Legal

Cyberspace: the final legal frontier. Australia welcomes UN report

AUSTRALIA has officially welcomed a new United Nations (UN) report affirming that international law applies to states' use of cyberspace. The way international law is evolving to cope with the impact of the internet on markets is an issue of growing concern for business -- as well as new security challenges.

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How does law cope with the borderless internet?

 

In a report released last week, the United Nations Group of Governmental Experts (GGE) - which considered developments in the field of information and telecommunications ‘in the context of international security' - affirmed that international law applied to states' use of information and communications technologies. In particular, the group found that the UN Charter covered cyberspace.

The UN group consisted of 15 experts nominated by the governments of Argentina, Australia, Belarus, Canada, China, Egypt, Estonia, France, Germany, India, Indonesia, Japan, the Russian Federation, the United Kingdom and the United States.

It is the first time a UN group has come to such a conclusion.

The UN group was established by the UN Secretary-General Ban Ki-moon in 2012 to study existing and potential threats in the sphere of information security and how nations could cooperate to overcome them.

The Australian Government last week congratulated the experts on their historic agreement and noted "this breakthrough was made under the leadership of an Australian chair, Deborah Stokes, who is now Australia's High Commissioner in Port Moresby".

The report also highlighted the important role of confidence building measures to promote trust between states and help reduce the risk of conflict in cyberspace.

"Australia now looks forward to working with international partners on how international law applies to states' use of cyberspace," a Federal Government spokesman said.

US State Department spokesman Jen Psaki said, "All UN member states share a common commitment to the pursuit of peace. We are all parties to the UN Charter, which seeks to prevent war of all kinds. We also subscribe to the Geneva Conventions and the Law of Armed Conflict, which are aimed at minimizing civilian suffering when armed conflict occurs.

"These norms are a cornerstone of international relations and are particularly important for cyberspace, where state-on-state activities are becoming more prevalent.

"The United States is pleased to join consensus to affirm the applicability of international law to cyberspace. With that clear affirmation, this consensus sends a strong signal: States must act in cyberspace under the established international rules and principles that have guided their actions for decades - in peacetime and during conflict."

How laws are applied to cyberspace is an issue increasingly facing business and the UN approach is a welcome pointer to future trade involving the internet.

http://www.dfat.gov.au/

http://www.state.gov/

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WH&S shake-up: How could the Harlem Shake affect your workplace unexpectedly?

THE DISMISSAL of 15 employees by a Western Australian mining company, for engaging in the YouTube craze, the Harlem Shake, has far reaching consequences for workplaces in Australia, according to Ben Cooper an associate director specialising in industrial relations at Livingstones business advisers.

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15 WA miners were sacked after performing the Harlem Shake on YouTube - what are the broader consequences?

A total of 15 employees and contractors were dismissed for alleged 'safety breaches' after performing or watching the Harlem Shake at Agnew underground gold mine in Western Australia.

The video of the employees and contractors performing the internet craze was subsequently posted onto YouTube and went ‘viral’. That was when the company felt it had to take action, for workplace health and safety reasons.

“Whilst the dismissal of these 15 employees may seem unsympathetic it is important to note that mining companies must apply the health and safety policies consistently,” Mr Cooper said.

“A consequence of inconsistency could mean an unfavourable ruling by the Fair Work Commission.

“It is also important that all employees are highly aware of the policies, and consequences to safeguard their own health and safety in the workplace."

Mr Cooper said the dismissed Agnew mine employees advised the West Australian newspaper that those participating did not believe they had been involved in any serious safety breaches as they continued to wear helmets, lamps, and safety glasses.

However, Mr Cooper said, a number employees appear bare chested in the footage with some safety equipment removed.

“The Harlem Shake internet meme involves groups of people erratically dancing to the song, Harlem Shake, for approximately 30 seconds and posting the result to YouTube,” Mr Cooper said. “It has been estimated that since February 2, 2013, when the first Harlem Shake video was posted to YouTube, a further 40,000 videos have been posted and viewed 175 million times.

