sydney and Newcastle.
Since early 2019, Lawyers from Hunt & Hunt Sydney have been involved in running the fortnightly HPLS clinic at Matthew Talbot Hostel in Woolloomooloo, providing people who are homeless, or at risk of homelessness, with free legal help with a broad range of criminal and civil legal problems.
The Hunt & Hunt team features a range of staff members – from graduate lawyers through to partners. The team members view it as a rewarding and meaningful experience that allows them to give back to the community.
“Being part of the clinic is a truly rewarding experience; the work of the clinic is vital in highlighting to disadvantaged members of society that their problems are important and that there are meaningful avenues available to them to help solve their legal problems,” said Lawyer, Yasmin Cherry.
“It gives me a chance to use my legal skills to assist at-risk people in the community and an opportunity to see a different side of life that sometimes we too easily overlook,” added Jessica Baldwin, Senior Associate.
This important work with PIAC is just part of the exciting pro bono and community involvement programme that Hunt & Hunt offers to its employees. The team is proud to be able to assist HPLS and to support PIAC’s vision for a fair, just and democratic society.
Lending the homeless a helping hand | Hunt & Hunt Lawyers

In the trade war between the US and China it is the Chinese that are painted by the US as not playing by the rules. In an ironic turn of events, the Australian Government is now investigating claims that in response to the US China trade war, US suppliers of plastics are engaging in unfair trade practices that is causing harm to Australian manufacturers.
The Australian Anti-Dumping Commission (ADC) has commenced an investigation into the alleged dumping of high density polyethylene exported to Australia from the US, Singapore, Korea and Thailand. The claim is that the HDPE is being sold to Australian customers at dumped prices, being prices that are less than the price at which the same goods are sold in the exporter’s domestic market. The Australian industry is seeking dumping duties of 28% on HDPE exported from the US.
So what has caused US exporters to allegedly dump goods in Australia? The Australian industry claims that this is a fall out from the US China trade war. As part of the trade dispute China has increased tariffs on certain US HDPE to 25%. Naturally this causes a decrease in Chinese demand for US HDPE. At the same time, US levels of production of HDPE increased due to new production facilities coming online. Lower demand and increased production means lower prices.
The Australian industry claims that US suppliers with excess stock are targeting the Australian market as the Australia US Free Trade Agreement both lowers the costs of US imports (no 5% duty) plus there are less non-tariff barriers.
It is also alleged that the imports are not merely coming directly from the US. Some US HDPE is claimed to be exported first to Singapore where it is repackaged for export to other markets. It is alleged that US exports to Singapore have increased by 300% . It is not known whether Singaporean exporters are hiding the US origin of goods when repackaging and exporting to third countries.
We are aware of Chinese exporters seeking to have goods repackaged in Australia for export to the US without disclosure of the Chinese origin of the goods.
It will not be surprising if the claims of the Australian industry prove to be true. Raising tariffs to 25% will distort trade flows from China to other countries. For Australian importers this has resulted in lower prices but has allegedly cause loss to the Australian manufacturers. If dumping duties are imposed US exporters will need to look for another market for HDPE or hope that President Trump can quickly resolve the trade war.
What to do Now
Supply contracts – Australian importers need to manage the risk of massive dumping duties being imposed with very little notice. This can mean not committing to long term supply contracts or at least having the right to terminate those contracts if dumping duties are imposed.
Customs Compliance – Importers should also obtain assurances as to the origin of goods. If dumping duties are imposed there will be even greater motivation for suppliers to hide the true origin of any goods subject to those duties. Importers need to consider what actual proof they have as to the origin of the goods. As the importer of record, it is the importer that will be liable for any underpaid dumping duty. The Australian Border Force is becoming much more sophisticated in its monitoring of trade flows, increasing its ability to detect likely false origin claims.
Dumping investigation – Exporters of HDPE from the US, Singapore, Thailand and Korea need to properly manage the current Australian HDPE dumping investigation. For most exporters this will mean lodging exporter questionnaires and submissions regarding the claims made by the Australian industry. If this is not done, the exporter may be treated as uncooperative and be subject to the highest possible dumping duty rate. Importers should also consider lodging importer questionnaires and challenging the claims that any dumping has caused loss to the Australian industry.
Questionnaires and submissions are due by 31 July 2019. In respect of questionnaires, this is a very strict deadline.
Please contact us if you need assistance with contractual arrangements, trade compliance or the dumping investigation.
The unintended outcome of the US China Trade war – Australian manufacturers accuse US exporters of unfair trade practices | Hunt & Hunt Lawyers

