AUSTRALIA LAW DIGEST REVISER Allens Arthur Robinson Telephone: +61 2 9230 4000 (Sydney), +61 3 9614 1011 (Melbourne) +61 7 3334 3000 (Brisbane), +61 8 9488 3700 (Perth) Email: [email protected] Website: www.aar.com.au Offıces and Affıliates: Sydney, Melbourne, Brisbane, Perth, Port Moresby, Singapore, Hong Kong, Jakarta, Shanghai, Beijing, Bangkok and Phnom Penh.

Reviser Profile

Firm Overview: Allens Arthur Robinson (AAR) is an Asia Pacific law firm with some of the world’s longest ongoing client relationships. With 180 years of experience in the corporate and commercial fields, the firm acts for more than half of Australia’s and 20 of the world’s top 100 companies. The firm has an international team of more than 190 partners, 800 legal staff and 1,500 staff in total. Our goal is to live up to a tradition of providing clients with answers of which others have not thought—providing clear thinking and innovative solutions to the most complex problems. AAR has recently acted in landmark transactions and cases such as: • the Macquarie Bank-led consortium’s A$2.2 billion acquisition and reorganization of the global Dyno Nobel businesses and subsequent A$1.8 billion IPO, • the A$1.4 billion sale of the iconic Myer retail chain to a U.S. private equity-led consortium, • defending proceedings against FOXTEL regarding allegations of anti-trust violations, • the takeover by BHP Billiton of WMC Resources, Australia’s largest successful cash takeover bid, • News Corporation’s re-incorporation in the United States, and • acting for McGrathNicol+Partners as voluntary administrators of the ION Group, one of the biggest car part manufacturers in Australia. At the BRW-St. George Client Choice Awards 2005 and 2006, AAR was awarded Best Large Law Firm and Best Large Professional Services Firm. It is the 2005 Chambers & Partners Australasian Law Firm of the year. The firm advises on the full range of corporate law including mergers and acquisitions, banking and finance, capital markets, funds management, competition, energy, resources, infrastructure, information technology, intellectual property, insolvency, litigation and tax. International Experience: AAR is one of the largest firms in the Asia Pacific, with an established network of 12 offices across seven countries. Major recent projects include: • acting for ExxonMobil in relation to various aspects of the multi-billion dollar PNG gas project, • acting for ANZ Banking Group to establish a bank in Cambodia in a joint venture with the Royal Group of Companies (Cambodia), and • advising Amcor on its acquisition of a substantial interest in the Hong Kong-listed company Vision Grande (Holdings) Limited, which has significant assets and operations in the PRC. The firm also regularly acts on the Australian end of major global transactions. To complement this network, AAR has a “best friends” relationship to work with Slaughter and May in the Asia Pacific region. Each firm has been voted the best business law firm in their respective home jurisdictions. Main International Areas of Practice: AAR provides comprehensive commercial legal advice, including regulatory, financing and contracts advice. Continuous involvement in landmark transactions and disputes has given AAR outstanding experience in all commercial fields, including project finance, finance and banking, communications, media and technology, privatisation, energy, resources and infrastructure, insolvency and restructuring, joint venture and foreign investment, as well as trade and distribution in China. Languages: AAR’s legal service is enhanced by the language skills of its lawyers, which include Bahasa, Bahasa Malay, Cantonese, English, French, German, Indonesian, Japanese, Korean, Mandarin and Thai.

AUSTRALIA LAW DIGEST

(The following is a list of all Categories and Topics, including cross-references, covered in this Digest.)

PART I THE COMMONWEALTH

Category/Topic Page Category/Topic Page INTRODUCTION ENVIRONMENT CURRENCY ...... 1 ENVIRONMENTAL REGULATION ...... 13 GOVERNMENT AND LEGAL SYSTEM ...... 1 FAMILY OFFICE HOURS AND TIME ZONE ...... 2 DIVORCE ...... 14 BUSINESS ORGANIZATIONS MARRIAGE ...... 15 CORPORATIONS ...... 2 FOREIGN TRADE AND COMMERCE BUSINESS REGULATION AND COMMERCE CUSTOMS ...... 15 BANKING AND CURRENCY ...... 4 EXCHANGE CONTROL ...... 16 BILLS AND NOTES ...... 5 EXPORT AND IMPORT CONTROL ...... 16 CONSUMER PROTECTION ...... 5 FOREIGN EXCHANGE ...... 16 FRANCHISES ...... 6 FOREIGN INVESTMENT ...... 16 MONOPOLIES, RESTRAINT OF TRADE AND COMPETITION ...... 6 FOREIGN TRADE REGULATIONS ...... 16 NEGOTIABLE INSTRUMENTS ...... 7 IMMIGRATION RESTRAINT OF TRADE ...... 7 ALIENS ...... 16 CITIZENSHIP IMMIGRATION ...... 17 ALIENS ...... 7 INTELLECTUAL PROPERTY COPYRIGHT ...... 18 DISCRIMINATION ...... 7 DESIGNS ...... 19 DOMICILE ...... 8 PATENTS ...... 19 IMMIGRATION ...... 8 TRADEMARKS ...... 20 NATIONALITY ...... 8 MINERAL, WATER AND FISHING RIGHTS CIVIL ACTIONS AND PROCEDURE ENERGY ...... 21 ACTIONS ...... 8 MINES AND MINERALS ...... 21 JUDGMENTS ...... 9 WATER AND FISHING RIGHTS ...... 22 PRESCRIPTION ...... 9 TAXATION SEQUESTRATION ...... 9 ADMINISTRATION ...... 22 COURTS AND LEGISLATURE ALCOHOL, BEVERAGES AND TOBACCO TAXES ...... 23 ADMINISTRATIVE APPEALS ...... 9 BUSINESS TAXES ...... 23 COURTS ...... 9 EMPLOYMENT TAXES ...... 23 LAW REPORTS ...... 9 ESTATE DUTY AND GIFT DUTY ...... 23 LEGISLATURE ...... 9 ESTATETAX...... 23 REPORTS ...... 9 GASOLINE AND SPECIAL FUELS TAXES ...... 23 STATUTES ...... 9 GIFT TAX ...... 23 DEBTOR AND CREDITOR INCOME TAX ...... 23 ARRANGEMENTS FOR BENEFIT OF CREDITORS OUTSIDE MOTOR VEHICLE TAXES ...... 25 BANKRUPTCY ...... 9 PROPERTY TAXES ...... 25 ASSIGNMENTS ...... 10 SALES TAX ...... 25 ATTACHMENT ...... 10 STAMPTAX...... 25 BANKRUPTCY ...... 10 TREATIES AND AGREEMENTS ...... 25 EXECUTION ...... 11 TRANSPORTATION FRAUDULENT SALES AND CONVEYANCES ...... 11 AIR NAVIGATION ...... 25 INSOLVENCY ...... 11 NAVIGATION ...... 26 DISPUTE RESOLUTION ROAD TRANSPORT ...... 26 ALTERNATIVE DISPUTE RESOLUTION ...... 12 SHIPPING ...... 26 EMPLOYMENT TREATIES AND CONVENTIONS INDUSTRIAL RELATIONS ...... 12 TREATIES ...... 27

PART II THE STATES

Category/Topic Page Category/Topic Page INTRODUCTION BUSINESS REGULATION AND COMMERCE GOVERNMENT AND LEGAL SYSTEM ...... 27 BILLS OF SALE ...... 28 HOLIDAYS ...... 27 COMMERCIAL REGISTER ...... 28 OFFICE HOURS AND TIME ZONE ...... 27 CONSUMER PROTECTION ...... 28 BUSINESS ORGANIZATIONS CONTRACTS ...... 28 AGENCY ...... 27 FRAUDS, STATUTE OF ...... 29 ASSOCIATIONS ...... 28 INFORMATION TECHNOLOGY, INTERNET AND NEW MEDIA . .... 29 BUSINESS NAMES ...... 28 INTEREST ...... 29 CORPORATIONS ...... 28 LICENSES, BUSINESS AND PROFESSIONAL ...... 29 FOREIGN CORPORATIONS ...... 28 MONOPOLIES, RESTRAINT OF TRADE AND COMPETITION ...... 30 PARTNERSHIPS ...... 28 PUBLICATIONS ...... 30 AUSTRALIA LAW DIGEST

Category/Topic Page Category/Topic Page RESTRAINT OF TRADE ...... 30 WILLS ...... 36 SALES ...... 30 FAMILY STATUTE OF FRAUDS ...... 30 DESERTION ...... 37 CITIZENSHIP DIVORCE ...... 37 ALIENS ...... 30 GUARDIAN AND WARD ...... 37 DISCRIMINATION ...... 30 HUSBAND AND WIFE ...... 37 DOMICILE ...... 31 INFANTS ...... 37 RACIAL DISCRIMINATION ...... 31 MARRIAGE ...... 38 CIVIL ACTIONS AND PROCEDURE MARRIED WOMEN ...... 38 COSTS ...... 31 HEALTH DAMAGES ...... 31 HEALTH ...... 38 DEPOSITIONS AND DISCOVERY ...... 31 IMMIGRATION EVIDENCE ...... 31 ALIENS ...... 38 JUDGMENTS ...... 31 INTELLECTUAL PROPERTY LIMITATION OF ACTIONS ...... 32 TRADEMARKS ...... 38 COURTS AND LEGISLATURE TRADENAMES ...... 38 ADMINISTRATIVE APPEALS ...... 32 LEGAL PROFESSION COURTS ...... 33 ATTORNEYS AND COUNSELORS ...... 38 LAW REPORTS ...... 33 BARRISTERS AND SOLICITORS ...... 39 LEGISLATURE ...... 33 MINERAL, WATER AND FISHING RIGHTS REPORTS ...... 33 ENERGY ...... 39 CRIMINAL LAW MINES AND MINERALS ...... 39 CRIMINAL LAW ...... 33 WATER AND FISHING RIGHTS ...... 40 DEBTOR AND CREDITOR MORTGAGES ASSIGNMENTS ...... 33 CHATTEL MORTGAGES ...... 40 ATTACHMENT ...... 33 COLLATERAL SECURITY ...... 41 EXECUTION ...... 33 MORTGAGES ...... 41 GARNISHMENT ...... 33 PROPERTY LIENS ...... 33 ABSENTEES ...... 41 PLEDGES ...... 34 CONVEYANCES ...... 41 DISPUTE RESOLUTION CURTESY ...... 41 ALTERNATIVE DISPUTE RESOLUTION ...... 34 DEEDS ...... 41 DOCUMENTS AND RECORDS DOWER ...... 41 ACKNOWLEDGMENTS ...... 34 AFFIDAVITS ...... 34 PERPETUITIES ...... 41 NOTARIES PUBLIC ...... 34 POWERS OF ATTORNEY ...... 41 SEALS ...... 34 REAL PROPERTY ...... 41 EMPLOYMENT TAXATION LABOR RELATIONS ...... 34 BUSINESS TAXES ...... 42 ENVIRONMENT EMPLOYMENT TAXES ...... 42 ENVIRONMENTAL REGULATION ...... 34 ESTATETAX...... 42 ESTATES AND TRUSTS GIFT TAX ...... 42 ADMINISTRATION ...... 35 INCOME TAX ...... 42 DEATH...... 35 PROPERTY TAXES ...... 42 DECEDENTS’ ESTATES ...... 36 STAMPTAX...... 42 DESCENT AND DISTRIBUTION ...... 36 TRANSPORTATION EXECUTORS AND ADMINISTRATORS ...... 36 AUTOMOBILES ...... 42 INTESTACY ...... 36 MOTOR VEHICLES ...... 42 TRUSTS AND TRUSTEE COMPANIES ...... 36 SHIPPING ...... 42 AUSTRALIA LAW DIGEST

Revised for 2007 edition by ALLENS ARTHUR ROBINSON of Australia.

Preliminary Note.—In order to present the law of Australia accurately and clearly, this Digest is divided into two parts: Pt I, presenting the laws of the Commonwealth, and Pt II, presenting the laws of the several States and internal Territories comprising the Commonwealth. Particular topics will be found in Pt I or Pt II, or in both parts, according to which law governs the subject.

Note: This revision incorporates legislation through July 5, 2006.

PART I THE COMMONWEALTH corporations, and trading or financial corporations formed within limits of Common- INTRODUCTION wealth; (21) marriage; (22) divorce and matrimonial causes, and in relation thereto CURRENCY: parental rights and custody and guardianship of infants; (23) invalid and old age pen- See category Business Regulation and Commerce, topic Banking and Currency. sions; (23A) provision of social services (but so as not to authorize any form of civil conscription); (24) service and execution throughout Commonwealth of civil and crimi- GOVERNMENT AND LEGAL SYSTEM: nal process and judgments of courts of States; (25) recognition throughout Common- wealth of laws and public acts and records and judicial proceedings of States; (26) people Commonwealth of Australia was established on Jan. 1, 1901, by Royal Proclamation of any race, for whom it is deemed necessary to make special laws; (27) immigration dated Sept. 17, 1900, pursuant to Act of British Parliament known as Commonwealth of and emigration; (28) influx of criminals; (29) external affairs; (30) relations of Com- Australia Act 1900 (63 and 64 Vic, c. 12). Prior to that date colonies of New South Wales, monwealth with Islands of the Pacific; (31) acquisition of property on just terms from Tasmania, Victoria, Queensland and Western Australia and Province of South Australia, any State or person for any purpose in respect of which Parliament has power to make had existed as self-governing colonies of Great Britain; but upon establishment of laws; (32) control of railways with respect to transport for naval and military purposes Commonwealth they became States of Commonwealth of Australia. Australian Consti- of Commonwealth; (33) acquisition, with consent of State, of any railway of State, on tution is modelled in some respects on that of U.S.A., although American theory of terms arranged between Commonwealth and State; (34) railway construction and ex- separation of powers only followed in Australia with respect to judiciary. tension in any State with consent of that State; (35) conciliation and arbitration for The Commonwealth Government is government of specified powers, which are for prevention and settlement of industrial disputes extending beyond limits of any one State; most part not exclusively within Commonwealth sphere, but where Commonwealth law (36) matters in respect of which Constitution makes provision until Parliament otherwise conflicts with State law the former is paramount. Matters not specified as subjects upon provides; (37) matters referred to Parliament of Commonwealth by parliament or par- which Commonwealth may legislate remain exclusively in sphere of State legislation liaments of any State or States, but so that law must extend only to States by whose except that Commonwealth may legislate through external affairs power to implement parliaments matter is referred, or which afterwards adopt law; (38) exercise within bona fide international agreement regardless of subject matter. Queen represented in Commonwealth, at request or with concurrence of parliaments of all States directly Commonwealth by Governor-General, appointed on advice of Commonwealth Govern- concerned, of any power which could, at establishment of Constitution, be exercised only ment, and in each of six States by Governor appointed on advice of State Government. by Parliament of the U.K. or by Federal Council of Australasia; (39) matters incidental These officers in general occupy same relative position towards their respective Parlia- to execution of any power vested by Constitution in Parliament or in either house thereof, ments as Queen occupies towards British Parliament. or in government of Commonwealth, or in federal judicature, or in any department or Proposal that Australia sever British constitutional ties and become republic rejected officer of Commonwealth (§51i-xxxxix). by constituency in 1999. Constitution Alteration (Establishment of Republic) Bill 1999 In addition to above powers, which are not exclusively conferred upon Common- proposed Commonwealth of Australia be established as republic with President chosen wealth, but which may be exercised by States until such time as Commonwealth over- by two-thirds majority of members of Commonwealth Parliament. rides them, Commonwealth Parliament has exclusive power to make laws for peace, Parliament.—Commonwealth Parliament consists of two Houses: Senate and House order and good government of Commonwealth with respect to: (a) Seat of government of Representatives. Twelve Senators are elected by each State and two Senators by each of Commonwealth and all places acquired by Commonwealth for public purposes; (b) of Australian Capital Territory and Northern Territory; each State and Territory votes as matters relating to any department of public service, control of which is by Constitution one electorate. House of Representatives has as nearly as practicable twice as many transferred to Executive Government of Commonwealth; and (c) other matters declared members as Senate, each representing small electorate. Electorates are distributed by Constitution to be within exclusive power of Parliament (such as imposition of duties amongst States and Territories in proportion to population size. Australian Capital Ter- of customs and excise and making of laws for Territories [§§90 and 122]). ritory and Northern Territory both have two members. Cocos (Keeling) Islands Self- Not all above powers have been exercised, but most important of legislation enacted Determination (Consequential Amendments) Act 1984 and Christmas Island Adminis- under above powers is referred to below. Scope of legislative power conferred by tration (Miscellaneous Amendments) Act 1984 extended franchise to inhabitants of Constitution subject to judicial review. external territories of Cocos (Keeling) Islands and Christmas Island. Commonwealth Electoral Amendment (Representation in House of Representatives) Act 2004 specifies Executive.—In accordance with British practice, Constitution says very little about Australian Antarctic Territory, Territory of Heard and McDonald Islands, Coral Sea Executive. It does not attempt to codify British Cabinet system, but merely refers to Islands Territory and Territory of Ashmore and Cartier Islands as “other” territories to Federal Executive Council and provides that members of Federal Executive Council must be included in population assessments by Electoral Commissioner. Voting is compulsory administer departments of state and be Ministers of State, and must not hold office for for all Australian citizens over 18 years in election of members to both Houses. Leg- longer than three months without becoming senators or members of House of Repre- islation following referenda conducted May 14, 1977 gives residents of Australian Capi- sentatives. High Court determined in Victorian Stevedoring & General Contracting Co tal Territory and Northern Territory right to vote in future constitutional referenda. Casual Pty Ltd v Dignan (1931) 46 CLR 73 that separation of powers between Legislature and vacancies in Senate filled by appointees of same political party. Casual vacancies in Executive not required. Framers of Constitution had British notion of responsible gov- House of Representatives are filled at by-elections. Determination of members of House ernment in mind, and that system is in fact more or less closely followed in Common- of Representatives updated by Commonwealth Electoral Amendment (Representation in wealth. House of Representatives) Act 2004. Judiciary.—Constitution establishes Federal Supreme Court, called High Court of Both Houses meet from Feb. to Mar., May to June, and Aug. to Dec. During these three Australia, and vests judicial power of Commonwealth in that court and in such other periods, Houses usually meet in blocks of two sitting weeks followed by two non-sitting federal courts as Parliament creates or invests with federal jurisdiction. As in U.S.A., weeks. See website for current sitting schedule: http://www.aph.gov.au/index.htm. Constitution does not interfere with State judiciaries, but provides federal judiciary Commonwealth Electoral Act 1918 establishes Australian Electoral Commission to capable of pronouncing judgment upon Commonwealth powers, and protecting Consti- determine electoral divisions, regulate qualifications for voting, regulate gifts to political tution not only against States, but against Legislature and Executive of Commonwealth. parties, report to Minister on electoral matters and generally conduct elections. High Court of Australia.—High Court is primarily court of appeal (both in constitu- Legislative Powers.—Commonwealth Parliament has power to make laws for peace, tional and nonconstitutional matters) from State and Territory courts, but Constitution order and good government of Commonwealth, with respect to: (1) Trade and commerce confers original jurisdiction upon it in all matters: (a) Arising under any treaty; (b) with other countries and among States; (2) taxation, but so as not to discriminate between affecting consuls or other representatives of other countries; (c) in which Commonwealth, States or parts of States; (3) bounties on the production or export of goods, but such or person suing or being sued on behalf of Commonwealth, is party; (d) between States, bounties must be uniform throughout Commonwealth; (4) borrowing money upon public or between residents of different States, or between State and resident of another State; credit of Commonwealth; (5) postal, telegraphic, telephonic and other like services; (6) (e) in which writ of mandamus or prohibition or injunction sought against officer of naval and military defense of Commonwealth and of the several States, and control of Commonwealth. In addition, Parliament of Commonwealth may confer original juris- forces to execute and maintain laws of Commonwealth; (7) lighthouses, lightships, diction upon High Court in relation to certain other matters. Constitution provides that beacons and buoys; (8) astronomical and meteorological observation; (9) quarantine; (10) justices of High Court must be appointed by Governor-General in Council, and must not fisheries in Australian waters beyond territorial limits; (11) census and statistics; (12) be removed except on address from both Houses of Parliament in same session, praying currency, coinage and legal tender; (13) banking, other than State banking; also State for such removal on ground of proved misbehavior or incapacity; and that remuneration banking extending beyond limits of State concerned, incorporation of banks, and issue of Justices of High Court is not to be diminished during their continuance in office. of paper money; (14) insurance, other than State insurance, also State insurance ex- Legislation following referendum of May 14, 1977 provides for retiring age of 70 years tending beyond limits of State concerned; (15) weights and measures; (16) bills of for future Justices of High Court and judges in other Federal Courts. exchange and promissory notes; (17) bankruptcy and insolvency; (18) copyrights, patents Appeal to Privy Council.—Any remaining rights of appeal from High Court or State of inventions and designs, and trademarks; (19) naturalization and aliens; (20) foreign courts to Privy Council abolished by Australia Act 1986. (§11[1]).

See note at head of Digest as to 2006 legislation covered. See Topical Index in front part of this volume. AUS–1 INTRODUCTION MARTINDALE-HUBBELL LAW DIGEST - 2007

GOVERNMENT AND LEGAL SYSTEM . . . continued Australian Securities and Investments Commission (established by Australian Secu- Federal Court of Australia.—Parliament has established Federal Court of Australia and rities and Investments Commission Act 2001) is sole administrative and regulatory conferred on it: (a) Original jurisdiction in matters arising under specified Federal Acts, authority, formally responsible to Commonwealth Treasurer (who can give directions including those related to income tax, trade practices, industrial relations, corporations regarding policy and priorities) and Commonwealth Parliament. Australian Securities and law and industrial property; and (b) certain appellate jurisdiction, including jurisdiction Investments Commission has extensive power to make declarations modifying applica- in specified cases to determine appeals from courts exercising Federal jurisdiction, other tion of Corporations Act in particular circumstances. Australian Securities and Invest- than Full Courts of State Supreme Courts. ments Commission Act 2001 established Takeovers Panel and Corporations Act 2001 Conferral of State jurisdiction upon Federal Court pursuant to State cooperative grants it power to determine applications by Australian Securities and Investments Com- schemes such as former Corporations Law held invalid in decision of Re Wakim; Ex mission or other interested parties for declarations of unacceptable circumstances in parte McNally (1999) 198 CLR 511. Federal Magistrates Act 1999 established Federal relation to control or potential control of, or acquisition of substantial interests in, certain Magistrates’ Court and confers some jurisdiction to deal with federal civil and family law types of companies. matters. Administrative Decisions (Judicial Review) Act 1977 empowers Federal Court to hear Corporations Law Reform.—Since commencement of 1991 Corporations Law re- complaints against decisions of ministers and officers acting under Commonwealth laws. gime, substantial amendments have been made to legislation with aim of simplification. Act provides number of grounds for review of decisions to which it applies. Act also Major amending acts include Corporate Law Reform Act 1992, Corporate Law Reform applies to omissions to decide. Other rights of review outside Act also preserved. ‘‘Order Act 1994, First Corporate Law Simplification Act 1995, Company Law Review Act 1998, of Review’’ enables ‘‘person affected’’ by decision to obtain reasons for decision. Certain Managed Investments Act 1998, Financial Sector Reform (Amendments and Transitional government decisions exempted from operation of Act. See category Courts and Leg- Provisions) Act 1998, Financial Sector Reform (Amendments and Transitional Provi- islature, topic Administrative Appeals. sions) Act (No. 1) 1999, Corporate Law Economic Reform Program Act 1999 (CLERP Family Court of Australia.—Family Court of Australia operates in all States and Act 1999) and Corporate Law Economic Reform Program (Audit Reform and Corporate Territories of Australia (except Western Australia) and has jurisdiction in respect of Disclosure) Act 2004. Company Law Review Act 1998 attempted to improve and sim- matrimonial causes and children. Note: Family Court of Western Australia also exists plify core provisions of former Corporations Law including registering companies, meet- which has powers under certain Commonwealth laws such as Family Law Act 1975 as ings, share capital, financial reporting, annual returns, deregistration of defunct compa- well as State Family Court Act 1997 (WA). nies and company names. Corporate Law Economic Reform Program shifted focus to Certain non-judicial bodies also exist. For example, Administrative Appeals Tribunal economic improvements and introduced CLERP Act 1999 which introduced significant Act 1975 establishes Tribunal to which appeals can be made by person affected by changes to corporations law (such as directors’ duties and corporate governance, take- decision, or by special interest association, before decision is made by person under overs, fundraising and accounting standards). Changes have important implications for certain Commonwealth Acts, and Ombudsman Act 1976 establishes Ombudsman, who company directors and other officers, and their legal, accounting and financial advisers. has wide powers of investigation into any matter of administration either on complaint Corporations Act further amended by Financial Services Reform Act 2001, Financial or of own motion with respect to any department or prescribed authority over which Services Reform (Consequential Provisions) Act 2001 and Corporations Legislation Commonwealth exercises control. Amendment Act 2003. Transitional period for Financial Services Reforms ended on 11 Mar. 2004. Financial Services Reforms aim to regulate and simplify conduct in relation Trade and Intercourse.—Constitution provides that trade, commerce and intercourse to financial products including introduction of: uniform licensing regime, stricter dis- among the States, whether by means of internal carriage or ocean navigation, must be closure standards and uniform rules between comparable financial products. Financial absolutely free. Freedom of trade and commerce guaranteed by §92 has been interpreted Services Reforms do not extend to credit products. by High Court to be freedom from discriminatory burdens of protectionist kind. Law will Commonwealth must obtain approval of Ministerial Council to effect amendments to violate §92 if on its face protectionist or if factual operation of law produces such result. most provisions of Corporations Act. Amendments take effect upon agreement of at least Implied Rights.—High Court in recent decisions has in its interpretation of Com- three jurisdictions. Ministerial Council (made up of representatives from each State, monwealth Constitution implied certain rights previously unseen by Court (e.g., right of Northern Territory and Commonwealth) retains consultative role, Commonwealth having political communication and equality). four votes and casting vote and each State and Northern Territory having one vote. Australia Act 1986 severs all remaining constitutional links between Australia and Commonwealth has right of veto over any reform proposal. U.K. Provides that U.K. Parliament has no power to make laws for Australia, removes Coverage of Corporations Act deals with wide range of corporate activity: Formation limitations on legislative powers of States and terminates all responsibilities of U.K. of companies, management of companies, constituent documents of companies and Government in respect of States. alteration thereof, directors’ duties, financing of corporate activities and raising of finance (through share capital and loans), shares and classes of shares, dividends and other types OFFICE HOURS AND TIME ZONE: of distribution, and company liquidations and windings up. Mechanical and adminis- trative matters found in Corporations Regulations 2001. Australia is between eight and ten hours ahead of Greenwich Mean Time. Office hours Corporations Act c. 6 regulates various aspects of takeovers. Purpose to ensure ac- are generally from 9 a.m. to 5 p.m. Daylight saving occurs in summer (Oct.-Mar.), quisition of permitted relevant interests in voting shares takes place in efficient, com- however regulated by each State. See Pt II, The States, category Introduction, topic Office petitive and informed market and appropriate procedures are followed. Hours and Time Zone. Stock Exchange.—Financial Services Reform Act 2001 and related legislation, in- troduced c. 7 of Corporations Act which regulates various aspects of securities and BUSINESS ORGANIZATIONS financial services industries and markets including licensing of financial markets, pro- viders of financial services, clearing and settlement facilities, provision of financial CORPORATIONS: services and product disclosure, issue and sale of financial products, title to and transfer Company is separate legal entity from members and can, among other things, initiate of securities and market misconduct. or defend legal proceedings and enter into contracts (subject to certain common law and Brokers can incorporate and nonmembers of stock exchanges may acquire up to 50% statutory restraints). shareholding in brokering companies. Overseas entry into Australian exchanges permitted from brokers in countries with reciprocal entry requirements. Corporations can be ad- Background.—Corporations Law regime in force from 1991 until 2001. Regime mitted as members of exchanges and brokers may become members of more than one allowed separate corporations legislation enacted in all States and Territories to operate exchange. as national Corporations Law regime because Commonwealth did not have direct power over all matters relating to corporations. Operation of regime also governed by Heads Creation of Corporations.—Corporations may be created by Act of Commonwealth of Agreement between States, Territories and Commonwealth. Constitution §51xx allows or State Parliament or registered under provisions of Corporations Act. Incorporation by Commonwealth to legislate with respect to “foreign corporations, and trading and fi- Act of Parliament generally only employed in connection with public trusts or utilities, nancial corporations formed within the limits of the Commonwealth”. High Court held some government or charitable concerns or activities, or in cases where power which is that power did not allow Commonwealth to legislate with respect to some important sought cannot be acquired under companies legislation. All ordinary trading companies corporations law matters, such as incorporation of companies. (Huddart Parker & Co Pty formed under provisions of Corporations Act. Trade union cannot be registered under Ltd v Moorhead [1909] 8 CLR 330). 1991 regime last of number of attempts by Corporations Act (§116); can incorporate under specific legislation dealing with trade Commonwealth to gain capacity to legislate with respect to corporations. unions such as Workplace Relations Act 1996 and Workplace Relations Amendment Constitutional validity of cooperative system challenged in Re Wakim; Ex parte Mc- (Registration and Accountability of Organisations) (Consequential Provisions) Act 2002. Nally (1999) 198 CLR 511 and R v Hughes (2000) 202 CLR 535. In Re Wakim; Ex parte McNally (1999), High Court found c. III of Constitution did not allow Federal Court to Formation.—Prior to formation application including list of directors and subscribers exercise State jurisdiction. This meant that Federal Court no longer able to exercise and notice of situation of registered office (and where registered office not company’s jurisdiction over majority of corporations law matters, limiting cross vesting provisions usual place of business consent of person in occupation of office) must be lodged with in Corporations Law and curtailing national operation of 1991 Corporations Law regime. Australian Securities and Investments Commission (Corporations Act §117). Proprietary Uncertainty resolved by agreement of States to refer their corporations powers to companies no longer required to lodge Company Constitution with Australian Securities Commonwealth Parliament under Constitution §51xxxvii which gives Commonwealth and Investments Commission. Public companies must lodge Company Constitution if power to legislate with respect to “matters referred to the Parliament of the Common- they have one. Companies incorporated in Australia need only lodge documents in wealth by the Parliament or Parliaments of any State or States”. Provided Constitutional jurisdiction (State or Territory) of registration. Company comes into existence when basis for Commonwealth Parliament to enact national corporations law legislation. Note: registered by Australian Securities and Investments Commission. Not necessary for Northern Territory and Australian Capital Territory to refer their Terminology.— powers as Commonwealth already has power to legislate with respect to Territories. Company means company registered under Corporations Act. Corporations Act enables National Scheme.—Corporations Act 2001 and Australian Securities and Investments creation of company under Act whether company is to operate in one State or Territory Commission Act 2001 took effect on July 15, 2001 as single national law which governs or nationally. company formation, operation and administration and replaces former Corporations Law Foreign company means body corporate formed in external Territory or outside Aus- regime. Period under which corporations’ power referred by States to Commonwealth tralia (not being corporation sole or exempt public authority) or unincorporated body Parliament extended until July 15, 2011. (See Corporations [Commonwealth Powers] Act formed in external Territory or outside Australia having capacity under law of its place 2001 for each State.) of formation to sue or be sued and to hold property and does not have its head office

See note at head of Digest as to 2006 legislation covered. See Topical Index in front part of this volume. AUS–2 AUSTRALIA LAW DIGEST BUSINESS ORGANIZATIONS

