Queensland Land Court hears human rights challenge to Clive Palmer’s Galilee Coal Project

THE OPENING arguments in Youth Verdict and The Bimblebox Alliance’s human rights, nature and climate legal challenge to Clive Palmer’s proposed Galilee Coal Project will be heard from today at the Queensland Land Court.

The Queensland Land Court will hear what Youth Verdict and The Bimblebox Alliance has called "compelling evidence that the Mining Lease and Environmental Approval for the mine should be refused". 

Represented by the Environmental Defenders Office, Youth Verdict and The Bimblebox Alliance will argue coal from the mine will impact the human rights of First Nations Peoples by contributing to dangerous climate change. They will also argue the mine would destroy the Bimblebox Nature Refuge which sits on top of the proposed mine site. 

In a legal first, First Nations people in Gimuy/Cairns and the Torres Strait Islands of Erub and Poruma will give evidence to the Land Court on Country and in accordance with First Nations protocols.

The court will travel to the traditional lands of First Nations witnesses to hear first-hand "how climate change is impacting their lives and what will be lost if climate change is worsened by the burning of coal from new mines, including the Galilee Coal Project".

Youth Verdict’s First Nations-led argument is the first time a coal mine has been challenged on human rights grounds in Australia.

According to Waratah Coal's website statement, "The Galilee Coal Project (Northern Export Facility) consists of two open cut operations and four underground longwall mining operations, coal handling preparation plants and a rail transportation network to Abbot Point and a proposed port facility at Abbot Point. The project intends to mine 56 Mtpa [million tonnes per anum] of run-of-mine (ROM) coal, which will be later processed to produce 40 Mtpa of product coal. The project will initially commence operations with a 10 Mtpa open cut mine, eventually ramping up to 56 Mtpa several years later."

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Barrister Ian Neil warns about ‘big government’ changes to how Australia works

By Leon Gettler, Talking Business >>

THERE ARE TWO seismic changes that have modified Australian workplaces and which challenge employment law, according to leading Australian employment and industrial law barrister Ian Neil SC.

The first is the way employees can work from home. The second is JobKeeper. Both will have implications for years to come, Mr Neil said.

The prospect of many people now working from home, across all industries, being reluctant to come back in the office to work full time will have enormous commercial implications.

“The central business districts of our large cities will probably never be the same as they were before the pandemic,” Mr Neil told Talking Business. 

“It also has profound implication for the way work is organised and I would suggest, finally, deep pervasive implications for the way employers and their employees relate to one another.”

JOBKEEPER IN THE SHADOWS

Similarly, the implications of JobKeeper will last for years, despite the Federal Government now winding it back.

“With income support on such a large scale, once it’s been done once, it becomes easier to do it again, and perhaps to do it in different circumstance,” Mr Neil said.

“It’s affected a revolution, I would say, in that it’s overturned the consensus over the last 15 to 20 years, the no-liberal consensus, about the role of government in our society, in our economy and in relation to people’s employment.

“Now once that consensus is overturned in that way, the implications of it remain. They will sit there.”

That means we will not be going back to an age of smaller government.

“We’ve seen attempts by our Federal Government to sell the idea that it’s time for governments to step back, that the Australian people don’t want governments to play such a large role in their lives as they have over the last two years but that message does not seem to have resonated and rather, seems to have foundered on events,” Mr Neil said.

“The floods in northern NSW and Queensland are a perfect example of that.”

WORKING FROM HOME CONUNDRUMS

Mr Neil said people ‘working from home’ raised a number of important occupational health and safety issues that the law still has to grapple with in a conclusive way.

“Once you have employees working from home, then for all practical legal purposes, at least while they are performing work, the worker’s home becomes a place of work,” Mr Neil said. “And because it’s a place of work, it attracts the stringent statutory and other obligations that all employers have to provide safe places of work for their employees and workers.

“Now that is an extraordinary idea if you think about it, the idea that employers have a legal responsibility to ensure that if their employees are working from home, those homes are safe places to work.”

Mr Neil cited one case where a woman was tragically murdered by her partner and that case was held to be covered by workers’ compensation legislation because her home was a place of work.