”This event, and the previous 'planking' meme, demonstrates the speed internet crazes can develop, spread and become viral," he said. There are workplace and brand consequences for companies and organisations.

"It also highlights the difficulty that employers have in predicting when and how these events might occur in the workplace," Mr Cooper said.

"To combat these safety issues occurring in your workplace we recommend employers have comprehensive workplace health and safety policies in place.

"These should cover a range of possible employee behaviours and consequences. It is also important to re-iterate health and safety policies regularly with employees so they are front of mind and curb any potential breaches before they begin."

Mr Cooper said many mine sites have 'safety moments' to discuss a potential safety breaches and how they were overcome, and this could be applied to other sectors.

"Situations like the Agnew Mine could be used as external examples on what not to do and the consequences for breaches," he said.

Livingstones, a member of the Queensland Leaders alumni, is an industrial relations, organisational development and human resources firm based in Brisbane. Mr Cooper said Livingstones has a team of 24 professional consultants, psychologists and advocates who provide specialist experience for client specific people solutions.

www.livingstones.com.au

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Perfect partnership or indecent proposal - UQ course on striking an ideal corporate match

The University of Queensland's TC Beirne School of Law has again joined forces with leading law firm Minter Ellison to present its first intensive Corporate Takeovers course.

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Corporate takeovers require expertise.

 

The four-day postgraduate course takes place in Minter Ellison's Brisbane office from Thursday (July 21) to Sunday.

A collaboratively designed study syllabus brings together legal concepts and practical case studies to provide participants with a sound working knowledge of how takeovers are regulated and managed in Australia, and how to apply the principles of takeover law to real-life situations.

Among the topics to be explored are the theory of takeover regulation, directors' duties in the context of a takeover bid, transaction structuring and strategy, the preparation of bid documents and the role of the Takeovers Panel.

The course is presented by senior lawyers from Minter Ellison, led by partner Franki Ganter, a corporate and commercial law specialist who focuses on mergers and acquisitions across a range of sectors, including the sale and purchase of major infrastructure, agribusiness and energy and resources assets.

Australia's current business landscape and economic climate mean that many public and private companies are considering acquisition as a mechanism for growth and consolidation, or may be vulnerable to hostile takeover bids.

Ms Ganter believes that takeovers are a significant part of the Queensland business landscape and pose complex business challenges.

"Takeovers are usually a major strategic move for companies and there are complex laws that govern any such transaction," Ms Ganter said.

"We intend this course to provide some real practical examples of how takeovers work so students can gain an appreciation of the legal and practical issues involved."

Ms Ganter will lead a teaching team made up of practicing lawyers from Minter Ellison and legal academics from UQ's TC Beirne School of Law, all with extensive knowledge of Australian takeover law.

The course's intensive delivery style is designed to minimise time away from the office to suit the needs of busy executives and professionals, and is ideal for lawyers, company directors, accountants or anyone in a senior role who may find themselves involved in the takeover or acquisition process.

Corporate Takeovers (LAWS7996) is part of UQ's Master of Laws program and may also be studied on a non-award or a continuing professional development basis.

http://www.law.uq.edu/

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Double legal triumph for Bond University teams

Bond University has won two of the world's most prestigious legal mooting competitions in the past month, defeating challengers from some of the world's top universities.

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Bond University on the Gold Coast.

A group of four Bachelor of Laws students has triumphed at the renowned International Criminal Court (ICC) Trial Competition in The Hague, adding to the recent Willem C. Vis (East) International Commercial Arbitration Moot win in Hong Kong. 

The ICC Trial Competition takes place annually at one of the world's top centres of justice - The Hague, providing students with the opportunity to showcase their international criminal law knowledge.

This year, the Bond Law team again triumphed against competitors including Yale University, Leiden University and William and Mary Law School, winning the final against teams from India's NALSAR University of Law and Canada's Osgoode Hall Law School. 