CORPORATIONS . . . continued government department or municipal or other local authority, or ex-servicemen’s orga- or principal place of business in Australia. Foreign company that registers is “registered nization; (b) in opinion of Australian Securities and Investments Commission is unde- foreign company”. sirable or likely to be offensive to members of public or section of public; (c) name Incorporated in Australia means under law of Commonwealth, State or internal Ter- suggests members are disabled if they are not; (d) name includes certain restricted words ritory. or phrases (unless Minister gives consent)—including “Incorporated”, “Trusts”, Limited company means company in which liability of each member limited. Two types “Trustee”, “Guarantee”. of limited companies (formerly three): (a) Company limited by shares—maximum li- Limited public companies must include “Limited” or “Ltd” in name unless exempt. ability of member is to contribute amount not exceeding amount of capital unpaid on Certain nonprofit companies can gain exceptions. Proprietary company must include shares held by member. Trading companies often take this form; (b) company limited by “Proprietary Limited” or “Pty Ltd” (or other variations). No Liability Companies must guarantee—maximum liability of member is to contribute amount not exceeding amount include “No Liability” or “NL”. Company can change name after registration, but undertaken to be contributed by member in event of company being wound up. Non- requires special resolution of members. trading associations often take this form. Will always be public company. Former (c) Powers of Company.—Corporations Act gives company legal capacity and powers of company limited both by shares and guarantee—hybrid of (a) and (b), however form of natural persons and all powers of body corporate; further, company need not list objects company can no longer be created under Corporations Act. in constitution. Unlimited company means company in which liability of each member is unlimited Subsidiary companies may not own shares in their holding companies (subject to (i.e., if company wound up members personally liable for debts of company to extent certain limited exceptions). that assets of company insufficient to pay debts). No unlimited company may be reg- istered without share capital. (Corporations Act §112[1]). Raising Capital.—Private company prohibited from inviting public to subscribe for No Liability Company.—Corporations Act makes provisions for incorporation of “No debentures of, or shares in, company and from inviting public to deposit money with Liability” company but activities must be limited to mining purposes and has no con- company for fixed periods or payable at call. Public company may do so if company tractual right to recover unpaid calls. Will always be public company. Acceptance of meets legal requirements: (a) Directors must act in good faith in interests of company share in such company, whether by subscription, allotment, transfer or otherwise, is not and for proper purposes, with reasonable care and no conflict of interest (i.e., customary to be deemed contract on part of person accepting same to pay any calls in respect thereof directors’ duties continue to apply); (b) if required, member approval of proposed issue or to pay any contribution to debts and liabilities of company. No dividends are receiv- obtained (e.g., if creating new class of shares or variation in class rights); (c) consider able upon any share in such company upon which call is due and unpaid. When call any restrictions on people to whom shares can be offered (e.g., preemptive rights); (d) remains unpaid for prescribed period share is automatically forfeited but can be redeemed meet disclosure requirements under Corporations Act. upon payment of such call at any time before resale of share. Generally, company offering securities must provide investors with disclosure docu- Public company means company other than private company. Public company must ment (prospectus or similar) setting out detailed information about company and shares. have at least three directors, with at least two ordinarily resident in Australia. (Corporations Act §707). Prospectus must comply with extensive disclosure obligations Private company means any company registered as or converts to private company in c. 6D of Corporations Act including: (a) Sets out all specific disclosure requirements under Corporations Act, similar to those permitted under English Acts, which companies (Corporations Act §711); (b) does not contain any misleading or deceptive statements; are not required to comply with all requirements which relate to other companies. These (c) disclosure document must be worded and presented in clear, concise and effective companies are called “proprietary companies”. Proprietary company must be limited by manner (Corporations Act §715A); (d) disclosure document is dated; and (e) directors shares or be unlimited company with share capital, cannot have more than 50 non- consent to disclosure document. employee shareholders, and cannot do anything that would require disclosure to investors Prospectus must contain all information investors and their professional advisers would for purposes of fundraising (except in limited circumstances [Corporations Act §113]). reasonably require to make informed assessment of rights and liabilities attaching to Proprietary company must have at least one director who must be ordinarily resident in securities offered, assets and liabilities, financial position and performance, profits and Australia. Distinction made between provisions applying to large and small proprietary losses and prospects of corporation. (Corporations Act §710). companies and single director/shareholder companies under Corporations Act. Special (reduced) prospectus content rules apply for continuously quoted securities. Small proprietary companies generally have reduced financial reporting requirements, (Corporations Act §713). not obliged to appoint auditor. Company may be required to prepare annual financial and Significant penalties and sanctions imposed on company, directors and advisors under directors’ reports if directed by Australian Securities and Investments Commission or Corporations Act if prospectus not current (Corporations Act §719), contains misleading members. or deceptive statement or material omission (Corporations Act §728). Large proprietary companies generally required to appoint auditor and lodge financial Due diligence defense for prospectuses if person proves they made all inquiries (if any) audited accounts with Australian Securities and Investments Commission. Company will reasonable in circumstances and believed on reasonable grounds statement not mislead- be large proprietary company if two of three requirements satisfied: if company and ing or deceptive or there was no omission from prospectus. (Corporations Act §731). entities it controls, in financial year: (a) Has consolidated gross operating revenue of Also general defense if person reasonably relied on information given by another person A$10 million or more; (b) has consolidated gross assets of A$5 million or more; (c) has other than director, employee or agent of corporation (individual). (Corporations Act 50 employees or more. If at least two of these three requirements not satisfied, company §733). will be small proprietary company. Government announced in Apr. 2006 review of Prospectus must be lodged with Australian Securities and Investments Commission. whether thresholds should be increased. Certain kinds of offers do not require prospectus including: (a) Some small-scale of- With certain exceptions, possible to convert from one type of company to another. (Pt ferings; (b) offers to “sophisticated” investors; (c) offers through financial services lic- 2B.7). Change does not create new legal entity or affect company’s existing relationship ensee in specified circumstances; (d) offers to “professional investors”. (Corporations Act with outsiders. §708). Prospectus valid for offer of securities for 13 months after issue. (Corporations On registration under Corporations Act company given Australian Company Number Act §715). (ACN), and foreign corporation or registrable Australian body is given Australian Reg- Australian Securities and Investments Commission must be notified within one month istered Body Number (ARBN). Company number must be displayed after company name after new share issue. Australian Stock Exchange must also be notified if company listed. when first mentioned on all public documents, negotiable instruments (with some ex- Most charges and like securities created by corporation require notification to Aus- ceptions) and on seal of company (if any). tralian Securities and Investments Commission within certain time frame: creation of charge requires notice within 45 days. Corporations Act extends registration of charges Foreign Corporations.—Foreign company must not carry on business in Australia to foreign corporations. Also provides for priority system of registration of charges. Some unless registered or has applied for registration. To obtain registration foreign company equitable charges should be registered. must provide under Corporations Act (Pt 5B.2 Div. 2), in addition to application for Issue of financial products other than securities (e.g., interests in managed investment registration: (a) Certified copy of certificate of incorporation or equivalent document; (b) schemes) regulated by Pt 7.9, rather than c. 6D. certified copy of its constitution; (c) list of directors containing personal details of those Alterations to Capital.—Reductions of capital must: (a) Be fair and reasonable to directors; (d) appointment of local agent authorized to accept service; (e) duly executed shareholders; (b) not materially prejudice company’s ability to pay its creditors; (c) be memorandum stating powers of directors who are resident in jurisdiction and members approved by shareholders; and (d) be notified to Australian Securities and Investments of any local boards; (f) documents in relation to any registrable charges; (g) notice of Commission. Company may buy back its own shares if it does not materially prejudice address of registered office in place of formation; (h) notice of address of its registered company’s ability to pay creditors and company follows procedures in Corporations Act. office in Australia. Fees payable. Registered foreign company must also lodge copies of (Pt 2J.1, Div. 2). Provision for issue of redeemable preference shares. balance sheet, cash flow statement, and profit and loss statement at least once every calendar year. Directors.—Corporations Act prescribes that every public company must have at least See also Pt I, category Immigration, topic Aliens, subhead Corporations Owned or three directors (at least two of whom are ordinarily resident in Australia), private com- Controlled by Aliens. pany must have at least one director (at least one director must ordinarily reside in Australia). Director must be individual, of at least 18 years. Person ceases to be director Name.—Company can use as name, “Australian Company Number” followed by its if disqualified from managing corporations as set out in Corporations Act Pt 2D.6, unless ACN followed by “Limited”, “Proprietary Limited”, “Proprietary” or “No Liability” Australian Securities and Investments Commission or court allows person to manage (according to type of company), or can use available name. Search as to availability of company. proposed company name for registration may be initiated by completion and lodgment Directors may be required by company’s constitution to hold specified share quali- of form of inquiry. Register of names can be searched on Australian Securities and fication which must be acquired within defined period (maximum two months). Investments Commission website. Any person may apply to Australian Securities and Directors must comply with common law and statutory duties, e.g., (a) Directors must Investments Commission for reservation of name for period of two months but not exercise their powers and discharge their duties with degree of care and diligence that compulsory to reserve name prior to registration. Period for which any name is reserved reasonable person would exercise if they were director in those circumstances and may be extended by administering officer for further period of two months if application occupied office held by, and had same responsibilities as, director (Corporations Act made during currency of reservation and officer satisfied as to bona fides of application. §180[1]); (b) directors must exercise powers and discharge duties in good faith in best Name will be available unless has been registered or reserved in respect of another entity, interests of company and for proper purposes (Corporations Act §181); (c) directors with is included on national business names register in respect of another person, or is material personal interest in any transaction of company must disclose to fellow directors unacceptable for registration in any of following ways: (a) Suggests connection with (Corporations Act §191). Under statutory “business judgment rule” courts will not review members of Royal Family (or receipt of Royal patronage), Crown, Commonwealth merits of director’s business decisions (e.g., decisions relevant to business operations of Government or State or Territory Government, government of foreign country, U.N., company) where director: (a) Makes judgment in good faith for proper purpose; (b) did

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CORPORATIONS . . . continued mation known to bidder that is material to decision whether to accept bid. Where not have material personal interest; (c) informs self about subject matter to extent they consideration includes securities, prospectus-type information also required (see subhead reasonably believe appropriate; (d) rationally believes judgment in best interests of Raising Capital, supra). corporation (Corporations Act §180[2])—provides directors with “safe harbor” from Target company must respond with target’s statement, containing all information personal liability if requirements met. known to directors that holders of bid class securities and their professional advisers Directors may delegate any of their powers to: (a) Committee of directors; (b) director; would reasonably require (and reasonably expect to find in target’s statement) to make (c) employee of company; or (d) any other person, unless prevented from doing so by informed assessment whether to accept bid. (Corporations Act §638). company’s constitution. (Corporations Act §198D). Directors’ report for financial year for Bidder’s statement and target’s statement must be lodged with Australian Securities listed company must include details of nature and amount of each element of remu- and Investments Commission. Both bidder’s statement and target’s statement subject to neration of each director and each of five named executives of company, and five named supplementing obligations. (Corporations Act §§643, 644). executives of company’s group, receiving highest remuneration. (Corporations Act All offers under bid must be same, subject to certain statutory exceptions. Offers §300A). Company must disclose remuneration paid to each director of company, sub- cannot be open for more than 12 months. Consideration offered must at least equal sidiary or entity controlled by company if directed by: (a) Members with at least 5% of maximum consideration that bidder or associate provided, or agreed to provide, for bid votes that may be cast at general meeting of company; or (b) at least 100 members who class security under purchase or agreement during four months before bid. Conditions are entitled to vote at general meeting. (Corporations Act §202B). Listed companies have to off-market bid cannot be dependent on bidder’s opinion, or on events within its control expanded remuneration reporting requirements, must include “Remuneration Report” in or that are direct result of bidder’s actions. No maximum acceptance conditions allowed. annual directors’ report. Report subject to non-binding vote by shareholders at AGM. Collateral benefits (benefits to induce disposal of securities that are not offered to all (Corporations Act §250R[3]). shareholders) not allowed during bid period. Accounts and Audit.—Every company must keep accounts and records of transac- Significant penalties and sanctions imposed on bidder/target, directors and advisors tions for period of at least seven years after completion of transaction to which they under Corporations Act if bidder’s statement/target’s statement contains misleading or relate. (Corporations Act §286[2]). Annual accounts must be presented to company in deceptive statement or material omission. (Corporations Act §670A). No due diligence general meeting together with directors’ report. Directors’ report not required for small defense available, but general defenses if person did not know that statement was proprietary company unless requested by members or Australian Securities and Invest- misleading or deceptive or that there was omission, or person reasonably relied on ments Commission. (Corporations Act §292). information given by another person other than director, employee or agent of corpo- Generally large proprietary companies, public companies and small proprietary com- ration (individual). (Corporations Act §670D). Criminal liability and other sanctions for panies controlled by foreign companies must prepare annual financial statements in- person who publicly proposes, but fails to carry through with, takeover bid. (Corporations cluding: profit and loss account, balance sheet, directors’ and auditors’ reports. Annual Act §631). financial reporting to members required. All companies must appoint auditor except small If bidder acquires at least 90% voting power during or as result of takeover bid, bidder proprietary companies. Small proprietary companies only required to keep accounting may compulsorily purchase remaining bid class securities. (Corporations Act §661A). records unless more required by Australian Securities and Investments Commission or Person holding at least 90% by value of target securities and having 90% voting power members. Company must make out consolidated profit and loss accounts and balance may generally compulsorily purchase remaining securities. (Corporations Act §664A). sheet of economic entity constituted by company and entities (including bodies corporate, Takeovers Panel determines if unacceptable circumstances exist in relation to takeover partnerships and unincorporated bodies) it controls. or acquisition process. See also Pt I, categories Immigration, topic Aliens, subhead Corporate Law Economic Reform Program (Audit Reform & Corporate Disclosure) Corporations Owned or Controlled by Aliens; Business Regulation and Commerce, topic Act 2004 expanded obligations on both auditor and audited body, such as general Monopolies, Restraint of Trade and Competition. requirement of auditor independence and new auditing standards. Insider Trading.—Corporations Act, c. 7 Pt 7.10 severely penalizes insider trading in Companies that are “disclosing entities” must report on half yearly basis or as certain securities of company by person who possesses information not generally available with material events arise periodically (see Corporations Act c. 6CA and for listed companies regard to corporation but if generally available would reasonably be expected to have Australian Stock Exchange Listing Rules). material effect on price or value of securities of corporation. Party to such transaction Corporations Act provides company may send out summary version of financial re- who suffers loss, body corporate that issued securities, or Australian Securities and ports to members if full version available on request and member requests summary Investments Commission can bring action to recover profits from insider traders. version. Note: Government proposal to allow annual reports to be made available online, Winding Up.—Company may be wound up voluntarily upon special resolution of only to require reports to be sent to those who request them. System of annual returns, members or by court following application to wind up company by creditor or member whereby all companies lodged annual returns with Australian Securities and Investments or other specified person. (Corporations Act Pt 5.4). Commission before Jan. 31, each year, abolished by Corporations Legislation Amend- Any member of company who believes its affairs are being conducted in manner ment Act 2003. From July 1, 2003, Australian Securities and Investments Commission oppressive or unfairly prejudicial to, or unfairly discriminatory against, member or provides companies with Extract of Particulars and company must confirm or correct members, or in manner contrary to interests of members as whole, can apply to court information set out in document by lodging Return of Particulars where necessary. for order that company be wound up. Court given wide discretion to make such order Financial reports must meet approved accounting standards. or orders appropriate to circumstances. (Corporations Act Pt 5.4A). See Pt I, category Annual General Meeting.—Public company must hold annual general meeting within Debtor and Creditor, topic Bankruptcy, subhead Insolvency. 18 months after registration. (Corporations Act §250N[1]). Public company, except those Exchange Control.—See Pt I, category Foreign Trade and Commerce, topic Exchange with one member, must hold annual general meeting each calendar year and within five Control. months after end of its financial year. (Corporations Act §§250N[2] and [4]). Business Securities Regulation.—Australian Securities and Investments Commission has of annual general meeting may include, even if not referred to in notice of meeting: (a) power to prohibit trading in particular securities on stock market, and powers relating to Consideration of annual financial report, directors’ report and auditor’s report; (b) elec- investigation of securities dealings, insider trading, licenses and stock market manipu- tion of directors; (c) appointment of auditor; and (d) fixing of auditor’s remuneration. lation. Operator of securities market must have Australian markets license. Non-binding resolution to approve Remuneration Report in annual director’s report must Under c. 7 of Corporations Act, person will generally require Australian Financial also be put to shareholders. (Corporations Act §250R). Services License if they carry on financial services business (Corporations Act §911A[1]) Takeovers.—Corporations Act c. 6 prohibits person acquiring relevant interest in unless exemption applies (Corporations Act §911A[2]) or they are representative of issued voting shares in company if company is listed, or has more than 50 members, and, licensee. Person who provides financial services as representative of licensee will gen- because of acquisition, that person’s or someone else’s voting power in company in- erally need to be authorized under Corporations Act unless representative is employee creases from 20% or below to more than 20%, or from starting point that is above 20% or director of licensee or related body corporate. (Corporations Act §911B). Corporations and below 90%. (Corporations Act §606). Relevant interest exists if person is holder of Act imposes numerous obligations on licensees and representatives. securities, or has power to exercise, or control exercise of, right to vote attached to Licensees must ensure compliance with financial services laws and are responsible for securities, or has power to dispose of, or control exercise of power to dispose of, conduct of their representatives. Representatives also required to comply with: (a) Fi- securities. (Corporations Act §608). Does not matter how remote relevant interest is or nancial services disclosure in Corporations Act Pt 7.7; (b) financial disclosure obligations how it arises. Situations which do not give rise to relevant interest include, subject to in Corporations Act c. 6D for securities or Pt 7.9 for other financial products; and (c) certain conditions, person who holds charge or other security over relevant securities, consumer protection provisions in Australian Securities and Investments Commission Act nominee or bare trustee, securities dealer, or proxy. Voting power equal to person’s and 2001. associate’s votes in company as percentage of total votes in company. Corporations Act allows use of Clearing House Electronic Sub-Register System by Corporations Act c. 6C requires any person who acquires voting power in excess of Australian Stock Exchange which provides central register for electronic transfer of share 5% in listed company, or whose voting power after that time changes up or down by ownership whereby transferor need not sign transfer form personally, if stamped by more than 1%, to notify company. market licensee or designated broker. Australian Stock Exchange has replaced floor Principal methods of increasing voting power beyond 20% limit provided in Act: (a) trading with screen trading. By purchase of up to 3% of target company’s voting shares in any six month period; (b) Futures Industry Regulation.—Australian Securities and Investments Commission by making formal off-market takeover bid under Act for all shares in class or uniform has power to give directions regarding dealings in futures on futures market. Operator proportion thereof, offers under bid being open for at least one month and being attended of futures market must hold Australian market license. by certain statements containing information relating to bid; (c) by making formal takeover bid via home Stock Exchange of target company unconditionally undertaking to take for at least one month at specified cash price all shares offered (and being attended BUSINESS REGULATION AND by certain statements containing information relating to bid); (d) (subject to certain conditions) by obtaining target company shareholder approval; (e) by target company COMMERCE proposing scheme of arrangement under Pt 5.1 of Corporations Act. (Corporations Act §611). BANKING AND CURRENCY: Information requirements for off-market or on-market takeover bid to be met in Banking Act 1959 provides banking business must be carried on only by Reserve bidder’s statement prepared by acquirer (bidder). Corporations Act §636 requires dis- Bank of Australia and bodies corporate so authorized in writing by Australian Prudential closure on specific matters (e.g., bidder’s intentions regarding target’s business, assets Regulation Authority. Australian Prudential Regulation Authority consent required to use and employees; details of funding arrangements for offers) as well as any other infor- word “bank” or “banking” in business name. Australian Prudential Regulation Authority,

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BANKING AND CURRENCY . . . continued for consumers to own health records; requires health service providers to have available along with Reserve Bank of Australia where applicable, empowered with regulation- documentation clearly setting out policies for management of personal information. Some making powers covering certain aspects of foreign exchange, protection of Australian State legislation also applies. currency, foreign investment in Australia, prudential supervision of banks, and financial National Privacy Principles.—Privacy Act contains ten National Privacy Principles aspects of contracts, acts and transactions between Australian residents and nonresidents. (NPPs) which prescribe how private sector organizations should collect, use, keep secure Act also provides for extraterritorial application of Banking (Foreign Exchange) Regu- and disclose personal information. NPPs cover collection (NPP 1), use and disclosure lations 1959. Reserve Bank empowered to control monetary policy and supervise do- (NPP 2), data quality (NPP 3), data security (NPP 4), openness (NPP 5), access and mestic payments system. correction (NPP 6), identifiers (NPP 7), anonymity (NPP 8), transborder data flows (NPP No distinction between trading and savings banks. Banks have appointed Banking and 9) and sensitive information (NPP 10). Principles also give individuals right to know Financial Services Ombudsman to deal with complaints by retail customers. Australian what information organization holds about them and right to correct information if Bankers’ Association implemented voluntary self-regulating 2004 Code of Banking Prac- incorrect. Privacy Act also gives organizations option of adopting privacy code, which, tice for member banks in relation to service to retail customers and small businesses once approved by Privacy Commissioner, effectively replaces NPPs for those organi- (http://www.bankers.asn.au). While Code has no legislative effect, once bank subscribes zations bound by it. Privacy Commissioner has issued Guidelines to NPPs to assist to Code, it is binding contract with customer. Code promotes good banking practice by organizations and health service providers to meet privacy obligations for handling setting minimum standards for disclosure (including disclosure of fees and charges), personal information. privacy and confidentiality, dispute resolution handling processes and conduct for dealing with guarantors. Uniform Consumer Credit Code (UCCC) legislation regulates credit BILLS AND NOTES: provided to personal customers and some businesses, where credit provided for personal Bills of Exchange Act 1909 follows very closely English Bills of Exchange Act of domestic or household purposes. UCCC requires standardisation in presentation and 1882, only minor variations having been made to adapt it to local conditions. See format of consumer credit agreements, disclosure of fees and charges, with substantial England Law Digest. Does not apply to cheques. penalties for credit providers failing to comply. Cheques.—Cheques Act 1986 substantially amended law relating to cheques. Cheque Australian Prudential Regulation Authority Act 1998 establishes Australian Pru- defined as unconditional order in writing addressed by person to financial institution, dential Regulation Authority for prudential supervision and regulation of Approved De- signed by person giving it and requiring financial institution to pay on demand sum posit-taking Institutions (ADIs). Extends to ensuring efficient, competitive and safe fi- certain in money. Establishes principles including: (a) Cheque need not be physically nancial system, which includes enforcing capital adequacy requirements. ADIs include presented by collecting financial institution to drawee institution and drawers and in- banks, building societies, credit cooperatives, insurers and superannuation (retirement) dorsers not liable until presentment; (b) no restrictions imposed by electronic presentment funds. where presentment occurs within same financial institution (i.e., internal presentments); Reserve Bank Act 1959 establishes Reserve Bank of Australia which is required to (c) cheque becomes stale after 15 months; (d) includes bank cheques and post-dated act as central bank and bank for Commonwealth. Bank required to ensure that its cheques within Cheques Act; (e) either payable to order or bearer, if not payable to order, monetary and banking policies are directed to greatest advantage of people of Australia deemed payable to bearer; (f) negotiable until discharged; (g) paying institution must and that its powers are exercised in such manner as, in opinion of Board, best contributes communicate refusal to pay cheque holder or person presenting cheque on holder’s to: (a) Stability of Australian currency; (b) maintenance of full employment in Australia; behalf; (h) drawer or indorser liable on dishonored cheque whether or not they received and (c) economic prosperity and welfare of Australian people. notice of dishonor; (i) financial institution with whom cheque deposited required to In event of any difference of opinion between board of Reserve Bank and Government present cheque for payment as soon as reasonably practicable or liable for any loss holder as to whether monetary and banking policies of Reserve Bank are directed to greatest suffers as result; and (j) ante-dating and post-dating not invalidating factors. Cheques Act advantage of people of Australia, Government has ultimate right to direct Bank’s policies, also provides that certain provisions of Cheques Act cannot be altered by agreement however 1996 agreement between Commonwealth Government and Reserve Bank pro- between two or more parties to cheque. vides for Reserve Bank board decisions regarding monetary policy to be free of political Act allows cheques to be drawn on financial institutions (includes building societies, interference from Government. credit unions and foreign banks) and abolishes payment orders. Foreign Banks.—Foreign bank entry liberalized. Foreign banks may apply to Aus- Act also provides circumstances in which cheque dishonored due to drawee institution tralian Prudential Regulation Authority to conduct banking business in Australia. Foreign becoming insolvent or Reserve Bank appointing investigator into affairs of institution. banks operating representative offices in Australia must obtain Australian Prudential Regulation Authority consent. CONSUMER PROTECTION: Interest withholding tax on interest paid overseas is 10%, however wide-ranging Trade Practices Act 1974 contains certain provisions in Pts IVA, V and VA aimed at exemptions exist for publicly offered debt issuances and for loans by certain U.K. and protecting consumers from unfair commercial practices engaged in by corporations and, U.S. resident institutions. See category Taxation. in certain cases, persons other than corporations. Trade Practices Act 1974 is adminis- Financial Sector (Shareholdings) Act 1998 prohibits person from having more than tered by Australian Competition and Consumer Commission, independent statutory au- 15% stake in bank, insurance company or holding company. However, Commonwealth thority with broad powers and functions. (See http://www.accc.gov.au.) Pt IVA prohibits Treasurer may approve stake in excess of 15% if in “national interest”. corporations in trade or commerce engaging in conduct unconscionable within unwritten Australian Notes.—Issued by Note Issue Department of Reserve Bank, and are legal laws (i.e., common law and equity) of States or Territories. (§51AA). It also prohibits tender for their face value in Commonwealth and in all Territories under control of unconscionable conduct in connection with supply or possible supply of goods or ser- Commonwealth. vices to consumers (§51AB) and with supply or acquisition of goods or services to/from Reserve Bank Act 1959 permits issue of Australian notes in denominations of one, two, small businesses (§51AC). Among practices specifically prohibited by Division 1 of Pt five, ten, 20, 50 and 100 dollars, and any other denomination determined by Common- V of Act are: (a) Misleading or deceptive conduct (§52); (b) false or misleading rep- wealth Treasurer. Currency Act 1965 permits issue of coins in denominations of five, ten, resentations or statements in connection with supply or possible supply of goods or 20 and 50 cents, and one, ten, 25, 50, 100 and 200 dollars. Currently in circulation are services as to standard, quality, value, grade, composition, history, sponsorship, price, coins in denominations of five, ten, 20 and 50 cents, and of one dollar and two dollars, facilities for repair or spare parts, place of origin or conditions or warranties attached to and notes in denominations of five, ten, 20, 50 and 100 dollars. One and two dollar coins goods or services (§53); (c) false representations and misleading or offensive conduct in have replaced one and two dollar notes. One and two cent coins not reissued after Oct. relation to sale or grant of interest in land (§53A); (d) misleading conduct in relation to 1, 1990. offer of employment (§53B); (e) offering and not providing gifts and prizes (§54); (f) bait advertising, whereby consumers attracted to trade premises by advertisement of goods Legal Tender.—Currency Act 1965 provides tender of payment of money is legal at low prices where no real intention to make goods available for sale (§56); (g) referral tender if made in case of coins of denominations of 5¢, 10¢, 20¢ or 50¢ for payment selling, whereby consumers offered rebate, commission or other benefit as inducement of amount not exceeding $5; in case of coins of denominations of 1¢ or 2¢ for payment to acquire goods or services for assisting in supply of goods or services to another of amount not exceeding 20¢; in case of coins of denomination greater than 50¢ but less consumer and where receipt of rebate, commission or other benefit is contingent on event than $10 for payment of amount not exceeding ten times face value of coin; in case of occurring after consumer’s contract of supply entered into (§57); (h) accepting payment coins of denomination of $10 for payment of amount not exceeding $100; in case of without intending or being able to supply as ordered (§58); (i) false or misleading coins of another denomination for payment of any amount. representations about profitability, risk or other material aspect of home-operated busi- Financial Sector (Collection of Data) Act 2001 provides registration and categori- nesses (§59); (j) physical force or undue harassment in connection with supply or zation of financial corporations responsibility of Australian Prudential Regulation Au- possible supply of goods or services to consumer or payment for goods or services by thority. Act requires range of nonbank financial intermediaries (such as money market consumer (§60); (k) pyramid selling, whereby person who participates in trading scheme corporations, pastoral finance companies and finance companies) to register with and induces other persons to join and receives commission for each new participant in trading provide information to Australian Prudential Regulation Authority. Australian Prudential scheme (Division 1AAA); and (l) assertion of payment for unsolicited goods or services Regulation Authority may also determine reporting standards. In addition to “registrable (§64). Division 1AA of Pt V of Act provides general test for determining country of entities” there are “regulated entities” which, although not required to register under Act, origin representations for goods. Division 1A also provides for product information and are still regulated by it, including insurance and superannuation companies. Act applies safety standards, and compulsory product recall procedures. generally to financial corporations with assets over A$5 million whose principal business Implied Terms.—Division 2 of Pt V of Act sets out non-excludable conditions and in Australia is borrowing money and provision of finance, and which are not already warranties implied in consumer contracts for goods and services including: (a) That covered by Banking Act 1959. where goods are bought in circumstances where buyer relies upon description of goods Privacy.—Privacy Act 1988 covers public sector agencies and most private sector given to him by seller there is implied condition that goods will correspond with organizations (including not-for-profit organizations) with annual turnover of more than description (§70); (b) that where corporation supplies goods to consumer in course of A$3 million. Provisions also apply to all health service providers regardless of turnover. business, goods must be of merchantable quality, provided that if buyer has examined General exemption for small businesses with annual turnover of A$3 million or less goods there will be no implied condition as regards defects which such examination (excluding health service providers, businesses that trade in personal information, con- ought to have revealed (§71[1]); (c) that where buyer expressly or by implication makes tractors with Government and businesses related to larger businesses). known to seller particular purpose for which goods are required so as to show that buyer Health Privacy.—Privacy Act also applies to private health sector. Health records now relies on seller’s skill or judgment there is implied condition that goods must be rea- covered by Privacy Act to promote increased openness between health service providers sonably fit for such purpose (§71[2]); and (d) that where goods are sold by sample there and consumers regarding handling of health information: includes general right of access is implied condition that bulk must correspond with sample in quality, that buyer will

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CONSUMER PROTECTION . . . continued Petroleum Retail Marketing Franchise Act 1980 (Cth) of narrow application to fran- have reasonable opportunity of comparing bulk with sample and that goods must be free chise agreements involving sale of motor vehicle fuel and licensing of trademark. Aims from any defect rendering them unmerchantable which would not be apparent on rea- to protect franchisee. Franchises excluded from definition of managed investment scheme sonable examination of sample (§72). There is also implied condition that seller has title in Corporations Act 2001, so that that Act does not apply to franchises. (§9). Various to sell goods and implied warranties that buyer will have quiet possession of goods and provisions of Trade Practices Act 1974 and common law rules against restraint of trade that goods must be free from any charge or encumbrance in favor of any third party and of potential application. not known to buyer at time contract of sale is made. (§69). Conditions and warranties may not be excluded, restricted or modified (§68) except MONOPOLIES, RESTRAINT OF TRADE AND COMPETITION: to limit liability to resupply of goods or services (§68A) or in relation to supply of recreational services (§68B). Breach entitles consumer to action for breach of contract. Dawson Review into Trade Practices Act.—Formal review of Trade Practices Act Certain credit transactions linked to provision of goods or services are also regulated. initiated by Commonwealth Treasurer in May 2002 (known as “Dawson Review”). Vienna Convention on Contracts for International Sale of Goods prevails over provisions Reported in Jan. 2003, released in Apr. 2003. Yet to be incorporated but recommendations dealing with conditions and warranties in Division 2 to extent of any inconsistency. strongly backed by Federal Government, which has introduced Trade Practices Legis- (§66A). lation Amendment Bill (No. 1) 2005. Dawson Review considered operation of compe- tition and authorization provisions of Act, specifically Pts IV (anticompetitive conduct Manufacturers and Importers.—Division 2A of Pt V of Act imposes limited product and associated penalty provisions) and VII (authorizations and notifications) and sought liability code on manufacturer in favor of consumers in relation to goods ordinarily to identify improvements to Act, its administration and any additional measures to deliver acquired for personal, domestic or household use. Term “manufacturer” can include more efficient, fair, timely and accessible framework for competition law. Significant importer of goods if actual manufacturer has no place of business in Australia, and changes proposed by Trade Practices Legislation Amendment Bill (No. 1) 2005, includ- corporation which applies its own brand name on goods. “Consumer” (definition below) ing in relation to mergers and collective bargaining. However, Bill has stalled after Senate has similar rights against importer and seller as against manufacturer of goods. Consumer voted to reject new merger rules in Oct. 2005. Other Bills also currently before Par- has right to compensation from manufacturer, importer or seller where goods: (a) Do not liament propose amendments to some similar provisions of Act. correspond with description under which they are sold (§74C); (b) are not of merchant- able quality (§74D); (c) do not correspond with sample supplied (§74E); (d) are unfit for Trade Practices Act 1974 intended to control restrictive trade practices, promote stated purpose (§74B); (e) do not comply with express warranty provided (§74G); and competition, protect consumers from unfair commercial practices and provide access (f) are not provided with reasonable repair and parts replacement facilities (§74F). regimes for essential services and telecommunications services. Consumer must commence proceedings within three years of date on which cause of Pt IV of Trade Practices Act prohibits certain restrictive trade practices: (a) Certain action accrued (but within ten years from date of purchase). (§74J). Pt VA makes agreements affecting competition including contracts, arrangements and understandings corporations which supply, in trade or commerce, defective goods manufactured or having purpose or effect of substantially lessening competition in any market in which imported by them, liable for injury, loss or damage suffered as result of defective goods. corporation party supplies or acquires goods or services (§45); (b) restrictive covenants Defect in goods may relate to: (a) Manner in which marketed; (b) purposes for which running with land with purpose or effect of substantially lessening competition (§45B); marketed; (c) packaging; (d) use of any mark in relation to goods; (e) instructions or (c) provisions in contracts, arrangements or understandings between competitors, fixing, warnings provided with goods; (f) what might reasonably be expected to be done with controlling or maintaining price for, or discount, allowance, rebate or credit in relation goods; and (g) time goods were supplied by manufacturer. (§75AC). Person must com- to goods or services supplied or acquired by parties to contract (§§45 and 45A); (d) mence proceedings within three years of date on which became aware of loss, defect and “exclusionary provisions” i.e., provisions in contract, arrangement or understanding be- identity of manufacturer (but within ten years from date of supply). (§75AO). tween persons any two or more of whom are competitive with each other which pro- visions have purpose of preventing, restricting or limiting supply or acquisition of goods Consumer.—Statutory warranties and conditions under Act arise only where sale is or services to or from particular persons (§§45 and 45D); (e) secondary boycotts— to ‘‘consumer’’. Act defines person as consumer if: (a) Price of goods or services does including actions taken by person in concert with second person that hinder or prevent not exceed prescribed amount (currently A$40,000); or (b) where price exceeds pre- corporation (third person) supplying goods or services to, or acquiring goods or services scribed amount but goods or services are of kind ordinarily acquired for personal do- from, fourth person, with purpose, effect or likely effect of causing either substantial loss mestic or household use or consumption or are vehicle acquired for use principally in or damage to business of fourth person or substantial lessening of competition in any transport of goods on public road and goods not acquired for purpose of resupply or use market in which fourth person supplies or acquires goods or services (§§45D, 45DA). in manufacture, production, repair or treatment of other goods or fixtures. (§4B). Conduct with dominant purpose related to remuneration, conditions of employment, Financial Services.—Australian Securities and Investments Commission Act 2001 hours of work or working conditions does not infringe secondary boycott provisions regulates conduct of persons engaging in conduct in relation to financial services, pro- (§45DD); (f) boycotts affecting trade or commerce—i.e., actions taken by person in hibits conduct that is misleading or deceptive (or is likely to mislead or deceive), making concert with second person that have purpose and effect or likely effect of preventing or of false or misleading representations and unconscionable conduct. hindering corporation (third person) engaging in trade or commerce involving movement Penalties under Act for breaches of Pt V except for misleading conduct under §52 are of goods to and from Australia (§45DB); (g) misuse of market power by corporations up to A$1 million for corporations and A$220,000 for individuals. Courts may grant with “substantial” degree of power in market including misuse of market power in injunctions and damages or other orders (e.g., corrective advertising orders) in favor of “trans-Tasman market” (i.e., market in Australia, New Zealand or Australia and New party who has suffered loss as result of prohibited practice. Australian Competition and Zealand for goods or services) (§§46, 46A) (Note: Dawson Review rejected calls for Consumer Commission has power to obtain information, documents and evidence, in- “effects” test to be introduced, no amendment advocated. However, Senate Committee spect documents, seek declarations regarding provisions under Act and initiate proceed- recommended minor amendments to misuse of market power provisions. Amendment ings and intervene. Australian Competition and Consumer Commission may institute likely to be introduced in future.); (h) exclusive dealing or “vertical restraint” (e.g., proceedings in Court for recovery on behalf of Commonwealth of pecuniary penalty. supply or offer to supply goods or services on condition that purchaser will not buy from See also Pt II, category Business Regulation and Commerce, topic Consumer Pro- competitor of supplier) and third line forcing (§47) (Note: Dawson Review recommended tection. that third line forcing prohibition should be subject to substantial lessening of compe- tition test. Proposed amendments introduced by Federal Government, but withdrawn following pressure from small business.); (i) resale price maintenance (§48); (j) mergers FRANCHISES: where acquisition has effect or likely effect of substantially lessening competition in Franchising regulated by mandatory industry code of conduct prescribed under Pt IVB, substantial market for goods or services (§50) (Note: Trade Practices Legislation Amend- Trade Practices Act 1974. Amendments to Franchising Code of Conduct commenced Oct. ment Bill (No. 1) 2005 sought to implement Dawson Review recommendation regarding 1, 2001 particularly in relation to disclosure documentation. Franchising Code of Con- introduction of additional options for businesses to obtain merger approval). Acquisitions duct applies to all franchise agreements entered into on or after Oct. 1, 1998 and imposes outside Australia come within Act if acquisition has effect or likely effect of substantially some obligations on franchisors prior to that date. Code does not apply to franchise lessening competition in substantial market for goods or services in Australia. (§50A). agreements where: (a) Franchisor resident, domiciled or incorporated outside Australia Under Pt VII of Act, Australian Competition and Consumer Commission can authorize and grants only one franchise or master franchise to be operated in Australia; (b) another corporation to enter into or give effect to contract, arrangement or understanding with mandatory industry code applies; or (c) franchisee previously supplied goods and ser- anticompetitive effect or engage in exclusive dealing if Australian Competition and vices similar to franchise goods and services for at least two years before entering Consumer Commission determines: (a) There is benefit to public outweighing anticom- franchise agreement and sales under franchise likely to account for no more than 20% petitive detriment; and (b) in case of exclusionary provisions, secondary boycotts, third of gross turnover for three consecutive years. (cl.5). Where Code applies franchisor line forcing, resale price maintenance and mergers—conduct otherwise in contravention required to provide franchisee with disclosure document prior to entering into franchise of Act would in all circumstances result in such benefit to public that should be allowed. agreement and upon each renewal or extension of agreement. (cl.6B). Document must (§90). Does not apply to contracts already entered (§88[12]) unless contract subject to contain prescribed information including details relating to franchisor, other existing condition precedent in relation to obtaining authorization within 14 days (§45[9]). Misuse franchises, whether exclusive or non-exclusive territory applies to franchise, establish- of market power cannot be authorized. Applications for authorization will be made ment costs and other payments required by franchisor, summary of franchisor and public. franchisee’s obligations and other material terms of franchise agreement. (See annexures Australian Competition and Consumer Competition’s decision to grant or refuse au- to regulations.) Disclosure must also be made to prospective sub-franchisees by fran- thorization may be appealed to Australian Competition Tribunal. chisor and franchisee. (cl.6B). Short-form disclosure only required for franchise with Immunity may also be obtained for exclusive dealing and third line forcing conduct annual turnover of less than A$50,000. (cl.6[2]). Franchisee transferring franchise busi- under more simple notification procedure. ness no longer required to provide disclosure document to transferee franchisee. Code Penalties under Act for breaches of Pt IV are up to A$10 million for corporations and provides for mandatory seven day cooling off period for prospective franchisees (cl.13) A$500,000 for individuals except in case of secondary boycotts where penalties are up and imposes notice and time requirements on franchisors in event of termination of to A$750,000 for corporations and A$500,000 for individuals. (Note: Dawson Review agreement by franchisor (cl.21-23). Code encourages dispute resolution procedures for recommended introduction of criminal sanctions for serious cartel behavior, not yet settlement of disputes between franchisors and franchisees. (Pt 4 of Franchising Code of adopted. Trade Practices Legislation Amendment Bill (No. 1) 2005 seeks to increase Conduct.) Remedies for breach of Code include: injunctions, corrective advertising maximum civil penalty to greatest of $10 million, three times gain from contravention and/or award of damages to persons suffering loss or damage. Australian Competition and 10% of corporate group’s turnover; disqualify individuals involved in contraventions and Consumer Commission enforces Code and any breach of Code results in liability to from managing corporation.) Court may also impose injunctions (§80), award damages sanctions under Trade Practices Act 1974. (§82) and make remedial orders in favor of party that has suffered loss as result of