“If you think about it, it’s easy to see how the notion that employers have that kind of responsibility is revolutionary,” he said.

This raises a number of issues for employers. How do they ensure their workers’ home is a safe place to work? What steps do they take? What powers of control and direction do they have?

The question of whether an employee can refuse coming into work will largely be determined by the growing trend of society now ‘living with COVID’.

“An employee will be no more at risk by coming to work than they will be going to the shops, or moving about the streets or going to a cinema,” Mr Neil said.

“There may be some places of work that pose some special risks, working in close proximity to other workers in unventilated workplaces and so on, but they will be rare.”

www.inaneil.com

www.leongettler.com

 

Hear the complete interview and catch up with other topical business news on Leon Gettler’s Talking Business podcast, released every Friday at www.acast.com/talkingbusiness.

https://play.acast.com/s/talkingbusiness/talking-business10-interview-with-ian-neil-sc

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Foreign investor buys multiple residential properties, fined $250,000 after ATO orders re-sales

THE FIRST penalty order for breaches of Australia’s foreign investments rules -- a foreign investor was penalised for purchasing multiple properties in outer Melbourne without receiving permission from the Foreign Investment Review Board (FIRB) -- has been issued by the Federal Court of Australia, attracting $250,000 in penalties.

The Australian Taxation Office (ATO) identified the purchases using its data sources as part of a multi-faceted compliance approach to detect foreign investors in breach of the Foreign Acquisitions and Takeover Act 1975 (FATA).

In July 2020, after a compliance investigation, the ATO filed proceedings in relation to six breaches of the FATA by Vijay Balasubramaniyan, who purchased four properties without permission and simultaneously owned two established properties at once, in contravention of the Act.

"We welcome this decision as it is the first penalty decision under the FATA. This serves as a clear deterrent to other foreign investors who believe they can operate outside of the law." ATO Assistant Commissioner Keir Cornish said. 

“There are obligations under Australian law for foreigners that have invested in, or plan to invest in Australian residential real estate. The ATO promotes voluntary compliance of the rules by foreign persons, but where foreign investors resist compliance action, stronger enforcement action is taken.”

Foreign investors are limited in the type of residential property they can acquire in Australia and must apply before doing so. Foreign investors found to be in breach of the FATA face civil penalties to enable the government to recapture capital gain or 25 percent of value of the property, whichever is greater.

Mr Cornish said the case showed the strength of ATO’s data driven approach to monitoring compliance with Australia’s foreign investment rules. The properties were sold as a result of ATO compliance action, making these houses available to Australian residents.

The ATO is the co-administrator of the Foreign Acquisitions and Takeover Act 1975 (FATA), and has been responsible for monitoring compliance of foreign investment in residential real estate since 2015. In the period 2015-2021, 434 properties have been disposed as a result of ATO compliance action. The ATO detects non-compliance by using systems and processes such as data matching, data analysis and monitoring, information sharing with other agencies and community referrals

www.ato.gov.au

Ombudsman welcomes Feds' cash flow boost, red tape reduction

THE Australian Small Business and Family Enterprise Ombudsman, Bruce Billson has welcomed today’s Federal Government pre-Budget announcement providing a cash flow support to small and family businesses through changes to PAYG tax and commitment to reducing red tape.

Under the proposed changes, the 10 percent GDP uplift rate that applies to PAYG and GST instalments will be reduced to 2 percent for the 2022-23 financial year, subject to the legislation being passed in parliament.

“This measure would free up some cash flow for the collective kitty of small and family businesses, by reducing the tax burden on them,” Mr Billson said.

“Small and family businesses are however advised to keep abreast of their tax obligations as they would need to pay any extra tax owed at the end of the financial year, if their business earnings exceed what is calculated quarterly. 

“We welcome the government’s proposed update of the PAYG system from early 2024 to allow for PAYG to be calculated in real time, based on the how the business is tracking financially.

“These proposed changed would provide an automatic refund of tax paid in the year if a company with PAYG instalment obligations reports a substantially lesser profit than anticipated or indeed a loss,” Mr Billson said.