Students Cale Davis, Tegan Little, Gabrielle Morriss and Susan Forder walked away with not only the championship but were also recognised as Best Prosecution, while Susan Forder was named Best Victim's Counsel. The team excelled under the guidance of academic advisors, assistant professor Jodie O'Leary and senior teaching fellow Joe Crowley. 

With more than 10 mooting opportunities available throughout the year, Bond University prepares students for the real life court room. Dean of the Faculty of Law, Professor Geraldine Mackenzie, said the benefits for students taking part in mooting competitions during their university studies stretch beyond the trophies and accolades on offer. 

"Put simply, mooting gives students the opportunity to argue a specific fictitious case in front of a Judge or Judges against opposing Counsel," Prof. Mackenzie said. 

"Generally speaking, each mooting competition focuses on a specific area of law, so students have to come to grips with a specialised area of the law such as family law, international law, criminal law, intellectual property law and so on, to a level of detail that they would not necessarily attain in their normal classes." 

Bond University vice-chancellor Robert Stable congratulated the students on their outstanding performances in both competitions. 

"Mooting is a wonderful opportunity for students with an interest in certain areas of law to work with like-minded peers and network with global contacts in the legal industry," he said. 

"For Bond University to take out two top international legal competitions in one week is an incredible feat. Arguably, Bond University is now the best advocacy-teaching university in the world with such an outstanding record." 

Bond University has won four international (including a win at the ICC Trial Competition in 2009) and three Australian mooting competitions in the past three years.

www.bond.edu.au

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Slater & Gordon buys Trilby Misso lawyers

Slater & Gordon has today (August 13) completed a $57million acquisition of leading Queensland personal injury specialists, Trilby Misso. Image The acquisition, which was announced on June 28, 2010, had been subject to capital raising and due diligence. It was approved at a meeting of Slater & Gordon shareholders on Monday this week and finalised this afternoon. 

Slater & Gordon executive director, Ken Fowlie said Trilby Misso had a well established reputation in Queensland for delivering high levels of client satisfaction and positive results.

Trilby Misso chief executive officer, Graeme McFadyen said the change would bring about new opportunities for staff and management. 

"For the 150 staff members working in South East Queensland, the acquisition will not mean a change to their current working life, but it will mean that they are now part of a national law firm and all of the expertise and resources that includes," Mr McFadyen said. 

"This is a very exciting time for Trilby Misso and we look forward to building our business under this arrangement. We are proud of the work that we have performed and our achievements and we look forward to building on that good work." 

Slater & Gordon's Mr Fowlie said Trilby Misso, which will continue to run as a stand-alone business under its own name, was a good fit with his firm's core work and values. 

"Both Slater & Gordon and Trilby Misso have a long history of assisting people in need of legal advice and then fighting hard for the best possible outcome," Mr Fowlie said. 

"We have admired the work and reputation that Trilby Misso has developed in Queensland and we are pleased that we're now joining forces with a law firm that has the same commitment to quality client care and strong results. 

"For more than 50 years, Trilby Misso has been delivering great results to people in Queensland who have been injured and they have done this with the upmost care and concern for those clients," Mr Fowlie said. 

Trilby Misso has five offices in South East Queensland. The firm specialises in motor vehicle accident and workers compensation claims. Slater & Gordon has 36 offices nationally, including four in Queensland (Brisbane, Southport, Ipswich and, from July, Townsville).

www.trilbymisso.com.au

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New bankruptcy laws could help SMEs

Proposed changes to Australia's bankruptcy laws have received support from the Council of Small Business of Australia (COSBOA).

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New laws may help when companies like SkyAirWorld go down.

 

 

COSBOA has affirmed support for the Bankruptcy Legislation Amendment Bill 2009 which will ultimately improve the position for many small businesses that experience difficulties recovering small consumer debts.