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MONOPOLIES, RESTRAINT OF TRADE AND COMPETITION . . . continued prohibited conduct. Australian Competition and Consumer Commission has power to CITIZENSHIP obtain legally enforceable undertakings. (§87B). In case of mergers, court may order ALIENS: divestiture of shares or assets illegally acquired. (§81). “Corporation” is defined in §4(1) of Act as body corporate that is: (a) Foreign cor- See category Immigration, topic Aliens. poration; (b) trading or financial corporation formed within limits of Australia; (c) incorporated in Australian Territory; or (d) holding company of body corporate of kind DISCRIMINATION: referred to in (a), (b) or (c), above. Australia party to International Covenant on Civil and Political Rights. Human Rights Restrictive Trade Practices in Relation to Liner Cargo Shipping.—Pt IV does not and Equal Opportunity Commission Act 1986 establishes Commission to promote human apply in relation to overseas cargo shipping engaged in by shipowner in pursuance of rights and investigate complaints of violations of Covenant. See also Pt II, category conference agreement; such agreements are governed by Pt X. Citizenship, topic Discrimination. Trade Practices Amendment (International Liner Cargo Shipping) Acts 1989 and 2000 Religious Discrimination.—Constitution §116 forbids prohibition of free exercise of effected major changes in regulatory system governing international liner cargo shipping religion, and no religious test to be required as qualification for any office or public trust to improve competitiveness of this area of activity. Previous exemption from Pt IV of under Commonwealth. Trade Practices Act 1974 for conferences (i.e., shipping cartels) reduced to level nec- essary for continued provision of rationalized services. Exemption limited to: anticom- Disability Discrimination.—Disability Discrimination Act 1992 prohibits direct or petitive agreements (§45) and exclusive dealing (§47) in Australia’s export trades; ap- indirect discrimination against persons with disability, in areas of work, education, access plied only to specified conduct; and made available for other restrictive conduct but only to premises, goods and services, facilities, accommodation, buying land, clubs and where there is overall shipper benefit. §46 (misuse of market power) applied to con- incorporated associations, sport, administration of Commonwealth laws and programs, ference operations. Discrimination between similarly situated shippers prohibited. Car- and requests for information. Harassment on disability grounds prohibited in employ- riage of Goods by Sea Act 1991 provides for minister to conduct review from time to ment, education and in relation to provision of goods and services. Victimization and time of desirability of bringing Hamburg Rules into force in Australia. Productivity other acts of incitement prohibited. Limited exclusions for superannuation and insurance. Commission undertook review of Part X of Trade Practices Act 1974 and Government Various other exemptions, such as for infectious diseases. Act applies throughout Aus- released report in Oct. 2005. Recommendations include repeal of Part X, with autho- tralia, but State and Territory Acts may still apply. Act provides that complaints to be rization under Part VII being preferred option. dealt with in accordance with procedures for redress set out in Human Rights and Equal Opportunity Commission Act 1986, including conciliation or application to Federal Court Restrictive Trade Practices in Relation to Telecommunications.—Pt XIB of Trade or Federal Magistrates’ Court. Act provides for Disability Standards formulated by Practices Act 1974 governs anticompetitive conduct in telecommunications industry in Commonwealth Attorney-General. Breach may give rise to complaint. Compliance with addition to general competition regime in Pt IV of Act. Pt XIB prohibits carriers or Disability Standards defense to complaint under general provisions. Disability Discrimi- carriage service providers from engaging in anticompetitive conduct. Prohibition is called nation Amendment Act 2002 allows Human Rights and Equal Opportunity Commission “competition rule” and is based on effects test of substantial lessening of competition. to grant exemptions from Disability Standards dealing with public transportation facili- Australian Competition and Consumer Commission may issue “Pt A competition notice” ties. Governor-General may make inconsistent regulations under Civil Aviation Act 1988 stating specified carrier or carriage service provider has engaged, or is engaging in, in best interests of aviation safety. anticompetitive conduct. (§151AKA). Proceedings for enforcement of competition rule (other than proceedings for injunctive relief) must not be instituted unless alleged conduct Age Discrimination.—Age Discrimination Act 2004 came into force on June 22, is of kind dealt with in Pt A competition notice in force at time when alleged conduct 2004. Act makes it unlawful to discriminate either directly or indirectly on ground of age occurred. Australian Competition and Consumer Commission may issue “Pt B compe- in areas of employment, education, access to premises, provision of goods, services and tition notice” stating specified carrier or carriage service provider has contravened, or is facilities, accommodation, disposal of land, administration of Commonwealth laws and contravening, competition rule. (§151AL). Pt B competition notice is prima facie evi- programs and request for information. Discriminatory advertising and victimization are dence of matters set out in notice. Certain conduct may be exempted from competition specifically prohibited. Complaints can be made under Human Rights and Equal Op- rule under terms of exemption order made by Australian Competition and Consumer portunity Act. Exemptions provided for positive discrimination, charities, superannuation, Commission. Australian Competition and Consumer Commission may also require car- insurance and health programs. State and Territory Acts may still apply. rier or carriage service provider to comply with record keeping requirements or to file Racial Discrimination.—Racial Discrimination Act 1975 introduced into Australian tariff filing directions. Australian Competition and Consumer Commission may issue law obligations contained in International Convention on Elimination of All Forms of “disclosure direction” requiring carrier or carriage service provider to make certain Racial Discrimination signed on behalf of Australia on Dec. 21, 1965. Following defi- reports available for inspection and purchase. Penalty for breach of competition rule in nition of Convention, Act makes it unlawful for person to act in way involving dis- case of corporation is, if breach continues for more than 21 days, fine up to A$31 million crimination based on race, color, descent or national or ethnic origin which impairs plus A$3 million for each day in excess of 21 that contravention continues, otherwise enjoyment of fundamental rights and freedoms. Act makes it unlawful to incite others fine up to A$10 million and A$1 million for each day contravention continues; for breach to commit unlawful acts. Act also guarantees equality before law and deals with dis- of competition rule by individual A$500,000; breach of tariff filing direction by corpo- crimination concerning access to places and facilities, provision of land, housing and ration A$10 million; breach of tariff filing direction by individual A$500,000; breach of other accommodation, goods and services, right to join trade unions, employment and record keeping rule or disclosure direction by corporation A$250,000; breach of record advertisements. Vicarious liability for acts of employees or agent unless established that keeping rule or disclosure direction by individual A$50,000. Also, court may impose person took all reasonable steps to prevent employee or agent from doing act. (§18). Act injunctions, require information to be released to public or advertisement published or not intended to limit operation of State law furthering objects of Convention and capable award damages or other compensation. Pt XIC of Act provides access regime for tele- of operating concurrently. communications carriage and related services. General access regime in Pt IIIA of Act Act establishes Race Discrimination Commissioner as independent statutory authority does not apply. responsible for research and educational programs and to promote Act and develop Access to Essential Facilities.—Pt IIIA of Act provides regime for third parties to guidelines. Human Rights and Equal Opportunity Commission Act 1986 sets out pro- obtain access to services provided by means of facilities. Regime provides three mecha- cedures for redress for unlawful discrimination by conciliation or application to Federal nisms for obtaining access to services by: (a) Access undertaking between access pro- Court or Federal Magistrates’ Court. vider and access seeker; (b) industry access code; and (c) access seeker applying to Act creates Aboriginal and Torres Strait Islander Social Justice Commissioner and National Competition Council to have service declared open to access by third parties gives Commissioner specific responsibility for protecting human rights of Australian by Commonwealth Treasurer. “Services” defined to include: (a) Use of infrastructure Aborigines. facility such as road or railway line; (b) handling or transporting things such as goods Human Rights and Equal Opportunity Commission Act 1986 establishes Commission or people; and (c) communication service or similar service. Service does not include: to implement objects of International Covenant on Civil and Political Rights. Since 1986, (a) Supply of goods; (b) use of intellectual property; or (c) use of production process. Race Discrimination Commissioner is member of Human Rights and Equal Opportunity Following criteria must be satisfied if service to be recommended for declaration by Commission. See also subhead Sex Discrimination, infra. National Competition Council and subsequently declared by designated Minister: (a) Racial Discrimination Act 1975 amended by Racial Hatred Act 1995 provides for Access must promote competition in at least one market other than market for service; complaint procedure for racially offensive or abusive behavior. Act covers public acts (b) must be uneconomical for another facility to be developed to provide service; (c) which are done because of race, color, or national or ethnic origin of person or group facility must be of national significance; (d) access must be provided without undue risk and are reasonably likely to offend, insult, humiliate or intimidate that person or group. to human health or safety; (e) access must not be subject of another effective access Exceptions exist for certain acts with artistic, academic or scientific purposes. Racial regime; and (f) access to service must not be contrary to public interest. (§§44G[2] and Discrimination Act 1975 makes it unlawful to publicly engage in conduct which is 44H[4]). Number of state based regimes have been declared effective (e.g., gas, rail and reasonably likely to offend, insult, humiliate or intimidate another person or group of electricity). If service declared, terms and conditions upon which access provided may people and which is based on race, color or national or ethnic origin. be determined by agreement between provider and third party or by Australian Com- Equal Employment Opportunity (Commonwealth Authorities) Act 1987 (see subhead petition and Consumer Commission in arbitration proceedings. Review of decision to Sex Discrimination, infra). declare or not to declare service and from Australian Competition and Consumer Com- See also Pt II, category Citizenship, topic Discrimination. mission arbitration determination available to Australian Competition Tribunal. Trade Sex Discrimination.—Sex Discrimination Act 1984 gives effect to certain provisions Practices Amendment (National Access Regime) Bill 2006 currently before Parliament of U.N. Convention on Elimination of All Forms of Discrimination Against Women. will amend Pt IIIA to implement number of recommendations by Productivity Com- Act prohibits discrimination on grounds of sex, marital status, pregnancy or potential mission. pregnancy and family responsibilities in areas of work, accommodation, education, pro- vision of goods facilities and services, disposal of land, activities of clubs, administration NEGOTIABLE INSTRUMENTS: of Commonwealth laws and programs and requests for information and affirms individual See topic Bills and Notes. equality before law. Act amended in 2003 to prohibit: discrimination against women who are breastfeeding; employers asking questions regarding pregnancy or potential preg- nancy during recruitment processes; and employers requesting medical information from RESTRAINT OF TRADE: pregnant women for inappropriate purposes. Governor-General may make inconsistent See topic Monopolies, Restraint of Trade and Competition. regulations under Civil Aviation Act 1988 in best interests of aviation safety.

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DISCRIMINATION . . . continued period of stay in Australia as if that person were permanent resident. Minister may Human Rights and Equal Opportunity Commission Act 1986 establishes Commission include in certificate of citizenship name of child of grantee if at time of application child to implement objects of International Covenant on Civil and Political Rights. Commis- was under 16 and grantee was responsible parent of child. Restrictions apply regarding sion also administers Sex Discrimination Act, supra. grant of certificate to persons subject of criminal proceedings. (§13). Sex Discrimination Commissioner appointed to promote Sex Discrimination Act, con- Australian Citizenship Amendment Act 1986 amended oath and affirmation of alle- duct research and educational programs, examine enactment to ascertain consistency with giance to remove requirement to renounce all other allegiances. Amendment Act 1990 Act, report to Minister as to laws that should be made, publish guidelines and in certain replaced oath and affirmation of allegiance with ‘‘pledge of commitment as a citizen of circumstances to intervene in proceedings. Human Rights and Equal Opportunity Com- the Commonwealth of Australia’’ which is distinctly Australian in character. mission Act 1986 sets out procedures for redress for unlawful discrimination by con- ciliation or by application to Federal Court or Federal Magistrates’ Court. Loss of Citizenship.—Australian citizen may renounce citizenship if over 18 years Equal Opportunity for Women in the Workplace Act 1999 requires private sector and was born, or is ordinarily resident, in foreign country and is not entitled by law of employers, community organizations, nongovernment schools, unions and higher edu- that country, to acquire nationality or citizenship of that country by reason of being cational institutions with more than 100 employees to implement equal opportunity for Australian citizen. (§18). Where Australian citizen is also citizen of foreign country, women in workplace programs to promote employment of women and submit annual service in armed forces of that country at war with Australia will result in loss of progress reports. Act also establishes office of Director of Equal Opportunity for Women Australian citizenship. (§19). Person having grant of Australian citizenship may be in the Workplace Agency, managed by Director of Equal Opportunity for Women in the deprived of it by Minister if, for purpose of Act, person knowingly makes misleading Workplace. Objects of Act expressed as to: (a) Promote principle that employment of representation or conceals material particular or if, after applying for certificate, person women be dealt with on basis of merit; (b) promote elimination of discrimination and is sentenced by law to death or imprisonment for life or for period not less than 12 provision of equal opportunity for women in relation to employment matters; and (c) months or person engages in migration related fraud (defined in Act) or in any case that foster workplace communications on issues concerning equal opportunity for women in would be contrary to public interest for person to remain Australian citizen. Person workplace. convicted of “people smuggling” offence against Migration Act 1958 §§232A, 233 or Equal Employment Opportunity (Commonwealth Authorities) Act 1987 requires certain 233A and sentenced to imprisonment of not less than 12 months liable to deprivation of Commonwealth authorities to develop and implement programs to promote equal op- citizenship. (§21). Act provides for resumption of citizenship in some circumstances portunity in employment. (§23AA) and extends some protection to children whose parents lose citizenship (§23). Previously, Australian citizen who had done act sole or dominant purpose of which was DOMICILE: acquisition of nationality or citizenship of foreign country, ceased to be Australian citizen. Marriage was not regarded as such act. (§17). This provision repealed by Aus- In Australia, “domicile” has its common law meaning. It connotes “permanent home”, tralian Citizenship Legislation Amendment Act 2002. place person is presumed at time in question to consider their true home, wherever they may be resident or traveling for time being. Any evidence of person’s hopes, intentions and behavior is relevant in aiding court to establish their domicile. Person can only have one domicile at any one time. Rule of law that infant is deemed CIVIL ACTIONS AND PROCEDURE to have its father’s domicile and wife has her husband’s domicile has been revoked by Domicile Act 1982 which provides that married woman has independent domicile and ACTIONS: child of marriage under age of 18 takes domicile of that parent with whom child has Foreign claims and foreign law are regarded as matters of fact and must be proved principal home unless child under age of 18 is, or has at any time been, married, in which accordingly. However, Commonwealth Constitution provides that full faith and credit case child is capable of having independent domicile. must be given throughout Commonwealth to laws, public acts and records and judicial Common law rule of revival of domicile of origin on abandonment of domicile of proceedings of every Australian State, including certain records, seals and signatures of choice has been revoked by Domicile Act 1982. Act makes provision for dependent officials. In Tasmania and Western Australia, Courts are required to take judicial notice domicile of adopted children, and children of separated parents. of statutes of New Zealand, Fiji and U.K. In Victoria, there is provision for judicial notice See also Pt II, category Citizenship, topic Domicile. to be taken of New Zealand and Fiji Statutes. Generally, evidence of foreign laws will be accepted in form of books of statutes, ordinances. IMMIGRATION: See category Immigration, topic Immigration. Foreign Judgments.—Foreign Judgments Act 1991 enacts statutory system of reg- istration of foreign judgments in Federal Courts or State/Territory Supreme Courts. Act NATIONALITY: applies to judgments of courts of declared countries that give reciprocal treatment to enforcement of Australian judgments. Upon registration foreign judgment has same force Australian Citizenship Act 1948 (substantially amended by Australian Citizenship and effect as judgment of court in which registered. Requirements for registration and Amendment Acts 1984, 1986, 1990, 1991, 1993 and 1994 and Australian Citizenship grounds to set aside registration parallel both common law and currently existing State Legislation Amendment Act 2002) recognizes status of ‘‘Australian citizen’’. legislation in this area. Act replaces existing common law action on judgment debt in Following Persons are Australian Citizens: (a) Person born in Australia after Jan. respect of judgments registrable under Act, and now completely replaces State and 26, 1949; person born in Australia after Aug. 20, 1986 is Australian citizen only if (i) Territory legislation relating to registration of foreign judgments. Act contains some Parent was Australian citizen or permanent resident at time of person’s birth, or (ii) if innovations that do not exist in existing State legislation, including prohibition of en- person has throughout period of ten years after birth been ordinarily resident in Australia; forcement of judgments of declared countries viewed as giving substantially less favor- (b) person was adopted under State or Territory law (all of which deal with recognition able treatment to Australian judgments, and choice of judgment in foreign currency or of foreign orders of adoption) by Australian citizen and who at time of adoption was converted to Australian dollars on second business day before date of application for permanent resident of Australia; (c) person born outside Australia to Australian citizen registration. and whose name is registered at Australian consulate within 25 years of birth, but where parent is Australian citizen by descent that parent must have been lawfully present in Prohibition Orders.—Foreign Proceedings (Excess of Jurisdiction) Act 1984 em- Australia before registration of child for aggregate period of two years and, if applicant powers Attorney-General to make order prohibiting: (a) Production in foreign court or 18 years, Minister must be satisfied of good character; and (d) person granted certificate to or for purposes of foreign authority of document located in Australia; (b) doing of any of Australian citizenship. act in Australia in relation to document located in Australia with intention or likely result Person born outside Australia before Jan. 15, 1992, Australian citizen if: (a) Parent that act will result in document or evidence of or information about document’s contents Australian citizen; (b) person applies to register name at Australian Consulate before being produced in foreign court or to foreign authority; (c) giving of evidence or turning 18 years; and (c) person’s name was so registered. information in foreign court or to foreign authority by Australian citizen or resident about Person born outside Australia and aged 18 or over on Jan. 15, 1992, Australian citizen document located in Australia; or (d) production of document or giving of evidence of if: (a) Application made to register person’s name at Australian Consulate; (b) parent or information about document in Australian court or to Australian authority for purposes Australian citizen; (c) applicant born on or after Jan. 26, 1949; (d) shows acceptable of proceedings in foreign court. Such order only made if Attorney-General satisfied that: reason for not being registered earlier; and (e) Minister satisfied person of good character. (i) Making of order desirable for protection of national interest; (ii) assumption of Person born outside Australia before Jan. 26, 1949 Australian citizen if person’s natural jurisdiction by foreign court or manner of exercise of jurisdiction is contrary to inter- mother became Australian citizen on Jan. 26, 1949 and: (a) Was born in Australia or New national law, or is inconsistent with international comity or practice; or (iii) taking or Guinea; or (b) was naturalized in Australia. Person must have applied to Minister for manner of taking of action by foreign authority contrary to international law, or incon- registration before Jan. 15, 1997 and Minister satisfied that person present in Australia sistent with international comity or practice. These orders enforceable by injunction. for any time before May 1, 1987 and is of good character. Blocking Orders.—Attorney-General may by instrument block foreign antitrust judg- Grant of Certificate of Australian Citizenship.—Minister may, in their discretion, ments if satisfied necessary for protection of national interest, or that assumption of upon application in approved form, grant certificate of Australian citizenship to person jurisdiction or exercise of power by foreign court contrary to international law, or who satisfies Minister that person: (a) Is permanent resident; (b) has attained 18 years inconsistent with international comity or practice. In such case defendants in foreign of age; (c) understands application; (d) has been permanent resident of Australia for antitrust proceedings can recover damages enforced against them. Attorney-General may aggregate period of at least one year in previous two years and for at least two years in declare judgment given by foreign court in antitrust proceedings enforceable if reciprocal previous five years; (e) is of good character; (f) has basic knowledge of English; (g) has agreement with other country. Attorney-General may make order blocking foreign gov- adequate knowledge of responsibilities and privileges of Australian citizenship; and (h) ernment actions or decisions under laws related to trade or commerce, banking, insurance is likely to reside in and maintain close and continuing association with Australia. or external affairs where such action or decision imposes obligation on Australian person Citizenship will only be granted to person who is outside of Australia if person is to be performed in Australia if such blocking order desirable in national interest. At- permanent resident engaged in activities beneficial to interests of Australia. torney-General may make order prohibiting compliance in Australia with certain foreign Exemptions from some of these requirements available to persons with physical or court judgments relating to trade or commerce, trading or business operations of Aus- mental incapacity (not being temporary incapacity), persons who have completed defense tralian corporation, banking, insurance or external affairs where such judgment imposes service, persons formerly Australian citizens or born in Australia, elderly persons, minors, obligation to be performed in Australia and such blocking order desirable in national persons applying when minors, persons suffering (otherwise than temporarily) from loss interest. or substantial impairment of hearing, speech or sight, and spouse, widow or widower of Penalty for contravention of order: (a) Maximum A$50,000 or 12 months’ imprison- Australian citizen. If there is significant hardship, minister may treat illegal immigrant’s ment or both for natural person; (b) maximum A$250,000 for corporation.

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ACTIONS . . . continued II, category Courts and Legislature, topic Administrative Appeals for description of these Foreign Evidence.—Foreign Evidence Act 1994 deals with use of foreign evidence Acts. in Australian courts and Australian evidence in foreign courts. Superior Court may make Freedom of Information.—Freedom of Information Act 1982 gives members of order if it appears in interests of justice to do so, for examination of person outside public legally enforceable right of access to government documents unless those docu- Australia. This evidence may be tendered in evidence in proceedings. Attorney-General ments are exempted from operation of Act. Act applies to most Commonwealth depart- may request foreign country to provide testimony of person, or exhibit annexed to such ments and authorities. However, access regime does not apply to Parliament or parlia- testimony, to be used in criminal proceeding or related civil proceeding. Australian mentary documents or documents relating to political party matters. Act does not require Securities and Investments Commission may request foreign business authority to pro- person to establish any special interest before being entitled to seek or be granted access vide testimony, or exhibit annexed to such testimony, for use in civil proceedings not to documents. Following categories of documents are specifically exempt from operation being related civil proceedings or proceedings under Corporations Act 2001. Evidence of Act: (a) Documents affecting national security, defense, international relations of may be taken in Australian courts for use in proceedings instituted in foreign country. Commonwealth or which divulge matters communicated in confidence by foreign gov- Attorney-General may make written order prohibiting production of document or thing ernments to Commonwealth; (b) documents concerning relations between Common- or giving of evidence to prevent prejudice to Australia’s security. Court may exclude wealth and States; (c) cabinet and executive council documents; (d) internal working evidence in interests of justice. documents; (e) documents affecting enforcement of law and protection of public safety; Superior Court means High Court, Federal or Family Court of Australia, Supreme (f) documents to which secrecy provisions of other laws apply; (g) documents affecting Court of State or Family Court of Western Australia when exercising federal jurisdiction financial or property interests of Commonwealth; (h) documents concerning certain and Supreme Court of Territory. operations of government agencies; (i) documents affecting personal privacy; (j) docu- Related civil proceeding means proceeding arising from same subject matter from ments subject to legal professional privilege; (k) documents relating to business affairs; which criminal proceedings arose including proceedings under Proceeds of Crime Act (l) documents affecting national economy; (m) documents containing material obtained 1987, Proceeds of Crime Act 2002, Customs Act 1901 or proceeding for recovery of tax, in confidence; (n) documents, disclosure of which would be contempt of Parliament or duty, levy or charge payable to Commonwealth. contempt of court; (o) certain documents arising out of companies and securities leg- islation; (p) documents relating to research; and (q) electoral rolls and related documents, Evidence and Procedure (New Zealand) Act 1994 provides for statutory system for except that individuals may obtain such documents relating to themselves. service in Australia and New Zealand of New Zealand and Australian subpoenas, for video link and telephone evidence and special rules for judicial notice of New Zealand Appeals.—Refusal to grant access is reviewable by internal system of review and by laws. way of application to Administrative Appeals Tribunal. There is right of appeal from See also Pt II, category Civil Actions and Procedure, topic Depositions and Discovery. Administrative Appeals Tribunal to Federal Court and Federal Magistrates’ Court on question of law. Act also allows documents held by government and by agencies in JUDGMENTS: respect of citizen’s personal affairs and to which citizen has had lawful access to be amended by citizen where record incorrect. Act can be used in conjunction with other In most jurisdictions, court rules provide procedures for judgment to be entered by statutory remedies. consent without attendance of parties, upon written consent of all parties or their so- licitors being filed. Procedure exists for plaintiff to enter judgment in default should Treaties.—High Court has held that signing of treaty could give rise to legitimate defendant fail to appear in action or fail to comply with relevant procedural rule. See also expectation that government decision-makers would make decisions consistent with Aus- Pt II, category Civil Actions and Procedure, topic Judgments. tralia’s obligations under treaty, irrespective of whether treaty obligations have been Under Foreign Proceedings (Excess of Jurisdiction) Act 1984 Commonwealth Attor- enacted into Australian law (see Minister for Immigration and Ethnic Affairs v. Teoh ney-General may, by instrument, block foreign antitrust judgment if satisfied that nec- [1995] 183 CLR 273). However, this approach has been questioned by High Court in essary for protection of national interest, or that assumption of jurisdiction of power by decision of Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (2003) foreign court contrary to international law, or inconsistent with international comity or 195 ALR 502. practice. Attorney-General may make order prohibiting compliance with certain foreign court judgments relating to trade or commerce, trading or business operations of Aus- COURTS: tralian corporation, banking, insurance or external affairs where such judgment imposes See category Introduction, topic Government and Legal System, subhead Judiciary. obligation to be performed in Australia and such blocking order desirable in national interest. LAW REPORTS: Foreign Judgments Act 1991 provides for enforcement of some foreign money judg- See topic Reports. ments where substantial reciprocity of treatment in foreign country. Judgment must be final and conclusive. Creditor under foreign judgment must apply to appropriate court in LEGISLATURE: Australia within six years of date of last judgment of proceedings. See category Introduction, topic Government and Legal System, subhead Parliament. See also Pt II, category Civil Actions and Procedure, topic Judgments. See also topic Actions. REPORTS: PRESCRIPTION: The official reports of the decisions of the High Court of Australia are entitled Commonwealth Law Reports (CLR). See Part II, category Civil Actions and Procedure, topic Limitation of Actions. Australian Law Reports (ALR) contain reports of decisions of High Court, Federal Court, Family Court, and State Supreme Courts exercising federal jurisdiction. Federal SEQUESTRATION: Law Reports (FLR) contain reports of decisions of above courts (except High Court) and See category Debtor and Creditor, topic Bankruptcy. Australian Competition Tribunal (formerly Trade Practices Tribunal) and Administrative Appeals Tribunal. Decisions of High Court are also reported in Australian Law Journal Reports (ALJR). Decisions of Federal Court are also reported in Federal Court Reports COURTS AND LEGISLATURE (FCR). ADMINISTRATIVE APPEALS: STATUTES: In addition to judicial review of administrative decisions by means of prerogative writs Each Act of Commonwealth Parliament has short title and Acts are numbered from under common law and equitable remedies of injunction or declaration, there are statu- beginning of each year. Acts Citation Act 1976 provides that Acts may be cited by tory remedies and grounds of review available. reference to year in which Act was made without reference to years in which it may Administrative Appeals Tribunal Act 1975 establishes Commonwealth Administrative subsequently have been amended. Acts and amendments are consolidated periodically Appeals Tribunal to provide for review of certain decisions on their merits. Any person and reprinted. Acts Interpretation Act 1901 deals with such matters as: (a) Commence- whose interest is affected by certain Commonwealth Government decisions may apply ment, repeal and expiration of Acts; (b) meaning of certain words and references in Acts; on payment of prescribed fee to Administrative Appeals Tribunal for such review. Such (c) construction of powers conferred by Acts; (d) measurement of distance and time; (e) person may also obtain written statement of reasons for decision from decision-maker. citation of Acts; (f) references to new corporations and Australian Securities and In- However Attorney-General can certify certain information not to be disclosed in reasons vestments Commission legislation; (g) interpretation of offences and penalties imposed of decision-maker, where such disclosure contrary to public interest. Power to review in Acts; (h) construction of rules, regulations, by-laws and instruments and making of comes from Administrative Appeals Tribunal Act 1975 and from other Acts which regulations; (i) jurisdiction of courts; and (j) application of Acts to coastal sea. Act also provide that application may be made to Administrative Appeals Tribunal in respect of deals with construction of Acts—in particular it provides that in interpretation of pro- certain decisions made under those Acts. On reviewing decision, Tribunal can exercise vision of Act construction that would promote purpose or object underlying Act whether all powers and discretions conferred on decision-maker; it can affirm or vary original purpose or object expressly stated or not must be preferred to construction that would decision or set aside original decision and either substitute own decision or remit matter not promote purpose or object. Extrinsic material, including reports, journals, speeches for reconsideration by original decision-maker in accordance with such directions and and explanatory memoranda of Ministers, Parliament or Commissions may also be used recommendations as Tribunal might give. Appeal from decision of Tribunal on question in interpretation of provision of Act. of law lies with Federal Court and Federal Magistrates Court. Administrative Decisions (Judicial Review) Act 1977 provides that person aggrieved by decision made under certain Commonwealth enactments may apply to Federal Court DEBTOR AND CREDITOR or Federal Magistrates’ Court for order of review on certain grounds such as lack of jurisdiction by decision-maker or breach of natural justice. Persons aggrieved by failure ARRANGEMENTS FOR BENEFIT OF CREDITORS OUTSIDE to make decision by person with duty to make decision may also apply to Court for order BANKRUPTCY: of review. Reasons for decision may be obtained by person entitled to make application Pt X Bankruptcy Act 1966 is formal alternative to bankruptcy and allows debtor to for review. come to binding arrangement with creditors for payment and/or settlement of debts. Ombudsman.—The Ombudsman Act 1976 provides for complaint to and investiga- Debtor who desires that affairs be dealt with under Pt X without estate being se- tion by Ombudsman in relation to administrative actions, including actions in relation to questrated may sign authority in accordance with prescribed form authorizing registered freedom of information requests. This Act is similar to State Ombudsman Acts. See Pt or Official Trustee (or solicitor) to call meeting of creditors and registered trustee to take