On 8 February 2019 Chief Justice Preston of the Land and Environment Court handed down his judgement in Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7.
The case involved the refusal of development consent to an open-cut coal mine (Project) at Gloucester in the upper Hunter Valley of NSW on a number of grounds, including the impacts of the mine on climate change and the social impact of mining on the community.
The case illustrates that proponents seeking consent for new major projects, or modifications of existing projects, with ‘material’ greenhouse gas emissions across all industries in NSW should carefully assess climate change impacts, particularly if the proposal is not ‘carbon neutral’.
Background
In December 2012, Gloucester Resources Limited (GRL) lodged a DA for consent to carry out the Project. The DA was subject to a lengthy planning process and GRL lodged an amended DA in August 2016.
Due to objections from Mid Coast Council and the public, the then Planning Assessment Commission (Commission) was asked to determine the DA. On referral to the Commission, the NSW Department of Planning and Environment (DPE) recommended refusal of the DA.
Importantly, the Minister did not previously refer the Project to the Commission for merits review. Rather, the Commission held a ‘public meeting’ and received further submissions on the Project as part of its determination process.
Following this, the Commission refused the DA on various grounds, including incompatibility with applicable land use zones under local planning controls, significant visual impacts, potential risks associated with increased noise and air quality impacts and the Project was not in the public interest.
Following the Commission’s decision, GRL lodged a merits appeal with the Land and Environment Court. Subsequently, Groundswell Gloucester (Groundswell), sought to be joined to the proceedings.
Groundswell is a non-profit community group formed by a group of Gloucester residents concerned with the environmental, social and economic future of the Stroud Gloucester Valley. Groundswell Gloucester strongly opposed development of the Project.
On 23 April 2018, the Land and Environment Court ordered that Groundswell be joined to the proceedings brought by GRL. This enabled Groundswell to lead expert evidence of the mine’s detrimental impact on climate change and on the social fabric of Gloucester.
Findings
Climate Change impacts
Groundswell argued that the Project should be refused on the basis that both the direct and indirect greenhouse gas (GHG) emissions from the Project would be inconsistent with Australia’s commitments under the UNFCCC and the Paris Agreement.
Professor Steffan, an earth systems scientist at the Australian National University gave evidence on behalf of Groundswell that in order to meet this global commitment GHGs would need to peak by 2020 and global warming would need to be limited to 2 degrees thereafter. In the Professor’s view, this goal could not be achieved while continuing to develop new fossil fuel projects.
Whilst GRL’s expert, Dr Fisher, did not dispute that climate change was real or that GHGs must be reduced to limit a global temperature rise to 2 degrees, he formed the opinion that the requirement under the Paris Accord did not require an embargo on fossil fuel development. On this basis GRL proposed alternative solutions to meet the required emission reduction targets, which do not require the prevention of coal mining. One such alternative to meet commitments was increasing the rate at which carbon is extracted from the atmosphere through ‘carbon sequestration’ and through the preservation of carbon sinks.
Further, GRL argued that ‘scope 3’ emissions, which are indirect emissions arising from sources not owned or controlled by GRL (such as from a third-party purchaser burning coal), should not be considered when assessing the Project’s impact, because Australia should not be held responsible for emissions caused by the burning of coal in other countries.
The final argument by GRL was that most of the coal produced by the Project would be ‘coking coal’. This is an essential component in the making of steel, with limited alternative uses. GRL argued that this important purpose justifies the approval of the Project despite any adverse climate impacts.
Upon the courts review, Chief Justice Preston accepted that Scope 3 emissions should be considered when assessing the Project’s impact, given they constitute ‘downstream’ emissions pursuant to clause 14(2) of the Mining SEPP. Downstream emissions in this context mean the emissions caused by burning the coal produced by the mine by end users. He also found there to be a casual link between the Project and climate change consequences as all of the Project’s direct and indirect GHG emissions would contribute ‘cumulatively’ to total GHG emissions.
As there was no specific proposal to offset the Project’s impacts by removing GHGs from the atmosphere, the argument regarding carbon sequestration as an alternative measure was rejected.
The argument that coking coal is critical for the production of steel was overstated by GRL, as the demand for coking coal from steel production in Australia could be met by existing and approved mines.
Other negative impacts on existing uses
The primary arguments against approval of the Project centred around clause 12 of the Mining SEPP. This required the consent authority to consider the compatibility of the proposed mine with other land uses in the vicinity.
Accordingly, the judgment carefully weighed the Project’s benefits against significant adverse visual, amenity and social impacts, including significant impacts on existing, approved and likely land uses in the vicinity of the mine. Chief Justice Preston considered various adverse factors, including:

Visual impacts: high visual contrast with surrounding landscape, intrusive night lighting, changes to the visual character and other factors, contributing to a high visual impact. The Project would be incompatible with the rural character of the land and the residential and rural-residential, agricultural and tourism uses in its vicinity;
Amenity impacts: noise and dust impacts, contributing to social impacts;
Social impacts: The Project was likely to have major negative social impacts including impacts on the composition, cohesion and character of the community and local people’s sense of place, adverse impacts to the culture and Country of Aboriginal people, and issues of distributive inequity which would not be adequately addressed by way of the mitigation measures proposed by GRL;
Public benefits: the alleged public benefits of the Project (suggested by GRL to include an economic benefit to NSW of $224.5 million over the life of the mine) were substantially over-stated and did not outweigh either the public costs of the proposed mine or the public benefits of the existing, approved and likely preferred uses in the vicinity of the Project, if those uses were left unaffected by the Project. Significantly, while the benefits of the Project would be present only for the life of the Project, the negative impacts would endure.

