Privacy and Identity Management Warning

According to the outgoing Federal Privacy Commissioner, Malcolm Crompton, "Identity management is the topic that government and business need to get right if we are all to live in a free, open and safe society."

"This is particularly urgent because there are currently a very large number of identification management projects and or proposals, cutting across government and private sector organisations, that are being considered in a narrow range of circumstances without thinking about the big picture privacy issues.

"If we are not careful we could end up, by default, with a powerful system that could track everything we do even though no one organisation has set out to achieve this.

"Identity management is proposed as a solution to preventing fraud, increasing customer service, improving health protecting national borders and increasing national security.

"My concern is that poor identity management solutions could amount to almost total surveillance of some, if not all, individuals," he said.

Read the list of 30 projects he identified

 
Sales of business and employees

Does the sale of a business terminate an employee’s employment or make an employee redundant?

The High Court is soon to consider the meaning of redundancy and the right of employees to severance benefits on a sale or transmission of a business.

The Workplace Relations Amendment (Transmission of Business) Bill was passed by Parliament in March 2004.

The Bill amends the Act to broaden the powers of the Australian Industrial Relations Commission to decide on a case-by-case basis whether it should make an order that a certified agreement will not transmit to an incoming employer, or will only transmit to a specified extent or for a specified period. The Commission must consider whether employees will be disadvantaged.

Read our update

 
Taxation of charities

Currently, provided an organisation is formed for either the relief of poverty, the advancement of education, the advancement of religion or other purpose or benefit to the community, and satisfies some other criteria, it is a charity. It cannot distribute profits or assets to members. Charities must be non-profit organisations. A number of charities carry out advocacy activities in addition to their core charitable purpose.

Many charities rely upon their status as the recipient of tax-free donations and an exemption from tax on income in order to survive. A change to such status would have a detrimental effect on many Australian charities and non-profit organisations.

The Tax Laws Amendment (2004 Measures No 1) Bill 2004 requires charities, including public benevolent institutions and health promotion charities to be endorsed by the Commissioner in order to obtain taxation concessions.

Read our update

 
Bullying in the workplace

Sometimes people complain that they have been "harassed" in the "workplace". They also but less often maintain that they have been "victimised". But what do they mean specifically?

Is it repeated verbal abuse? Bullying? Sexual harassment? Threats of physical violence? Threats of a detriment such as demotion or loss of employment? Or is it some form of more subtle negative and repeated behaviour which makes them feel just as inferior and disempowered as if they were on the receiving end of more overt behaviours?

The answer can be any of the above. Read our article.

 
Queensland stamp duty compliance audits

The Office of State Revenue (OSR) has announced that it will continue audit programs for related party transactions and for transactions which include the transfer of property to which GST may be imposed.

Transfer duty involving residential property is assessed on the greater of the consideration or the value of the property at the time of the transfer. When the parties are related, the Commissioner requires evidence of market value from a registered valuer or a real estate agent who is competent to assess the value of the property and is able to support their opinion by recent comparable sales.

Once related party transactions have been identified, the audit team will verify whether the valuation provided represents the market value of the property at the transaction date. Scoping audits may reveal significant undervaluations, especially given the rapid growth of the Queensland property market.

Other target areas will concentrate on agreements and transfer of dutiable property where the transferee agrees to pay, in addition to the stated consideration, the transferor’s GST liability. In these cases, the separate GST component form part of the dutiable value, regardless of the manner in which the separate component is described in the agreement.

Any reassessments will include penalty tax and unpaid tax interest will accrue on any tax that remains unpaid.

 
Most common financial scams

ASIC has identified and warned consumers of the 4 most common financial scams that threaten Australian consumers:

• illegal early access to superannuation;
• fishing for bank account details and PINs - emails that claim to be from banks, credit card companies and online shopping sites that ask for account verifications, claim to be security updates or warnings about scams;
• share trading get rich quick schemes - Schemes are often based on expensive share trading software and can inflate past returns and downplay risks; and
• cold calling from unlicensed offshore brokers.

More

 
Debt Collecting

Most of the time when clients come to lawyers with debts for collection, they've failed to do the things they should have done in the first place. Whilst we can issue court claims, here are some practical suggestions from Inc.com for getting paid.

 
SUPERANNUATION SAFETY UPDATE

Further to our post of 1 March , on 10 March 2004, the Superannuation Safety Amendment Bill 2003 was passed by the Senate with both Government and Opposition amendments.

The Bill will now return to the House of Representatives for consideration of the Senate amendments.

 
High Court copyright ruling

In a 3:2 decision, the High Court of Australia has allowed Channel Ten's appeal against a previous decision that its The Panel program breached Channel Nine's copyright (Network Ten Pty Limited v TCN Channel Nine Pty Limited [2004] HCA 14).

