Our legal experts will keep you up to date on all relevant and current developments.

Financial Services Privacy Update (Part Two): Consumer Data Right Requests and Process

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.

Financial Services Privacy Update (Part One): Credit Reporting Information

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.

Holman Webb Lawyers announces change in Chairman
Friday 7 October 2022

Holman Webb Lawyers is pleased to announce a change in the role of Chairman.  Effective as of 1 October, Wendy MacDonnell, Partner within the firm’s Insurance Group will replace Litigation & Dispute Resolution Partner John Wakefield, who has held the position since 2013.

London calling: Register of Overseas Entities who own property in the United Kingdom

From 1 August 2022, overseas entities that own or are planning to buy, sell or transfer property or land in the United Kingdom will be required to register on the Register of Overseas Entities (‘the Register’) administered by the UK Companies House.

A failure to comply with these obligations is a criminal offence and can result in

  • fines of up to £500 for each day that the overseas entity is not registered, or
  • a prison sentence of up to 5 years for the managing officer of the overseas entity.

Case Note: Health Care Complaints Commission V Godwin [2022] NSWCATOD 17

This article highlights the 11 February 2022 decision in Health Care Complaints Commission V Godwin [2022] NSWCATOD 17, in which a general practitioner, Dr Godwin was reprimanded and his registration suspended for 6 months by the NSW Civil & Administrative Tribunal (‘Tribunal’) in February 2022.

ACCC Prosecutions In Relation To Unfair Contracts

The Federal Court has recently delivered several decisions which must give corporations engaged in retail and financial services some pause for thought - especially in relation to their preparation of standard contract terms and conditions.

This article discusses two recent matters:

The first decision analyses the far-reaching powers within the Australian Consumer Law to prohibit and strike down unfair contracts.  The second decision relates to the banning of unconscionable conduct in respect of franchise operations.

Case Note: RE A [2022] QSC 15 9 – Re-visiting Stage Two Hormone Therapy Treatments for Gillick Competent Minors Diagnosed with Gender Dysphoria
Thursday 1 September 2022 / by Zara Officer & Perry Peralta posted in Health Aged Care & Life Sciences Insurance Gillick Competent Hormone Treatment Family Court

This article discusses the 31 March 2022 Supreme Court of Queensland decision in the matter of Re A [2022] QSC 159.  This decision has confirmed when court authorisation is required for the treatment of a minor who wants the treatment.  

Work Health and Safety Duties and Dealing with Bullying in the Workplace by Non-workers

It is common for businesses (particularly those in the service industries) to experience bullying and harassment when interacting and dealing with complaints from customers and other non-employee workplace participants in the business. 

This can cause stress and anxiety for staff in the work environment.

These issues have come to the forefront as businesses continue to respond to the COVID-19 pandemic by implementing their own policies and procedures for ensuring a safe place of work - and also by ensuring that public health orders are complied with.

Deliveroo is not an Employer: Decision of Full Bench of the Fair Work Commission in Deliveroo Australia Pty Ltd v Franco [2022] FWCFB 156

In a Full Bench of the Fair Work Commission, the Vice and Deputy Presidents applied recent decisions of the High Court to determine that a Deliveroo delivery worker, Mr Franco, was not an employee and was an independent contractor.  The matter in question is Deliveroo Australia Pty Ltd v Franco [2022] FWCFB 156.

The full bench, when applying the rationale in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations & Anor v Jamsek & Ors [2022] HCA 2, found that on a strict interpretation of the terms of the agreement to carry out work, Mr Franco was a contractor and not an employee.

The full bench did say that had they applied the multifactorial test which applied before Jamsek, it would have concluded that Mr Franco was an employee.

Restraints of Trade Within Franchise Agreements – Clause 23 of the Franchising Code of Conduct

Franchise agreements often contain restraints of trade. The restraints typically apply for a period of time after the franchise ends, and may restrict franchisees from competing with the network or conducting a similar business within a particular geographical area.

Whilst these restraints can be legitimate and important protections for the franchise network, they can also be a major hinderance for franchisees looking to move onto their next venture.

Clause 23 of the Franchising Code of Conduct can be a way for franchisees to avoid the operation of these restraint clauses. However, it has quite a narrow application - and there numerous proactive steps that franchisees must take to obtain the benefit of the exception.

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