Take home message
The increasing recognition of causative links between fossil fuel developments and climate change mixed with Australia’s increased commitment to international climate accords has led to social and climate change impacts being factored into the decision-making process when deciding to grant development consent for large projects. This is particularly relevant for large fossil fuel dependent developments.
The consent authority now bears a real responsibility to decide whether greenhouse gas emissions of each development are acceptable, and if not, if it is a sufficient reason to refuse consent.
Large developments are now on notice.
 
Article by Adam Kennedy-Hunt, Law Student/Paralegal
Social and climate change impacts considered in rejecting development consent for new coal mine: The Rocky Hill case | Hunt & Hunt Lawyers

Click here to download a copy of this report

The report of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry made 76 recommendations to improve the sector.
With so many detailed recommendations, implementing change is taking time, however progress is being made. To provide a simplified update to this complex process, we have summarised these recommendations using a traffic light system to show what progress has been made to date.
The recommendations of the Royal Commission require not only action by financial institutions themselves, but more importantly legislative change by the government and action by the Australian Securities & Investments Commission (ASIC) and the Australian Prudential Regulatory Authority (APRA).  Each of these three arms of government have already published their formal responses to the recommendations of the Royal Commission:

Government response dated 4 February 2019;
ASIC response dated 19 February 2019;
APRA response dated 11 February 2019.

Numerous media releases have also been issued.  Links to these are provided below.
Our colour coding means:
Red: Recommendation rejected or modified by the relevant organisation
Yellow: Recommendation in process of being implemented
Green: Recommendation Implemented. In some cases the Royal Commission recommended “no change” so by the Government accepting that recommendation it is by definition implemented – case in point – recommendation 1.1
No colour: No positive steps have been taken to date, other than an acceptance of the recommendation or a referral to a working party.  Many of the reforms require legislative change and have not yet been introduced to Parliament.
Implementation of the recommendations of the Royal Commission is a moving feast and changes day to day and week to week.  This analysis is current as at Friday, 28 June 2019, and takes into account the comments made in ASIC Media Release 19–162 MR (ASIC Approves an Updated Banking Code of Practice) and the letter APRA issued to banks on the same day starting consultation on recommendation 1.17.
Please use the links embedded within sections of the table which link to pronouncements made on specific recommendations.
Royal Commission Recommendations

1. Banking
Recommendation 1.1:
The NCCP Act should not be amended to alter the obligation to assess unsuitability.  Government accepts recommendation
Recommendation 1.2:
Amend the law to impose a best interests duty on brokers.  Legislative change required
Recommendation 1.3:
Mortgage broker remuneration – borrower should pay.  Government not implement recommendation. A review is underway
Recommendation 1.4:
Establishment of working group to monitor effects of implementing recommendation 1.3.  Review to be conducted in 2020
Recommendation 1.5:
Regulate mortgage brokers in a similar manner to financial advisers.  Legislative change required.
Recommendation 1.6:
ACL holders should be bound to report misconduct by mortgage brokers. Legislative change required to apply information sharing and reporting obligation to ACL holders
Recommendation 1.7:
Removal of point-of-sale exemption from NCCP for retailers.  Legislative change required to remove point-of-sale exemption, with consultation paper being prepared
Recommendation 1.8:
Amend Banking Code to assist access rights of indigenous and remote customers. ASIC to decide on changes later in 2019 with implementation proposed from March 2020
Recommendation 1.9:
The NCCP Act should not be extended to cover lending to small businesses. Government accepts recommendation
Recommendation 1.10:
Amend the definition of ‘small business’ in the Banking Code so that the Code applies businesses employing fewer than 100 employees, and loans of less than $5 million.  ASIC working with the Banking Industry on amendments to the Code
Recommendation 1.11:
A national scheme of farm debt mediation should be enacted. Agreed to by all Governments in February 2019 – work to begin
Recommendation 1.12:
APRA should amend Prudential Standard APS220 to require more rigorous assessments and independence in valuing land, in particular agricultural land. APRA to revise APS220 by end of 2019 and release proposed revisions earlier
Recommendation 1.13:
Amend Banking Code so default interest will not be charged on agricultural loans in areas declared affected by drought or other natural disaster. ASIC to decide on changes later in 2019 with implementation proposed from March 2020
Recommendation 1.14:
Manage distressed agricultural loans in a more emphatic and professional manner. Government encouraging Banks to implement
Recommendation 1.15:
Amend law to enhance industry codes of conduct including making provisions enforceable. Treasury released a consultation paper – consultation period now completed
Recommendation 1.16:
Make Banking Code provisions that govern the terms of contract “enforceable” ASIC accepts recommendations, working with industry in anticipation of Parliament legislating reform
Recommendation 1.17:
APRA to require each ADI make someone responsible for product design and remediation of customers.  APRA issued letter to Banks on 28 June 2019 starting consultation process

