The Australian Consumer Law has now changed, meaning that businesses with standard contracts will soon be at risk of incurring penalties in excess of $50 million for each unfair contract term within their standard form agreements. 

The definition of small business contracts in section 23(4) will be amended to apply to a business that has either:

1. fewer than 100 employees; or
2. an annual turnover of less than $10 million (calculated on the business’ last income year).

Casual employees are not counted unless employed on a regular and systemic basis, and part-time employees are counted as a fraction of a full-time employee.

The change to this definition potentially expands the scope of businesses that would be captured under this section, as it would no longer be confined to businesses with fewer than 20 employees.

Dennis Denuto famously said, “it’s the Constitution, it’s Mabo, it’s justice, it’s law, it’s the vibe and aah no that’s it, it’s the vibe”. 

The Constitution establishes the composition of the Australian Parliament and outlines how the federal and state Parliaments share power.  It recognises some individual rights (such as freedom of religion) and implies others (such as freedom of speech). 

On its face, it has nothing whatsoever to do with motor accidents. 

Yet for a small but significant class of people, the Constitution has a fundamental impact on how motor accident claims are handled.

The recent Court of Appeal decision in Searle v McGregor [2022] NSWCA 213 has taken an important step in clarifying matters for this particular group of people.

There is no doubt that the pandemic era has caused an economic downturn - now evident in the surge in business failures, particularly within the construction sector.

With the pandemic support schemes coming to an end, there is an imminent fear that there will be further downfall impacting already struggling businesses, which will in turn see a rise above pre-pandemic insolvency levels.

The surge in the number of business failures has reached a two and a half year high, with the largest increase in administrations over the past 12 months being within the construction industry, as companies respond to supply shortages and inflation of materials amongst other concerns.

There is no question that one of the most high-profile legal issues at the moment relates to privacy and data control.   

Recent privacy breaches have highlighted that Australia’s laws may not be as effective as we would like in requiring businesses to take appropriate precautions to prevent the inappropriate release of private information and personal data.

In part, this may be because Australia has a very low penalty regime with respect to privacy breaches. This, and other relevant matters, are currently being considered - and an update to the Privacy Act 1988 has now been drafted and introduced into Parliament.

The Privacy Legislation Amendment (Enforcement and Other Measures) Bill 2022 considers some of the core elements referred to in the 2021 Exposure Draft. In particular it increases penalties for data breach.  Currently, a corporate entity could be exposed to penalties of up to $2.22 million.

Moving forward, under the new regime, penalties will be the greater of:

• $50 million;

• 3 times the value of the benefit obtained by the company; or

• 30% of the adjusted turnover of the company during the period in which the privacy breach occurred.

Non-corporate entities and individuals will have their penalties raised from $444,000 to $2.5 million.

In September 2021, Holman Webb published an article highlighting the decision of His Honour Justice Darke in the matter of BP7 Pty Limited v Gavancorp Pty Limited [2021] NSWSC 265: Put and Call Option Agreements in Residential Property Transactions.

There has now been a legislative response to this decision.

The Conveyancing (Sale of Land) Regulation 2022 commenced on 1 September 2022.

Regulation 17(3) of the 2022 Regulation provides that “section 66S of the Act does not apply to a contract made in consequence of the exercise of an option to compel the purchase of land”.

This effect of this amendment is that there is no cooling off period for the sale of residential property made in consequence of a Put Option.

In August 2021, Holman Webb Lawyers reported that the New South Wales Government was considering introducing ‘Decennial Liability’ insurance (inherent defect insurance) to provide up to 10 years of cover to apartment owners for the cost of rectifying defects that threaten the structural integrity of the building.

In a 25 October 2022 media release, the minister for fair trading, Victor Dominello has now announced that the government has accepted the application of Resilience Insurance to offer the insurance.

The minister’s view is that “Decennial liability gives power to the purchasers and body corporates, who will no longer need to prove liability and will only have to demonstrate the damage for assessment.” 

The policy will provide cover for up to 10 years and would cover critical parts of the building’s common property, including the building’s structure, fire safety systems and water proofing.

The Decennial liability cover, in conjunction with the cover under the Design and Building Practitioners Act 2020, now means that apartment owners have up to 10 years to either make a claim under the policy, or make a claim against the building practitioner for damage to the building caused by defective building works or design.

As highlighted in our November 2021 article New Requirement for Directors to Register for a Director Identification Number, company directors are required by law to apply for a director identification number.

A director ID is a unique identifier that directors apply for once and keep forever. ASIC suggests that the implementation of the director ID system will help prevent the use of false or fraudulent director identities.  All directors of companies, registered Australian bodies, registered foreign companies or Aboriginal and Torres Strait Islander corporations will need director ID’s.

Unfortunately, on 28 October 2022 ASIC published an Alert warning that scammers are pretending to be ASIC, and are approaching Registry customers via email.

On 26 October 2022, the Commonwealth Government announced that it will introduce legislation to amend the provisions of the Fair Work Act 2009, as it relates to flexible work arrangements. 

Purportedly, the purpose of the amendments is to give the Fair Work Commission power to order that employers deal with requests for flexible workplace arrangements.  The legislation may also give the Fair Work Commission power to order that flexible workplace arrangements be put in place.

The wording of the Bill has not yet been published – however, if the final Bill matches industry expectations, it will for the first time give the Fair Work Commission direct independent power to order flexible work arrangements outside the scope of the disability legislative scheme.

Since 2020, the Australian Competition and Consumer Commission has introduced amendments to the Competition and Consumer Act 2010 which enable consumer data information to be shared, in order to facilitate the process known as open banking.

At present, Consumer Data Right legislation solely relates to information held by banks and energy companies.  It is anticipated that there will be a further and more significant roll out of legislation impacting the wider financial sector, as well as other sectors within the economy, in the next several years.

Holman Webb Lawyers is currently assisting broker groups, aggregators and software providers in relation to banking Consumer Data Right requests, and is similarly advising accredited data recipients with respect to their entrance into the financial services area, to enable applications for consumer credit.

The process surrounding the release of Consumer Data Right information is developing rapidly, as new technology emerges. There are privacy concerns relating to the management of this information, with detailed legislation and systems having been introduced to enable this information management to occur.

This article provides a brief analysis of the legislative process.  Readers should note that there will undoubtedly be further change, as the Consumer Data Right process gains traction.

Contained within the Privacy Act 1988 and the Privacy (Credit Reporting) Code 2014 is a regime concerning the collection, storage and use of data relating to an individual’s credit’s history and credit worthiness information.

The Office of the Australian Information Commissioner recently conducted a review of the Code and made several recommendations for change, providing a timely reminder of the nature of the Code and the obligations on all parties involved in requests for credit reporting information.