Today’s pre-Budget announcement also included broader measures to utilise technology to help reduce compliance costs and improve processing times for small and family businesses.

Links between Single Touch Payroll data from the ATO and state governments means tax returns and other forms can be pre-filled – a change the government estimates will benefit about 170,000 businesses that pay payroll tax. 

Similar technology will be used to pre-fill annual tax returns using BAS for contractors who use the taxable payments reporting system. The government states this will benefit up to 190,000 businesses.

“Reducing red tape allows small and family businesses to get on with what they do best – growing their business,” Mr Billson said.

“Ultimately, we welcome any measure that supports small and family businesses in driving jobs growth, particularly during this national recovery phase.

“Moves to remove unnecessary headwinds are helping make Australia the best place to start, grow and transform a business.

“We look forward to seeing further detail on these small and family business measures and more in the Budget next week.”

www.asbfeo.gov.au

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ATO and Tax Practitioners combat cybercrime

 

THE Australian Taxation Office (ATO) and the Tax Practitioners Board (TPB) have developed new guidelines on client identity verification. These guidelines will also help improve security to stop criminals from committing tax fraud by stealing taxpayer identities, according to the ATO.

“We are increasingly concerned that criminals are committing tax refund fraud by stealing data and impersonating taxpayers,” ATO Deputy Commissioner, William Day said.

“Protection of privacy and information is important for all Australians. Tax Practitioners have a trusted role and these new guidelines will further help them to meet their obligations to secure the personal and financial details of their clients.”

The TPB and ATO have consulted extensively with industry and tax practitioners in the development of these guidelines. A cyber security incident can have serious financial consequences for its victims, whether they are an individual, small business or large company.  

The TPB has released proof of identity (POI) guidance to help tax practitioners verify their clients’ identities and reduce the risk of identity theft and tax fraud. The ATO has also released the 'Strengthening client verification guidelines' which complements the TPB’s guidance and is intended for registered tax practitioners using online services for agents or practitioner lodgment service software.

The TPB will soon be running a free webinar with the ATO, to explain the POI requirements to tax practitioners. Details of the webinar will soon be published on the TPB website.

The new guidance has been developed with the ATO and TPB to support tax practitioners in adopting a practical and robust proof of identity process.

“In a period where cybercrime is becoming increasingly prevalent, maintaining best practices for client verification is vital," TPB chair Ian Klug said.

He said the TPB guidelines outline appropriate requirements for verification-- "this includes defining the documents to be sighted, maintaining records and recommendations about achieving remote verification of clients”.

The ATO and TPB will conduct additional consultation to support tax practitioners with transitioning to the new guidelines, which are intended to become minimum standards in due course.

Mr Klug said many tax practices had already implemented robust proof of identity systems as part of their risk management and governance processes.

“I encourage other tax advisers to review and update their systems as soon as possible," he said. "After an appropriate time for education, consultation, and transition, we will formalise these guidelines and their date of effect. 

www.ato.gov.au

www.tpb.gov.au

 

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To survive the Great Resignation, business leaders must innovate now

MELBOURNE lawyer Rob Jackson is warning of the high risk to businesses intellectual property (IP) should workers change jobs in large numbers post-COVID – a phenomenon that US and Europe is already calling the Great Resignation.

Rigby Cooke Lawyers’ workplace relations partner Rob Jackson said experts advice was the full impact of the Great Resignation would not be felt in Australia until March 2022, with almost 40 percent of Australian workers predicted to change jobs in the next 12 months.

Mr Jackson said the increased turnover of employees would put Australian businesses at risk of compromising their IP, so he urged companies to take the necessary steps now to protect their creation and innovation, before the predicted wave of resignations hits.  

“It takes years to turn innovation into commercialisation, and yet, you can lose your IP in minutes,” Mr Jackson said.

“Businesses, large and small, are vulnerable to the real risk of somebody leaving and taking not only that great idea with them, but the whole system of suppliers, investors and customer data.”

TIME TO PROTECT IP

In times of change or uncertainty, identifying and protecting business IP was more important than ever, Mr Jackson said.

Mr Jackson said businesses should consider what makes them unique and whether that formula or process is protected by means of confidential information, copyright, trade mark or patent. 