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ARRANGEMENTS FOR BENEFIT OF CREDITORS OUTSIDE by Official Receiver, debtor is automatically declared bankrupt and bankruptcy dates BANKRUPTCY . . . continued from date of acceptance of petition by Official Receiver. Provision is made for presen- over control of debtor’s property. (§188). Upon passing of special resolution at meeting tation of debtor’s petition by partnership and by joint debtors. Official Receiver must of those entitled to vote (by simple majority in number of creditors present and voting accept debtor’s petition, unless Official Receiver refuses by reason of: (1) Failure to and at least three-quarters in value), debtor may be required to enter into personal comply with approved form; (2) failure to provide statement of affairs; (3) inadequate insolvency agreement (in prescribed form) to dispose of all property in favor of creditors, statement of affairs; (4) lack of territorial connection; or (5) otherwise where court where property would be divisible among them if debtor became bankrupt or offer money directs. If debtor’s petition presented at time creditors’ petition pending against group of in full satisfaction of debts; or arrange affairs to pay whole or part of debts e.g., deed debtors including presenter of petition, Official Receiver must refer debtor’s petition to of arrangement may release some or all debts, assign some or all property or be con- court for direction to accept or reject it. Official Receiver has discretion to reject debtor’s ditional on receipt of undertaking from third parties. (§204). petition where it appears that debtor has capacity to pay debts or petition is abuse of Personal Insolvency Agreements.—Standard provisions in these agreements are bankruptcy system even if debtor insolvent. elected by creditors and include identifying debtor’s property and how it is to be dealt Creditor’s Petition.—(Pt IV, Div. 2). Individual or multiple creditors can petition for with; identifying debtor’s income and how it is to be dealt with; determining whether sequestration of debtor’s estate when debtor owes aggregate of A$2,000 or more payable and how debtor is to be released from debts; specifying conditions of operation and as liquidated sum either immediately or at certain future time. Debtor must have terri- termination of agreement; specifying order in which debtor’s property and/or income is torial connection with Australia, and must have committed act of bankruptcy within six to be distributed among creditors. (§188A). Voidable transaction provisions available to months before date of petition. Debtor becomes bankrupt upon making of sequestration recover assets disposed of to third parties prior to agreement. If accepted by special order. Secured creditor may present such petition as if he or she were unsecured creditor resolution, agreement requires execution as deed. Meeting procedures included in regu- if willing to surrender security for benefit of all creditors in event of sequestration order lations. Regulations provide performance standards for trustees. being made. Judicial review of agreements relate to method of terminating or avoiding Pt X Creditor’s petition lapses after 12 months unless extended by court up to maximum agreement. (§§222, 222C). Disclosure requirements exist regarding information for debt- of 24 months from date of creditor’s petition. Creditor’s petition cannot be withdrawn ors and creditors and declaration of controlling trustee interests. Statement of Affairs is without leave of court. made available to controlling trustee before execution of authority, and controlling trustee For creditor to make application to court to bankrupt debtor, creditor must first files executed Statement with Official Receiver of relevant District for creditors’ access. establish that debtor has committed “act of bankruptcy”. (Bankruptcy Act 1966 §40). Statement identifies related creditors. Most common act relied upon is debtor’s failure to comply with bankruptcy notice Trustees have investigatory and recovery powers. (§§190, 190A). Courts empowered requiring creditor’s debt to be paid within 21 days. Creditor must serve bankruptcy notice to vary agreements to remedy defects which prevent achievement of parties’ intentions. on debtor within six months of issue. Official Receiver may extend this time. Any Creditor’s petition automatically stayed by debtor’s initiation of Pt X process. Time challenge by debtor to notice must be made to court. periods measured in working days. Bankruptcy terminates Pt X agreements. Arrangements with creditors post-bankruptcy which annul bankruptcy if accepted by Acts of Bankruptcy.—(a) If debtor makes conveyance or assignment of property for creditors must be preceded by bankruptcy. benefit of creditors generally; (b) if debtor makes conveyance, transfer, settlement or Registrar may issue warrant for arrest of bankrupt who fails to attend before Official other disposition of property or any part thereof, creates charge over property or any part Receiver or other authorized person. (§267E[2]). thereof, makes payment or incurs obligation that would, if bankrupt, be void as against Agreements bind all creditors although creditor may not be present. Creditor may not trustee in bankruptcy; (c) if with intent to defeat or delay creditors debtor departs or proceed with creditor’s petition (deeds of arrangement require leave of court) or enforce remains out of Australia, departs from normal dwelling or place of business, otherwise any remedy against person, debtor property or commence or renew legal proceedings absents himself or herself or begins to keep house; (d) if execution is issued against regarding provable debt. (§229). Agreements have additional effect of releasing debtor debtor and either property sold or held by sheriff for 21 days or execution is returned from all provable debts other than those that would not have been released by debtor’s unsatisfied; (e) if debtor presents debtor’s petition; (f) if debtor presents to Official discharge from bankruptcy if he or she had been bankrupt. (§230). Receiver declaration of intention to present debtor’s petition; (g) if at meeting of creditors Trustee must file deed and Statement of Affairs with Official Receiver and, when debtor agrees to file debtor’s petition and fails to do so within seven days or agrees to satisfied that all divisible property of debtor has been realized and final dividend paid, sign Part X authority and fails to do so within seven days; (h) if at meeting of creditors must provide debtor with certificate of release (upon request). Trustee of deed of ar- debtor admits to insolvency and fails within seven days at request of majority of creditors rangement, assignment or composition must be satisfied terms have been carried out to present debtor’s petition or to sign §188 authority; (i) if debtor fails to comply with before providing certificate. (§232). bankruptcy notice filed by way of final judgment or order; (j) if debtor gives notice to Agreements can be varied by debtor’s written consent together with either special any creditor that debtor has suspended or is about to suspend payment of debts; (k) if resolution of creditors or trustee’s notice. Creditors may object to trustee’s notice. Trustee debtor gives Official Receiver debt agreement proposal; (l) if creditors accept debt may terminate agreements and composition if debtor in default. agreement proposal given by debtor to Official Receiver; (m) if debtor breaches debt Court may declare void any agreement where not in accordance with Act or where agreement; (n) if debt agreement is terminated according to law; (o) if debtor signs §188 debtor gave false or misleading information at creditor meeting or has omitted material authority appointing registered trustee to take over affairs; (p) if meeting of creditors is particular from Statement of Affairs or included incorrect material particular in it. called by registered trustee in pursuance of such authority; (q) if debtor fails to attend (§222[5]). Court may terminate agreement on grounds including that debtor failed to such meeting; (r) if debtor fails to execute Personal Insolvency Agreement or to present comply with or carry out provisions of agreement or agreement cannot be proceeded with debtor’s petition within specified time having been required by special resolution of without injustice or undue delay. (§222[2]). meeting of creditors to do so; (s) if Part X Personal Insolvency Agreement terminated Court may set aside agreement on grounds including terms are unreasonable or not or set aside; (t) if scheme of arrangement or composition terminated or set aside; (u) if calculated to benefit creditors generally. (§222[1]). debtor made insolvent by Family Law Act financial agreement. (§40). See also topic Bankruptcy. Act allows bankruptcy notice to be issued in respect of judgment or order for payment by court exercising bankruptcy jurisdiction. (§40[3][e]). ASSIGNMENTS: Act also protects maintenance creditors where orders for arrears of maintenance ob- See category Intellectual Property, topics Copyright, subhead Ownership; Designs, tained under Family Law Act 1975 by allowing them to serve bankruptcy notice. subhead Ownership; Patents, subhead Ownership; Trademarks, subhead Ownership. (§40[3][f]). Date of commencement defined as date of earliest act of bankruptcy within period ATTACHMENT: of six months preceding presentation of creditor’s petition or application for making In High Court, judgment or order for payment of money into court or for performance sequestration order or, where no act of bankruptcy committed within six months prior of judgment, order or writ by which any person is required to do any act, other than to presentation of debtor’s petition, date of presentation of debtor’s petition. Where payment of money to some person, may be enforced by writ of attachment. Writ of creditor’s petition based on breach of bankruptcy notice, special rules apply. Where attachment cannot be issued without leave of court applied for on notice to party against debtor becomes bankrupt from acceptance of debtor’s petition, date for commencement whom attachment to be issued. Failure to observe order or judgment for attachment depends on circumstances surrounding petition. (§115[1], [1A], [1B]). constitutes contempt of court. See also Pt II, category Debtor and Creditor, topic At- Where petition is accepted by Official Receiver under direction of court, commence- tachment. ment date is time specified by court. Where debtor’s petition is accepted by Official Receiver without direction from court and at least one creditor’s petition is pending, date BANKRUPTCY: of commencement is earliest act of bankruptcy on which any creditor’s petition was Bankruptcy Act 1966, Bankruptcy (Registration Charges) Act 1997, Bankruptcy (Es- based. Where debtor’s petition is accepted by Official Receiver without direction from tate Charges) Act 1997 and Bankruptcy Regulations 1996 provide uniform law and court and no creditor’s petitions pending but debtor has committed at least one act of procedure throughout Commonwealth for insolvency of natural persons (including for- bankruptcy in past six months, then commencement date is date of earliest act of eign debtors). Insolvency and Trustee Service Australia performs some administrative bankruptcy within six months before presentation of petition. Otherwise, commencement functions previously carried out by Registrar in Bankruptcy. date is date of presentation of petition to Official Receiver. (§115[2]). Federal Court of Australia, Federal Magistrates Court and Family Court of Australia See also topic Fraudulent Sales and Conveyances. have jurisdiction in respect of bankruptcy proceedings. See also category Introduction, Property divisible amongst creditors includes (subject to many exceptions and pro- topic Government and Legal System, subhead Judiciary. tective provisions): (a) All property that belonged to or was vested in bankrupt at Reform.—Recent introduction of Bankruptcy Legislation Amendment (Anti-Avoid- commencement of bankruptcy; (b) all property bankrupt acquires by own effort or effort ance and Other Measures) Act 2006. Amended Act to strengthen trustee’s ability to avoid of others, and all property that devolves or is devolved upon bankrupt after commence- transactions designed to defeat creditors, especially transactions to related entities. ment of bankruptcy and before discharge; (c) proceeds of certain executions and other proceedings; (d) property disposed of by bankrupt in certain settlements within five years Debtor’s Petition.—(Pt IV, Div. 3). In certain circumstances debtor may present to before commencement of bankruptcy; (e) property disposed of by bankrupt with intent Official Receiver declaration of intention to present debtor’s petition; in such case to defraud creditors; (f) property transferred to creditors within six months before petition creditor to whom debtor owes frozen debt cannot apply for issue of enforcement process with effect of giving that creditor preference over other creditors. (§§116, 118, 120-122). in respect of debt or enforce remedy against person or property of debtor in respect of debt. Debtor for any amount may become bankrupt on own initiative by filing petition Property not divisible amongst creditors includes (subject to many exceptions and and statement of affairs in accordance with approved form. Once accepted and endorsed protective provisions): (a) Property held in trust for other persons; (b) household property

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BANKRUPTCY . . . continued FRAUDULENT SALES AND CONVEYANCES: of kind allowed under bankruptcy regulations or identified by creditors’ resolution; (c) Under Bankruptcy Act 1966 transfer of property which would have become part of personal property with sentimental value; (d) property used by bankrupt for earning transferor’s estate or been available to creditors, where main purpose of transfer was to income by personal exertion with value less than that prescribed by regulations, or prevent property from becoming available to be distributed among creditors or hindering property identified by creditors’ resolution or court order; (e) property used by bankrupt or delaying making property available to creditors, is invalid. (§121). Where transfer of primarily as means of transport (up to allowable maximum value, or as agreed by property takes place for consideration less than market value in period five years before creditors’ resolution); (f) life and endowment assurance policies in respect of life of transferor’s bankruptcy transfer is void unless transaction took place not sooner than four bankrupt or of spouse and proceeds received therefrom on or after date of bankruptcy years before bankruptcy (in case of related entity or person) or two years (in all other up to value of bankrupt’s pension; (g) interest in regulated superannuation fund or cases), and transferor was solvent at time. (§120). Rebuttable presumption of insolvency approved deposit fund and payments received therefrom (not as pension) on or after date where debtor has failed to keep proper records of such transactions. Transactions by of bankruptcy up to value of bankrupt’s pension; (h) amounts paid to bankrupt under debtor where consideration given by transferor to third party also void against trustee: scheme operated by State or Territory for support of farming and rural industry, being such consideration is recoverable by trustee. (§121A). At common law in order to amounts paid by way of grant or loan as assistance for purpose of rehabilitation or impeach transaction as fraudulent, it is necessary to show fraudulent intent on both sides household support; (i) property purchased wholly or substantially with exempt money or unless assignee gave no consideration. Under Act it is sufficient to show debtor’s main exempt loan money in relation to that time; (j) amounts paid under legislation; (k) purpose was to prevent or hinder creditors, which can be inferred from circumstances of insurance moneys under contract of insurance against liabilities to third parties; (l) any imminent insolvency. (§121). right to recover damages or compensation for personal injury. (§§116-117). Debts Provable.—All debts and liabilities, present or future, certain or contingent, to INSOLVENCY: which a bankrupt was subject at date of bankruptcy or to which bankrupt may become Corporate Insolvency.—Corporations Act 2001 provides for uniform law throughout subject before discharge by reason of an obligation incurred before date of bankruptcy. Commonwealth for corporate insolvencies. (§82). For these purposes ‘‘liability’’ includes: (a) Compensation for work or labor done; Federal Court of Australia, Supreme Court of each State and Territory, and Family (b) obligation or possible obligation to pay money or money’s worth on breach of express Court of Australia have jurisdiction in respect of insolvency-related proceedings. See Pt or implied covenant, contract, agreement or undertaking, whether or not breach occurs, I, category Introduction, topic Government and Legal System, subhead Judiciary. is likely to occur or is capable of occurring before discharge of bankrupt; and (c) express or implied engagement, agreement or undertaking to pay or capable of resulting in Insolvency.—Company insolvent when unable to pay debts as they fall due. (§95A). payment of money or money’s worth, whether payment is: (i) In respect of amount, fixed Corporations Act provides for various forms of external administration of insolvent or unliquidated; (ii) in respect of time, present or future or certain or dependent on companies, including receivership, voluntary administration, voluntary liquidation and contingency; or (iii) in respect of manner of valuation, capable of being ascertained by liquidation by court order (compulsory winding up). In addition, company may execute fixed rules or only as matter of opinion. Certain sums payable under maintenance Deed of Company Arrangement. agreement or order registered or approved by court are also provable in bankruptcy. Directors personally liable for insolvent trading. (§588G). Proceeds of Crime Act 1987 §26[9] provides that pecuniary penalty order or interstate Receivership.—(Pt 5.2). Secured creditors may appoint receiver or “receiver and pecuniary penalty order under Act (such order being order that deprives persons of manager” over secured company property. Court may also appoint receiver or “receiver proceeds of and benefits derived from crimes) is provable in bankruptcy. and manager” in certain circumstances. “Receiver and manager” empowered to carry on Order of Payment of Debts.—To extent that security is not relied on, all debts rank company’s business. Only registered liquidator may be appointed as receiver. Receiv- equally and if assets are insufficient debts are paid proportionately. (§107). However, ership may be general (where security is over company’s business and whole, or sub- there is statutory list of debts whose payment takes priority. See §§109, 109A. stantially whole, of its property) or particular (where receiver appointed to take control of particular piece of property). Appointment of receiver must be notified publicly and Effect of Bankruptcy.—Present and after-acquired property of bankrupt vests in notice of appointment must be served on company. Company’s reporting officer must Official Trustee or registered trustee. No creditor, other than secured creditor, can enforce provide report on company’s affairs to receiver within 14 days of receiving notice. their debt against debtor or their property. (§58). Ranking affected by order under (§429). Receiver empowered to preserve, recover and realize assets subject to security Proceeds of Crime Act 1987. (Bankruptcy Act §§114A, 114B, 114C). in order to satisfy secured debts. (§420). Receiver personally liable for debts incurred in Litigation commenced by bankrupt before bankruptcy is stayed upon becoming bank- course of receivership. (§419). rupt, until trustee makes election to prosecute or discontinue action; however bankrupt “Controllers” enforce security and owe similar Corporations Act duties as receivers. may continue in own name such action where action is in respect of: (a) Personal injuries Secured creditor (or creditor’s agent) may be controller. or wrongs done to bankrupt, spouse or family member; or (b) death of bankrupt’s spouse Company remains in existence during receivership. Directors relinquish control of or of family member. Court cannot stay proceedings under Proceeds of Crime Act 1987. company’s affairs if general receivership, but remain in office. Appointment of receiver (§60). does not operate to stay proceedings. Company reverts to directors’ control once secured Where bankrupt dies before discharged from bankruptcy, proceedings in bankruptcy debt satisfied in full, provided that company solvent. Company may be wound up if must, unless court otherwise directs, be continued so far as they are capable of being insolvent after general receivership or may come under administration. continued as if were alive. (§63). Voluntary Administration.—(Pt 5.3A). Objectives of scheme of voluntary adminis- Discharge and Annulment.—By operation of law, bankrupt is discharged automati- tration are to maximize prospect of insolvent company (or company likely to become cally three years from date of bankruptcy. (§149). However, extension of time may be insolvent) profitably continuing in existence or, if not attainable, to ensure higher return granted where trustee files objection to discharge with Official Receiver and Inspector- for company’s creditors and shareholders than otherwise achievable in liquidation. Ad- General does not cancel objection. ministrator investigates company’s affairs and recommends to creditors whether company Trustee required to deal with bankrupt’s property within six years after discharge. (with creditors’ approval) should execute Deed of Company Arrangement, be handed Trustee’s powers stronger to object to discharge from bankruptcy of uncooperative back to directors, or whether company should be wound up. bankrupts after standard bankruptcy period. (§§149A-Q). Directors, liquidator or chargee entitled to enforce charge over whole (or substantially Order of discharge releases bankrupt from all debts provable in bankruptcy (including whole) of company’s property may appoint administrator. Administrator controls com- secured debts) but excluding those debts incurred by fraud, liability under Family Law pany during voluntary administration and only administrator entitled to deal with com- Act maintenance order or agreement (subject to contrary order by court), debts on pany property. Directors not permitted to exercise powers without administrator’s written recognizance, income contribution amounts payable under Division 4B, Pt VI (see sub- approval. Company remains in existence during administration. head Contribution, infra), bail and any liability under pecuniary penalty order or interstate General moratorium on commencement and continuation of legal and enforcement pecuniary penalty order. Discharge of bankrupt does not affect right of secured creditor action against company during administration. Applications to wind up company for to realize or otherwise deal with security if secured creditor has not proved in bankruptcy insolvency adjourned pending determination of company’s future direction. Creditors for secured debt or part thereof, and purpose is to obtain payment of secured debt or part prohibited from enforcing guarantee of company’s obligation against director or relative thereof. (§153). of director. Charge over whole (or substantially whole) of company’s property must be Bankruptcy may be annulled if: (a) Trustee is satisfied that all bankrupt’s debts have enforced during first ten business days of administrator’s appointment. (§441A). Other been paid in full; or (b) court is satisfied that petition ought not to have been presented charges unenforceable against company’s assets during administration, except with ad- or accepted by Official Receiver. Court has power to annul bankruptcy if petition was ministrator’s written consent or leave of court. abuse of process, even if debtor is insolvent. (§§153A, 153B). Administrator must convene meetings of creditors. At first meeting creditors may confirm administrator’s appointment or appoint another administrator. At second meeting Contribution.—(Pt VI, Div. 4B). Requires bankrupt to pay to trustee contribution administrator required to make recommendation as to whether: (a) Company should from income exceeding certain amount. Bankrupt must provide evidence of income to execute Deed of Company Arrangement; (b) administration should end with result that trustee, no later than 21 days after end of contribution. directors regain control of company property; or (c) company should be placed in Aid.—Australian courts will act in aid of Bankruptcy Courts of Canada, New Zealand liquidation. Administration period ends when one of these events occurs. and U.K. and other prescribed countries and may act in aid of Bankruptcy Courts of Administrator must take into account interests of secured creditor under any charge non-prescribed countries on letter of request. Australian courts may request courts in which has not been, or cannot be, enforced. Administrator may dispose of company other countries to act in their aid. (See §29). Current prescribed countries are U.S.A., property subject to charge in following circumstances only: (a) In ordinary course of Jersey, Malaysia, Papua New Guinea, Singapore and Switzerland. company’s business; (b) with chargee’s written consent; or (c) with leave of court. Leave only granted if arrangements made to protect adequately chargee’s interests. Court may Corporate Insolvency.—See topic Insolvency. prevent chargee performing specified functions, so as not to sabotage administrator’s role, but may grant leave if satisfied that chargee’s interests adequately protected by admin- EXECUTION: istrator’s intended course of action. Attachment or execution may issue to enforce a judgment. Attachment of persons can Deed of Company Arrangement (DOCA) (Pt 5.3A) may be executed by creditors’ only issue by leave of the court, but execution against land or goods, unless restrained, resolution. Administrator must prepare and execute DOCA within 21 days of creditors’ can issue as of course upon a judgment for a sum of money. There is no equitable relief resolution. Administrator may become administrator of deed unless creditors appoint against execution of a judgment. See also Pt II, category Debtor and Creditor, topic another person. DOCA binds company, directors, shareholders, deed administrator and Execution. all creditors with claims arising on or before date specified in DOCA. (§§444D, 444G).

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INSOLVENCY . . . continued ries of employees. Hearing of this challenge occurred in May 2006. Decision expected DOCA must specify, inter alia: (a) Company property available to pay creditors’ claims; to be handed down in late 2006. (b) nature and duration of moratorium period under DOCA; (c) extent to which company released from debts; (d) order in which proceeds of realized company property to be Application.—Act applies to all employees of trading or financial corporations within distributed among creditors bound by DOCA; and (e) specified day on or before which Australia, and to all employees employed in Victoria, Australian Capital Territory and admissible claims arose. (§444A). Secured creditor may realize or deal with security Northern Territory irrespective of nature of their employer, provided that this Common- notwithstanding DOCA unless: (a) DOCA limits secured creditor’s rights and creditor wealth legislation does not apply to State public sector employees. voted in favor of DOCA; or (b) court orders secured creditor not to realize or deal with Statutory Employee Entitlements.—Act establishes statutory minimum conditions security. Order only made if court satisfied that creditor’s action would adversely affect (Australian Fair Pay and Conditions Standard [AFPCS]) in respect of minimum pay DOCA, and secured creditor’s interests adequately protected. (§444F). (A$12.75 per hour or otherwise as provided for by Australian Fair Pay Commission), Winding Up in Insolvency.—(Pt 5.4). On application of entity with standing to do hours of work (employees may not be required or requested to work more than 38 hours so, court may order that company be wound up on ground of insolvency. (§§459P, 459A). per week on average), annual leave (generally four weeks per year), personal leave Creditor may serve Statutory Demand on company requiring payment of debt of (comprising sick leave and carer’s leave, ten days per year) and parental leave (generally A$2,000 or more. (§459E). Statutory Demand must set out details of debt claimed. 12 months unpaid leave for primary caregiver). Company presumed insolvent if failure to act within 21 days after receipt of Statutory Act also includes general entitlements to public holidays and meal breaks, part-time Demand. Creditor may apply to court to have insolvent company compulsorily wound employment due to family responsibilities if agreed with employer and requirements for up. Company, certain government agencies and in certain circumstances shareholder may lawful termination of employment (including minimum periods of notice). Entitlements apply to court to have insolvent company compulsorily wound up. (§459P). under AFPCS and entitlement to public holidays do not apply to employees subject to Court may appoint provisional liquidator pending outcome of application compulsory pre-reform certified agreements and Australian Workplace Agreements. Certain other winding up order. Provisional liquidator safeguards company’s business and property entitlements (for example, long service leave, discrimination and health and safety laws) pending outcome of application. Corporations Act does not provide for process of governed by State legislation. provisional liquidation. Court may appoint registered liquidator when it makes compulsory winding up order. Other Instruments Governing Entitlements.—Awards of Industrial Relations Com- Registered liquidator must be natural person. Court-appointed liquidator: (a) Takes con- mission (Commission) in settlement of all or part of industrial dispute (e.g., strike, ban trol of company; (b) realizes or sells company property; (c) distributes proceeds to on performing certain work, or demarcation dispute) may bind specified employers, company’s creditors and, if funds available, to shareholders. (§477). Winding up order employees and organizations or classes. Awards are typically comprehensive instruments binds all company’s creditors. Liquidator has broad investigative powers and may recover which stipulate wide range of conditions including shift work, penalties, allowances and funds from parties to certain voidable transactions and directors in breach of duties to related matters. From Jan. 1, 2005, Commission could declare that existing federal award company. Liquidator may disclaim onerous property and contracts. Proceedings against will apply to all employees of particular class (e.g., all clerical or administrative em- company stayed except by leave of court, and creditors may not begin proceeding against ployees), regardless whether employee is employed by employer that is party to award. company or in relation to its property. Directors may not exercise their powers as Likely that federal awards will be replaced by industry-wide awards under award ra- directors during winding up. tionalization processes established in Work Choices legislation. All debts and claims rank equally in winding up, apart from debts owing to secured Award system complemented by option available to employees and employers to reach creditor and claims with priority in winding up. (§555). Secured creditors may realize agreement at enterprise level. Under Pt 8 of Act it is possible for parties to enter security and retain proceeds of realization to extinguish or reduce outstanding debts. workplace agreements. Workplace agreements prevail over inconsistent award provisions Debts and claims with priority include: (a) Directors’ costs in preparing report on to extent of inconsistency. Workplace agreements include five types of collective agree- company’s affairs for liquidator; (b) liquidator’s costs; and (c) retrenchment payments ment (including with or without unions, and special agreements for newly established payable to company’s employees. (§556). If company property is insufficient to meet businesses) and “Australian Workplace Agreements” (AWA) (which are type of regis- debts and claims in full, debts and claims must be paid proportionately. (§555). trable individual agreements). Benefit of registering collective agreement or AWA is After realization of property and final distribution to creditors court may order dis- agreement will prevail over Act and many State laws to extent that those laws are solution of company on application by liquidator. inconsistent with workplace agreement. Right to strike recognized in course of bargaining for collective workplace agreements. Voluntary Winding Up.—(Pt 5.5). If company solvent, shareholders may pass special However, complicated secret ballot process must be undertaken before protection af- resolution to wind up company and may nominate liquidator. (§495). Creditors nominate forded by Act is conferred on union(s) and employees involved. Action not protected if liquidator if company insolvent. (§499). Liquidator assumes office without court order. involves damage to property or physical injury. Conversely, employer can lock out disputant workers during bargaining period provided it similarly gives notice. Employer cannot discriminate against employees who engage in, or propose to engage in, industrial DISPUTE RESOLUTION action. Commission to suspend bargaining period if party not genuinely trying to reach agreement. No protected action could occur while period suspended. ALTERNATIVE DISPUTE RESOLUTION: Act prohibits inclusion of some content in workplace agreement. AFPCS prevails over Alternative dispute resolution processes being incorporated into rules and practices of award or workplace agreement to extent that AFPCS is more generous. all Australian courts and tribunals. Many areas of law have mandatory and voluntary Regulatory Authorities.—Commission established by Pt 3 of Act. Commission has alternative dispute resolution avenues. Federal courts may order alternative dispute reso- function of preventing and settling industrial disputes by conciliation and arbitration, lution even where parties do not consent. taking into account among other things public interest and compliance with dispute Alternative dispute resolution methods include mediation, conciliation, conferences procedures in relevant agreement or award. Act also establishes Employment Advocate, and approved or private arbitrators. which has supervisory jurisdiction over process of making and registering registrable Range of specialist Ombudsmen and tribunals established to investigate and decide agreements to apply at individual workplace. (Pt 8 of Act). complaints. Commission empowered to order that “industrial action stop or not occur”. If parties Arbitration.—International arbitration is regulated by International Arbitration Act refuse to comply with Commission order it is possible to seek injunctive relief from 1974 (Cth). court. Act enables parties to engage in limited forms of lawful industrial action while Gives force of law to UNCITRAL Model Law. (§16). Allows parties to opt out of negotiating collective agreement. model law by written agreement. (§21). Commission, comprising president, vice-presidents, deputy presidents and commis- Enacts New York Convention on the Recognition and Enforcement of Foreign Arbitral sioners, also has power, inter alia, to order secret ballot when ballot would assist Awards 1958 allowing stay of proceedings where in breach of arbitration agreement and settlement of dispute. Industrial action means performance of work (covered by award enforcement of foreign arbitral awards subject to specified restrictions. (§§7, 8). Courts of Commission) in manner different from customary performance or adoption of practice take narrow view requiring arbitration agreement to be contractually and substantively in relation to work which leads to restriction, limitation on or delay in performance of arbitrable. (§8). work. Also includes ban, limitation or restriction on performance of work or failure or See also Pt II, category Dispute Resolution, topic Alternative Dispute Resolution. refusal to attend work. Pt 20 of Act confers jurisdiction on Federal Court of Australia and Federal Magistrates’ Court to determine appeals from Commission on questions of law, appeals from State EMPLOYMENT courts, and to interpret and enforce awards and workplace agreements. Union Organization.—Schedule 1 of Act provides that each employer or employee INDUSTRIAL RELATIONS: association applying for registration under Act or organization registered under Act must Commonwealth has power to make laws only in specific areas stipulated in Com- have rules regarding certain matters including democratic control by members, elections, monwealth Constitution. Prior to Mar. 27, 2006, Commonwealth laws concerning em- objects, powers and duties, internal management, audit, eligibility for membership, terms ployment relationship based primarily on power to make laws with respect to ‘‘concili- of office in organization and manner of removal of officers. ation and arbitration for the prevention and settlement of industrial disputes extending Registration provisions give organization legal personality separate from persons who beyond the limits of any one State’’ (§51xxxv Commonwealth Constitution; conciliation collectively make up its membership, and powers of that separate legal personality are and arbitration power), and power to give effect to treaties entered into with other defined by its registered rules which derive their authority from Act. countries (§51xxix Commonwealth Constitution; external affairs power). With effect Act also provides for supervision of union elections (such elections to be held by secret from Mar. 27, 2006, fundamentally redrawn legislation (known as Work Choices) took ballot) and for declarations as to void elections in cases of irregularity. Further provisions effect. Work Choices is based on Commonwealth’s power to make laws with respect to regulate loans, grants and donations. Act allows for enforcement of rules directly without trading and financial corporations. (§51xx Commonwealth Constitution; corporations need for common law actions. power). Work Choices amends Workplace Relations Act 1996 (Act), which is major Pt 16 of Act creates offenses where either employer or organization (registered under instrument governing industrial relations in Australia. Act) takes or advises, encourages or incites person (whether employer or not) to take Validity of this new legislation has been challenged in High Court by trade unions and discriminatory action against employee on grounds of their membership or nonmem- State governments on basis that corporations power is not sufficient to support legislation bership of union or their failure or refusal to join in industrial action or proceedings in principally concerned with industrial relations of corporations and certain other catego- Commission. Act makes any arrangement or agreement for compulsory unionism or