2. Financial Advice
Recommendation 2.1:
That ongoing fee arrangements should be renewed annually by clients and other matters. Legislative change required
Recommendation 2.2:
Disclosure of lack of independence. Legislative change required
Recommendation 2.3:
Review of measures to improve quality of advice. By December 2022 the Government will review the effectiveness of measures previously introduced to improve the quality of financial advice
Recommendation 2.4:
That grandfathering provisions for conflicted remuneration be repealed. To be implemented by 1 January 2021 – legislative change required – draft bill released.  Press release
Recommendation 2.5:
When ASIC conducts its review of conflicted remuneration it should consider reducing the cap on life risk insurance commissions. ASIC will review in 2021
Recommendation 2.6:
Consider whether the remaining exemptions to the ban on conflicted remunerations remain justified. Government will review in 3 years’ time (2022)
Recommendation 2.7:
Reference checking and information sharing to be mandated as an AFS licence condition. ASIC/Government still to implement
Recommendation 2.8:
AFSL holders should be required, as a condition of their licence, to report ‘serious compliance concerns’ about individual financial advisers to ASIC on a quarterly basis. ASIC/Government still to implement
Recommendation 2.9:
Licence condition imposed on AFSL holders to notify clients of misconduct by financial advisers and remediate promptly. ASIC/Government still to implement
Recommendation 2.10:
Establish new disciplinary system for financial advisers. Legislative change required

3. Superannuation
Recommendation 3.1
Trustees of RSEs should be prohibited from taking on other roles. Government agrees to address this risk
Recommendation 3.2
No deducting advice fees from MySuper accounts other than intra fund advice. Government still to implement to clarify general rule for My Super accounts. Note exit fees to be banned from 1 July 2019
Recommendation 3.3
Limitations on deducting advice fees from “choice” accounts unless express authority etc. in place and renewed annually. Government still to implement
Recommendation 3.4
Hawking superannuation products be prohibited. Legislative change required
Recommendation 3.5
A person should have only one default superannuation account. Government still to implement
Recommendation 3.6
No enticing employers to nominate a fund as a default fund.  Treasury Laws Amendment Act 2019  And refer press release
Recommendation 3.7
Impose civil penalties for breach of trustee duties. Treasury Laws Amendment Act 2019  And refer press release
Recommendation 3.8
Roles of APRA and ASIC relating to superannuation be adjusted, as referred to in Recommendation 6.3. Government to implement. Some legislative change will be required
Recommendation 3.9
Over time provisions modelled on the BEAR should be extended to all RSE licensees. Government still to implement. Legislative change will be required.

4. Insurance
Recommendation 4.1:
No hawking of insurance. Legislative change required
Recommendation 4.2:
Removing exemptions for funeral expenses policies. Regulations need to be changed to ensure consumer protection provisions of the ASIC Act apply to funeral expenses policies. Consultation between Treasury and ASIC
Recommendation 4.3:
Develop deferred sales model for add-on insurance. Government still to implement. Note however, that amendments have been made to the Banking Code to implement deferred sales model for loan protection insurance
Recommendation 4.4:
Cap on commissions. ASIC awaits the Parliament legislating to provide ASIC with the ability to do so.  
Recommendation 4.5:
Replace duty of disclosure with a duty to take reasonable care not to make a misrepresentation to an insurer. Legislative change required to amend duty of disclosure for consumers in the Insurance Contracts Act 1984
Recommendation 4.6:
Limit right of insurers to avoid life insurance contracts. Legislative change required to the Insurance Contracts Act 1984
Recommendation 4.7:
Apply unfair contract terms provisions to insurance contracts. Government still to implement
Recommendation 4.8:
Removal of claims handling exemption. Government has released a consultation power on removing the exemption of insurance claims handline from the definition of ‘financial service’ under the Corps Act
Recommendation 4.9:
Enforceable code provisions. ASIC accepts the recommendations and is working with industry in anticipation of the Parliament legislating reform
Recommendation 4.10:
Extension of the sanctions power against subscribers to Industry Codes. Government encouraging the Financial Services Council and the Insurance Council of Australia to implement
Recommendation 4.11:
Co-operation with AFCA.  AFSL holders will now be required to co-operate with the AFCA in the resolution of disputes
Recommendation 4.12:
Over time provisions modelled on the BEAR should be extended to all APRA regulated Insurers. Government still to implement. Legislative change will be required
Recommendation 4.13:
Review whether universal terms should be implemented for My Super product. Government has released a consultation paper
Recommendation 4.14:
Additional scrutiny for related party engagements. APRA is currently reviewing the superannuation prudential framework and the post-implementation review report will be published in the second quarter of 2019
Recommendation 4.15:
Amend Prudential Standard SPS 250 to require licensees to ensure the status attribution to be fair and reasonable. APRA is currently reviewing the superannuation prudential framework and the post-implementation review report will be published in the second quarter of 2019

5. Culture, governance and remuneration
Recommendation 5.1:
In conducting prudential supervision APRA should have regard to sound compensation principles. APRA will release proposed revisions to Prudential Standard CPS 510 by mid-2019 and have a final standard in 2020
Recommendation 5.2:
APRA should revise its aims in relation to supervision of remuneration practices.  APRA will release proposed revisions to Prudential Standard CPS 510 by mid-2019 and have a final standard in 2020
Recommendation 5.3:
APRA should revise prudential standards and guidance regarding remuneration systems. APRA will release proposed revisions to Prudential Standard CPS 510 by mid-2019 and have a final standard in 2020
Recommendation 5.4:
Conduct periodic reviews of remuneration of front line staff. Government encouraging financial firms to implement
Recommendation 5.5:
Banks should fully implement the recommendations of the Sedgwick Review.  Government encouraging banks to implement
Recommendation 5.6:
Financial firms to periodically assess and change culture where required. Underway by way of  self-assessments demanded by APRA during 2018 – Refer APRA Media Release on 22 May 2019
Recommendation 5.7:
APRA to revise its method of prudential supervision. APRA working with Government to ensure it has sufficient resources to implement