It’s also important to determine who the key workers and customers are and what impact their departure would have on the business. 

“A small organisation may have no safeguards in place,” he said. “Whereas a large business might become lost in a myriad of policies, and repeatedly amended contracts, where key protections are now poorly expressed.”

Mr Jackson said there were things businesses could and should be doing now to protect themselves, among them:

  1. 1. An IP audit to identify what assets can be protected by copyright, patents and other means of IP protection, and identify which workers have created those rights.
  2. 2. Keep employment contracts up to date and review them regularly, clearly outlining ownership of IP rights.
  3. 3. Clearly define what constitutes confidential information and only disclose information to necessary employees. Before disclosing any details, obtain a signed acknowledgement to ensure the person will protect its integrity.
  4. 4. Ensure contractors have a written agreement which gives the organisation ownership of all IP rights on anything they create during their engagement with the business.
  5. 5. Conduct an IT audit to ensure the integrity of all online systems, ensuring unauthorised use is either prevented or at least detected as soon as possible. This will also assist in managing a business’ privacy law obligations.
  6. 6. Conduct a HR audit. He advised a reality check of how strong your workplace culture was. For example, are there issues that may prompt employees to resign, such as lack of career progression or bullying?

REAL VALUE IS IN MOTIVATED EMPLOYEES

While protecting the business was important, retaining valuable employees would be equally critical over the next 12 months, Mr Jackson said. 

Mr Jackson said businesses that cultivate a culture of genuine trust and respect would be more likely to retain employees who feel they are valued – as well as attract new talent. 

“A positive, respectful and inclusive workplace with clear and fair leadership is just as essential as protecting your IP,” Mr Jackson said.

“Great employees who are unhappy with the workplace culture will be more difficult to retain, providing competitors – new or existing – with the perfect opportunity to hire your staff and leverage their knowledge and experience of your business and industry. 

“An employer who provides a positive and supportive workplace culture will have greater success in creating teams who enjoy coming to work and are not tempted to leave.” 

Rob Jackson is a partner in Rigby Cooke Lawyers workplace relations team – a commercial law firm providing specialist legal advice, backed up by in-depth industry knowledge to public and private sector clients across Australia – and he has more than 25 years legal experience.  He is the author of Post Employment Restraint of Trade, published by Federation Press.

www.rigbycooke.com.au

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Ombudsman tackles crisis facing amusement, leisure and recreation businesses

THE Australian Small Business and Family Enterprise Ombudsman (ASBFEO), Bruce Billson, has released an interim report into the insurance crisis facing Australia’s amusement, leisure, and recreation sector. 

“There is a clear and present danger facing the amusement and recreation sector because an inability for these businesses to get insurance cover means that many of the attractions people know and love won’t be able to operate,” Mr Billson  said. 

“The lack of insurance coverage could lead to the closure of businesses in the amusement and leisure sector, significant job losses, particularly in regional areas, stranded assets and loss of economic activity generated by metro and regional shows and amusement parks.” 

The report, The Show Must Go On, explores whether a Discretionary Mutual Fund (DMF) can be a durable solution and discusses required legislative reform by states and territories to ensure it is ‘fit for purpose’.  Mr Bilson said it also highlights the need for DMFs to be recognised and accepted as a suitable solution by councils and showground managers. 

Mr Billson said the interim report seeks urgent feedback from all stakeholders by November 3 to the ideas and questions raised in the report.

“We are calling for submissions from those in the industry so we can further understand any issues before we release a final report to government,” Mr Billson said.

“As businesses look to re-open after lockdowns, this issue is a shattering blow for those small and family businesses in the amusement, leisure and recreation sector which will be forced to stay shut because they can’t get insurance.  There is a very real possibility shows won’t go on – something has to be done for the show to go on. A DMF may represent the only workable solution.” 

The ASBFEO has been reviewing a proposal by the Australian Amusement, Leisure and Recreation Association (AALRA) to establish a DMF as a solution to the critical and immediate need for insurance in the sector. 

