Privacy in the workplace

For the first time, an Australian Court has granted an injunction under Section 98 of the Privacy Act 1988 (Cth). The Privacy Commissioner is taking a close interest in the case.

In Seven Network (Operations) Limited v Media Entertainment and Arts Alliance [2004] FCA 637 (21 May 2004), Seven Network (“Seven”) obtained an injunction against the Media Entertainment and Arts Alliance (“MEAA”).

Seven was negotiating an enterprise agreement with workers which was opposed by MEAA. Seven planned to let affected employees vote on the agreement. MEAA engaged the ACTU Member Connect Call Centre (“Connect”) to poll Channel Seven staff regarding any concerns they might have about the proposed agreement. Employees were contacted by Connect using information from an old Seven telephone list that was obtained by MEAA without permission or any licence agreement from Seven. Amongst other claims, Seven alleged that both MEAA and Connect breached the Privacy Act regarding the manner in which they handled personal information about Seven’s employees.

The Court dismissed the respondents’ argument that only the Privacy Commissioner could seek an injunction.

In relation to the alleged breaches by MEAA and Connect, the Court held:

MEAA breached NPP 1 by collecting personal information from Connect regarding the employees’ responses to the telephone poll as that information was not necessary for any of MEAA’s functions;

MEAA breached NPPs 1.3 and 1.5 as it did not satisfy its notification obligations pursuant to those principles regarding the information it collected from Connect;

the failure by Connect to identify itself (ie. in its own capacity rather than as MEAA) when it called employees constituted a breach of NPP 1.3.

 
Employee Records Privacy

The Office of the Federal Privacy Commissioner has released a copy of its submission to the review of the employee records exemption in the Privacy Act 1988, which is being conducted by the Attorney General’s Department and the Department of Employment and Workplace Relations.

The submission supports the removal of the exemption.

 
We're moving

From 24 May, Gilshenan & Luton will be located at

Level 13
259 Queen Street
Brisbane Q 4001.

Our phone and fax numbers remain unchanged.

 
Australia-US Free Trade Agreement

The Agreement has now been signed and the final text is here.

 
The Role of the Business Lawyer

The May edition of Darwin magazine contains The Role of the Well-Utilized Business Lawyer.

The author John Gliedman argues that "If you include your lawyer as an advisor to the business team early on, you can make sure that your deal starts off on a sound footing and that you are comfortable with the process that lies ahead."

He says bringing in your lawyer late in the deal almost always results in higher legal costs.

Gliedman says the well-utilized lawyer can:

1. ask you strategic questions and help you achieve your goals.

2. give you process-related advice to help you get from Point A to Point B.

3. work as part of the negotiating team.

4. document your intentions clearly.

 
Reverse Mortgages

What does an elderly person do when they are "asset rich" but "cash poor"?

Australian financial institutions have adapted an American technique of allowing such consumers to borrow funds on the basis that the loan is not repayable until the home is sold or they die.

ASIC has recently reviewed such products. Read the ASIC article.

 
Charities clarified or confused?

The Treasurer has announced that the Government will defer the requirement for charities, pubic benevolent institutions (PBIs) and health promotion charities to be endorsed by the ATO and will not attempt to enact a definition of "charity". See our Charities page.

However the report of the Senate Economics Legislation Committee on the Tax Laws Amendment (2004 Measures No 1) Bill 2004 which was tabled on 12 May 2004 recommended that the Senate pass the Bill subject to one amendment to ensure that the Bill's amendments concerning charities do not commence until after the proposed Charities Bill .

The requirement for charities, PBIs and health promotion charities to be endorsed by the Commissioner is contained in the Tax Laws Amendment (2004 Measures No 1) Bill 2004. As the Bill is still before Parliament, and in order to give organisations adequate time to comply with the new arrangements, the Government has decided to defer until 1 July 2005 the requirement to be endorsed. In the interim, charities, will be able to self-assess their status for the purposes of the tax concessions.

Although the Government has decided not to proceed with a legislative definition of charity, it will introduce a statutory extension of the common law meaning of charity to include non-profit childcare available to the public, self-help groups with open and non-discriminatory membership and closed or contemplative religious orders that offer prayerful intervention to the public. The extension will apply from 1 July 2004. Legislation to give effect to this measure will be introduced as soon as practicable.

 
Bankruptcy changes proposed

The Commonwealth Attorney-General has released an exposure draft explanatory memorandum concerning proposed amendments to the Bankruptcy Act.

The legislation is aimed at high income earners who use bankruptcy to avoid paying debts they can afford to pay. Under the draft legislation, the trustee in bankruptcy will be able to recover assets held in the name of the bankrupt's spouse, or that of another party, where the bankrupt has paid for and uses the asset.

The amendments if enacted will catch property contributed and used by the bankrupt and held in names of others (including trusts). This proposal will affect any arrangements where for example a medical practitioner has put their house into their spouse's name and the medical practitioner later suffers bankruptcy arising from a negligence suit. The measures will be expansive and cover all manner of property including loans, multiple conversions of assets into cash or other forms of property.