Statistics have shown that where debt agreements or repayment plans can be negotiated, returns to creditors are on average much better than those achieved through bankruptcy proceedings.

"Businesses recover consumer debts at a rate of 70c in the dollar if people are not declared bankrupt, as opposed to just 2c in the dollar if bankruptcy takes place,"

COSBOA CEO Jaye Radisich said.

"The benefit of increasing the threshold far outweighs the downside risk where some people will inevitably run up bills with many creditors before one gets big enough for action to be commenced.

"It is much more important to legislate to support the majority of people who do the right thing most of the time, instead of second-guessing the actions of the lowest common denominator."

Ms Radisich said an overhaul of the Bankruptcy Act was long overdue, and congratulated the Attorney General Robert McClelland for taking action.

"The priority for small business is the ability to efficiently and effectively collect money that is legitimately owed. To that extent, proposed reforms increasing thresholds and providing a greater opportunity to negotiate the repayment of debts, is likely to result in better outcomes for Australian small business.

"An increase in the bankruptcy threshold from $2000 to $10000 could cause some nervousness among small business owners with small debts to recover - but the best chance of repayment results if bankruptcy is not declared," Ms Radisich said.

"The last thing small businesses need is a fire sale of assets and a liquidator taking a big cut before any creditor gets anything."

The amendments also include an increase in the time allowed for a defaulter to organise matters.

"It makes much more sense to allow 28 days rather than seven days for a defaulter to get their house in order before bankruptcy proceedings commence."

Ms Radisich said other provisions in the Act aimed at streamlining the process are overdue.  

http://www.cosboa.org/

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Separating to save the house, not ideal

As we struggle through the current economic climate, many business owners are going to great lengths to minimise claims on their personal and business assets.

This includes business owners separating from their partners and transferring matrimonial property into their partner’s name to try and defeat creditors.  Image

Unfortunately, many people are still under the false impression that if they separate before declaring bankruptcy they will be successful in avoiding creditors, according to Anton A Richardson, family lawyer at msl (Michael Sing Lawyers).

“When deciding who will win in competing claims between the creditor and the non-bankrupt spouse, we look to specific legislation that deals with this issue,” said Mr Richardson.   

The Bankruptcy and Family Law Legislation Amendment Act 2005 addresses what should happen in cases where family law and bankruptcy law collide.  

If a court has made an Order for property adjustment and it subsequently comes to the court’s attention that there has been a miscarriage of justice, then the court can overturn that earlier Order.  

A miscarriage of justice can be due to fraud, duress, suppression of evidence (including failure to disclose relevant information), false evidence or other circumstance. 

The court can also overturn a Binding Financial Agreement if the court is satisfied that either party entered into the agreement with the purpose of defrauding or defeating a creditor of the party, or if either party entered into the agreement with reckless disregard of the interests of a creditor of a party. 

An application to the court to overturn the Order or Binding Financial Agreement can be made by a person affected by the Order, including a bankruptcy trustee of the creditor who cannot recover the debt because of the Order. 

Once the court has overturned the Order or Binding Financial Agreement then it can make a new Order taking into account the effect of the proposed Order on the ability of a creditor of a party to recover the creditor’s debt. 

“If your business is in trouble, before wasting time and money trying to hide your assets, seek professional legal advice to learn how to best address the situation and protect your property,” Mr Richardson advised. 

Anton A Richardson is a lawyer at msl and is also an Australian Accredited Mediator in accordance with the Australian National Mediator Standards. 

Msl is a one of Queensland’s largest full-service law firms with award winning offices on the Gold Coast and Brisbane CBD.  

They have specialists dealing in all areas of law including business and commercial, property and conveyancing, family law, workplace law, migration, litigation, intellectual property, sports law and environmental planning.

http://www.mslawyers.com.au/ or contact msl on 07 5597 8888 or This email address is being protected from spambots. You need JavaScript enabled to view it. This e-mail address is being protected from spam bots, you need JavaScript enabled to view it .

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