6. Regulators
Recommendation 6.1:
Retain twin peaks.  Government accepts recommendation
Recommendation 6.2:
ASIC’s approach to enforcement. ASIC has adopted a ‘Why not litigate?’ enforcement stance and established an Office of Enforcement
Recommendation 6.3:
Outline general principles for co-regulation between APRA and ASIC. Some legislative change will be required
Recommendation 6.4:
ASIC should be given power to enforce all provisions of SIS Act etc. Legislative change will be required
Recommendation 6.5:
APRA should retain its current functions. Agreed by government
Recommendation 6.6:
ASIC and APRA should jointly administer BEAR. Legislative change required
Recommendation 6.7:
Amend the Banking Act to make it clear that ADIs and accountable persons must deal in an open constructive and cooperative way. Legislative change required
Recommendation 6.8:
Over time extend BEAR to all APRA-regulated entities. Also, to introduce a similar regime for non-APRA-regulated entities. Government still to implement. Legislative change will be required
Recommendation 6.9:
Statutory obligation to co-operate. Agreed, legislative change appears to be required to remove information barriers between regulators
Recommendation 6.10:
Cooperation memorandum between ASIC and APRA. Government seeks that ASIC and APRA update their cooperation memorandum to clearly state statutory obligation to cooperate
Unclear whether the MOU has yet been formally updated
Recommendation 6.11:
Formalising meeting procedures for ASIC.  Government will amend ASIC Act to formalise ASIC meetings
Recommendation 6.12:
Application of BEAR to regulators. Government agrees APRA and ASIC should formulate and apply principles similar to the BEAR to their own management. Does not appear to us to have been formally implemented yet.
Recommendation 6.13:
ASIC and APRA to conduct 4 yearly capability reviews. Agreed, first capability review established for APRA in Feb 2019
Recommendation 6.14:
A new oversight authority. Government agrees to create new oversight authority. Still to be created

7. Other important steps
Recommendation 7.1:
Compensation scheme of last resort and other reforms. Government still to implement, but AFCA jurisdiction has been extended already. Government also agreed to fund legacy unpaid determinations.
Recommendation 7.2:
Mandate self-reporting of contraventions by AFSL and ACL holders. Likely that some legislative change will be required
Recommendation 7.3:
Eliminate exceptions and qualifications in legislation to norms of behaviour. Legislative change required to simplify the financial services law to eliminate exceptions and qualifications to the law. Note, as an initial example, that Product Design and Distribution legislation has been expanded to Basic Banking Products and Credit even though initially suggested these products be exempted.
Recommendation 7.4:
Legislation should set out what are the expected fundamental norms of behaviour to be observed by those regulated by the relevant legislation. Legislative change required
Ready, Set, Go! – Tracking the Implementation of the Recommendations of the Banking Royal Commission | Hunt & Hunt Lawyers

Consent authorities are becoming increasingly reluctant to grant development consent subject to a condition that investigations into the nature and extent of contamination can be carried out after, instead of before, the granting of consent. This type of condition is known as a ‘deferred commencement condition’.
There have been instances previously where consent authorities have granted development consent subject to a deferred commencement condition for the carrying out of contamination investigations. However, in the current consent climate consent authorities are less willing to grant a deferred commencement condition for this purpose. This is a reflection of a series of Court decisions which clarify the requirements in State Environmental Planning Policy No 55 – Remediation of Land (NSW) (SEPP 55), discussed below.
Determining the Nature and Extent of Contamination
An essential step in preparing a development application (DA) is gathering information about whether, and to what extent, a proposed development is on land that is contaminated, and the remediation that may be required to make the land suitable for development.
SEPP 55 and its related Planning Guidelines address the requirements for the form and substance of these investigations, which will vary from project to project depending on the likelihood and extent of contamination.
Where a development involves changing the use of land, a preliminary site investigation (PSI) must be prepared to be considered by the consent authority. Where a PSI indicates potential contamination and the site is unsuitable for its proposed use, a detailed site investigation (DSI) will also be required.
Preconditions
The aim of SEPP 55 is to promote the remediation of contaminated land in order to reduce the risk of harm to human health and the environment. Clause 7 sets out sequential and interrelated preconditions that a consent authority must be satisfied with before granting consent. These can be separated as follows:
Precondition 1: if contamination is or is likely to be present:

Preparation of a PSI in accordance with the SEPP 55 guidelines;
Preparation of a DSI when a PSI considers one is warranted;

Precondition 2:

Is the land contaminated?
If yes to (3), is the land suitable for the proposed development in its contaminated state? and
If no to (4) and remediation is required to make the land suitable, will the land be remediated before it is used for the new purpose?