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INDUSTRIAL RELATIONS . . . continued radioactive waste disposal site, including investigation and declaration of one of three union preference void. Act also makes allowance for conscientious objection to mem- proposed sites and matters related to extinguishment of prior land interests. bership of organization. All proceedings for offences against Act may be instituted by Great Barrier Reef Marine Park Act 1975 establishes Great Barrier Reef Marine Park summons issued on information, without indictment. Penalty for offence by natural Authority to advise Government on development and care of Marine Park. Act: (a) Makes person generally up to A$6,600 and for offence by corporation generally up to A$33,000. provision for Governor-General to declare area within Great Barrier Reef Region as Workplace inspectors (appointed under Pt 6) investigate observance of Act, regula- ‘‘Marine Park’’; (b) prohibits mining in area so declared; (c) prohibits buildings, pon- tions, awards, workplace agreements and employee safety. Union right of access to toons, etc. in certain areas; (d) regulates operation of certain vessels in those areas; (e) workplaces for purpose of investigating suspected breach of award, workplace agreement prohibits discharge of waste in Marine Park; (f) establishes scheme of compulsory or Act only available when individual union official has obtained permit allowing access pilotage on regulated ships within defined area of Great Barrier Reef Region; (g) imposes to those premises from Commission Registry. Permit holder must generally give 24 charges on commercial users of area to meet costs required to protect it; and (h) regulates hours’ notice before exercising right of access and must describe nature of alleged breach discharge of waste and management plans for specified areas. Act also imposes penalties if asked to do so. for pollution, illegal fishing, negligent damage and ships operating contrary to zoning Unfair dismissal provisions limited to those persons employed by trading or financial plans. corporations, and Victorian, Territory and Commonwealth public sector employees. Ac- Protection of the Sea (Prevention of Pollution from Ships) Act 1983 incorporates cess to unfair dismissal provisions restricted by number of exclusions, including if International Convention for the Prevention of Marine Pollution from Ships, 1973 as dismissal was for “genuine operational reasons” or if employer has 100 or fewer em- modified by Protocol of 1978 relating thereto (MARPOL 73/78). Maritime Legislation ployees. All unfair dismissal claims are made to Commission which must attempt to Amendment (Prevention of Pollution from Ships) Act 2003 gives effect to Annex IV of conciliate disputes. Where conciliation unsuccessful, aggrieved employee may elect to Convention as amended in 2000. Protection of the Sea (Prevention of Pollution from have claim arbitrated by Commission. If termination is for certain discriminatory or Ships) Act 1983 relates to protection of Australian waters from pollution by oil and other prohibited reasons aggrieved employee can elect to have matter dealt with by court. harmful substances discharged from ships. Act also provides for detention of foreign ships which are suspected of, or have committed, acts of pollution. Act prohibits escape Secondary boycotts involving industrial action are dealt with under Trade Practices or discharge of pollutants from ship in Exclusive Economic Zone. Protection of the Sea Act 1974. See also Pt I, category Business Regulation and Commerce, topic Monopolies, (Civil Liability) Act 1981 implements provisions of 1969 Civil Liability Convention and Restraint of Trade and Competition. 1976 Protocol. Objective of Act to ensure adequate compensation where pollution by oil Anticipated Developments.—Current constitutional challenge to recent amendments occurs on land or in territorial sea. Protection of the Sea (Civil Liability) Amendment to Act is main issue. If challenge successful, Work Choices laws embodied in Act will Act 2000 requires all ships of 400 or more gross tons to maintain insurance to cover cost be void, with result being predecessor legislation will operate. of clean up. Transport and Communications Legislation Amendment Act 1994 gives Assuming Work Choices survive challenge, another important anticipated development Maritime Safety Authority statutory right to recover any costs incurred in performing its will be process by which awards are rationalized across industries (which is likely to obligations to combat pollution. Protection of the Sea (Powers of Intervention) Act 1981 result in fewer awards) and excision from awards of provisions which may no longer be implements International Convention Relating to Intervention on the High Seas in Cases included in them (award simplification). of Oil Pollution Casualties 1969, as effected by resolution of Marine Environment Protection Committee, adopted July 4, 1991, and subsequent Intervention Protocol 1973. Protection of the Sea (Powers of Intervention) Amendment Act 2006 clarifies Common- ENVIRONMENT wealth Government’s powers to deal with serious marine pollution threats. See also category Transportation, topic Shipping. Protection of the Sea (Oil Pollution Compen- ENVIRONMENTAL REGULATION: sation Fund) Act 1993 and associated taxing Acts require persons who receive into General Legislation.—At Commonwealth level key piece of environmental legisla- Australia by ship more than 150,000 tons of oil in each year to pay contribution to fund tion is Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). It established pursuant to International Convention on Establishment of International Fund establishes process for assessment of proposed actions likely to have significant impact for Compensation for Oil Pollution Damage 1992. Fund available to compensate for on matters of national environmental significance or Commonwealth land. Actions in- spills where Liability Convention inadequate and to offset liability for ship owners under clude projects, developments, undertakings and activity or series of activities. Protection of the Sea (Civil Liability) Act 1981. Matters of national environmental significance include World Heritage properties, Hazardous Waste (Regulation of Exports & Imports) Act 1989 regulates export, import National Heritage places, Ramsar wetlands, listed threatened species or endangered and transit of hazardous wastes to ensure safe disposal. Act implements Basel Convention communities, listed migratory species, certain nuclear actions including uranium mining, on the Control of Transboundary Movements of Hazardous Wastes and their Disposal. certain actions in Commonwealth marine areas or affecting such areas and matters Act regulates hazardous waste import and export by requiring import and export permits. prescribed by regulations. Act applies to hazardous waste in transit, defined as waste brought into Australia and Australian Heritage Council Act 2003 establishes Australian Heritage Council to nomi- exported within 30 days. Act classes permits as either Basel or Special Permits and nate places for inclusion in National Heritage List or Commonwealth Heritage List and requires applications to be made to relevant Minister who can impose conditions and has make assessments on heritage matters under EPBC Act. power to revoke permits. Minister must notify foreign country if export permit to that Environmental Reform (Consequential Provisions) Act 1999 repealed Environment country has been authorized. Act prohibits sale of hazardous wastes to foreign company Protection (Impact of Proposals) Act 1974; Endangered Species Protection Act 1992; unless export permit in force. Extensive powers of search and seizure vested in inspectors National Parks and Wildlife Conservation Act 1975; Whale Protection Act 1980; and and heavy penalties imposed for offences under Act. Penalties can extend to executive World Heritage Properties Conservation Act 1983 on July 16, 2000. Act made conse- officers of body corporate. quential changes to various Acts including Great Barrier Reef Marine Park Act 1975; Hazardous Waste (Regulation of Exports & Imports) (Waigani Convention) Regula- Hazardous Waste (Regulation of Export and Imports) Act 1989; Ozone Protection and tions 1999 gives effect to Convention to Ban the Importation into Forum Island Countries Synthetic Greenhouse Gas Management Act 1989; and Telecommunications Act 1997. of Hazardous and Radioactive Wastes and to Control the Transboundary Movement and National Environment Protection Council Act 1994 establishes National Environment Management of Hazardous Wastes within the South Pacific Region (known as Waigani Protection Council to oversee uniform national approach to protection of environment. Convention), except so far as that Convention relates to radioactive wastes. Hazardous Council’s membership comprises Commonwealth and participating State and Territory Waste (Regulation of Export & Imports) (Imports from East Timor) Regulations 2003 representatives. Function of Council is to make National Environmental Protection Mea- prevents shipment of hazardous wastes from East Timor to Australia without prior grant sures (NEPMs) relating to air or water quality, noise, site contamination, hazardous of import permit by Australian Government. wastes and recycling, and to assess and report on implementation and effectiveness of Industrial Chemicals (Notification & Assessment) Act 1989 provides for notification such measures. NEPMs aim to protect, restore and enhance quality of Australian envi- and assessment of industrial chemicals. Establishes Inventory of Chemical Substances, ronment and provide community access to pollution information. Breaches of protection assessment certificate system and permits for commercial evacuation. Importers and measures attract significant penalties. Act extends to external Territories other than manufacturers of industrial chemicals must be registered. Act provides for information Norfolk Island. to be exchanged under Rotterdam Convention on the Prior Informed Consent Procedure Generally, NEPMs are implemented under State and Territory law. However, activities for Certain Hazardous Chemicals and Pesticides in International Trade, Sept. 10, 1998. of Commonwealth or Commonwealth authorities under NEPMs are implemented by Act establishes system of notification and assessment of industrial chemicals and requires National Environment Protection Measures (Implementation) Act 1998 and associated registration of particular persons proposing to introduce industrial chemicals into Aus- regulations. tralia. Resource Assessment Commission Act 1989 establishes Resource Assessment Com- Environment Protection (Sea Dumping) Act 1981 gives effect to Australia’s obligations mission for purpose of inquiring into and reporting on environmental, cultural, social, under 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dump- industrial and economic aspects of resources and their uses; policy for resolving com- ing of Wastes and Other Matter, 1972 (London Convention). Act amended by Environ- peting claims for use of resources; integrated approach to conservation and development ment, Sport and Territories Legislation Amendment Act 1997 to include amendments to to optimize net benefits to community from nation’s resources. annexes to Convention on Phasing Out Sea Disposal of Industrial Waste. Offence for Natural Heritage Trust of Australia Act 1997 establishes Natural Heritage Trust of foreign and Australian vessels to dump or incinerate (or export for this purpose) wastes Australia to conserve, repair and replenish natural infrastructure by allocating funding for or for any person to construct artificial reef in Australian waters, including in Exclusive environmental protection, sustainable agriculture and natural resource management. Economic Zone, without permit. Special provisions relate to dumping of radioactive National Water Commission Act 2004 establishes National Water Commission to wastes. Environment Protection (Sea Dumping) Amendment Act 1993 implements rati- assess implementation and promote objectives and outcomes of National Water Initiative fication Protocol for the Prevention of Pollution of the South Pacific Region by Dumping Intergovernmental Agreement. Agreement signed to increase productivity and efficiency to Convention for the Protection of the Natural Resources and Environment of the South of Australia’s water resource and ensure health of river and groundwater systems. Pacific Region. Specific Legislation.—Australian Radiation Protection and Nuclear Safety Act 1998 South Pacific Nuclear Free Zone Treaty Act 1986 gives effect to Treaty in Australia; prohibits certain nuclear installations and regulates nuclear installations, prescribed ra- prohibits dumping at sea of nuclear explosive devices and radioactive materials. diation facilities, controlled material and controlled apparatus. Act establishes Radiation Ozone Protection and Synthetic Greenhouse Gas Management Act 1989, Ozone Pro- Health and Safety Advisory Council, Radiation Health Committee and Nuclear Safety tection and Synthetic Greenhouse Gas (Import Levy) Act 1995 and Ozone Protection Committee to regulate radiation protection and nuclear safety, and set policies promoting (Manufacture Levy) Act 1995 implements provisions of Vienna Convention for the uniform national standards. Act applies within and outside Australia. Commonwealth Protection of the Ozone Layer, as modified and added to by Montreal Protocol on Radioactive Waste Management Act 2005 facilitates establishment and operation of Substances that Deplete the Ozone Layer. 1995 Acts provide for payment of fees in

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ENVIRONMENTAL REGULATION . . . continued parents. Court may also make declarations as to interests of parties in matrimonial relation to HCFCs, synthetic greenhouse gases and methyl bromide under license granted property and orders altering their interests in such property. Amendments to Family Law under Ozone Protection and Synthetic Greenhouse Gas Management Act 1989. Ozone Act commenced on Dec. 28, 2002 which allow superannuation interests to be divided Protection and Synthetic Greenhouse Gas Management Amendment Regulations (No. 1) between parties as property of marriage. Further, amendments commenced on Dec. 17, 2004 prescribe information to be reported on import or export of synthetic greenhouse 2004 which granted Family Court wider power to make certain orders and injunctions gases and equipment containing HCFCs and HFCs. against third parties. Environment Protection and Biodiversity Conservation Amendment (Wildlife Protec- Family Law Act deems child born to woman, whilst married to man, as result of tion) Act 2001 repeals and incorporates Wildlife Protection (Regulation of Exports and artificial insemination or implantation of embryo in woman’s body, to be child of woman Imports) Act 1982 into EPBC Act. Act deals with obligations to protect and conserve and husband regardless of biological parentage. wild fauna and flora in Australia by implementing 1973 Washington Convention on International Trade in Endangered Species of Wild Flora and Fauna. Act sets up system Family Law Amendment Act 2005.—Provisions of Bill are intended to replace of assessment and approval to regulate international movement of wildlife species, outdated terms in Family Law Act 1975 relating to termination of marriage with more including cetaceans, and establishes offences for movement of wildlife without permits. modern language including use of term divorce. “Decrees nisi” and “absolute” are Prohibits export of live native mammals, birds, amphibians and reptiles for commercial replaced by term “divorce order”. Term “dissolution of marriage” is replaced by concept purposes. of “divorce”. Definition of divorce is set out in definition section of Act. Antarctic Territory.—Australia signatory to Antarctic Treaty, adopted into domestic Family Law Amendment (Shared Parental Responsibility) Act 2006.—This Act law by various statutes. Antarctic Treaty Act 1960 prohibits nuclear explosion in Ant- represents most significant changes to Family Law Act 1975 (Cth) since its inception. arctica and disposal of radioactive waste material. Act provides for presumption of equal shared parental responsibility so that both parents Antarctic Treaty (Environment Protection) Act 1980 gives effect to measures of Ant- have equal role in making decisions about major long-term issues for benefit of their arctic Treaty for conservation of Antarctic fauna and flora. Antarctic (Environment child. Where presumption applies, court will be required to consider child spending equal Protection) Legislation Amendment Act 1992 enacts provisions relating to specially time with both parents. This only applies where reasonably practicable and in best protected species and areas and to historic sites and monuments, provides for environ- interests of child. If not appropriate, court must consider arrangement for substantial and ment impact statements and monitoring of proposed activities in Antarctic environments, significant time with both parents. and prohibits mining in Australian Territory by non-Australians and outside it by Aus- Maintenance.—Family Law Act extends application to ex-nuptial children within tralians. (Mining activity includes activity in connection with recovery or exploitation of defined limits. Act ensures children receive proper level of financial support from rea- minerals, but does not include activity connected with scientific investigation or re- sonable and adequate share of income, property and financial resources of their parents. search.) Penalties of up to A$100,000 can be imposed. Offenses are indictable. Courts Court has power to grant leave for proceedings to be commenced for adoption of child of summary jurisdiction may also hear and determine proceedings. Such courts may by: (a) Parent of child; (b) spouse of, or person in de facto relationship with, parent of impose fine not exceeding A$10,000 in case of individuals, or fine not exceeding child; or (c) parent of child and either his or her spouse or person in de facto relationship A$50,000 in case of body corporate. Amending Act repeals Antarctic Mining Prohibition with parent. Act 1991. Antarctic Marine Living Resources Conservation Act 1981 gives effect to Child Support (Registration and Collection) Act 1988 (formerly Child Support Act Convention on Conservation of Antarctic Marine Living Resources. 1988) provides for collection of certain periodic child and/or spousal maintenance pay- able under court orders and maintenance agreements. Child Support Register is estab- lished and Registrar enters child and spousal support obligations created by court orders FAMILY or agreements. Once obligation entered becomes debt owed to Commonwealth and DIVORCE: amount of debt may be automatically withheld from salary or wages. Entitlement of payee is to receive maintenance from Registrar of Child Support Agency. Provision is Family Law Act 1975 regulates divorce throughout Commonwealth. made for: (a) Commonwealth to be sole party in recovering from overseas payers; (b) There is only one ground for dissolution of marriage, irretrievable breakdown of Registrar to recover from third parties; (c) appropriation of money earned within Aus- marriage, which is held to be established if parties have been continuously separated for tralia by person owing child support debt who is outside Australia, to pay debt; and (d) 12 months prior to application. Act also recognizes union in nature of marriage which court to set aside transactions designed to defeat child support debt. Penalty interest is or has at any time been polygamous (provided union entered into outside Australia), accrues on late payments. for purposes of proceedings under Act. Separation may be effected even though co- Child Support (Assessment) Act 1989 establishes system based upon taxable income habitation was terminated by action or conduct of only one party, and may be held to of paying parent. Formula applies which takes into account number of children, income have continued notwithstanding that parties reside in same residence. No decree will be of both parents and their liability to support other persons. granted where there is ‘‘reasonable likelihood’’ of cohabitation being resumed. Objective of reform is to ensure non-custodial parents share costs of supporting their All proceedings for divorce are instituted by application to Family Court in all States children according to their capacity to pay and that adequate support available for and Territories. Divorce jurisdiction is also conferred on Supreme Court of the Northern children of separated parents. Territory, some magistrates courts and Federal Magistrates’ Court. Family Law Act implements Convention on Recovery Abroad of Maintenance signed Proceedings may be commenced if, at time application is filed, either party is Aus- in New York on June 20, 1956 and Convention on the Recognition and Enforcement of tralian citizen, or is domiciled in Australia or is ordinarily resident in Australia and has Decisions Relating to Maintenance Obligations signed at The Hague on Oct. 2, 1973. been so resident for at least one year immediately preceding that date. (§39[3]). Family Law Act also makes provision for situation where member of Court personnel Act provides for reconciliation procedures through counseling and mediation organi- has reasonable grounds for suspecting that child abuse has taken place. zations forming part of Family Court structure. Court is given authority to direct parties Family Law Amendment Act 2005 new §66X provides that where Court determines to attend family and child counselor where injunction is granted in circumstances arising that party to child maintenance order is found not to have been parent or liable step- out of marital relationship. Legislative reforms in Family Law Reform Act 1995 en- parent of child to whom order relates, and that person has made payments under pur- courages use of dispute resolution mechanisms instead of courts. ported order in respect of child, amount paid may be recovered in Court. Commonwealth constitutional power allows Family Court jurisdiction in marriage and divorce and all “matrimonial” causes including, when at least one party to marriage is Foreign Divorces.—Divorce or annulment of foreign marriage or legal separation of party to action for adoption, and in relation to parental rights, custody and guardianship parties to marriage effected or deemed to have been effected in accordance with law of of children including ex-nuptial, adopted or foster children and proceedings with respect overseas jurisdiction is recognized as valid in Australia where: (a) Respondent was to property of parties to marriage. However, it is required to take account of certain ordinarily resident in foreign country at time proceedings were instituted (‘‘relevant principles when granting relief, such as need for protection and preservation of institution date’’); (b) applicant was ordinarily resident in foreign country and such residence had of marriage, protection of family and protection of rights of children and promotion of continued for not less than a year immediately before relevant date or last place of their welfare. Proceedings may be brought by person other than party to marriage cohabitation of parties was in that country; (c) applicant or respondent was domiciled in concerned with care, welfare or development of child on behalf of child in relation to foreign country at relevant date; (d) respondent was national of foreign country at parenting orders and maintenance of child. Under Commonwealth Constitution, custody relevant date; (e) applicant was national of foreign country at relevant date and was and guardianship of children other than in divorce and matrimonial causes is State matter. ordinarily resident there at that time, or had been ordinarily resident there for continuous Between 1986 and 1990, certain powers with respect to children, including ex-nuptial, period of one year falling, at least in part, within two years immediately preceding transferred by most States to Commonwealth. Purported transfer of State jurisdiction to relevant date; (f) applicant was national of, and present in, foreign country at relevant Federal Courts, including Family Court, by 1987 cross-vesting legislation, however date, and last place of cohabitation of parties was in country law of which, at relevant declared unconstitutional by High Court in Re Wakim; Ex parte McNally (1999) 198 date, did not provide for dissolution or annulment of marriage; or (g) divorce, annulment CLR 511. See also Pt II, category Family, topic Guardian and Ward. or legal separation would be recognized as valid under common law rules of private Divorce order does not take effect until court is satisfied that proper arrangements have international law. Divorce or annulment of marriage, or legal separation of parties to been made for care, welfare and development of child. In making parenting order court marriage, deemed to have been effected in accordance with law of overseas jurisdiction is to consider best interests of child as paramount consideration including wishes ex- if it was effected in another overseas jurisdiction in circumstances where, at relevant date, pressed by child. Act empowers parents to enter into informal agreement known as it would have been recognized as valid by law of first-mentioned overseas jurisdiction. ‘‘parenting plan’’ in relation to custody, maintenance or welfare of or access to child, Foreign Maintenance Orders.—Family Law Regulations 1984 provide for registra- including ex-nuptial child. Parenting plan may be varied or revoked by further written tion and enforcement in Australia of maintenance orders made by courts of reciprocating agreement. From Jan. 14, 2004 ability for parents to register parenting plans removed. jurisdictions or of jurisdictions with restricted reciprocity as defined in Act and Regu- However registered parenting plan previously entered into remains in force until revoked, lations. Overseas maintenance agreements from prescribed overseas jurisdictions as de- set aside, varied or discharged. Reaching agreement in regard to best interests of child fined in Act may also be registered and enforced in Australia. However, from July 1, 2000 is paramount consideration. Child Support (Registration and Collection) (Overseas and related maintenance obliga- Parents who seek enforceable agreements require court orders. These can be obtained tions) Regulations 2000 provide for system of registration of overseas maintenance by consent. Disputes about children also resolved by Court in accordance with provisions orders and agreements with Child Support Agency. Once registered, maintenance obli- of Pt VII of Family Law Act. gation is debt due to Commonwealth, able to be enforced by Child Support Registrar. Party to marriage only liable to maintain other party so far as he or she is reasonably able, and only if other party unable to adequately support himself or herself. Each parent Foreign Custody Orders.—Regulations provide for registration in courts in Australia has parental responsibility for children despite any changes in nature of relationship of of custody orders known as child orders, of prescribed overseas countries, and vice versa.

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DIVORCE . . . continued Seizure warrants may be issued for searching premises and seizing forfeited goods. Intercountry Adoption.—Under Family Law (Bilateral Arrangements Intercountry Search warrants may also be issued to search premises for evidential material in relation Adoption) Regulations 1998 adoptions by Australian residents of children in prescribed to other offences against Act. overseas jurisdictions recognized in Australia. Officers have powers to arrest without warrant person suspected of smuggling. Under Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 Officers may also monitor and audit persons in relation to offences or suspected adoption of children in convention countries recognized in Australia unless contrary to offences under Act. public policy. Amendments to Act introduced in 2005 to modernize management of movement of cargo into and out of Australia. Changes include increased use of electronic communi- MARRIAGE: cation technologies and increased auditing and monitoring powers of customs officers. Marriage Act 1961 enacts uniform marriage laws for whole of Commonwealth. Customs Act 1901 provides rules for determining whether goods are produce or manufacture of country other than Australia, including developing countries or New Celebration.—Marriages may be celebrated by authorized or registered ministers of Zealand. Amendments in 2005 allow implementation of aspects of Australia-U.S. Free religion or by authorized celebrant or marriage registrar. Marriage Celebrant’s Program Trade Agreement. Customs Act now provides rules to identify U.S. originating goods. under Marriage Act reformed by Marriage Amendment Act 2002. Consent of parents or Preferential rates of customs duty under Custom Tariff Act 1995 apply to U.S. goods guardians of any person under age of 18 who has not previously been married is imported into Australia. Customs Act 1901 imposes certain import processing charges. necessary before marriage of such person to any other person may be solemnized. (§13). Customs Administration Act 1985 establishes Australian Customs Service and Office Where such consent unavailable or refused may apply to judge for consent or for of Chief Executive Officer (CEO) replaces Office of Comptroller-General of Customs. dispensation with consent. (§§15 & 16). Customs Act 1901 provides that CEO may give concessions (tariff concession orders) Marriage not invalid by reason of failure to satisfy requirements of notice or provide where satisfied no substitutable goods produced or capable of being produced in ordinary declarations of date and place of birth and conjugal status nor on account of any course of business in Australia. Orders may be revoked. Goods prescribed in regulations unauthorized person solemnizing marriage if either party to marriage at time marriage ineligible for consideration. Customs Tariff Act 1995 applies International Convention on was solemnized believed that that person was lawfully authorized to solemnize it. (§48). Harmonized Commodity Description and Coding System. Customs Tariffs Act 1995 Marriageable Age.—Under Marriage Act 1961 marriageable age for both males and incorporates changes to harmonized commodity description and coding system made by females is 18 years (or 16 years if there are exceptional circumstances and Judge or World Customs Organization in 1987. These are reflected in Schedule 3. Act imposes Magistrate gives authorization). (§§12 and 13). Requirement extends to: (a) Marriages duties of customs on goods imported into Australia. Sets out method of calculating duty. celebrated within Australia; (b) marriages celebrated overseas in accordance with pro- Different method applies to goods based on country of manufacture. Schedule 1 lists visions of Marriage Act; and (c) marriage of person domiciled in Australia wherever countries and places to which special rates of duty apply under Australian system of tariff marriage takes place. Where either party to marriage is not of marriageable age marriage preferences. Closer Economic Relations Trade Agreement with New Zealand provides is void, unless marriage of minor has been consented to by parent, guardian or court that special rates of duty apply to produce or manufacture of New Zealand; special rates under Marriage Regulations. for Canada, Papua New Guinea, Forum Island Countries and Developing Countries as Prohibited Marriages.—Following marriages are prohibited: where either party is defined in Schedule I of Customs Tariff Act. Schedule 4 outlines concessional rates of married; between brother and sister (including half relations); between person and an- duty for prescribed persons, bodies, authorities or countries; Schedule 5 concessions for cestor (i.e., parent, grandparent); or between person and descendant (i.e., child, grand- U.S. originating goods; and Schedule 6 for Thai originating goods. Australia moving child). Marriage between cousins is not within prohibited degrees of consanguinity. towards free trade with New Zealand. Free Trade Agreements signed between Australia Marriage Amendment Act 2004 defines marriage as union of man and woman to and Singapore (July 2003), U.S.A. (May 2004) and Thailand (July 2004). Entry must be exclusion of others, voluntarily entered into for life. Aimed at ensuring that marriage given to Collector of Customs for all imported goods to be unshipped for: (a) Home means union of man and woman and that same sex relationships cannot be equated with consumption; or (b) warehousing. Transshipment entries abolished in 2005. Import duties marriage. must be paid at rate in force when goods are entered for home consumption. Customs Tariff Amendment Act (No. 2) 2002 exempts nonpolluting use of oil products from Domicile.—Domicile Act 1982 abolishes prior rule of law whereby married woman certain levies, reduces duty on low alcohol beer, and amends indexation of excise for was at all times deemed to have domicile of her husband. petroleum products. Changes in July 2006 repeal provisions relating to fuel penalty Marriages solemnized in Australia by foreign diplomats and consular officers of surcharge as part of replacement of existing fuel rebates and subsidies with new fuel tax proclaimed countries, according to law or custom of their countries, are valid, provided credit scheme. at least one of parties to marriage is national of proclaimed country and neither party is Australian citizen. Exceptions to validity: One or both already married, not of mar- Prohibited Goods—Customs Act 1901.—Governor-General by regulation empow- riageable age, within prohibited relationship, or lack of consent. ered to declare certain goods prohibited imports/exports. Prohibited imports forfeited to Recognition of Foreign Marriages.—Marriage Act gives legislative effect to Hague Crown pursuant to Act. Classification (Publications, Films and Computer Games) Act Convention on Celebration and Recognition of the Validity of Marriages (1978). Foreign 1995 introduces censorship laws to apply throughout Australia (with cooperation of polygamous marriages recognized as “marriage” for purposes of Family Law Act 1975 States and Northern Territory). Act establishes Classification Board and Classification (§6) (exception: where either party was, at time of marriage, party to another marriage Review Board and sets out procedures for classification of publications, films and com- which was, at time, valid in Australia [see §88D Marriage Act 1961]). Foreign marriage puter games. Classification decisions to be made in accordance with National Classifi- valid if: (a) Valid according to law of country of solemnization (‘‘local law’’); (b) initially cation Code and Guidelines to help apply Code. Both Code and Guidelines must be invalid under local law but subsequently valid under that law unless party remarried agreed by Commonwealth and States. Board, Review Board and Director may exercise before subsequent validation of first marriage; (c) solemnized in foreign country by powers and perform functions conferred by arrangement between Commonwealth and embassy official of other foreign country and recognized as valid by second country and State and Commonwealth and Northern Territory. Complementary State and Northern not prohibited by first; (d) as category (c), but only subsequently recognized as valid by Territory Acts adopt both Code and Guidelines. Customs (Prohibited Imports) Regula- second country; or (e) not required by (a)-(d) to be recognized as valid, but solemnized tions specify goods importation of which absolutely prohibited, or which cannot be in foreign country and recognized as valid under common law rules of private interna- imported without ministerial consent, or without complying with specified conditions or tional law. Exceptions to recognition: Parties already married, not of marriageable age restrictions, e.g., consent of Attorney-General with respect to certain offensive publica- (if neither party domiciled in Australia, both parties must be over 16 years), within tions. Commerce (Trade Descriptions) Act 1905 imposes absolute prohibition on import prohibited relationship, or lack of consent or subsisting, but voidable, marriage under (or export) of goods having false trade description, or no trade description. §228 Customs local law. Act 1901 provides for forfeiture of boats, ships and aircraft engaged in smuggling or Unions solemnized overseas between same sex couples are not recognized as mar- unlawful importations, in addition to fines of up to A$110,000. Protection of Movable riages in Australia. (§88EA). Cultural Heritage Act 1986 prohibits export of Australian protected objects without See also topic Divorce, and category Citizenship, topic Domicile. permit or certificate and import of protected objects exported without permission from foreign country. Imported Food Control Act 1992 provides for inspection of imported food and drink and monitoring of safety, quality and labeling, and allows for treatment, destruction or re-exportation of noncomplying items. Act prohibits importation of non- FOREIGN TRADE AND COMMERCE complying or unsafe food. Strong enforcement provisions. Act does not apply to food CUSTOMS: imported for private consumption, some food imported from New Zealand, food in ship or aircraft stores or food imported as trade sample. Commonwealth Constitution gives exclusive power to impose customs duties to Com- Food Standards Australia New Zealand Act 1991 provides for Food Standards Aus- monwealth (prohibiting interstate customs duties). Customs Act 1901 deals with general tralia New Zealand Authority and Food Standards Code. Development of joint food management of customs and collection of customs duty. Customs Tariff Acts specify what standards governed by Act and Australia New Zealand Food Standards Treaty. Signing duties collected on particular goods or classes of goods. Pt XV of Customs Act 1901 of new intergovernmental Food Regulation Agreement between Commonwealth, States provides for schemes dealing with tenders for right to enter goods for home consumption and Territories in 2000. at concessional rates of duty. Customs Act 1901 provides officers with powers to: (a) Chase and board ships; (b) Valuation.—Customs (Valuations) Amendment Act 1981 imposes system for valuing request aircraft to land for boarding; (c) request information to identify aircraft; (d) goods for ad valorem duty purposes, where value is aggregate of all payments made in search ships and aircraft; (e) examine and secure any goods found on ship or aircraft; connection with goods by purchaser plus number of specified costs associated with and (f) copy or take extracts from documents. Officers may arrest persons suspected of purchase and transport of goods. Customs Act 1901, valuation system gives discretion committing or attempting to commit offences against Act and may seize without warrant to Collector of Customs in determining customs value of goods. Purpose to combat any narcotic goods found on ship or aircraft. Amendments in 2002 to Customs Act 1901 minimization/avoidance of duty through commercial practices understating value. Series and Customs Administration Act 1985 increase customs powers at airports including in of fall-back steps to aid valuation: If Collector can determine transaction value of relation to passenger and airport employee information and examination of goods in imported goods, then customs value is transaction value; if not, identical goods value; transit through Australia. if not, similar goods value; if not, contemporary sales value, etc. Increased penalty for Officers may also detain and move ship or aircraft and detain and move any person false documentation. See §§154-161L Customs Act 1901. found on ship or aircraft. Officers may move and/or destroy ship if unseaworthy or if poses serious risk to navigation, quarantine, safety, public health, property or environ- Import Quotas.—Tender schemes for rights to enter goods for home consumption at ment. concessional rates. ‘‘Declared period’’ quotas may be imposed.

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CUSTOMS . . . continued alive) which are of type that can be prescribed by orders made under Export Control Refund, rebate or remission of duty to be made whenever goods have received (Orders) Regulations 1982. Prohibited exports also pursuant to Customs (Prohibited damage or been pillaged during voyage, or have, whilst under Customs control, been Exports) Regulations 1958. Certain prohibitions imposed on exports to countries such as damaged, pillaged, lost or destroyed. Refund also to be made when duty has been paid Rwanda, Sierra Leone, Afghanistan, Liberia, Sudan, Cote D’Ivoire and Democratic through manifest error of fact or patent misconception of law. In general, apart from cases Republic of Congo. Requirements for export are generally notifying customs and ob- mentioned above, duty cannot be recovered unless at time of entering goods entry is taining relevant authority to deal with goods. Customs Act 1901 empowers Minister for marked ‘‘paid under protest’’ and statement of grounds upon which protest made set out Defence to suspend licenses and permissions to export goods where in Australia’s on entry; and in any subsequent proceedings to recover duty importer limited to grounds national interest. so set out. Fee to process such applications for refund is A$45 if transmitted to Customs Customs (Prohibited Imports) Regulations 1956 prohibits import of firearms and re- electronically or A$65 made by approved form. Must bring application within six lated products, ozone depleting substances, synthetic greenhouse gases and asbestos months. except under prescribed circumstances (including with Ministerial authorization). Regu- Whenever new tariff schedule tabled in Parliament, practice of department to collect lations restrict other imports such as specified dog breeds. Customs Amendment (Fuel duty at existing rate or proposed rate, whichever is higher. If new schedule becomes law, Tax Reform and Other Measures) Act 2006 introduces new Pt VAA to Customs Act 1901 it dates back to date when tabled, and if not, validating act is passed, legalizing col- which prescribes customs controls governing certain imported goods used in manufacture lections made under it. of excisable goods, including specifying that manufacture of excisable goods may occur Dumping.—Customs Act 1901 and Customs Tariff (Anti-Dumping) Act 1975 provide in licensed customs warehouse and Goods and Services Tax would apply to such goods. for imposition of higher rate of duty on imported goods where: (a) (i) Export price Export control achieved also through provisions of subject-specific statutes, e.g., En- (including charges within exporting country) less than normal value of goods so exported vironment Protection and Biodiversity Conservation Act 1999, Protection of Movable or (ii) direct or indirect assistance has been given to production or export of goods; and Cultural Heritage Act 1986 and Ozone Protection and Synthetic Greenhouse Gas Man- (b) (with some exceptions) material injury caused or threatened to Australian industry agement Act 1989. producing like goods or another country’s trade in Australian market. Customs Act 1901 provides for special approach for determining normal value of allegedly dumped goods FOREIGN EXCHANGE: where goods exported from countries in process of transition to market economy. Types See topic Exchange Control. of duty are dumping duty, countervailing duty, third country duty and countervailing third country duty. FOREIGN INVESTMENT: Antidumping notices and undertaking remain in force for five years. However, Cus- See topic Exchange Control; categories Business Regulation and Commerce, topic toms Act 1901 allows for extension of such measures. Antidumping provisions do not Banking and Currency; Immigration, topic Aliens; and Taxation. apply to goods that are produce or manufacture of New Zealand. FOREIGN TRADE REGULATIONS: EXCHANGE CONTROL: Australia is party to Marrakesh Agreement Establishing the World Trade Organization Floating Dollar, Reserve Bank Discretionary Power to Trade.—Australian dollar is incorporating General Agreement on Tariffs and Trade and is member of International freely traded on global markets, however Reserve Bank of Australia retains discretionary Monetary Fund, International Labour Organization, United Nations Industrial Develop- power to intervene in currency to maintain orderly market. Few exchange controls now ment Organization, A.P.E.C. and O.E.C.D. exist following enactment of Financial Transaction Reports Act 1988. Some restrictions See topics Customs, Exchange Control. remain on physical transferal (see subhead Restrictions on Physically Transferring Notes, See Australian Treaty List, Treaty Series, Department of Foreign Affairs, Canberra, Coins and Foreign Currency, infra). Previous foreign exchange controls contained in Australian Capital Territory. Banking Act 1959 regulations have mostly been repealed. In particular: (a) No restric- tions on payment for imports or expenditure of proceeds from exports; (b) banks free to deal with customers in currencies at negotiated rates; and (c) financial institutions in IMMIGRATION Australia permitted to offer foreign currency denominated accounts to clients. Restrictions on Physically Transferring Notes, Coins and Foreign Currency.— ALIENS: Under Financial Transaction Reports Act 1988 it is offence to transfer Australian currency Aliens Act 1947, which required registration of aliens and penalized failure to do so, or foreign currency out of or into Australia if amount of transfer exceeds A$10,000 in repealed by Aliens Act Repeal Act 1984. value and report in approved form in respect of transfer not given to customs officer or See also topic Immigration. Director of AUSTRAC (Australian Transaction Reporting and Analysis Center). Corporations Owned or Controlled by Aliens.—Foreign Acquisitions and Takeovers Purchasing Foreign Exchange.—Reserve Bank may give direction under Banking Act 1975 provides for control of foreign takeovers of Australian businesses through (Foreign Exchange) Regulations (1959) 1946 to person or resident not to buy, borrow, detailed provisions for screening proposed acquisitions and arrangements giving foreign sell, lend or exchange foreign currency in Australia or not to deal with foreign currency persons control of Australian businesses, and prohibition of takeover proposals deter- in any other way in Australia. May direct person not to be party to transaction if takes mined by Treasurer to be against national interest. Foreign Investment Review Board place in Australia or resident is party and has effect of or involves purchase, borrowing, advises and assists Treasurer in implementation of policy and examining proposals for sale, loan, exchange of foreign currency, or otherwise relates to foreign currency. Since foreign investment in Australia. Special notification provisions apply for proposed ac- Mar. 11, 2002 Australian Securities and Investments Commission responsible for au- quisitions by U.S. enterprises. thorizing and licensing buying and selling of foreign currency where activities fall under Orders prohibiting proposal may be made where: (a) Person proposes to: (i) acquire Corporations Act 2001 financial services licensing regime. Reserve Bank retains other shares in prescribed corporation carrying on Australian business (or its holding corpo- powers over foreign currency. ration), or (ii) acquire assets of Australian business carried on solely by prescribed All transactions involving transfer of funds or payments to, by order of, or on behalf corporation, or (iii) enter into agreement relating to affairs of Australian corporation of specified supporters of former government of Federal Republic of Yugoslavia, speci- carrying on Australian business (or its holding corporation), or (iv) alter constituent fied ministers and senior officials of Government of Zimbabwe, Taliban and National documents of such corporation, or (v) enter into or terminate arrangement in relation to Union for Total Independence of Angola (UNITA) prohibited without specific approval Australian business carried on solely by prescribed corporation; (b) corporation proposes of Reserve Bank. In 2003 Reserve Bank sanctions against Iraq and Angola removed. In to issue shares and result will be that: (i) business or corporation will be controlled by response to United Nations Security Council Resolution 1373 to suppress terrorism, foreign persons (or their associates), and (ii) result would be contrary to national interest; Financial Transactions Report Act 1988 amended in 2002 to require cash dealers to report (c) foreign person proposes to acquire interest in Australian urban land, or becomes suspect transactions (see subhead Tax Evasion Controls on Foreign Exchange Transac- beneficiary in trust estate (other than deceased estate) that consists of or includes Aus- tions, infra). tralian urban land, and result would be contrary to national interest. Orders may be made Foreign exchange contracts, with some exceptions, defined as financial products for restoring former control of corporation or ownership of Australian urban land where purposes of new licensing regime for financial sales advice and dealings in relation to acquisition or arrangement has been completed. financial products under Corporations Act 2001, as consequence of Financial Services Controlling Interest.—In determining whether arrangement is within Act, person holds Reform Act 2001 and associated legislation. See Pt I, categories Business Organizations, ‘‘substantial interest’’ if person, alone or with associates, is in position to control not less topic Corporations; Business Regulation and Commerce, topic Banking and Currency. than 15% of voting power or holds not less than 15% of issued shares in corporation or holds beneficial interest in not less than 15% of corpus or income of trust estate. Two Tax Evasion Controls on Foreign Exchange Transactions.—Taxation Administra- or more persons hold ‘‘aggregate substantial interest’’ where they (together with any tion Act 1953 and Banking Act 1959 provide comprehensive legislative basis for tax associates) are in position to control not less than 40% of voting power, hold interests screening arrangements to prevent evasion or avoidance of Australian tax through trans- in not less than 40% of issued shares in corporation or hold beneficial interest in not less actions with overseas tax havens. than 40% of corpus or income of trust estate. Such persons deemed to hold ‘‘controlling Financial Transaction Reports Act 1988 requires reporting of certain currency transfers interest’’, or ‘‘aggregate controlling interest’’ (as case may be), unless Treasurer satisfied to and from Australia of not less than A$10,000 to AUSTRAC (Australian Transaction that in circumstances they (or their associates) not in position to determine policy of Reporting and Analysis Centre). Act amended by Suppression of the Financing of Ter- corporation. rorism Act 2002, enabling faster and more efficient response to foreign country requests Associate of person defined widely to include relatives of person; persons in partner- for information from AUSTRAC on financial transaction reporting, including commu- ship, corporations of which person is officer; where person is corporation, any officer of nication of such information to foreign law enforcement and intelligence agencies. corporation; employee or employer of person; any officer of any corporation of which See categories Business Regulation and Commerce, topic Banking and Currency, person is officer; any corporation in which person holds substantial interest; trustee of subhead Banking Act 1959; Immigration, topic Aliens; Taxation, topic Income Tax, trust estate in which person holds substantial interest; where person is corporation, person subhead Taxation of Foreign Sourced Income. who holds substantial interest in corporation; where person is trustee of trust estate, person who holds substantial interest in trust estate; any employee of natural person of EXPORT AND IMPORT CONTROL: whom person is employee; any corporation directors of which are accustomed to act in Customs Act 1901 and Export Control Act 1982 provide for regulations to be made accordance with instructions of person or, where person is corporation, of directors of controlling, prohibiting or restricting export of prescribed goods, inspection and seizure person; any corporation in accordance with instructions of which, or of directors of and associated offences. ‘‘Prescribed goods’’ include food, animal or plants (dead or which, person is accustomed to act.

