Business
Services News
Family Law Reforms
The House of Representatives Family and Community Affairs Standing Committee has released its report on Child Custody arrangements following separation. Three recommendations for change in the report are:
- changes to the substantive law through the introduction of legal presumption of equal parenting responsibility following separation, in contrast to the muted presumption of a 50/50 time split for children;
- a restructuring of the Family Law System with the recommendation that a non adversarial, multi-disciplinary Tribunal replace the Family Court in the adjudication of all but the most difficult of Family Law disputes; and
- a review of the child support scheme.
The main focus points of the proposed reforms are:
- The creation of 65 community based family relationship centres designed to facilitate early agreement based resolution between parties;
- Greater emphasis to be placed on shared parental responsibilities and a move towards equal time with both parents;
- Establishment of Child Support task force to address perceived inequalities in the current system; and
- The development of a system that encourages people to attempt to resolve disputes outside the Court system.
Further information on these reforms can be found at
http://www.aph.gov.au/library/intguide/law/famlaw.hgm and
http://www.aifs.gov.au/instiute/media/mediamenu.hgnl.
Defamation plan
The Federal Government has unveiled a revised proposal for a national uniform defamation law. The revised plan is the result of a consultation process with legal practitioners, media representatives and other interested parties, many of whom were critical of the Federal Government’s original plan which sought to abolish juries amongst other reforms.
A major concern is the potential erosion of the rights of the individual as against the power of the mainstream media. Further, any apparent attempt to cap damages is not commensurate with recent widespread reform of personal injury law.
The latest blueprint includes the following reforms:
- Reducing the juries role to deciding whether a publication is defamatory and whether a defence is available. Juries are not to decide damages. Juries are only available in the Federal Court and in those States and Territories which currently allow for juries.
- Creating a defence of truth and public "interest" which covers any published matter unless it involves an unwarranted disclosure of specified "private affairs". Codifies the defences of honest opinion and qualified privilege.
- Introduces procedural changes to facilitate the speedy resolution of proceedings including reducing limitation periods and requiring proceedings to be struck out for want of prosecution.
- Placing an emphasis on encouraging the restoration of the plaintiff’s reputation rather than vindicating the plaintiff by an award of damages.
The revised proposal is open for further public input. The closing date for comments is 31 October 2004. The proposal can be viewed at http://www.ag.gov.au/defamation.
Superannuation portability - ASIC's tips for consumers
From 1 July 2004, members of accumulation superannuation funds are able to request their fund to transfer their benefits to another regulated fund, provided that employer contributions have not been made to the member's account in the 6 months prior to the request.
However, superannuation funds are only required to effect 1 transfer per year. Further, if a member wishes to transfer less than his or her entire withdrawal benefit, the trustee can require the member to leave a balance of up to $5,000 behind in the fund.
To assist fund members with deciding on whether to transfer their superannuation benefits under the portability measures, ASIC has released consumer information outlining good and bad reasons for changing funds.
In particular, ASIC warns fund members to:
- check whether changing funds will affect the level of employer contributions made on their behalf;
- compare different funds with regard to investment strategies, fees and charges and the level of death and disability insurance cover; and
- look out for special conditions regarding exit/entry fees, insurance cover and the possible reduction of benefits if switching out of a defined benefit fund.
The information is available on the ASIC Website at
http://fido.asic.gov.au/fido/fido.nsf/byheadline/Changing+funds?openDocument.APRA's approach to new international accounting standards
APRA has outlined the approach it will be taking during the implementation of International Financial Reporting Standards (IFRS) in Australia. This follows confirmation of the Australian equivalents to these Standards by the Australian Accounting Standards Board - which means that all Australian reporting entities must adopt the Standards for reporting periods beginning on or after 1 January 2005.
The adoption of IFRS will require APRA to revise its prudential standards and statistical requirements for authorised deposit-taking institutions, life and general insurance companies. As a result, APRA will be releasing a series of discussion papers on the main implications of IFRS for the prudential framework in Australia in relation to the changes to be implemented.
As a priority, APRA intends to review its prudential approach in the following areas:
• the treatment of innovative capital instruments for capital adequacy purposes;
• the treatment of superannuation fund surpluses and deficits; and
• the treatment of Excess of Market Value over Net Assets for life insurance subsidiaries.
APRA has also advised that it will not make any IFRS-related changes to the existing prudential framework until it has completed relevant consultations, and not before 1 July 2005 at the earliest. In the interim, APRA-regulated institutions will need to continue to comply with, and report in terms of, current prudential standards.
For further details on APRA's conversion strategy for IFRS, see "Other information" on APRA's website at: http://www.apra.gov.au.
ATO announcement on "legislation by press release"
The ATO has issued an important document that sets out how the Tax Commissioner will administer (or "manage") legislation measures which have been announced by press release but are still to be enacted and which will have retrospective application dates once the enabling legislation is enacted.
The ATO says its general practice in administering retrospective changes is to apply the existing law until proposed changes to the law are enacted. However, it notes that, under Australia's self-assessment system, the Commissioner is empowered to accept returns as lodged "and may, in limited situations, advise taxpayers to meet their obligations by anticipating the effects of a proposed change to the law".
According to the ATO, where the Government has announced a policy change, "it is reasonable that a taxpayer may expect that the change has effect immediately and organise their business accordingly". In these circumstances, the ATO says that if a tax liability arises when the proposed law is enacted, and the taxpayer has exercised reasonable care, "the general outcome will be that there will be no tax shortfall penalty and, depending on the scenario, General Interest Charge will be remitted".
The ATO's new document can be accessed at http://www.ato.gov.au/taxprofessionals/content.asp?doc=/content/45130.htm