The proposed legislation will also affect Family Law Property settlements and rights of a non bankrupt spouse of a bankrupt. Bankruptcy proceedings and Family Law matters will be able to be brought together and the Family Court will be given additional powers. A bankrupt will not be able to use financial agreements to defeat claims of creditors.

The provisions will apply retrospectively up to 10 years in a case where the third party provided market value for the original transfer or if the transferee was unaware of the bankrupt's purpose in making the transfer. However the "purpose" will be prescribed.

There will be deeming provisions allowing a trustee to make the allegation of tainted purpose in a transfer, with the bankrupt forced to disprove the presumption. A tainted purpose can be inferred merely if the the bankrupt's main purpose was to prevent the property from becoming divisible among the bankrupt's creditors.

 
Commonwealth Budget

The Treasurer has announced details of the 2004-2005 Budget.

Besides improved benefits for families, veterans, the elderly, carers and the wine industry, the Government will change the personal income tax threshholds.

The changes:

increase the income threshold for the commencement of the 42 per cent tax rate from $52,000 currently to $58,001 in 2004-05 and $63,001 in 2005-06;
increase the income threshold for the commencement of the 47 per cent tax rate from $62,501 currently to $70,001 in 2004-05 and $80,001 in 2005-06.

In other words, from 1 July 2004 income from $21,601 to $58,000 will be taxed at 30%, income from $58,001 to $70,000 will be taxed at 42% and income from $70,001 will be taxed at 47%.

 
ACA to fight spam

The Australian Communications Authority (ACA) has announced that it and the Australian High Tech Crime Centre are cooperating in the fight against spam.

ACA Acting Chairman Dr Bob Horton has announced that the ACA has staff stationed inside the Australian High Tech Crime Centre in Canberra, allowing them to efficiently exchange information and expertise about cyber offences with police investigators and to work jointly on cases. ACA anti-spam staff bring a mix of skills from investigations experience through to anti IT hacking skills to the centre.

Dr Horton said several global software companies—Brightmail, Sophos, SurfControl and Microsoft—had also agreed to help the ACA in fighting spam by providing technical expertise and information.

 
Privacy Guide for Directors

The Australian Institute of Company Directors and the Office of the Federal Privacy Commissioner have issued a booklet "A Guide for Directors - Privacy and Boards: What You Don't Know Can Hurt You".

The booklet demonstrates how good privacy procedures are not only an essential part of an organisation's risk management strategy, but are an integral part of good customer relations.

 
New eMarketing Code

Rob Edwards, CEO of the Australian Direct Marketing Association (ADMA) has announced that industry, regulators and consumer groups have come together to establish a broad-representative committee to develop an Email and Mobile Marketing Code of Practice to sit alongside the recently introduced Spam Act 2003.

The Code is due to be completed by mid-2004 and will be binding on all organisations that use either email or mobile as a primary form of marketing, or third party organisations that market on behalf of clients. A draft version of the Code is due to be released for public comment during June 2004.

Mr Edwards who is Chairman of the Committee said that the Code “…would put flesh on the bones of the spam laws and provide the marketing industry with clear and specific guidance on complying with the new legislation”. He said that the Code “…was necessary to clarify some of the ‘grey areas’ of the law that marketers are currently grappling with such as consent and viral marketing”.

It is intended that the Code will be presented to the Government for formal registration by the Australian Communications Authority ("ACA"). Code registration allows the ACA to issue warnings and directions to comply with a registered code to any participant in the e-marketing industry.

 
We're moving

From 24 May, Gilshenan & Luton will be located at

Level 13
259 Queen Street
Brisbane Q 4001.

Our phone and fax numbers remain unchanged.

Look out for our new web site design.

 
Cyberscams

The ACCC has issued a useful Information Sheet on cyberscams, ranging from spamming to modem jacking and fake invoices.

 
Guide to Business Exit Planning

CPA Australia has issued a booklet called A Guide to Exiting Your Business.

CPA has alo released the results of its survey of small business succession and exit planning.

Half of small business owners are depending on their business to fund their retirement but a third believe they will have difficulty selling, signalling a bleak future for some looking forward to a comfortable retirement.

According to the survey conducted in March 2004, only 38% of the 600 small business owners interviewed had succession plans.

More

 
Superannuation Safety Amendment Act 2004

The Act received Royal Assent on 27 April and will commence on 1 July 2004.

The amendments were discussed here.

 
Spam Regulations

New Spam regulations under the Spam Act 2003 exclude facsimile electronic messages from the definition of 'commercial electronic message' in section 6 of the Act and specify a number of conditions to be complied with by the electronic address to which an unsubscribe message may be sent.

 
Privacy Amendment Act 2004

The Commonwealth Privacy Act has been amended effective 21 April 2004.

While the amendments are not major, amongst other things, they do:

1. extend the application of National Privacy Principle 9 (“Transborder data flows”) to personal information about persons who are not Australian residents or citizens;

2. enable the Privacy Commissioner to investigate breaches of correction rights relating to persons who are not Australian residents or citizens.