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ALIENS . . . continued acquisitions of interests in financial sector companies covered by powers under Financial Foreign person means: (a) Natural person not ordinarily resident in Australia; (b) Sector (Shareholdings) Act 1998. corporation in which natural person not ordinarily resident in Australia or foreign cor- Civil Aviation and Airports.—Proposals for acquisition by foreign persons of interests poration holds controlling interest; (c) corporation in which two or more persons, each in Australian airlines or airports subject to Foreign Acquisitions and Takeovers Act 1975. of whom is either natural person not ordinarily resident in Australia or foreign corpo- Proposals to acquire up to 49% of equity in Australian international carrier (other than ration, hold aggregate controlling interest; (d) trustee of trust estate in which natural Qantas) individually or in aggregate generally approved unless considered contrary to person not ordinarily resident in Australia, or foreign corporation, holds substantial national interest. Qantas Sale Act 1992 limits total foreign ownership of Qantas to 49%, interest; or (e) trustee of trust estate in which two or more persons, each of whom is either individual holdings to 25%, aggregate holdings by foreign airlines to 35%. natural person not ordinarily resident in Australia or foreign corporation, hold aggregate In relation to airports offered for sale by Commonwealth, Airports Act 1996 stipulates substantial interest. Under amendments to Foreign Acquisitions and Takeovers Act 1975 49% limit on foreign ownership, 5% limit on ownership by airlines and 15% limit on in 2004 U.S. nationals and enterprises not treated as foreign persons for proposals to cross ownership between Sydney, Melbourne, Brisbane and Perth airports. acquire interests in prescribed corporations with assets less than A$831 million (subject Telecommunications.—In Oct. 1997, Commonwealth Government partially privatized to annual indexation). Telstra Corporation Limited through sale of one-third of its equity. Further privatization Threshold is A$52 million (subject to annual indexation) if proposal from U.S. Gov- of Government ownership of Telstra occurred at end of 1999. Final privatization of ernment investor or relates to sensitive sector. Sensitive sectors are media, telecommu- Telstra approved by Telstra (Transition to Full Private Ownership) Act 2005. Although nications, transport, encryption, security and communications technologies, supply of approved, final privatization not yet completed. All foreign ownership in Telstra restricted goods or services to military, extraction of uranium or plutonium and operation of nuclear to 35% and individual foreign investors restricted to no more than 5%, under Telstra facilities. U.S. nationals and enterprises treated as foreign persons where proposal relates Corporation Act 1991. to acquisition of interest in Australian urban land. See also Pt II, categories Business Organizations, topic Corporations; Immigration, Prescribed corporation means Australian corporation; foreign corporation (or its hold- topic Aliens. ing corporation) holding assets value of which exceeds A$50 million being assets con- Shipping.—Shipping Registration Act 1981 requires majority Australian ownership sisting of land situated in Australia, mineral rights or shares in corporation incorporated for registration in Australia unless ship is on demise charter to Australian based operator. in Australia; foreign corporation (or its holding corporation) that is holding corporation of one or more Australian corporation(s) where value of assets held by Australian Broadcasting and Television.—Broadcasting Services Act 1992 limits foreign tele- corporation(s) exceeds A$50 million. vision ownership but not foreign radio ownership. Proposals for foreign investment in radio which fall within Foreign Acquisitions and Takeovers Act are considered on in- Australian urban land means land situated in Australia that is not used wholly or dividual basis. Australian Broadcasting Authority determines system for allocating li- exclusively for carrying on business of primary production. censes. Notification.—Person may deliver notice to Treasurer stating that person proposes to Television broadcasting licenses—Under Broadcasting Services Act 1992 licenses can acquire shares, assets or interests or to enter into agreement or enter into or terminate only be allocated to company with share capital formed in Australia or Australian arrangement to which Act applies. Treasurer may raise no objection to proposal if external territory. Broadcasting Services Act prohibits foreign persons being in position Treasurer considers that not contrary to national interest. Treasurer may approve of to control commercial television broadcasting license and prohibits two or more foreign proposal subject to conditions that render proposal not contrary to national interest. persons having company interests in commercial television broadcasting license that Failure to comply with conditions is offence. Treasurer must make decision within 30 exceed 20%. Prohibition on control by foreign persons also applies to temporary com- days of receiving notification. Treasurer must provide decision in writing within ten days munity broadcasting licenses. Generally person who has company interests exceeding of making decision. Treasurer may make interim order within 30 days extending period 15% regarded as being in position to control company. Schedule 1 of Broadcasting during which order may be made for up to 90 days. Where no notice given to Treasurer, Services Act 1992 sets out what constitutes control and ownership of company interests. Treasurer may make decision on proposal at any stage. If no advice given or order made, In addition, not more than 20% of directors of corporation holding commercial television proposal cannot subsequently be questioned. If approved transaction not complete within broadcasting license may be foreign persons. However, Australian Broadcasting Author- 12 months, further approval must be sought. ity may approve board containing higher percentage of foreign persons for period not Foreign Investment Proposals Requiring Notification.—Foreign person proposing to exceeding 28 days under special circumstances. acquire substantial shareholding in Australian corporation or interest in Australian urban Subscription Television.—Subscription television license not to be held by foreign land must notify Treasurer before proceeding with proposal. Failure to do so is offence person who has company interests exceeding 20%, or two or more foreign persons with subject to fine not exceeding A$55 thousand or imprisonment for two years or both in company interests exceeding 35% of license. Limitations apply in relation to cross-media case of natural person. Even when notice furnished, person commits offence if that ownership. Broadcasting Services Act makes certain restrictions on subscription televi- person proceeds with acquisition before: (a) Obtaining written advice from Common- sion broadcasting services in regional areas. wealth Government allowing acquisition; or (b) failing to wait until expiration of 40 days from date notice was received by Treasurer. Newspapers.—Under foreign investment policy all proposals by foreign interests to acquire interest of 5% or more in existing newspaper or to establish new newspaper in On receiving notice, Treasurer required to make decision on proposal within 30 days Australia subject to case-by-case examination. Maximum permitted aggregate foreign and provide person with written advice within ten days after making of decision, or interest (non-portfolio) in national and metropolitan newspapers is 30% with any single publish order ten days after making of decision. If no advice given or order made, foreign shareholder limited to maximum interest of 25%. Aggregate foreign interest proposal cannot be subsequently questioned. Treasurer may make interim order within direct involvement in provincial and suburban newspapers limited to less than 50% for 30 days extending period during which order may be made for up to 90 days. Order may non-portfolio shareholdings. completely deprive foreign person of rights gained pursuant to acquisition. Under foreign investment policy, following types of investment proposals must be IMMIGRATION: notified to Treasury: (a) Acquisitions of substantial interests in existing Australian busi- nesses with total assets over A$50 million or where proposal values business at over Noncitizen Entry.—Migration Act 1958 states noncitizen must have current visa to A$50 million; (b) proposals to establish new businesses involving total investment of travel lawfully to Australia. A$10 million or more, except for non-government U.S. investors; (c) portfolio invest- Visas.—Noncitizen must have visa. Migration Act 1958 provides for grant of visas to ments in media of 5% or more and all non-portfolio investments; (d) takeovers of travel to enter and remain in Australia. Fee payable. Permanent visa is visa to remain offshore companies whose Australian subsidiaries or assets are valued at A$50 million indefinitely. Classes of permanent visa include absorbed person visa and ex-citizen visa. or more, or account for more than 50% of target company’s global assets or A$831 Temporary visa is visa to remain during specified period, until specified event happens, million (subject to annual indexation) for non-government U.S. investors; (e) acquisitions or while holder has specified status. Classes of temporary visa include: Special category of interests in urban land that involve acquisition of developed nonresidential commercial visa, available to New Zealand citizens/passport holders and other persons prescribed by real estate where property subject of heritage listing of A$5 million or more and acquirer regulations for whom visa of another class would be inappropriate; criminal justice visa, is not U.S. investor, acquisitions of developed nonresidential commercial real estate for noncitizens allowed into Australia in interests of criminal justice; bridging visa; and where property not subject of heritage listing of A$50 million or more or A$831 million special purpose visa. Protection visas may be available to refugees in accordance with (subject to annual indexation) for U.S. investors and acquisitions of accommodation Australia’s convention obligations under Status of Refugees Convention, made at Geneva facilities, vacant urban real estate and residential real estate irrespective of value; (f) July 28, 1951, as amended by Refugees Protocol. Regulations may prescribe way for direct investments by foreign governments or their agencies; and (g) all tourism proposals making application and allow visa to be granted only in specified circumstances or that incorporate accommodation facility irrespective of value. subject to conditions. Temporary Safe Haven Visas may also be granted to give person No objection usually raised for total assets or total investments below A$100 million. temporary safe haven in Australia. From Aug. 27, 2004, temporary protection visa and Proposals for investment above A$100 million subject to greater scrutiny. Objection offshore temporary humanitarian visa holders can apply for certain mainstream visas to based on national interest. allow them to remain in Australia. All proposals in following industry sectors require prior approval if investment above Business owners, senior executives and investors eligible for Business Visa. State/ notification thresholds: rural businesses and rural land, agriculture, forestry, fishing, Territory governments may also sponsor migrant who is business owner, senior executive resource processing, oil and gas, mining, manufacturing, nonbank financial institutions, or regional established business owner. insurance, sharebroking, tourism (hotels and resorts), most other services. Australian employers may sponsor skilled migrants or temporary staff, if unable to fill Specific sectors: vacancy from within Australian labor market or through training programs. Banking.—Under Banking Act 1959, Financial Sector (Shareholdings) Act 1998 and Grant of visa is at discretion of Immigration Minister subject to detailed criteria such banking policy, proposals for foreign investment in banking sector will be approved if as whether applicant accumulates prescribed score based on points given for character- Australian Prudential Regulation Authority is satisfied that bank and its home supervisor istics (such as employment qualifications, age and language skills), and meets character are of sufficient standing, and where bank agrees to comply with Australian Prudential and health requirements. Minister may determine maximum number of each class of visa Regulation Authority’s prudential supervision and arrangements. Financial sector com- per year. Minister may cancel visa if: misleading information given by noncitizen when panies subject to 15% shareholding limit. Limit applies to person’s stake. Stake is applying; conditions not complied with; or circumstances which permitted grant of visa aggregate of person’s and associates’ voting power. Treasurer can approve greater stake no longer exist. Visa may be refused or cancelled on character grounds. Before can- if in national interest. Treasurer can declare person has practical control if person holds cellation, noncitizen must be notified and invited to comment. less than 15%. Under amendments made in 2004 to Foreign Acquisitions and Takeovers Detention, Removal and Deportation of Unlawful Citizens.—Immigration officer Act 1975, U.S. enterprises exempt from Foreign Acquisitions and Takeovers Act for may ask noncitizen to prove status of lawful noncitizen. Unlawful noncitizens subject to

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IMMIGRATION . . . continued where film is not commissioned: see Copyright Amendment [Film Director’s Rights] Act mandatory detention until: (a) Removed from Australia; (b) deported from Australia; or 2005) of film; (iii) provider of broadcast; or (iv) publisher of published edition. However, (c) granted visa. Detainee may apply for any visa or bridging visa which provides since U.S. Free Trade Agreement Implementation Act 2004, performers of sound re- temporary lawful status so detention no longer mandatory. Person must apply for visa cordings now granted copyright in their performances, where previously copyright vested within two days of being detained, other than for bridging or protection visa. Alternative solely in owner of sound recording. (See subhead Performers’ Rights, infra.) Ownership detention arrangements can be made for families with children or unaccompanied chil- of copyright (including future copyright) can be amended by agreement between parties. dren. Minister guided by principle that minors should be detained only as measure of last Exclusive Rights.—Copyright confers proprietary rights on author or maker of copy- resort. In 2004 High Court held that unsuccessful visa applicants who could not be right. For literary, dramatic, musical or artistic work, or film, sound recording, broadcast removed to another country are able to be detained indefinitely. Migration Amendment or printed edition of work, copyright is exclusive right to reproduce such work in material (Designated Unauthorized Arrivals) Bill 2006, awaiting Senate amendments alters visa form, publish it, perform it in public, communicate it to public, or make adaptation of process for designated arrivals and allows for transfers of unauthorized boat arrivals to it. Artistic works are same except that copyright gives no performance or adaptation right. offshore processing centers. However, rights conferred by copyright are subject to: rights of Crown; any assignment Unlawful noncitizen, who is without immigration clearance and who has not validly of copyright; and special provisions regarding contract of service and work under com- applied for visa other than bridging visa or criminal justice visa, or is detainee whose mission. Copyright Act (World Trade Organization) Amendment Act 1994, enables au- visa application was rejected, is required to be removed from Australia by immigration thors to grant commercial rental rights for computer software and sound recordings. officer. Noncitizen can be deported if: permanent resident in Australia for less than ten Assignment and Licenses.—Copyright (including future copyright) can be assigned or years and convicted of offense; convicted of certain serious offenses; or is security threat. licensed. Assignment must be in writing (generally by deed). Author cannot assign moral Noncitizen liable in debt to Commonwealth Government to pay cost of detention, re- rights. moval and deportation. Non-voluntary removal may restrict reentry to Australia for Term of copyright extended by U.S. Free Trade Agreement Implementation Act 2004. specified period. Periods of copyright for: Immigration Assistance.—Migration Act 1958, as amended by Migration Legislation (a) Original Works.—(i) Published, performed, broadcast or offered for public sale Amendment (Migration Agents) Act 2002, limits persons able to give immigration as- before death of author, 70 years from end of year in which author died; (ii) original works sistance. Person not to give immigration assistance unless person is: (a) Parliamentarian published, performed, broadcast or offered for public sale after death of author, 70 years or member of their staff; (b) lawyer giving immigration legal assistance; (c) individual after year when first published, performed, broadcast or offered for public sale; (iii) not receiving fee in relation to certain requests (excluding assistance given in capacity computer programs, 70 years from end of year in which author died, regardless of as employee or voluntary worker for another person or organization or in course of or whether published or unpublished; and (iv) photographs, 70 years from year of publi- in association with conduct of profession or business); (d) public service official acting cation. in course of duties; (e) diplomat, consular official or member of some international (b) Subject Matter Other Than Works.—(i) Sound recordings and cinematograph films, organizations; (f) close family member or (g) registered migration agent. Penalty for 70 years from year of publication; (ii) television and sound broadcasts, 50 years from giving immigration assistance is 60 penalty units (A$6,600) for individuals. Penalty for year of first broadcast; (iii) published editions, 25 years from year of publication; and person receiving fee for giving immigration assistance or making immigration repre- (iv) performances, until 20 years after year in which performance given. sentations is ten years’ imprisonment, unless person is lawyer giving immigration legal Infringement.—Copyright infringed by doing acts comprised in copyright, by person assistance or registered migration agent. Individuals may apply to Migration Agents who is not owner and without license of owner. Copyright also infringed indirectly in Registration Authority for registration as migration agent. Migration Agents Regulations three ways: (a) Importing for sale, distribution etc., copies of original works without 1998 sets out details for registration. license; (b) selling such works when know or ought reasonably to know imported or Migration Act 1958 also gives officers power to examine and search vessels and made in infringement; and (c) allowing place of public entertainment to be used for aircraft and creates offences for ship owners and masters who carry unlawful noncitizens. infringing performance. Review of Decisions.—Migration Act 1958 provides codes of procedure for decision Defenses to Infringement.—Unlike situation in U.S., Copyright Act does not contain making. Migration Regulations provide details of codes. Four tiers of review of deci- general “fair use” defense. Contains specific “fair dealing” defenses, where copyright in sions: (a) Internal review on merits by Department of decisions concerning visas other work is used for purpose of: (a) Research or private study; (b) criticism or review; (c) than protection visas; (b) review on merits by Refugee Review Tribunal of decisions reporting news; (d) giving of professional advice by lawyer or patent or trademark concerning protection visas and by Migration Review Tribunal concerning other deci- attorney. Limited defenses are available where work is, or could be, subject of regis- sions; (c) review by Administrative Appeals Tribunal if referred by either Tribunal in (b); tration as design. See topic Designs. and (d) limited appeal on certain questions of law to Federal Magistrates’ Court, Federal Exceptions to Infringement.—Specific exceptions granted for certain works/acts, in- Court or High Court. Migration Legislation Amendment (Judicial Review) Act 2001 cluding: (a) Reproductions for purpose of judicial proceedings or professional advice; (b) further limited judicial review by removing review of “privative clause” decisions and temporary reproductions made in course of communication or as part of technical process Migration Legislation Amendment (Procedural Fairness) Act 2002 also reduced juris- of use; (c) inclusion of works in collection for use by places of education; (d) reading diction of Federal Court by providing that specified codes of procedures in Migration Act or recitation of extract of reasonable length from work, either in performance via public 1958 are exhaustive statement of requirements of natural justice rule. In 2003, High media, or by recording it for such performances; (e) public performance of literary, Court held provisions which limited grounds of review to Federal Court did not apply dramatic or musical work by playing television, radio or record player to residents at to decisions affected by jurisdictional error. Migration Litigation Reform Act 2005 stan- guest houses or premises where people reside or sleep; (f) certain reproductions for dardizes scope of judicial review in all Federal Courts, imposes strict time limits on purpose of broadcasting or simulcasting. Note: Proposed Government reforms include applications for judicial review of migration decisions, provides for summary dismissal two new exceptions to infringement where: (a) Consumers record television and radio of judicial review of migration decisions with no reasonable prospect of success and programs to view/listen once at later time or consumer purchases copy of copyrighted provides for costs orders against persons, including lawyers and migration agents, who material to make copy in different format (“private use” exception); and (b) copyright encourage unmeritorious migration litigation. material used for non-commercial purposes by libraries, museums and archives, or educational institutions, or people with disabilities (“flexible dealing” exception). In relation to computer programs, exceptions exist for: (a) Making copy of computer INTELLECTUAL PROPERTY program resulting from process of normal use or for back-up purposes; and (b) decom- piling copy of computer program to make interoperable product, to test its security, or COPYRIGHT: to correct error—if required information about program, or error-free copy, is not oth- Copyright Act 1968.—Copyright does not exist otherwise than by virtue of Act, and erwise available. Act also provides actions against devices which circumvent techno- there is no provision for registration. Act extends to every State and Territory of Com- logical protection measures. monwealth. In relation to artistic works, exceptions exist for: (a) Filming, painting, drawing, Subsistence of Copyright.—Threshold test for subsistence of copyright is that work engraving or photographing works in public place or buildings; and (b) filming or is “original”. Test does not require examination of literary or artistic merit, simply televising of artistic work where its inclusion in film is incidental to principal matters requires that work originate from author and some skill, labor and expertise be involved in film or broadcast. in devising and/or making work (common law rules govern). Provisions provide exemption for certain copying of works for services of Common- Two Categories of Copyright.— wealth, State and Territory Governments, copying of works by libraries and archives, or (a) Original Works.—Comprising literary (including computer programs), dramatic, copyright of works by institutions to assist persons with intellectual or print disability, musical and artistic (including buildings or models of buildings or works of artistic etc. craftsmanship) works (Pt III). As general principle parallel importation constitutes infringement of copyright, but (b) Subject Matter Other Than Works.—Comprising sound recordings, film and sound exceptions include published editions, musical works, sound recordings and computer broadcasts, television broadcasts (including satellite broadcasts where made from place software. in Australia) and published editions of works (Pt IV). Nature of copyright in these Penalties.—Contravention of Copyright Act within Australia may involve penalties up depends on nature of subject matter. No specific requirement that subject matter be to 850 penalty units (A$89,088) for natural person (up to five times this amount for “original” so long as subject matter is not reproduced. Notably, copyright in subject corporation) and/or imprisonment for up to five years (natural person). Further persons matter subsists independently of copyright in original works. infringing copyright may be subject to injunction, and to damages or account of profits Ownership.— made by use of copyright work. Court may order surrender or destruction of infringing (a) Original Works.—Generally speaking, author is owner of copyright. This applies material. Civil remedies are also available under Copyright Act, including damages or to independent contractors. However, exceptions exist where: (i) Work is created in account of profits, or action for conversion. Criminal procedures and penalties apply to course of employment, copyright will vest in employer not employee (note special cases of willful copyright piracy on commercial scale. (See Copyright Legislation provisions for employees of newspapers, magazines and periodicals); or (ii) work is Amendment Act 2004.) Amendments implement general criminal law obligations under photograph taken for private/domestic purpose or portrait or engraving, copyright will U.S. Free Trade Agreement Implementation Act 2004. vest in commissioner of work. Moral Rights.—Copyright Amendment (Moral Rights) Act 2000 introduced moral (b) Subject Matter Other Than Works.—Unlike copyright in original works, concept rights for authors of works in which copyright subsists. Authors granted three rights: (a) of authorship does not apply to subject matter other than works. Person entitled to Right of attribution (right to be identified as author); (b) right of integrity (right to object copyright protection is: (i) Maker/owner of sound recording; (ii) producer (and director, to derogatory treatment of work); and (c) right not to have authorship falsely attributed.

See note at head of Digest as to 2006 legislation covered. See Topical Index in front part of this volume. AUS–18 AUSTRALIA LAW DIGEST INTELLECTUAL PROPERTY

COPYRIGHT . . . continued Infringement.—No action for infringement can be taken until design certified by Authors can give written consents to others to do, or omit to do, something that would Designs Office as validly registered design. Infringement will occur by applying regis- otherwise constitute infringement of that right. “Authorship” only conferred on indi- tered design (or any design “substantially similar in overall impression”) to any product viduals, not companies. For film, moral rights extend to screenwriter as well as director in respect of which design is registered, or by importing for trade or business such and producer. Moral rights subsist until copyright ceases to subsist (with exception of products. In assessing “substantial similarity in overall impression”, Act directs decision cinematograph films, where right of integrity of authorship only lasts until author dies). maker to focus on similarities, not differences. Where design registered prior to June 17, Remedies available for infringement include injunctions and damages. Moral rights apply 2004, test of infringement under Design Act 1906 will still apply and infringement will to works made either before or after Dec. 21, 2000, however films treated differently and occur where product involves application of design or obvious or fraudulent imitation. careful consideration of provisions necessary. U.S. Free Trade Agreement Implementa- Defenses to Infringement.—2003 Act introduced “right of repair” defense which pro- tion Act 2004 introduces moral rights for performers. These provisions will come into vides for non-infringement of registered design where component part of complex prod- force when WIPO Performances and Phonograms Treaty comes into force in Australia, uct is made/sold or otherwise commercially dealt with for purpose of repair of complex which must occur by July 23, 2007. product. Designs for spare parts still registerable under new Act, but “right of repair” Performers’ Rights.—Performers have rights in their own performance. Although defense may limit enforcement options in relation to spare part registered designs. performer is not necessarily owner of copyright in work, performer now entitled to stop Exceptions to Infringement.—(a) Importing so person may import design where prod- unauthorized recording or broadcasting of performance (where performance is made on uct embodies design that is identical to, or substantially similar in overall impression to or after Oct. 1, 1989 or where §248QA of Act applies). U.S. Free Trade Agreement design and product embodies design with authority or license of registered owner of extends performers’ rights over sound recordings of their performances from Jan. 1, 2005. design; and (b) restoration of design. 2003 Act provides further exception where person See subhead Ownership, supra. uses design commercially in period between design registration expiration and restora- tion. Person using design during this period may continue to use design without in- International Protection.—Copyright Act 1968 (Cth) and complementary regulations fringing after registration is restored or sell right to use design to another person. grant equivalent protection to works and other subject matter by citizen or resident, or published in countries having ratified various treaties (which depending on work or Remedies.—Include actions for damages, account of profits or injunction. subject matter, include International Convention for Protection of Literary and Artistic Design/Copyright Overlap.—Most registerable designs will also be subject of copy- Works [1866], Rome Convention for the Protection of Performers, Producers of Pho- right, and copyright/design overlap provisions. (§§74-77 in Copyright Act 1968). Overlap nographs and Broadcasting Organisations [1961], Universal Copyright Convention provisions intended to prevent dual protection for certain design and therefore have effect [1952], WIPO Copyright Treaty [1996], WIPO Performances and Phonograms Treaty of excluding copyright protection where certain design has been applied industrially, [1996], and members of World Trade Organization [WTO]). Similar protection granted irrespective of whether design was registered. Overlap provisions apply to designs which to performances, sound recordings of performances, and broadcasts of performances in are visual features of shape and configuration. Three-dimensional designs will lose countries that have ratified Rome Convention for the Protection of Performers, Producers copyright if: (a) Registered; or (b) “corresponding design” to artistic work not registered of Phonographs and Broadcasting Organisations (1961), WIPO Performances and Pho- and industrially applied to articles sold in Australia or elsewhere. Overlap provisions do nograms Treaty (1996), and members of WTO. not apply to features of pattern or ornamentation and to large extent do not apply to category of artistic works known as “works of artistic craftsmanship”. See topic Copy- Copyright/Design Overlap.—Overlap provisions of Copyright Act 1968 (Cth) aim to right. prevent dual copyright and design protection in artistic works (not including building or Designs (Consequential Amendments) Act 2003 introduced changes limiting design/ model of building or work of artistic craftsmanship) which have been industrially applied copyright overlap. Amendments confirmed that patent specifications or presentations in as three-dimensional designs, whether or not registration of design is possible. Effectively design application relating to corresponding design are deemed to be of “industrial provisions mean no infringement of copyright in artistic work to reproduce work by application” for purposes of overlap provisions. In addition, changes to definition of applying design in product. However, number of qualifications, particularly in relation “corresponding design” removed protection of “plan-to-plan” copying previously pro- to works of artistic craftsmanship. See topic Designs. vided under Copyright Act 1968 to parties reproducing work of others, not by copying article itself, but by copying drawing of article, and using this to manufacture otherwise DESIGNS: infringing article. Act stipulates that not infringement of copyright to: (a) Reproduce Designs Act 2003.—Provides for registration of designs for nominated products. artistic work if reproduction is derived from three-dimensional product that embodies Commenced operation June 17, 2004. Designs registered prior to June 17, 2004 continue design, and made in course of or incidental to making product, if making product itself to be governed by Designs Act 1906 (applications filed under 1906 Act will be registered would not infringe copyright because of overlap provisions; and (b) make two-dimen- under that Act unless expressly converted to new Designs Act). Manual for 1906 Act sional representation of non-infringing three-dimensional product if made in course of applications and incomplete draft manual for 2003 Act applications (as of June 9, 2006) selling or letting three-dimensional product. available at http://www.ipaustralia.gov.au/resources/manuals_designs.shtml. Circuit Layouts.—Circuit Layouts Act 1989 protects original circuit layouts (meaning Designs Regulations 2004 provide for practice and procedure in relation to application representations of integrated circuits), such that these cannot be registered under Design for and registration of designs. Countries specified in Schedule 1 of Regulations declared Act 2003. Act consistent with draft Treaty on Circuit Layouts developed by World to be “Convention Country” for purposes of Act. Applications made in such countries Intellectual Property Organisation. Protects circuit layouts whether made before or after deemed to be applications made in each other Convention Country. Act, but action lies only for acts after Act comes into operation (i.e., after Oct. 1, 1990). Design Registration.—Threshold test for registrability of design is that design is new Acts done by Commonwealth for purpose of defense and security of Australia non- and distinctive. Test is strict and requires that design not only originate from author, but infringing. is also “new” and “distinctive” in light of “prior art base” (i.e., design publicly used in Australia or overseas or contained in prior registration application) for design at priority PATENTS: date of application. Design “new” unless identical to design that forms part of prior art Patents Act 1990.—Provides that invention can be patented if it is: (a) Manner of base. Design “distinctive” unless substantially similar in overall impression to design that manufacture; (b) novel and inventive when compared with prior art base (i.e., public forms part of prior art base. information contained in acts and/or documents from anywhere in world) as it existed Registration protects overall appearance of product resulting from one or more of its before priority date (usually date of filing); (c) useful; and (d) has not been secretly used visual features. Features include shape, pattern, configuration or ornamentation applicable by patentee (or their nominee) before priority date. Human beings and biological pro- to article. Following are not considered visual features: (a) Feel of product; (b) materials cesses for their generation are not patentable inventions. Whether life forms or micro- used in product; and (c) product’s indefinite dimension including repeat of pattern. organisms are patentable is decided according to usual principles of patentability. Design applications undergo mere formalities check (specified in regulations) prior to Patents Regulations 1991 provide for practice and procedure in relation to application gaining registration. No substantive examination required, as was required under 1906 for patents and prescribe time frame for opposition, consideration etc. Act. To meet formalities check, application must be in approved form, written in English, Types of Patent.—(a) Standard invention patent: long term protection and invention; and identify product or products in relation to which design is to be registered sufficiently monopoly defined by unlimited number of claims; (b) innovation patent: relatively short to enable design to be classified in accordance with Locarno Treaty. Owner of design or term protection; monopoly defined by up to five claims. Innovation patent system in- third party may request examination of registered design at any time during its ten years troduced by Patents Amendment (Innovation Patents) Act 2000, to provide quicker, of registration. Designs Office carries out full examination as to registrability, then cheaper patent protection for inventions that may not meet patentability of standard “certifies” design or revokes registration. patents (i.e., patents which involve innovative, rather than inventive, step). System, which commenced on May 24, 2001, replaces former petty patent system, however petty patents Ownership.—Author of design is first owner thereof and therefore person entitled to already in force on May 24, 2001 remain in force under amended Patents Act. make application for registration. However, in situation of independent contractor (in- cluding employee) it is person contracting who (in absence of agreement to contrary) will Patent Application.—Invention subject of patent must be described in specification own design. document and precise scope of monopoly must be defined in claims. Provisional ap- Exclusive Rights.—Registration confers proprietary rights on registered owner. Reg- plication sets “priority date” and remains live for 12 months. Complete specification istered owner of registered design has exclusive right during term of registration of must: (a) Describe invention; (b) contain at least one claim; (c) claims must be clear, design to: (a) Make or offer to make product which embodies design; (b) import such succinct and fairly based; and (d) claims must relate to one invention only. product into Australia; (c) sell, hire or otherwise dispose of such product; (d) use such High Court held formal requirements do not require patentee to identify inventive steps product in any way for purpose of any trade or business; (e) keep such product for or other requirements proving invention is patentable (Lockwood Security Products Pty purpose of doing any of things in (d) or (e); and (f) authorize another person to do any Ltd v Doric Products Pty Ltd [2004] HCA 58). of things in (a) through (e). Convention applications may be filed in Australia to claim priority date from earlier Assignment and Licenses.—Owner of design may assign or license his or her rights. application filed in Paris Convention country within preceding 12 months. Such appli- Registered design may be assigned in writing (generally by deed), and owner of un- cations are made and dealt with in same way as other patent applications. registered design may assign whole or part of interest in design. Patent Cooperation Treaty (PCT) applications constitute single international patent Term.—Initial period of registration is five years, with possibility of renewal up to ten application designating up to 120 countries and regions (including Europe) for up to 30 years. Following Designs (Consequential Amendments) Act 2003, maximum term of or 31 months from priority date. PCT allows priority date from earlier application in Paris protection reduced from 16 years to ten years. Convention country filed within preceding 12 months. PCT applications designating