Where consent is granted but disregards the above preconditions, it will be invalid. A common example is where a consent authority grants consent based on an inadequate PSI. The repercussions of an invalid consent include the developer being redirected to prepare additional investigations or to have the consent challenged in Court, with added time and expense.
We note that there are plans to replace SEPP 55 with a new Remediation of Land SEPP which is expected to commence in 2020. The new SEPP will incorporate the requirements of the current clause 7, as well as the purposes of a PSI and DSI which are currently set out in the separate SEPP 55 guidelines as referenced in SEPP 55.
Consent Climate
The following cases establish that the nature and extent of contamination is a fundamental planning matter which should be determined before the granting of consent.
In Dexus Funds Management Limited v Blacktown City Council (No 3) [2011] NSWLEC 230, the applicant alleged that where Council granted consent for a shopping centre subject to a deferred commencement condition for contamination investigations to be carried out at a later time, the consent was invalid because it failed to consider the preconditions in SEPP 55. The Court agreed with the applicant, finding that the council had insufficient information to assess the DA and therefore to grant consent.
In Moorebank Recyclers Pty Ltd v Benedict Industries Pty Ltd [2015] NSWLEC 40, the Court considered the validity of a consent granted for a marina development on a site once used for extractive activities. The consent was granted with a deferred commencement condition which provided that contamination investigations could be carried out at a later time. The Court found that the consent was invalid because the Panel should have been informed of the outcome of the investigations prior to granting consent.
In Lippmann Partnership Pty Ltd v Canterbury – Bankstown Council [2017] NSWLEC 1601, the Court found that the investigations must be prepared as part of the assessment of the DA and therefore before granting consent because:

without a DSI Council would fail to consider the nature and extent of contamination;
the suitability of a site is a key consideration in s 4.15 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act);
the deferred commencement was not authorised by s 4.16(3) of the EPA Act; and
if a DSI is prepared after consent is granted, the substance of the DSI may require the consent to be altered.

Implications
It is important to keep up-to-date with the current consent climate in order to understand the requirements in relation to contaminated land.
With the changing consent climate and the imminent commencement of the new SEPP, approach us for advice on your next development to ensure that you are aware of the requirements for your DA.
Article by Caitlin Polo, Lawyer
 
Contamination Investigations – the Requirements for Your Next DA | Hunt & Hunt Lawyers

Security interests registered on the Personal Property Securities Register (PPSR) in 2012 for a period of 7 years (the other registration period options being 25 years or indefinitely – provided that the collateral is not consumer property) are due to expire this year.
The PPSR, an electronic register of security interests, established under the Personal Property Securities Act 2009 (Cth),  commenced seven years ago on 30 January 2012.
The relevance of this anniversary is that any such registrations made on or after 30 January 2012 but prior to today’s date in 2012 have, if not already extended, expired.
Whilst registrations on the PPSR can be extended, extensions must be made prior to the expiry date.  If you’ve missed the extension date and your registration has expired, you can re-register your security interest.
However, if you perfected your security interest by registration on the PPSR (rather than by possession or control), the expiry of your registration would lead to a loss of perfection.  As a result, your original registration may have lost its priority, for example to a secured party who registered after your original registration and remains registered on the PPSR.  To clarify, the expiry of your registration on the PPSR would not lead to the underlying security document becoming invalid, just, potentially, your security interest losing its priority over competing registered security interests.
To avoid this, we recommend that you review all of your existing registrations and confirm their expiry dates.  Any registrations which are due to expire, but are required to stay on foot, should be extended as soon as possible.  Any registrations which have already expired but are still required, should be re-registered as soon as possible.
Although the PPSR does not notify you when a PPSR registration is about to expire, the PPSR will, provide a useful report of the expiry dates of your existing registrations upon request.  This report allows you to monitor which of your PPSR registrations require extension (or should be discharged as they are no longer required).  This report can be requested here.
Don’t let your PPSR registrations expire! | Hunt & Hunt Lawyers