The interim report found the lack of affordable insurance was not the fault of the amusement industry but due to a 'hardening' in the global insurance market. Very few insurers are willing to insure the industry, and premiums – when available – had risen by as much as 200 percent. 

“In many instances the policy is priced such that it may as well not exist because small operators have no capacity to pay for the cover they need to continue operating,” the report said. 

“In the case of the amusement, leisure and recreation sector, there isn’t an offering that provides full coverage.”

Public liability insurance coverage is a legal requirement for the operation of rides at showgrounds and fixed installations, both through contractual obligations and obligations imposed on councils and other landowners by state and territory governments. 

DMFs operate to provide cover on a discretionary basis to a group of individuals or organisations that have a similar risk profile.  Under a DMF, members who meet requirements would have access to a certificate of protection, enabling them to operate these amusement rides. 

The Show Must Go On interim report and overview can be found at www.asbfeo.gov.au/reviews/discretionary-mutual-fund-review.

Submissions should be sent to: This email address is being protected from spambots. You need JavaScript enabled to view it. by COB, November 3, 2021.

 

Report Overview

The Show Must Go On: Is a discretionary mutual fund the solution to the insurance crisis facing Australia’s amusement, leisure, and recreation sector?

Background

  • The Australian Small Business and Family Enterprise Ombudsman (ASBFEO) conducted a self-generated inquiry in 2020 into the insurance market for small business, finding significant dysfunction for several sectors.
  • The Amusement, Leisure, and Recreation Association (AALARA) submitted to that review noting that many members were facing closure and/or stranded assets due to the unavailability of insurance.
  • AALARA then approached the Federal Government to seek support to establish a discretionary mutual fund (DMF).

Preliminary findings

  • A DMF suits the industry represented by AALARA.
  • A DMF may be a suitable way to address the current insurance crisis facing the industry.
  • The suitability and durability of a DMF solution for the sector will depend heavily on:

o   support for legislative reform from states and territories, and willingness to accept the solution by councils and land/showground managers.

o   the final makeup of the membership.

o   the cost of premiums and reinsurance, the management of the DMF and any management costs, and the size of any claims in the first years of operation.

About Discretionary Mutual Funds (DMFs)

  • DMFs operate to provide risk cover on a discretionary basis to a group of individuals or organisations, through a ‘Certificate of Protection’.
  • DMFs do not offer an insurance product: o Under traditional insurance coverage, a policy holder has a contractual right to have their claim paid upon meeting the policy’s terms and conditions.

o   Under DMF coverage, the DMF’s members are entitled to submit a claim for indemnity to the DMF’s board, which may or may not approve the claim, at its discretion.

Benefits of a DMF

  • DMFs are often created to address market failure or significant dysfunction.
  • DMF members are accepted or rejected by the directors, who have significant industry knowledge, allowing them to more closely monitor risk profiles of those covered.
  • DMF membership can also be predicated on compliance with a range of risk management and training protocols to lessen the risk profile across the membership.
  • Because DMFs do not have shareholders to make returns to, they are able to operate on slim margins, potentially reducing costs to members.
  • DMFs can offer additional services to their members, adding value over the protection offered.

Challenges

  • The DMF should be fully funded for the first year, requiring a reasonable amount of start-up capital.
  • Many pieces of state, territory, and local government legislation and regulation require businesses operating on their land to hold insurance, which a DMF cannot offer.

o   To address this, these pieces of legislation and regulation could be amended to allow membership of a DMF in lieu of insurance where insurance is not available, or the market is significantly dysfunctional.

  • A DMF should be established in such a way to ensure its ongoing durability.
  • Consumers may have concerns about the discretionary nature of coverage.

Alternatives

  • A range of alternative options have been considered to address this issue, including a captive, self-insurance, group insurance schemes, a reinsurance pool, tort reform to address risks (‘the New Zealand solution’), implementation of a National Injury Insurance Scheme, and hybrid models.
  • A recent entrant to the market has been Coversure, a respected UK-based insurer:

o   Only provides $10 million coverage (half of the $20 million required by most legislation/regulation).

o   Industry is reporting premiums of at least double that they were previously paying.

o   Will not cover the whole market.

 

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