See note at head of Digest as to 2006 legislation covered. See Topical Index in front part of this volume. AUS–19 INTELLECTUAL PROPERTY MARTINDALE-HUBBELL LAW DIGEST - 2007

PATENTS . . . continued Act broadly defines registerable trademark as “sign”, which: (a) Includes any letter, Australia treated as complete application under Act. Filing date of PCT application taken word, name, signature, number, device, brand, heading, label, ticket, aspect of packaging, to be international filing date. shape, color, sound or scent; (b) is used or intended to be used to distinguish goods or Opposition.—Pre-grant opposition exists. Following U.S. Free Trade Agreement services dealt with or provided in course of trade from other goods and services; (c) is Implementation Act 2004, patent application may now be opposed on general ground that capable of graphical representation; (d) is capable of distinguishing owner’s goods or it is not “patentable invention”. Patent can be revoked on same grounds applicable at services from others; (e) is not likely to deceive or cause confusion, and is not sub- examination stage. Renewal fees required for continued valid registration of patent. stantially identical or deceptively similar to another registered trademark; and (f) is not Ownership.—Act grants patentee exclusive right to exploit invention during term of scandalous and use not contrary to law. patent. State grants inventor limited statutory monopoly to exploit invention in return for Trade Marks Regulations 1995 set out procedure for registration under Act. Schedule inventor disclosing invention and best method of performance for benefit of others when 1 lists classes of goods and services. monopoly ceases. Fundamental requirement is that trademark capable of distinguishing applicant’s goods Joint owners of patent are acceptable. Patent issued in name of incorrect inventor(s) or services from goods or services of other persons. Mark that is merely descriptive of or omitting name(s) of inventor(s) will be void. (Conor Medsystems Inc v The University character of goods or geographic origin cannot be inherently distinctive. of British Columbia [No. 2] [2006] FCA 32). Trademark can be: (a) Collective trademark (used to distinguish other goods or ser- Assignment and Licenses.—Patents are form of property and can be sold, licensed, vices provided by association); (b) certification trademark (used to distinguish goods or assigned, etc. Patents are transferable by making application to Commissioner of Patents services certified by owner to be of particular quality, accuracy, origin or materials); or to enter proven title in register. Patent assignments must be in writing, signed by or on (c) defensive trademark (where registered owner wants to prevent any use of mark on behalf of assignor and assignee. Assignments of patents are ordinarily made by deed. Act unrelated goods that may suggest those goods are connected to registered trademark allows exclusive licensee to take action for infringement, but patentee must be joined as goods). Act contains separate parts dealing specifically with each of those marks. party to action. Opposition.—Following acceptance of trademark application, three month period in Compulsory Licenses.—Where patentee fails to commercially exploit patent such that which application can be opposed by any person on same grounds upon which appli- reasonable requirements of public interest not satisfied, interested person may obtain cation could be rejected (i.e., those listed above), and also on grounds that: (a) Applicant compulsory license or have patent revoked. not owner of trademark; (b) applicant does not intend to use trademark in Australia; (c) Patents of Addition.—May be granted to protect improvements to modifications of trademark similar to trademark that has acquired reputation in Australia; (d) trademark already patented invention. Patents of addition not available for innovation patents. contains false geographical indication; or (e) application was defective. Patent of addition expires at same time as parent patent. Ownership.—Act grants trademark owner exclusive right to use mark in connection Term.—Standard patent granted for term of 20 years; innovation patent granted for with particular class of good or service and to authorize others to use mark in relation term of eight years. to same class. Registration of users of trademark no longer required. Concept of “au- Act permits extension of standard pharmaceutical patent for maximum of further five thorized use” allows authorized user to deal with trademark and, in case of infringement years where: (a) One or more pharmaceutical substances per se, or substance produced by third party, registered user may, subject to agreement of trademark owner, bring action by recombinant DNA technology, is disclosed in specification and falls within claims of for infringement if registered owner fails to do so. Again subject to agreement of specification; and (b) goods containing substance are included in Australian Register of trademark owner, registered user may also request Australian Customs Service to seize Therapeutic Goods and, first regulatory approval date five years from date of patent. imported falsely marked goods at point of entry into Australia, if registered owner does However, term of extension will be calculated from date of patent to date on which first not make such request. product under patent was included in Australian Register of Therapeutic Goods. This Assignment and Licenses.—Registered trademark may be licensed or assigned or product may be different from product on which patent qualified for extension. transmitted in whole or in part with or without goodwill of business concerned in goods Infringement.—Person infringes patent by doing something which falls within pat- or services. Important for trademark owner to retain quality/financial control over trade- entee’s monopoly as defined by claims. Action for infringement can only be based on marks because uncontrolled licensing may ultimately render trademark invalid and un- granted patent, not patent application. Act provides for contributory infringement by enforceable. Failure to monitor and control use may result in registration becoming supply of products if use of products would constitute infringement. Parallel importation misleading and liable to cancellation. Marks pending registration can also be assigned. into Australia will not infringe unless patentee owns patents overseas and in Australia. If registered trademark is assigned or transmitted, registered owner or assignee must Legislation clearly specifies limitation on right to export goods to Australia. Act also apply to Registrar to record assignment in register. provides for obtaining declarations of non-infringement from persons who wish to exploit When trademark becomes generic (i.e., generally accepted within relevant trade as sign invention. Right to damages or account of profits for infringement will backdate to date describing article, substance or service, and thus no longer capable of distinguishing of publication of complete specification. Act makes actionable unjustified threats of legal goods or services) registered owner no longer has exclusive rights to trademark for such action. article, substance or service. Defenses to Infringement.—Principal defense to infringement is “prior use” defense. Term.—From date of first filing of application for registration, trademark term is ten If shown that infringing party has been using process or making product at time when years. Thereafter, trademark term is renewable for successive periods of ten years upon patent applicant lodged application, infringing party may continue to make product or use payment of appropriate fees. process after patent granted. Intellectual Property Laws Amendment Bill 2006 (Cth) proposes amending Act to limit defense to prior use in Australia and to allow assignment Infringement.—Occurs if person uses sign as trademark that is substantially identical, of right of prior user to another party. or deceptively similar to registered trademark, for goods or services covered by regis- Exception to Infringement.—Where invention used on foreign vessels/aircraft/land tration. Trademark is “deceptively similar” if it resembles other trademark so nearly that vehicles which come into Australia accidentally or temporarily. Intellectual Property it is likely to deceive or cause confusion. Also infringement if such mark used on goods Laws Amendment Bill 2006 (Cth) proposes amending Act to increase circumstances or services “of the same description” or “closely related”, unless use not likely to deceive where generic pharmaceutical companies can use patented product to obtain regulatory or cause confusion. Use of well-known trademark in Australia is infringement, even on approval of generic version of product, i.e., “springboarding”. unrelated goods or services, if use can be taken to indicate connection between goods or services and registered owner. Remedies.—Remedies for infringement are injunctions (primarily), damages, or ac- If notice of prohibition displayed on goods carrying trademark, it is infringement to count of profits. Intellectual Property Laws Amendment Bill 2006 (Cth) proposes amend- do certain acts inconsistent with prohibition (e.g., using trademark with altered goods). ing Act to allow courts to award additional compensation to patentee in form of ex- Defenses to Infringement.—Five defenses to infringement where: (a) Person uses, in emplary damages. good faith, own name or place of business, or uses sign as indication of kind, quality, quantity, intended purpose, value, origin or some other characteristic of goods or services, TRADEMARKS: or time of production of goods or rendering of services; (b) person uses mark for purpose Trademark rights can be acquired only through: (a) Registering mark within Australia of comparative advertising; (c) person (or predecessor in title) continuously used un- under Trade Marks Act 1995 (Cth); or (b) common law use establishing reputation. registered mark in Australia in course of trade starting prior to registration or use by Overseas use, reputation or registration is of little assistance and does not bar imitation registered owner (“prior use”); (d) court of opinion that accused infringer would obtain by Australian entrepreneurs (unless overseas use has created reputation in mark which registration of mark in his/her own name if they were to apply for it; and (e) court of extends to Australia). opinion that accused infringer would obtain registration of substantially identical or Unregistered Trademarks.—Trademarks protected at common law by action for deceptively similar mark in his/her own name if they were to apply for it. “passing off”. First user of unregistered mark in Australia in any particular trade and area Where person has “prior use” defense, he or she may also (in absence of honest generally prevents others from registering mark or otherwise acquiring exclusive rights concurrent use by proprietor, and depending on similarity between two marks) success- in that trade and area, unless first user’s rights abandoned. To acquire exclusive rights, fully challenge proprietor’s registration. first user must acquire and maintain exclusive reputation for mark. To prevent others Remedies and Actions.—Remedies for infringement are injunctions, damages or from registering mark, first user must show that use by another party would likely account of profits. Various offenses associated with unauthorized use of trademark in- deceive public and cause damage to first user. cluding common law action of “passing off” and statutory action under §52 of Trade Rights in unregistered mark cannot be assigned or licensed separately from goodwill Practices Act 1974 (Cth). of business concerned. Intending users of new marks in Australia are advised to safeguard their position by seeking registration as early as possible, even though registration not Removal for Non-use.—Removal from register occurs if: (a) Trademark not renewed prerequisite to use. Applicants for registration of trademark have priority according to within 12 months of expiring (renewal standardized at ten years); (b) registration can- date of application. celled by Registrar or court. Grounds for cancellation under (b) are: (i) Applicant had no intention in good faith Registered Trade Marks.—Trade Marks Act 1995 commenced operation Jan. 1, 1996 of using trademark in Australia when application filed, and/or (ii) trademark has not been replacing Trade Marks Act 1994 and Trade Marks Act 1955, which implemented Aus- used in good faith in Australia for continuous period of three years (application not tralia’s obligations under Marrakesh Agreement Establishing the World Trade Organi- invalid until period of five years of nonuse has passed from original date of filing zation. application). Person aggrieved can apply to Registrar to remove trademark. Registrar can Trademark application must be in approved form and lodged at Trade Marks Office. decide or refer matter of nonuse to court, but owner of registered trademark has onus If application accepted by examiner, three month period exists for third parties to object of proof of use. Court retains discretion not to cancel registration even if no such use. to registration in opposition. Registration backdates to date application filed. Nonuse provisions do not apply to certification marks or defensive marks.

See note at head of Digest as to 2006 legislation covered. See Topical Index in front part of this volume. AUS–20 AUSTRALIA LAW DIGEST MINERAL, WATER AND FISHING RIGHTS

TRADEMARKS . . . continued MINES AND MINERALS: Revocation.—Intellectual Property Laws Amendment Bill 2006 (Cth) proposes amending Act to enable Registrar of Trade Marks to revoke incorrectly registered trade- By Seas and Submerged Lands Act 1973 Commonwealth claims sovereignty over marks without recourse through courts where there has been administrative error. territorial sea, airspace over it, its bed and subsoil (§6) and sovereign rights over Exclusive Economic Zone (§10A) and continental shelf (§11) and to recovery of minerals Overseas Protection.—Under Paris Convention, trademark applications made in Aus- other than petroleum from seabed, subsoil, and from continental shelf. Act also declares tralia within six months of first application for registration of mark in question in country rights of control in Australian contiguous zone. (§13A). Exception made in case of bays, which is party to Convention will be given same priority date as initial application. gulfs, estuaries, rivers, creeks, inlets, ports, and harbours which were within limits of Convention priority must be claimed within two days of filing of Australian application. States on Jan. 1, 1901 and remain therein. (§14). As between Commonwealth and States, Since July 11, 2001 Australia is party to Madrid Protocol on trademarks, allowing validity of Act was upheld by High Court in 1975. However, High Court decided in 1976 applications to be filed by Australians in other protocol countries, and vice versa. Madrid that State law extending to area of Commonwealth sovereignty will apply insofar as it Protocol provides mechanism for opposing domestic trademark registration on basis that is for peace, order and good government of State and until Commonwealth legislates to it conflicts with prior rights held in another trademark protected under Madrid Protocol. contrary. Act as amended gives effect to 1982 United Nations Convention on the Law International application must: (a) Meet usual requirements for registration in member of the Sea Exclusive Economic Zone. Petroleum (Submerged Lands) Act 1967 and country; and (b) designate member country address. If trademark does not proceed to Offshore Minerals Act 1994 also provide for making of regulations for exercise of registration in member country or if registration is revoked within five years of filing, Australia’s rights under international law in relation to exploration and exploitation of international protection under Madrid Protocol also fails. minerals and petroleum as natural resources of continental shelf. Note: Act to be repealed by Offshore Petroleum (Repeals and Consequential Amendments) Act 2006 (Cth) making Unregistered Common Law Trademarks.—Trademarks protected at common law by way for Offshore Petroleum Act 2006. Repeal to take effect when relevant sections of action for “passing off”. Action dependant upon unregistered trademark owner proving Offshore Petroleum Act proclaimed. Offshore Petroleum Act provides equivalent regu- reputation of trademark, such that use of same or similar mark by others may cause lating power. (§§443-447). damage to trademark owner’s reputation through confusion. Rights in unregistered mark cannot be assigned or licensed separately from goodwill Offshore Petroleum.—Petroleum (Submerged Lands) Act 1967 governs search and of business concerned. Intending users of new marks in Australia are advised to safeguard production of petroleum in Australia’s offshore area; provides that Commonwealth alone their position by seeking registration as early as possible, even though registration not will have legislative responsibility for Australia’s continental shelf areas beyond three prerequisite to use. Applicants for registration of trademark have priority according to mile territorial seas. Legislation to be administered by joint Commonwealth and State date of application. Authorities. (§8A). Act provides for permit terms (§29), renewal conditions (§§30-32), Life of right to sue in “passing off” is coterminous with ability to prove existence of title conditions (§33) and suspension of permits in national interest (§103A). Certain reputation. permits, leases and licenses available under Act. (Pt III). Petroleum operations permitted on most parts of Australia’s continental shelf, except for environmentally sensitive areas such as Great Barrier Reef (e.g., Great Barrier Reef Region [Prohibition of Mining] Regulations 1999). MINERAL, WATER AND FISHING RIGHTS Act establishes enlarged safety zones around offshore installations (§114), and em- powers Commonwealth and State Joint Authority to give directions as to rate of petro- ENERGY: leum production (§58); provides for granting of retention leases over currently noncom- mercial discoveries (Pt III, Division 2A) and revises registration provisions (Pt III Nuclear.—Atomic Energy Act 1953 provides that persons discovering prescribed Division 5). Where competitive bidding applies for offshore tenement, choice, at dis- substance at any place in Australia must report it within one month to Minister. (§36). cretion of granting authority, may be between work program system, cash bonus bidding Prescribed substance defined to mean uranium and other substances used in connection and royalty bidding, or combination. (§§21, 21A, 45). Exploration title holder who with atomic energy. (§5). Any prescribed substance automatically property of Common- discovers petroleum offshore entitled as of right to grant of production license in respect wealth. (§35). Act also provides that authority may be granted to person or to two or more of discovery; size limitation; competitive bidding does not apply. (§§41-44). License may persons engaged in joint venture to undertake operations for discovering, mining, re- be terminated if no operations for recovery of petroleum carried out for continuous period covering, treating and processing prescribed substances on land in Ranger Project Area of at least five years. (§53A). Certain provisions of Petroleum (Submerged Lands) Act on behalf of or in association with Commonwealth. (§41). 1967 relating to pipelines subject to obligations of Australia under international law and Nuclear Non-Proliferation (Safeguards) Act 1987 gives effect to Australia’s obligations international treaties. (§8AA). Act also establishes National Offshore Petroleum Safety as party to international treaties and agreements. Act imposes requirement for permit to Authority (§150XD); functions include to monitor and promote health and safety in deal with nuclear material or associated items. Penalty for possession of nuclear material offshore petroleum operations (§150XE). States and Territories in process of making or associated item without permit is imprisonment for not more than five years. (§23). legislative amendments to confer equivalent functions on National Offshore Petroleum Penalty for contravening permit or order of responsible Minister is imprisonment for not Safety Authority in relation to petroleum activities in State and Northern Territory coastal more than two years. (§25). Offence to communicate certain information related to waters. See also Pt II, category Mineral, Water and Fishing Rights, topic Mines and nuclear material without authorization (§26), or information that can prejudice physical Minerals. security of nuclear material or associated item (§26A). Act provides exception to pos- session of associated items and unauthorised communication of information provisions Note: Offshore Petroleum Act 2006 awaiting proclamation following amendments to with respect to activities under Patents Act 1990. (§26). Also offence to steal nuclear parallel State and Territory legislation. New Act will have same coverage and objectives material (§33), demand nuclear material by force or threat (§34), misuse nuclear material as 1967 Act. to cause injury or damage (§35), threaten to use nuclear material (§36) or interfere with Petroleum (Submerged Lands) Act 1967, Offshore Petroleum Act 2006 and Offshore containment or surveillance devices (§28). Offence provisions may also apply to acts or Minerals Act 1994 provide that ownership of petroleum or minerals recovered under things done outside Australia. (§38). Act establishes office of Director of Safeguards to terms of licenses, permits or consents under these Acts, is not subject to rights of other administer Australian safeguards system. (§§42-43). Australian Radiation Protection and persons such as native title holders (Petroleum [Submerged Lands] Act 1967 §124, Nuclear Safety Act 1998 prohibits Commonwealth entities, Commonwealth contractors Offshore Petroleum Act 2006 §§243, 248) but underlying native title is not extinguished and persons in prescribed Commonwealth places from possessing controlled material, (Offshore Minerals Act 1994 §43). controlled apparatus (§31) or constructing or operating nuclear installation or facility Timor Sea Treaty (Treaty) between Government of Australia and Democratic Republic (§30) without license. Controlled material defined as natural or artificial material which of East Timor signed May 20, 2002. Ratified East Timor Dec. 17, 2002 and Australia spontaneously emits ionizing radiation. (§13). Penalty is fine of up to A$220,000. (§§30- Mar. 6, 2003. (See Petroleum [Timor Sea Treaty] Act 2003.) Treaty provides for Joint 31). Act establishes office of Chief Executive Officer of Australian Radiation Protection Petroleum Development Area delineated in Timor Sea to be controlled by Joint Com- and Nuclear Safety Agency responsible for issuing licenses. (§§14, 32). Act also estab- mission under Petroleum Mining Code. (Art. 7). Final Code approved by Joint Com- lishes Radiation Health and Safety Advisory Council to advise Chief Executive Officer mission, Feb. 6, 2006, available at http://www.timorseada.org. Treaty also provides for on matters relating to radiation protection and nuclear safety. (§§19-20). National En- East Timor 90% title of petroleum and Australia 10%. (Art. 4). Australian share of vironment Protection Measures (Implementation) Act 1998 makes provision for envi- petroleum projects in Joint Petroleum Development Area subject to Petroleum Resource ronmental protection in respect of certain activities carried on by or on behalf of Com- Rent Tax. See subhead Petroleum Taxation, infra. monwealth and Commonwealth authorities. Comprehensive Nuclear Test-Ban Treaty Act Petroleum (Submerged Lands) (Royalty) Act 1967 only applies to North West Shelf 1998 makes it offence to cause nuclear weapon test explosion or any other nuclear exploration permits and associated leases and licenses (§4A), and provides for payments explosion; penalty is imprisonment for life. (§8). Act also provides for inspection of sites of royalties (§5) and adjustment of payment in certain situations (§§6-7). Petroleum in and out of Australia (Pt 3), and provides for establishment of Australian Compre- (Submerged Lands) Fees Act 1994 prescribes set of fees for permits, licenses and leases hensive Test Ban Office to administer Act and generally to carry out Australia’s obli- under Petroleum (Submerged Lands) Act 1967. Petroleum (Submerged Lands) (Man- gations under Treaty (Pt 5). agement of Safety on Offshore Facilities) Regulations 1996 require that operators of See also category Environment, topic Environmental Regulation. offshore facility to prepare detailed document on safety procedures. Penalties for failure Australian Nuclear Science and Technology Organisation Act 1987 creates statutory to comply can apply to operators and titleholders. body under that name (§4) to undertake research and development into nuclear science Note: Offshore Petroleum (Royalty) Act 2006 and Offshore Petroleum (Annual Fees) and technology and its use in medicine, industry, commerce and agriculture, and to Act 2006 take effect on proclamation of relevant provisions of Offshore Petroleum Act facilitate application of results of such research (§5). Not permitted to work on nuclear 2006. New Acts have similar scope and coverage as 1967 and 1994 equivalents. See also weapons or explosive devices. (§5[2]). Also to condition, manage and store radioactive fees owed under Offshore Petroleum (Safety Levies) Act 2003 which imposes levies on materials and waste arising from its and other specified persons’ activities (§5[1][ba]), exploration, development and production of offshore petroleum and Offshore Petroleum and to make available its knowledge, expertise, resources and facilities by training, (Registration Fees) Act 2006 which takes effect on proclamation of relevant provisions selling or leasing land or equipment, or as appropriate (§5[1][ea]). Certain State and of Offshore Petroleum Act 2006. Prior to proclamation Petroleum (Submerged Lands) Territory laws concerning land and environment and radioactive material and licensing (Registration Fees) Act 1967 applies. do not apply to organisation. (§7A). Note: Schedule 3 to Offshore Petroleum Act 2006 regulates occupational health and See also Pt II, category Mineral, Water and Fishing Rights, topic Energy, subheads safety at or near facilities in Commonwealth waters being used for offshore petroleum Electricity for recent development of National Electricity Market; Gas for recent de- operations. Act imposes duties and penalties for breach. Specific obligations for opera- velopment of uniform legislative framework for third party access to gas pipelines. tors, manufacturers, employers, and any persons entering facility.

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MINES AND MINERALS . . . continued ronmental significance pursuant to Environment Protection and Biodiversity Conserva- Gas Pipelines Access (Commonwealth) Act 1998 completes national scheme providing tion Act 1999 (EPBC Act) which commenced July 16, 2002. (§§22-22A). third parties access to gas transmission and distribution pipelines. National scheme contained in National Third Party Access Code for Natural Gas Pipeline Systems (The Environmental impact assessment and approval required for all proposed mining National Gas Code), available at http://www.coderegistrar.sa.gov.au and Gas Pipelines likely to have significant impact on environment or is matter of national environmental Access legislation in each State and Territory. Code effective access regime under Pt IIIA importance under EPBC Act. (See category Environment, topic Environmental Regula- of Trade Practices Act 1974. Determinations made under National Gas Code by Aus- tion, subhead General Legislation.) Further special procedures needed in certain areas to tralian Competition and Consumer Commission and relevant regulators of each State and satisfy Aboriginal Land Rights. See also topic Energy, subhead Nuclear; Pt II, category Territory. Act applies to offshore waters, relevant external territories and adjacent areas, Mineral, Water and Fishing Rights, topic Mines and Minerals. Jervis Bay territory and Moomba-Sydney pipeline. (§8). States and Territories have enacted complementary legislation. WATER AND FISHING RIGHTS: Minerals Other than Petroleum.—Offshore Minerals Act 1994 (and various conse- Water rights largely regulated by States and Territories. (See Pt II, category Mineral, quential Acts) applies to all minerals other than petroleum. (§§22, 35). Provides legal Water and Fishing Rights, topic Water and Fishing Rights, subhead Water.) Water Ef- framework for exploration for, and production of, minerals on Australia’s continental ficiency Labelling and Standards Act 2005 and Regulations 2005 form part of cooperative shelf that is under Commonwealth jurisdiction, being area beyond three nautical mile scheme with States and Territories to encourage domestic and commercial use of water limit from territorial sea base line. Offshore Constitutional Settlement between Com- efficient products and appliances. (See: Water Efficiency Labelling and Standards Act monwealth and State Governments provides that States will introduce mirror offshore 2005 [ACT]; Water Efficiency Labelling and Standards Act 2005 [Vic]; Water Efficiency minerals legislation for area within three mile limit establishing common offshore mining Labelling and Standards Act 2005 [NSW]; and Water Efficiency Labelling and Standards code. (§3). (See Pt II, category Mineral, Water and Fishing Rights, topic Mines and Act 2005 [Tas].) Minerals.) Principles underlying this regulatory arrangement are: (a) All offshore mineral activity in Commonwealth area adjacent to particular State governed by joint authority Fisheries Regulation.—Fisheries Administration Act 1991 establishes Australian Fish- consisting of relevant Commonwealth and State Ministers (§32); (b) joint authorities eries Management Authority (AFMA) to ensure Australia’s compliance with international responsible for major decisions relating to titles, such as grants, refusals and the like obligations relating to fish stocks and fishing zones (§§5-6), particularly Conservation (§§47-50), and in event of disagreement, views of Commonwealth Minister prevail and Management of Highly Migratory Fish Stocks in the Western and Central Pacific (§409); and (c) day to day administration of Commonwealth legislation carried out by Ocean Convention (WCPFC). AFMA also given power under Fisheries Legislation relevant State which is primary point of contact between industry and governments Amendment (International Obligations and Other Matters) Act 2005 to disclose infor- (§§29-30). Act sets up licensing scheme providing for five kinds of authorization: ex- mation (including personal details) about suspected illegal fishers to assist in foreign ploration licenses (Pt 2.2), retention licenses (Pt 2.3), mining licenses (Pt 2.4), works investigation of breach. (§§7[1][gb], 7[3][4]). Fisheries Legislation Amendment (Co- licenses (Pt 2.5) and special purpose consents (Pt 2.6). For each authorization it deals Operative Fisheries Arrangements and Other Matters) Act 2006 introduced net economic with applications, grants, duration, renewal, obligations of holder and expiry. Also deals returns and principles of ecological development as management objectives to Fisheries with related topics of registration and dealings in licenses and administration of licensing Administration Act 1991 (§§6-6A) and Fisheries Management Act 1991 (§§3-3A). Fish- system. eries Management Act 1991 regulates fishing within Australian fishing zone (AFZ). AFZ, Offshore Minerals (Mining Licence Fees) Act 1981 and Regulations 1994 prescribe third largest fishing zone in world, extends to outer limits of Exclusive Economic Zone amount of annual mining license fees. Offshore Minerals (Exploration Licence Fees) Act (200 nautical miles) adjacent to Australian coastline and includes water surrounding 1981 and Regulations 1994 prescribe amount of annual exploration license fees. Other Australian external territories. Coastal waters of, and waters within, States and Territories associated legislation includes Offshore Minerals (Registration Fees) Act 1981 and Regu- excluded from AFZ. (See topic Mines and Minerals, subhead Minerals Other than lations 1994, Offshore Minerals (Retention Licence Fees) Act 1994 and Regulations 1994 Petroleum.) Act largely administered by AFMA. Joint Authorities (State and Common- and Offshore Minerals (Works Licence Fees) Act 1981 and Regulations 1994. wealth cooperation) may also be established. (§61). Offshore Minerals (Data Lodgement and Reporting) Regulations 1996 require that Fisheries Management Act 1991 provides for statutory fishing rights (§21) adminis- license holders prepare reports with details of exploration work and copies of data and tered by AFMA (§22), fishing (§32) or scientific (§33) permits granted by AFMA. Act samples acquired and lodge these with designated authority. provides for surveillance of AFZ and enforcement of Act. (Pt 6). Act has certain ex- Note that Australian customs, immigration, quarantine and sales tax laws apply to traterritorial application (§7), but does not extend to territorial sea of other countries ships and installations engaged in exploration for minerals and petroleum in Australian (§87). Penalties for breaching Act include seizure and destruction of boats and fines. waters and to certain sea installations. See for example Excise Act 1901 §4A. (§100). Maximum penalty for foreign fishing offences committed in AFZ A$825,000. Coastal Waters (State Powers) Act 1980 provides that legislative powers of each State (§100A). Act also amended to implement WCPFC obligations, including ability of extends to territorial sea, being those seas within three miles of low water mark of littoral AFMA to disclose information about illegal fishers to international organizations (§108), State. (§§4-5). extending surveillance and enforcement provisions (§§105H-J) and further managing Coastal Waters (State Title) Act 1980 vests in each State proprietary rights in seabed detention of illegal foreign fishers (§§84, 105Q). subsoil (including all minerals), structures attached to seabed, and space above seabed Other relevant legislation includes Fishing Levy Act 1991, Foreign Fishing Licences of territorial sea in littoral State. (§§3-4). Rights of States subject to exceptions for uses Levy Act 1991 and Statutory Fishing Rights Charge Act 1991. including construction of petroleum pipelines, and for purposes in relation to commu- Commonwealth cooperation with State and Territory fisheries regulation. See also Pt nications, safety of navigation, quarantine or defence, and to place, construct and main- II, category Mineral, Water and Fishing Rights, topic Water and Fishing Rights, subhead tain equipment and structures for purposes of such use. (§4). Fisheries Regulation. Petroleum Taxation.—Excise Act 1901 (Pt VIIB) and Excise Tariff Act 1921 impose excise upon crude oil recovered. Petroleum Excise (Prices) Act 1987 and Regulations 1988 establish mechanism for determining duties of excise on certain crude petroleum TAXATION oil. Amount depends on whether onshore or offshore and production levels. Petroleum (Submerged Lands) (Royalty) Act 1967 imposes 10% royalty upon petro- ADMINISTRATION: leum recovered from North West Shelf submerged land adjacent to Australian coast. (§5[2]). Note: Offshore Petroleum (Royalty) Act 2006 takes effect on proclamation of Tax Administration.—Taxation Administration Act 1953 (TAA) and Income Tax relevant provisions of Offshore Petroleum Act 2006 and has similar coverage and ob- Assessment Acts 1936 and 1997 (1936 Act and 1997 Act) are administered by Federal jectives. Commissioner of Taxation (Commissioner) supported by Australian Tax Office (ATO). Petroleum Resource Rent Tax Assessment Act 1987 imposes profit based tax upon Self assessment regime (where taxpayer reports own income and deductions in each petroleum projects established after July 1, 1986. Where Resource Rent Tax applies financial year [July 1 to June 30]) with comprehensive uniform penalties and appeal excises and royalties are excluded. Act extended to apply to Joint Petroleum Develop- procedures. Base penalties ranging from 25% (e.g., no reasonably arguable position) to ment Area by Greater Sunrise Unitisation Agreement Implementation Act 2004. 75% (e.g., intentional disregard) plus interest can be imposed by Commissioner for Note: Petroleum Resource Rent Tax Assessment Amendment Bill 2006 will amend breach resulting in underpayment of tax. Some penalties reduced if taxpayer makes Petroleum Resource Rent Tax Assessment Act 1987, including altering calculations of voluntary disclosure and increased if hindrance or repeat offense. Post assessment of tax Petroleum Resource Rent Tax (PRRT), reducing compliance costs and improving ad- returns and auditing of taxpayers are main methods of enforcing 1936 and 1997 Acts. ministration and efficiency of PRRT. System of public (applies to general class of transactions) and private (relates only to Petroleum Revenue Act 1985 provides that where agreement is reached between State individual case) rulings introduced in 1992 are binding on Commissioner and set out ATO government and producer, and between State government and Federal Government, interpretation of particular provisions of tax law. This system overhauled in 2005 to make profits based tax will be applied to exclusion of excises (§6) and royalties (Schedule rulings more accessible and timely. 1[1][d]) upon projects otherwise in State jurisdiction. Taxpayer can object to tax decisions and can appeal Commissioner’s decision on Cleaner Fuels.—Energy Grants (Cleaner Fuels) Scheme Act 2004 establishes Energy objection to Administrative Appeals Tribunal or Federal Court. Some decisions of Com- Grants (Cleaner Fuels) Scheme (EG[CF]S). Under EG(CF)S manufacturers and importers missioner are subject to review under Administrative Decisions (Judicial Review) Act of cleaner fuels such as biodiesel entitled to special grant to offset customs charge or 1977. excise duty. Note: Excise Laws Amendment (Fuel Tax Reform and Other Measures) Bill Board of Taxation (BOT) advises Government on “whole-of-tax system view” and 2006 proposes addition of renewable diesel to cleaner fuels grants scheme. improvements to overall design of taxation laws and operation. Majority of BOT mem- See also Energy Grants (Credits) Scheme Act 2003. Note: Fuel Tax (Consequential and bers are tax experts from private sector. Inspector-General of Taxation (introduced Apr. Transitional Provisions) Bill 2006 provides part of transition to single fuel tax credit 1, 2003) advises Government on improvements to tax administration systems. scheme proposed by Fuel Tax Bill 2006. Energy Grants (Credits) Scheme Act 2003 will Pay as You Go (PAYG) tax collection system applies from July 1, 2000. Essentially, be repealed. PAYG system has two components: withholding component and instalment component. See also Pt I, category Taxation, topic Gasoline and Special Fuels Taxes. Withholding component details responsibilities of payers to withhold tax from payments. Uranium.—Control over mining of prescribed substances associated with nuclear Type of payments that require withholding are listed in TAA and include salary, royalties, production (mainly uranium) governed by Atomic Energy Act 1953. (See also topic dividends and interest. Instalment component concerns taxpayers paying their own tax Energy, subhead Nuclear.) Applies in all States and Territories. Proposals for uranium liability (i.e., company and nonemployment tax), generally quarterly PAYG instalment mining governed by ministerial assessments and approval as matter of national envi- system is designed to match payment of tax with earning of associated income.