In a recent case the Administrative Appeals Tribunal (AAT) found that a tariff concession order should not be made for imported driverless trains and in circumstances where driver operated trains were produced in Australia. The decision reflects the difficult of proving local goods and imported goods do not have overlapping uses despite the fact that commercially they do not compete.
The Decision
In Alstom Transport Australia Pty Ltd and Comptroller-General of Customs [2019] AATA 1308 the AAT was asked to review a decision by Comptroller-General of Customs to not make a tariff concession order (TCO) sought by Alstom that covered certain driverless trains. If made, a TCO would reduce the duty payable on the Indian made trains from 5% to 0%.
A TCO will only be made if on the date of the application it is shown that no substitutable goods were produced in Australian in the ordinary course of business. Customs did not make the TCO as it was satisfied that EDI Downer manufactured driver operated passenger trains in Australia.
The key issue considered by the AAT was whether driverless trains and driver operated trains were substitutable. Under the Customs Act, substitutable goods as goods produced in Australia that are put, or are capable of being put, to a use that corresponds with a use (including a design use) to which the goods the subject of TCO application can be put
Identifying the use of the goods
Alstom argued that the use of the TCO goods should be narrowed to the transport of passengers on a driverless metropolitan train line system and that no trains in Australia could be put to this use. Customs argued that the use of the imported goods was wider, being the transport of passengers by train. Whether the train was manned or driverless did not alter this use but rather looked to how the use was performed.
Essentially, the Tribunal had to determine the degree of specificity with which to identify “use”.
The Tribunal referred to past case law and dismissed considerations of how a use was performed. The Tribunal considered the most important use of the goods to be the transport of passengers by train. Other issues were seen as selling points rather than a description of use.
The Tribunal upheld the decision to not make the TCO.
Use does not even need to overlap
In a part of the judgment that will be welcomed by Australian manufacturers, the AAT said it is not necessary to find uses that are precisely applicable to the local goods and the imported goods. Rather, the uses need merely “correspond”. While it wasn’t definitively ruled on, it was suggested that even if the defined use was as a driverless train, this use corresponded to the use of the locally made goods, being manned trains. Essentially, the AAT is saying that it doesn’t matter if the locally made goods cannot be put to the same use as the imported goods, provided the uses “correspond”. The Tribunal did not elaborate on when uses that do not overlap, nevertheless “correspond”. Often the term means something less than identical, but rather “similar” or “closely matches”.
Implications
Automated goods
It should be assumed that an automated version of a good will be seen as substitutable for a version of the good operated by a human (and vice versa). The fact that a good incorporates artificial intelligence or robotics will not mean that its use will be confined to performing a task by the use of AI or robotics.
TCO System
Over time the Courts have removed from the review of “substitutable goods” any consideration of cost, quality, effectiveness or how a use is performed. The only way of giving the test, and the TCO system generally, some practical purpose was to require “use” to be defined with some level of precision.
The AAT advocated that use itself cannot include the method of performing the use. It could be asked whether the use in this case should merely have been “movement of passengers” without reference to the means of moving the passengers (by train). Would the TCO have been able to be defeated by a local manufacturer of buses? While they do a poor job of it, when a train line is down, the phrase “buses replacing trains” is used. The only difference between buses and trains is the means and efficiency of transporting people.
This would be an unexpected outcome, but one made possible by the interpretation adopted by the Court.
The decision may be appealed. If it is not, it should be expected that it will be rare that a TCO will be made if there is any opposition from an Australian manufacturer. It can also be expected that Australian manufacturers may lodge revocation application in respect of goods which were not previously considered substitutable.
Please contact Russell Wiese if you would like to discuss how this decision applies to your imports.
This article was originally published on the Freight & Trade Alliance website.
Administrative Appeals Tribunal again makes it harder to obtain tariff concession orders | Hunt & Hunt Lawyers

The Voluntary Assisted Dying Act 2017 commenced on 19 June 2019 in Victoria. The Act is the first of its kind in Australia, allowing individuals with a terminal illness or neurodegenerative condition and whose suffering is intolerable to choose the manner and timing of their death.
What is voluntary assisted dying?
Voluntary assisted dying is the administration of a medication prescribed by a doctor, taken by an individual in the late stages of advanced disease at a time when they choose to end their life. It is generally self-administered.
The term ‘voluntary assisted dying’ is used rather than ‘euthanasia’ as euthanasia can encompass a broader scope.
The important aspects of voluntary assisted dying are that:

it is a decision personal to an individual;
it is a consistent request by that person to end their life on their terms; and
the individual is fully-informed about their disease and their options for treatment and care.

The process is designed to ensure that the individual’s decision to end their life is voluntary, consistent and lawfully supported. The Act is extensive and provides a range of protections to both individuals accessing voluntary assisted dying and their medical practitioners.
Who is able to access voluntary assisted dying?
To be able to access voluntary assisted dying an individual must:

be aged 18 years or more;
be an Australian citizen or permanent resident;
be ordinarily resident in Victoria;
have been ordinarily resident in Victoria for at least 12 months prior to making the first request to access voluntary assisted dying;
have decision-making capacity;
have an advanced incurable disease that causes intolerable suffering and will likely cause their death either:
–  within six (6) months for a terminal illness; or
–  within twelve (12) months for a neurodegenerative condition.
be able to make and communicate their decision to access voluntary assisted dying throughout the request and assessment process – this includes at least 3 consistent requests by the individual.

Voluntary assisted dying is not accessible by an individual who:

is suffering solely from a mental illness as defined in the Mental Health Act 2014; or
is suffering solely from a disability as defined in the Disability Act 2006; or
does not have decision-making capacity; or
has a life-expectancy greater than six (6) months for a terminal illness or twelve (12) months for a neurodegenerative condition; or
is not ordinarily resident in Victoria; or
is under the age of 18 years.

What is the request and assessment process?
If an individual wants access to the voluntary assisted dying process, they are required to make an initial request to a medical practitioner. A medical practitioner or health care practitioner is not permitted to discuss voluntary assisted dying or instigate the request and assessment process, without the individual asking them about it first.
Following a first request by an individual, two medical practitioners are required to independently assess the individual and agree that the individual meets the criteria for voluntary assisted dying.
If a medical practitioner is uncertain as to whether a person meets the criteria, either due to their medical condition or their decision-making capacity, the medical practitioner is required to refer them to a specialist for a consulting assessment prior to the individual’s first request being approved.
Once the first request and assessment has been made and an individual assessed as being eligible, the individual is required to make a written declaration requesting access to voluntary assisted dying. The declaration requires:

the individual to state that they make the request voluntarily and without coercion;
the individual to state that they understand the nature and effect of the declaration they are making; and
must be witnessed by 2 witnesses and the co-ordinating medical practitioner.