Ten's program "The Panel" contained brief excerpts from programmes previously broadcast by Channel Nine. The Panel Segments ranged in duration from eight to 42 seconds. They were taken from programmes of the usual advertised length of 30 minutes to one hour.

Channel Nine alleged infringement of copyright.

At trial, Conti J held that Ten had not taken the whole or a substantial part of any of Nine's broadcasts.

However, the Full Court of the Federal Court unanimously reversed the decision, accepting Nine's view.

Nine sought to uphold the Full Court decision in its favour that each visual image capable of being observed as a separate image on a television screen and accompanying sounds is "a television broadcast" in which copyright subsists. Channel Ten argued that the excerpts were too insignificant to constitute a broadcast and therefore did not attract the protection of copyright.

The Court allowed the appeal.

The application of the decision was sent back to the Full Federal Court.

 
Non-profits and corporate governance

McKinseys provide a good review of the issues facing non-profits: from finding a shared vision and mission, through to getting the right people on the Board, making meetings work and focussing on performance.

 
The problem with Word

It happened in February with Mark Latham's speech (see the Crikey report).

It's happened again with SCO's legal action against DaimlerChrysler (CNN report).

The metadata in the Word document has been accessed to reveal corrections to and deletions from the original document.

Here's Microsoft's fix.

 
Intellectual Property Confusion

The Advisory Council on Intellectual Property (ACIP) has issued a discussion paper examining the relationship between trade marks and business names, company names and domain names.

Business, company and domain names, and trade marks are four distinct identifiers that serve different purposes in the market place and registration of them accords markedly different rights. As a general rule business, company or domain name registration does not provide the name holder with an exclusive right to use the name.

The increased importance of advertising and the Internet has intensified the significance of these identifiers for business. However, in recent years it has become apparent to ACIP that confusion exists in the business community as to the nature of the rights, if any, associated with each identifier.

 
Workplace Relations Amendment (Transmission of Business) Bill

After nearly 3 years, the Workplace Relations Amendment (Transmission of Business) Bill has been passed by Parliament.

Previously, as a result of the operation of s170MB of the Workplace Relations Act, an incoming employer was bound by a certified agreement to the extent that it related to the whole or part of the business that it was taking over. It could also find itself bound by two or more different, competing and incompatible agreements in relation to the same group of employees.

The Bill amends the Act to broaden the powers of the AIRC to decide on a case-by-case basis whether it should make an order that a certified agreement will not transmit to an incoming employer, or will only transmit to a specified extent or for a specified period. The commission must consider whether employees will be disadvantaged.

 
Corporate keys

The Australian Securities and Investments Commission (ASIC) is extending the corporate key security number system to critical company paper forms. This is part of a suite of initiatives ASIC has introduced to protect the integrity of the Corporate Register.

Corporate keys will be sent to the registered office of all new company registrations from this week and will be included on ASIC company statements. The corporate key is similar in many respects to the PIN on a bank account, it is uniquely associated with the company's ACN and is required to authorise critical changes to company details.

As part of a transition to the new system, ASIC will continue to accept paper forms without a corporate key from companies who have not yet received one. A general grace period of several months will also apply to allow for adjustment to the new system. The existing measures to protect the integrity of the Corporate Register will remain in place.

The forms affected by the corporate key process are:

Form 362. Notification of appointment or cessation of a registered agent by a company;
Form 370. Notification by officeholder of resignation or retirement;
Form 484. Change to company details;
Form 486. Notification to nominate, change or cease a contact address for a company.

 
Fair Trade Agreement update

The full text of the Australia-US Fair Trade Agreement can be downloaded here.

See previous comment.

 
Superannuation Trustee licensing

The Superannuation Safety Amendment Bill 2003 will be debated this week.

APRA has released draft guidelines on a number of subjects that trustees of approved deposit funds, pooled superannuation trusts and APRA regulated superannuation funds will need to consider in relation to trustee licensing arrangements proposed under the Superannuation Safety Amendment Bill 2003 .

The draft guidelines deals with the proposed:
• fit and proper operating standard;
• outsourcing operating standard;
• adequate resources operating standard;
• risk management requirements; and
• net tangible assets definition.

Subject to the passage of the Superannuation Safety Amendment Bill 2003 through Parliament, the legislation introducing the new regime will commence in July 2004.
Existing trustees will be able to continue to operate under existing arrangements, but must obtain a licence by the end of a 2-year transition period.

 
Self Managed Superannuation Funds Tips

The ATO Deputy Commissioner recently delivered an address reviewing SMSF's and traps they are facing.