Following a written declaration by the individual, they are required to make a final request for access to voluntary assisted dying. The request must be made to the co-ordinating medical practitioner personally by the individual. This must occur at least nine (9) days after the first request and no less than one (1) day after a consulting assessment has taken place and the individual is assessed as being eligible.
Once an individual has been assessed as eligible and all parts of the request and assessment process have been completed, a voluntary assisted dying permit and a self-administration permit are issued by the co-ordinating medical practitioner and the medication can be prescribed and obtained by the individual.
If the individual is unable to self-administer the medication at the time that the request and assessment process has been completed, the co-ordinating medical practitioner may seek a practitioner administration permit instead. This would only be applicable if the individual is physically incapable of administering the medication themselves but has otherwise met all eligibility, request and assessment processes.
If an individual loses the ability to self-administer the medication after a voluntary assisted dying permit and self-administration permit are issued, the individual is required to personally request the co-ordinating medical practitioner to apply for a practitioner administration permit instead.
Once all necessary permits have been granted, the individual self-administers or has a practitioner administer the medication at a time chosen by the individual. Notification of death must then be provided to Births Deaths and Marriages by the registered medical practitioner who was responsible for the individual’s medical care prior to their death in the usual manner. The individual’s cause of death on the death certificate will show ‘voluntary assisted dying’.
What happens if an individual changes their mind?
An individual has the right to decide at any time not to continue the request and assessment process.
If an individual has discontinued a request and assessment process, they are able to make a new request if they change their mind however, the entire process must begin again.
What happens if an individual loses decision-making capacity during the request and assessment process?
Where an individual loses the ability to make their own decisions during the request and assessment process, they are no longer eligible for voluntary assisted dying.
How long does the process take?
The approval of an individual’s access to voluntary assisted dying takes a minimum of ten (10) days.
Once approved, the timing of the administration of the life-ending medication is at the individual’s choosing.
Is a medical practitioner or healthcare provider required to participate?
The short answer is no. They may object to participate in the voluntary assisted dying process for the following reasons:

they have a conscientious objection to voluntary assisted dying;
they believe that they will not be able to perform the duties of co-ordinating medical practitioner due to unavailability; or
they do not meet the requirements for medical practitioners of being either a vocationally registered general practitioner or hold a fellowship with a specialist medical college, and have been practicing for at least five (5) years, and have relevant expertise and experience in the individual’s disease or medical condition.

What are the safeguards?
The Act provides for extensive safeguards throughout the process. These safeguards include, but are not limited to:

the individual is required to request and communicate their desire to participate in voluntary assisted dying personally.
the Voluntary Assisted Dying Review Board will monitor all activity and receive reports from medical practitioners who participate in voluntary assisted dying.
witnesses to the individual’s written declaration must: be adults; must not be a beneficiary under the individual’s Will or must not be in a position that they benefit financially or materially from the individual’s death; must not be the owner or responsible for the day to day operation of any health facility where the individual is treated or resides; and not more than one of the witnesses may be a family member of the individual.
if a person loses decision-making capacity then the process comes to an end.
a contact person must be nominated by the individual – the contact person is required to return unused or remaining medication to the dispensing pharmacy.
only one dispensing pharmacy is currently permitted to dispense the medication (Statewide Pharmacy Service at Alfred Health).
the individual is required to be instructed on how to administer the medication, how to store it, that they can choose not to administer it and that the unused or remaining medication must be returned to the dispensing pharmacy.
an individual who has been assessed by a medical practitioner as ineligible for voluntary assisted dying can make an application to VCAT to review the refusal.

In addition, the Act sets out multiple offences and the penalties attached to those offences. The offences include administration of the medication by a person other than the individual or their medical practitioner, inducing an individual to seek voluntary assisted dying, falsifying records or making false statements, failure to return the unused or remaining medication, and failure to provide the necessary reports to the Voluntary Assisted Dying Board.
Voluntary assisted dying, Appointments of Medical Treatment Decision Maker and Advanced Care Directives
As voluntary assisted dying is a choice that is personal to an individual and must be made by that individual, a Medical Treatment Decision Maker is unable to seek voluntary assisted dying on behalf of a person pursuant to an Appointment of Medical Treatment Decision Maker. Similarly, an individual is unable to put in place an Advanced Care Directive authorising voluntary assisted dying – the individual must have the ability to request and communicate their desire for voluntary assisted dying throughout the request and assessment process.
If you require further clarification of the above or any further information please contact a member of our Wills and Estates team:
Bill Hazlett
Principal
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D +61 3 8602 9259
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Rob Allen
Special Counsel
D +61 3 8602 9268
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Joanne Jenkins
Senior Associate
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Marja Moore
Legal Executive
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Voluntary Assisted Dying Act 2017 </i> – What you need to know | Hunt & Hunt Lawyers