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ALCOHOL, BEVERAGES AND TOBACCO TAXES: Also limited circumstances where GST not payable on importation of goods: e.g., Wine Tax.—29% wine equalization tax is single stage tax generally payable on last where goods would have been GST-free or input taxed if they had been supplied in wholesale of wine. GST generally also applies. Australia and certain category of concessionally taxed goods for customs purposes. Generally, entities registered for GST purposes are entitled to claim credit, known as Tobacco and Alcohol.—Excise duty applies to manufacture of tobacco and alcohol at input tax credit, for GST borne on acquisitions made or goods imported for business varying rates whilst customs duty applies to importation of tobacco and alcohol at purposes unless acquisitions or importations fall into one of two categories. First category varying rates. comprises acquisitions or importations which are of private nature and second category comprises acquisitions or importations which relate to making of supplies which would BUSINESS TAXES: be input taxed. Reduced input taxed credits, are available for certain acquisitions relating to making R&D Deductions.—1936 Act provides deduction generally at rate of 125% of certain of financial supplies (i.e., at rate of 75%). Entities which carry on business and which qualifying expenditure, including contracted expenditure to registered research agency. have annual turnover of at least A$50,000 (A$100,000 for non-profit entities) are required 175% deduction can apply to increased amounts of R&D expenditure (over previous to be registered. Certain revenue streams are ignored when calculating turnover. three years’ amounts). Deduction is available to companies, partnerships of companies and companies that are trustees of public trading trusts but only if residents of Australia. Consolidations.—New single entity rules in 1997 Act allow wholly owned Australian Deduction only available if expenditure incurred on behalf of company claiming de- subsidiaries, from July 1, 2002, to be essentially treated as part of Australian head duction and if company and R&D activities are registered under Industry Research and company of group and lodge single tax return. Consolidation optional but once elected Development Act 1986. R&D plan also required prior to commencement of R&D ac- irrevocable. Consolidation is “one in all in” for eligible subsidiary companies (on election tivities. by holding company, all eligible subsidiary companies must form part of consolidated group). On consolidation, head company inherits income tax history of subsidiary mem- Investment in Australian Films.—Where resident taxpayer outlays capital expendi- bers. Where two or more eligible head companies owned by foreign resident company, ture in producing or contributing to production of qualifying Australian film and, as multiple entry consolidated group provisions apply and one head company must be consequence, becomes first owner of copyright in film, then 100% of expenditure is appointed. Subsidiary member that ceases to be eligible (i.e., wholly-owned) automati- generally deductible. Where contract entered into prior to May 25, 1988, different rates cally leaves consolidated group. Grouping provisions (e.g., for loss transfers and CGT of deduction apply. To be qualifying Australian film, film must be feature film, telemovie, group rollover provisions) removed from July 1, 2003. Special grouping and value rules documentary or mini-series; be made wholly or substantially in Australia or be official exist for entities joining and exiting consolidated group. Thin capitalisation rules modi- co-production; have significant Australian content; and be certified by Minister respon- fied to treat consolidated group as single entity. sible for Arts. Investor can elect not to use film deduction and instead deduct expenditure Consolidation regime only applies to income tax. Non-income tax matters (e.g., FBT) over two-year period. Legislation to be amended so that foreign losses can be deducted remain individual entities’ responsibility. Government has signalled broad range of from domestic income. amendments to resolve number of outstanding consolidation issues. Producers of foreign and Australian films who spend at least A$15 million of total production expenditure in Australia (being at least 70% of total production expenditure) Simplified Tax System (STS).—For income years after June 30, 2001 certain tax- qualify for 12.5% refundable tax offset. If over A$50 million spent in Australia, auto- payers can elect STS. STS provides administrative and tax concessions in respect of e.g., matically qualify. Offset can only be claimed by resident company or company having capital allowances, trading stock and prepayments. Eligible STS taxpayer has less than permanent establishment in Australia. If tax offset claimed, no other film tax incentive A$1 million average turnover for year and depreciating assets less than A$3 million. available. Note: Incentive to be reviewed by Sept. 4, 2006. Grouping rules also apply for eligibility. Restriction on Tax Deductions for Interest Payments.—Thin capitalization rules apply to deny deductibility of finance expense (e.g., interest payments) where debt used EMPLOYMENT TAXES: to finance Australian operations exceeds certain limits. Provisions apply to foreign con- Fringe Benefits Tax (FBT) imposed by Fringe Benefits Tax Assessment Act 1986. trolled Australian entities, Australian entities operating internationally and foreign entities FBT payable by employers on total taxable value of benefits (other than those excluded operating in Australia. De minimis thresholds must be exceeded before rules apply. Rules such as salary and superannuation contributions) provided to employee, or associate of differ depending on whether inward or outward investing entity and whether or not entity employee, in respect of employee’s employment. Specific rules determine taxable value is Approved Deposit-taking Institution (ADI). Non-ADI uses safe harbour test (debt to of particular benefits, e.g., car benefits. FBT is annual tax. Each FBT year runs from Apr. equity within three to one ratio) and arm’s length debt test. Australian non-ADI (outward 1 to following Mar. 31. FBT rate is 46.5%, but tax is calculated under gross-up rules. investor) can also use worldwide gearing debt test (up to 120% gearing of worldwide That is, fringe benefit taxable value is calculated by formula 1/(1-FBT rate). If employer group). ADIs use safe harbour capital and arm’s length capital test. Australian ADI can entitled to GST input tax credits, gross up formula adjusted to take into account effective also use worldwide capital test. lower fringe benefit taxable value of goods or services to employee. FBT rate then Rules incorporate statutory definition of debt and equity based on economic substance applied to grossed-up amount to determine tax payable. Income tax deduction is allowed of instrument. Debt defined as interest with effectively non-contingent obligation on to employers for amount of FBT paid. Employers required to record grossed up value issuer to return amount at least equal to issue price. Equity is shares, interests in company of fringe benefits on employees’ annual employment statements to enable value of where return is contingent on economic performance or is discretionary, and converting benefits to be taken into account when income tests utilized. interests. Instrument that could be classified as both debt and equity will be treated as debt. Debt/equity definition has implications for interest deductions and determining if ESTATE DUTY AND GIFT DUTY: distribution is dividend (and frankable). Under new tax consolidation regime, thin capitalization rules apply to head company Estate duty and gift duty abolished with effect from 1979. of group. ESTATE TAX: Anti-avoidance Provisions.—1936 Act contains general anti-avoidance provisions which strike down schemes entered into for sole or dominant purpose of obtaining tax See topic Estate Duty and Gift Duty. benefit. Act authorizes Commissioner to cancel whole or part of tax benefit and effect tax adjustments. Other anti-avoidance measures operate to deny tax benefits from GASOLINE AND SPECIAL FUELS TAXES: schemes involving withholding tax, stripping of company profits, franking, foreign tax Petroleum Tax.—The Petroleum Resource Rent Tax Act 1987 (PRRT) imposes tax on credits and non-arm’s length dealings in trading stock and capital assets. profits of offshore petroleum projects, other than North West Shelf. Rate of tax is 40%. 1936 Act contains comprehensive regime to prevent understating of Australian income Tax payable is assessed under Petroleum Resource Rent Tax Assessment Act 1987 through inter-company transfer pricing arrangements, such as non-arm’s length dealing (PRRTAA) and determined on accruals basis on excess of ‘‘assessable receipts’’ over between companies in two different countries where income and losses can be shifted by ‘‘deductible expenditure’’ and transferred exploration expenditure. Exploration expenses internal valuation of assets. Also applies to intra-company transactions across tax juris- incurred after June 30, 1990 can be deducted by company against its PRRT liabilities dictions. without limitation by permit area. PRRT losses are carried forward and only applied Financial Transaction Reports Act 1988 requires reporting of certain domestic currency against future PRRT income. transactions of A$10,000 or more to Australian Transaction Reporting and Analysis Payments made for PRRT in 1997/98 income year or later are deductible in year in Centre. Must also report transfers of A$10,000 value in Australian or foreign currency which paid. Refunds and amounts credited, paid or applied under PRRTAA are included to and from Australia. Act aims to minimize tax evasion in ‘‘cash economy’’ and to in taxpayer’s assessable income. See also Pt I, category Mineral, Water and Fishing enable easier tracing of assets. Certain exemptions available. See also Pt I, category Rights, topic Mines and Minerals, subhead Petroleum Taxation. Foreign Trade and Commerce, topic Exchange Control. Bill making number of changes to PRRT to improve efficiency, including extending Crimes (Taxation Offences) Act 1980 makes it offense to fraudulently evade income self-assessment regime to PRRT, in progress through Parliament. or other taxes, by taking deliberate actions for person to enter into transaction or ar- rangement for purpose of ensuring that company or trustee will be or likely to be unable GIFT TAX: to pay tax assessed. Penalty up to ten years’ imprisonment or A$110,000 fine (or both) and additional tax penalty. See topic Estate Duty and Gift Duty. New civil penalty regime for promoters of tax evasion schemes applies from Apr. 6, 2006. Penalty faced greater of A$550,000 (individuals) or A$2.75 million (companies) INCOME TAX: and twice total consideration promoter received from scheme. Income Tax Framework.—Commonwealth government imposes national uniform GST at rate of 10% payable on supplies of goods and services (including land) made income tax regime on all Australian source income and overseas source income with for consideration by registered entities, which have prescribed connection with Australia. Australian connection. Current regime covered by 1936 and 1997 Acts. States share in GST also applies at rate of 10% on most importations of goods. Two circumstances national grants from Commonwealth in lieu of imposing own income tax. As of July 1, where GST is not payable on supplies which would otherwise be taxable: supplies are 2000 States also receive GST revenue. “GST-free” and where they are ‘‘input taxed’’. Examples of supplies which are GST-free Tax liability is imposed on taxable income. Tax rates specified in Income Tax Rates include health supplies, supply of some food items, education and going concerns. Act 1986. Taxable income defined as assessable income less deductions. Assessable Examples of supplies which are input taxed include broad range of financial supplies income consists of ordinary income and statutory income. Ordinary income is income (e.g., loans and share sales) and supply of residential premises. according to ordinary concepts, as interpreted by courts, and includes income from

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INCOME TAX . . . continued Medicare Levy Act 1986 requires individuals to pay levy based on taxable income personal services (wages, bonuses, reimbursements), from property (rent, royalties, divi- which funds national public health and hospital insurance. Rate is 1.5% for 2006/07 dends, interest), and from carrying on business (trade or activity of commercial nature financial year. Low income earners (for individuals, in 2006/07 year and later years: for profit, but not hobby). income below A$16,284) obtain full relief from paying levy and partial relief also Statutory income includes items such as: net capital gains (see subhead Capital Gains available. Additional 1% levy surcharge payable if income exceeds A$50,000 Tax [CGT], infra), benefits received under employee share benefits scheme and super- (A$100,000 for couples) if person not covered by private health insurance. annuation benefits. Retirement and early termination payments are statutory income and Tertiary student loans available under Higher Education Loan Programme (HELP) to included under Pt III, Division 2, Subdivision AA, 1936 Act. assist payment of fees for study in Australia and overseas. HELP replaces Higher Capital Gains Tax (CGT).—Pts 3-1 and 3-3 of 1997 Act provide that net capital gains Education Contribution Scheme (HECS) from Jan. 1, 2005. HELP debts added to any realised on assets acquired or deemed to have been acquired after Sept. 19, 1985 are to earlier HECS debts to become single accumulated HELP debt on June 1, 2006. Deferred be included in assessable income. Catch-all provisions rely on whether CGT Event (set payment available under HELP scheme: repayments required once “repayment income” out in Division 104 of 1997 Act) occurs rather than asking whether gain itself is capital reaches minimum level. HELP liability paid up-front (part or whole) at 20% discount or in nature. Disposal on death is not taxable but receipt as beneficiary upon death of third repay accumulated debts at progressive rate from 4-8% of repayment income. person is acquisition and asset subject to tax on disposal. Partnerships.—Broad definition of partnership for tax purposes, includes general law Tax is levied at ordinary rates of personal and company income tax. Under recent partnerships but also associations of person in receipt of income jointly (e.g., joint owners reforms individual, complying superannuation entity and trust that makes capital gain of property). Companies explicitly excluded from definition of partnership for tax pur- from CGT asset acquired after 11:45 a.m. EST on Sept. 21, 1999 can be eligible for 50% poses. Partnerships are generally not taxed at entity level. Instead, each individual partner discount (331⁄3% for superannuation entities) provided asset has been held for at least 12 includes their share of partnership income in individual assessable income. Partnership months. However, under reforms special averaging formula for calculating capital gains income is determined by lodging tax return for partnership. Limited partnerships treated no longer applies and indexation of cost base of assets frozen as of Sept. 30, 1999. Gains as companies for tax purposes, with exception of certain foreign limited partnerships, on taxpayer’s principal residence are exempt. In non-arm’s length disposals where con- which are taxed as partnerships from 2003/04 income year. sideration is not at market value, market value substitution rules apply. Trusts are subject to specific rules in 1936 Act; 1997 Act may also apply. Rules operate Net capital losses quarantined—can be carried forward but apply only to reduced to tax either trustee or beneficiary, depending on who is entitled to trust income. Net capital gain (cannot reduce other income). From July 1, 2005, broader range of expen- income of trust estates is taxed to beneficiaries who are presently entitled to net income ditures recognized under CGT regime. (and who are not under legal disability), otherwise to trustee. Losses are carried forward Definition of asset includes rights which are not forms of property: thus restrictive in trust to be offset against future trust income. Trustee generally taxed at 45% on income covenants and trade ties are subject to CGT. to which no beneficiary is presently entitled. Subdivision 149-B and 149-C may ‘‘freshen up’’ pre-CGT asset by deeming to be Companies must lodge tax return for year of income with ATO. Corporate tax rate is post-CGT asset where majority underlying ownership changed. CGT exceptions (Divi- 30% for year ending June 30, 2002 and subsequent years. This rate applies to taxable sion 104), exemptions (Division 118) and small business concessions (Division 152) income. apply. Replacement-asset and same-asset roll-over relief (where imposition of CGT is de- Dividend Imputation System.—‘‘Imputation’’ system applies to dividends paid on or ferred or pre-CGT status of assets is preserved) available. Roll-over relief also applies after July 1, 1987. System prevents double taxation of company profits by allowing tax with transfers of assets on marriage breakdown. Under new consolidation rules, group credit to shareholders who receive taxable dividends which have been paid out of profits companies only entitled to roll-over relief if part of consolidated group (applies from July in respect of which Australian income tax has already been paid by company (‘‘franked’’ 1, 2003). dividends). Benefits of these franking credits only available to resident shareholders. For overseas shareholders, withholding tax not payable on fully franked dividends. Amount Exempt Income.—There are two categories of non-assessable income being non- transferred to company’s share capital account from any of its other accounts may assessable exempt income and non-assessable non-exempt income. (§§11-10 and 11-15 involve “tainting” rules, requires company to pay untainting tax. Amended share capital of 1997 Act). (Subdivision 11-B of 1997 Act contains list of non-assessable non-exempt tainting rules apply retrospectively from July 1, 1998. Rules not applicable in certain income provisions.) While both categories are excluded from taxable income, exempt cases, e.g., in relation to insurance companies and debt-for-equity swaps in certain income is taken into account in working out losses. circumstances. Only head company of consolidated group maintains franking account. Tax Deductions.—System of general and specific deductions applies. In general, Simplified imputation system applies from July 1, 2002. New system introduces expenses incurred either in producing assessable income or in carrying on business for franking account on tax paid basis and franking period (generally either six or 12 purpose of producing such income are deductible. Deduction not permitted to extent to months). Extent of franking credits allocated to dividend distribution known as franking which expenses are of capital, private or domestic nature. Item of expenditure may be percentage. Franking percentage can be set by taxpayer. Once franked distribution made apportioned into deductible and non-deductible components. in first franking period, benchmark rule applies to frank further distributions in that Entertainment expenses only deductible in very limited circumstances. period to same extent. Franked distributions over benchmark lead to over-franking tax. Where taxpayer incurs loss, viz excess of allowable deductions over sum of assessable Franked distribution under benchmark leads to under-franking penalty debit to franking and exempt income, loss can be carried forward indefinitely and deducted in subsequent account. Franking deficits tax will apply if franking account is in deficit at end of income income years. Company can only carry forward loss if either there has not been change year. While generally this can be offset against company’s future income tax liabilities, in majority ownership or company carries on same business. Application of same busi- offset may be reduced where there has been excessive over franking. ness test restricted by A$100 million income ceiling. From 2002/03 year, companies can From July 1, 2000, eligible taxpayers (individuals, trustees and superannuation choose to limit losses they utilize in year. funds—not companies) entitled to refund of imputation credits for excess over income Commercial debt forgiveness measures provide that net amount of certain commercial tax liability. debts forgiven is applied to reduce debtor’s accumulated revenue losses, net capital losses, certain undeducted expenditures and cost bases of assets. Australian and New Zealand governments now provide tax relief on trans-Tasman Previous rules allowing deduction for depreciating value of assets consolidated into dividends. new uniform capital allowances (UCA) rules in 1997 Act. Rules apply in general to Taxation of Public Trading Trusts.—Company tax arrangements extend to public unit depreciating assets from July 1, 2001. Specific rules remain in UCA for some primary trusts that carry on trade or business. Taxable income of public trading trust taxed at production, mining and exploration and software development expenses. Generally tax- company rate. Distributions to unit-holders taxed at rate applicable to company divi- payer entitled to claim deduction for decline in value of depreciating asset over its dends, subject to imputation system. effective life. Only taxpayer that “holds” asset entitled to claim deduction. “Holder” of Superannuation.—Concessional tax rate of 15% applies to all taxable contributions and asset is determined to be its economic holder, not just legal owner, though the two can fund income provided fund complies with Superannuation Industry (Supervision) Act coincide. Adjustments can occur on disposal of depreciating asset. 1993 effective July 1, 1994. Non-complying funds are subject to tax at top marginal rate Separate depreciation provisions remain for capital works (including buildings) and (45%) on income which includes employer contributions (even though not deductible) film expenditure. and realised capital gains. Members are generally taxed on benefits paid from super- Incentive deductions apply to encourage investment (but coupled with qualifications annuation fund. However, special tax treatment applies. (§§27A-27J of 1936 Act). Pro- and anti-avoidance measures). Includes: certain infrastructure borrowings, development posal to abolish “reasonable benefit limits” and tax on benefits from taxed source for allowance, pooled development funds, gifts, Australian films, intellectual property rights, people over 60 years from July 1, 2007. R&D expenditure and environment-related incentives. Between 1996/97 and 2004/05 years fund may be liable to pay superannuation con- From July 1, 2005, provision of last resort allows deductibility over five years for tributions tax on contributions of members if their ‘‘adjusted income’’ is greater than business capital expenditures (and some pre-business expenditures) not elsewhere rec- surcharge threshold. From 2005/06 year, surcharge abolished. For complying funds, CGT ognized in taxation laws. imposed on gains arising on disposal of all assets, whenever acquired. CGT discounts Taxpayers.— and indexation limitations were introduced in 1999. Superannuation fund has ability, in Individuals.—Individuals required to lodge annual tax returns if their annual income certain instances, to elect 331⁄3% discount on capital gains or have frozen cost base used exceeds A$6,000, usually by end of Oct. for previous financial year (July 1 to June 30). in calculating gains with no CGT discount. Funds can use imputation system and foreign Progressive marginal tax rates for 2006/07 year and later years (in AUD pa/marginal tax credit system to reduce tax liabilities. Income determined as if fund trustee were rate): up to A$6,000/nil; A$6,001-$25,000/15%; A$25,001-$75,000/30%; A$75,001- resident taxpayer, subject to some adjustments. Investment income, net capital gains, $150,000/40%; A$150,001+/45%. These rates apply to resident taxpayers. Families meet- taxable contributions and premium rebates or refunds generally included in assessable ing particular requirements are eligible for family assistance under program commenced income. Usual range of deductions available to taxpayers under 1936 and 1997 Acts July 1, 2000. Family assistance administered by Family Assistance Office. Income av- available to superannuation funds. Expenses for death or disability benefits (either on eraging scheme will still apply to artists, composers, inventors, performers, production premiums basis or actual cost basis) also allowable deductions. associates, sportspersons, writers and primary producers to prevent over-taxing of fluc- From July 1, 1997, age-based limits imposed on amount of deduction employer tuating incomes over tax years. allowed for contributions made to complying fund on behalf of each employee. Proposal Rebates subtracted from tax after it has been calculated. Rebates available to individual to substitute with single rate of concessional contributions of $50,000 p.a. for each taxpayers for dependants, housekeepers, medical expenses and income arrears and are employee. Employer which fails to make superannuation contributions in respect of also available for low income earners and certain superannuation contributions and employees (extended definition applies) at rate set out in Superannuation Guarantee private health payments. (Administration) Act 1992 (9% for 2002-2003 and subsequent years) obliged to pay

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INCOME TAX . . . continued Under U.S.A. Convention, income from real property is taxed by contracting state in superannuation guarantee charge of amount equal to shortfall, plus interest and admin- which situated. Business profits of enterprise of one contracting state taxable only in that istration fee. Superannuation Guarantee Charge not deductible to employer. Amount paid State unless enterprise carries on business in other contracting state through ‘‘permanent to superannuation fund by ATO for relevant employee. establishment’’ (extensively defined). If there is permanent establishment, only so much Nonresidents liable to Australian income tax on all income derived directly or in- of business profits as are attributable to establishment can be taxed by other contracting directly from all sources in Australia. Income derived by nonresident from sources state. Profits of resident of one contracting state from operation in international traffic of wholly out of Australia expressly exempted from Australian income tax. Australian ships or aircraft taxable only in that contracting state. Associated enterprises are taxed company receiving income from foreign sources can pay nontaxable dividends to foreign as if operating at arm’s length. shareholders if they declare it to be foreign conduit income. Certain dividends, royalties Dividend, interest and royalties from sources in one contracting state to which resident and interest paid to nonresidents subject to withholding tax: this tax must be withheld of other state entitled may be taxed in other contracting state. May also be taxed in from payment to nonresident and remitted to ATO. PAYG system is mechanism by which contracting state of source, subject to certain rate limits. New protocol generally limits withholding tax is collected. Amount represents final tax liability on income. Withholding dividend withholding tax to 15%, but eliminates dividend withholding tax on payments tax on dividends paid by resident company to nonresidents generally imposed at flat rate to controller (80%) company resident in either contracting state, and reduces dividend of 30%, but where recipient is resident of country with which Australia has double tax withholding tax to 5% for other company distributions if 10% or more shareholding. agreement, rate is generally 15%. Australian company dividends paid to Australian Interest withholding tax continues generally at 10%, but eliminated on interest derived branch of nonresident on or after June 26, 2005, taxed on net assessment basis, rather by government bodies and financial institutions and imposed at 15% if calculated by than under withholding tax. Not applicable to nonresident trusts. Dividends paid out of reference to profits. Royalty withholding tax reduced to 5% and amounts from equipment profits that have borne company tax (‘‘franked’’ dividends) not subject to withholding leasing no longer “royalty” (excluded). U.S.A. Convention also has provisions relating tax. Withholding tax applies where royalties or interest paid by resident, except where to: alienation of property, income from personal services, entertainers, pensions, annu- expense of carrying on business outside Australia or where it is derived by nonresident ities, alimony, child support, students and governmental remuneration. carrying on business in Australia through branch. Rate of withholding tax on royalties Changes in new protocol to alienation of property article allowing source country to is 30%; but generally 10% if recipient is in country with which Australia has double tax tax capital gains not specifically covered. Petroleum Resource Rent Tax included in new treaty. Withholding tax on interest generally imposed at flat rate of 10%. From July 1, protocol. 2004, new withholding obligations apply on payments made directly or indirectly to Many double taxation agreements (DTA) contain most favoured nation (MFN) clauses nonresidents for operating/promoting casino junket tour (at 3%), for entertainment and requiring Australia to renegotiate terms of DTA with country if Australia subsequently sports activities (at individual nonresident marginal tax rate or company tax rate) and for enters into DTA with another country on more favourable terms. Reduction in with- construction and related activities (at 5%). Existing withholding obligations are unaf- holding rates in U.S.A. Convention triggered MFN obligation with U.K. resulting in fected. replaced agreement and amended protocol, generally effective from July 1, 2004, with CGT generally only arises in relation to nonresident if disposal of asset with necessary no tax on dividend where recipient is company directly holding 80% of voting power Australian connection acquired after Sept. 20, 1985. Assets with necessary connection of payer, 5% withholding tax where dividend recipient holds directly 10% of voting include land or buildings in Australia, assets used in Australian business, share or interest power, and 15% rate to other dividends. No withholding tax on interest derived by in share in resident Australian company (but if public company, only if nonresident [and financial institution or government body. Rate on royalties reduced from 10% to 5%. associates] have held at least 10%) and interest in resident Australian trust estate (but if unit trust, only if nonresident [and associates] have held at least 10%). TRANSPORTATION Taxation of Foreign Sourced Income.—1936 Act contains accruals taxation system which attributes income derived by controlled foreign companies (CFC) to certain resi- AIR NAVIGATION: dent Australian controllers (‘‘attributable taxpayers’’). Application of system depends Liability—1929 Warsaw Convention and parts of 1955 Protocol to Warsaw Con- upon whether company resident in ‘‘unlisted country’’ (tax haven) or ‘‘listed country’’. vention and 1961 Guadalajara Convention have force of law in Australia, by Civil If income is derived by foreign company resident in listed country or by foreign company Aviation (Carriers Liability) Act 1959. By that Act maximum liability of domestic resident in unlisted country where company predominantly engaged in active business, carriers for death or injury in air accidents A$500,000 per person, for other carriers then income is generally exempted from accruals system. For income subject to system, 260,000 special drawing rights (for value of special drawing rights see International taxing point for attributable taxpayers is shifted from point at which dividend paid by Monetary Agreements Act 1947). Where Pt IV of 1959 Act does not apply, Air Accidents foreign company to point at which distributable profits derived by foreign company. (Commonwealth Government Liability) Act 1963 limits liability of carriers for death or Accruals system of taxation also applies to foreign source income derived by non- injury in air accidents to A$100,000. Maximum liability of all carriers for registered resident trusts in ‘‘tax haven’’ countries where beneficiaries are Australian residents. baggage A$1,600. Carrier’s liability under Act extinguished two years after accident. Foreign investment funds (FIF) provisions apply to Australian residents who have interest in foreign company or foreign trust, even though not controlled by Australian Regulation.—Air Navigation Act 1920 approves ratification of Convention on Inter- resident, and Australian residents who have invested in foreign life assurance policy. national Civil Aviation (Chicago 1944) and amending protocols (§3A[2]) and regulates 1936 Act contains provisions to determine amount of assessable income to be included for purposes under Commonwealth Constitution §51(i). Foreign aircraft must carry cer- in such taxpayer’s income. tificates, licenses and log books issued in home country. Foreign shareholdings in Aus- tralian international airlines (other than Qantas, see subhead Deregulation, infra) re- MOTOR VEHICLE TAXES: stricted to 49%. Air Navigation Regulations control flying conditions, fares (“tariffs”), timetables, airline licenses, use of places as aerodromes, accident enquiries, security 25% luxury car tax applies to value of car over luxury car tax threshold (for 2005/06 measures and similar matters. Civil Aviation Act 1988 establishes Civil Aviation Safety year A$57,009) and effectively payable on retail sale or importation of car. Paid in Authority (CASA) to regulate civil aviation safety and operate with Airservices Australia addition to any GST payable. (Air Services Act 1995, Airports Act 1996). Airservices Australia is government enter- prise facilitating safe air navigation, air traffic services, aeronautical communications and PROPERTY TAXES: information services, search, rescue, fire fighting, and aviation environmental regulation. Land tax is imposed only by States and Territories. Civil Aviation Safety Regulations regulate registration and marking of aircraft, airwor- thiness, licensing of crew, training, maintenance, defect reporting, air services operation, SALES TAX: dangerous goods, log books, radio systems, aerodromes, conditions of flight, rules of air, signals for control of air traffic, safety audit programs and other matters. Airport De- Wholesale sales tax abolished July 1, 2000 with introduction of GST. velopment and Aviation Noise Ombudsman Bill 2006 proposes to establish Office of Airport Development and Aviation Noise Ombudsman with powers relating to impact of STAMP TAX: airport development and aircraft noise in populated areas. Civil Aviation Legislation Stamp duty is imposed only by States and Territories. See also Pt II, category Amendment (Mutual Recognition with New Zealand) Bill 2006 proposes recognition of Taxation, topic Stamp Tax. New Zealand Air Operator’s Certificates for aircraft with more than 30 seats or weighing over 15,000 kg. TREATIES AND AGREEMENTS: Under Air Navigation Act 1920 cockpit voice recording not admissible in court pro- ceedings against crew member (§§19HE, 19HF), but party seeking damages may apply International Double Tax Agreements.—Agreements have been reached with Ar- to court for order recording be admissible. gentina, Austria, Belgium, Canada, China, Czech Republic, Denmark, Fiji, Finland, France, Germany, Greece (restricted to international air transport), Hungary, India, In- Deregulation.—Qantas Sale Act 1992 privatization of Qantas Airways. Act limits total donesia, Ireland, Italy, Japan, Kiribati, Korea, Malaysia, Malta, Mexico, Netherlands, foreign ownership of Qantas to 49%, including maximum 25% for foreign persons and New Zealand, Norway, Papua New Guinea, Philippines, Poland, Romania, Russia, Sin- maximum 35% for foreign airlines. gapore, Slovakia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Taiwan, Thai- Commonwealth sold Essendon Airport 2001, Sydney Airport 2002, Bankstown, Cam- land, U.K., U.S.A., and Vietnam. All agreements governed by International Tax Agree- den and Hoxton Park airports 2003. ments Act 1953. Tax agreements prevail over any conflicting provisions in 1936 or 1997 Domestic passenger market remains deregulated since Airlines Agreement (Termina- Acts and over any other Act imposing Australian tax other than general anti-avoidance tion) Act 1990 (since repealed). provisions or §160AO (which deals with tax credits). Government is in process nego- Airports.—Airports Act 1996. Commonwealth can lease out airports. Only one com- tiating Double Tax Agreement with Chile and South Korea, and finalizing Double Tax pany can lease each airport site. Company cannot lease more than one airport site. Agreement with Turkey. Transfer of leases restricted. Airport lessee company can contract out management of Income Tax Convention signed on Aug. 6, 1982 and came into force in Australia on airport to another company. Obligations to use airport site for purpose consistent with Oct. 31, 1983, between Australia and U.S.A. (U.S.A. Convention) for avoidance of continued use of airport. Minister must approve management agreements. Foreign own- double taxation and prevention of fiscal evasion with respect to taxes on income. 1983 ership of airport operator companies restricted to 49%, cross ownership to 15%, and Convention replaced and extended 1953 Convention. New protocol amending U.S.A. airline ownership to 5%. Act regulates land use, building activities, environmental man- Convention signed Sept. 27, 2001 given effect by International Tax Agreements Act (No. agement, reporting to and monitoring by Australian Competition and Consumer Com- 1) 2002. New protocol to apply for withholding tax purposes to payments made on and mission, protection of airspace around airports and access to airports services. Regula- after July 1, 2003. For other taxes covered, protocol to apply from July 1, 2004. tions may implement international agreements on airports.

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AIR NAVIGATION . . . continued imposes liabilities on member States regarding pollution from ships and ship construc- Aviation Legislation Amendment Act 2002 repeals Federal Airports Corporation Act tion. Covers discharges from ships in Australia’s Exclusive Economic Zone. Act provides 1986; transfers contracts, assets and liabilities of Federal Airports Corporation to Com- for detention of any foreign vessels suspected of causing maritime pollution in Australia’s monwealth. Adelaide Airport Curfew Act 2000 and Sydney Airport Curfew Act 1995 Exclusive Economic Zone. restrict hours of flight operations at Adelaide and Sydney Airports. Protection of the Sea (Oil Pollution Compensation Fund) Act (1993) gives effect to Fees & Charges.—Passenger Movement Charge Act 1978 imposes A$38 passenger International Convention on the Establishment of an International Fund for Compensa- movement charge. Air Passenger Ticket Levy (Imposition) Act 2001 and Air Passenger tion for Oil Pollution Damage (1971). Ticket Levy (Collection) Act 2001 impose $10 levy on Australian flights when ticket Protection of the Sea (Civil Liability) Act 1981 implements certain provisions of obtained in Australia. International Convention on Civil Liability for Oil Pollution Damage (1969) and provides for recovery for loss incurred by Australian Maritime Safety Authority in combating Hijacking.—Air Navigation Act 1920 and Civil Aviation Act 1988 provide aircraft not maritime pollution. of contracting state nationality (party to Convention on International Civil Aviation, Environment Protection (Sea Dumping) Act 1981: offenses in relation to dumping, Chicago 1944) cannot make nonscheduled flight into Australian territory without per- incineration and artificial reef placement; liability for Commonwealth’s expenses in- mission of CASA. Crimes (Aviation) Act 1991 relates to hijacking and other unlawful curred remedying damage in relation to offenses. Act implements aspects of 1996 Pro- acts in respect of air transport, partly implements Convention on Offences and Certain tocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes other Acts Committed on Board Aircraft (Tokyo 1970). Crimes (Hostages) Act 1989 and Other Matter (1972). implements International Convention Against Taking of Hostages (Washington 1979). See category Environment, topic Environmental Regulation. Aviation Transport Security Act 2004 establishes regulatory framework to prevent unlawful interference with aviation. Aviation industry participants required to implement Foreign ships taking on board passengers or cargo in Australia, to be landed at any and comply with transport security programs. Secretary of Department may designate other port in Australia (“coasting trade”) liable to certain provisions of Navigation Act airports as security controlled airports. Includes enforcement, penalty, defense and appeal 1912. Pt VI must be licensed, seamen to be paid Australian rates of pay. Coasting traders provisions. (See also topic Shipping: Customs Legislation Amendment [Airport, Port and trading beyond Australia must pay seaman’s wages before departure from Australia, Cargo Security] Act 2004.) Aviation Transport Amendment Bill 2006 proposes system of master must produce evidence of payment. General provisions for terms of employment, event zones for security controlled airports to vary security during events. discipline, manning, qualifications, health and accommodation apply to coasting trade. Levies.—All nonexempt ships in Australian waters liable to Commonwealth levies. NAVIGATION: Marine Navigation Levy Act 1989 and Regulations 1991 impose levy for navigation See topic Shipping. services: 23.5c per ton up to 5,000 tons, 12c per ton between 5,000 and 20,000 tons, 7c per ton between 20,000 and 50,000 tons, 2.5c per ton over 50,000 tons, payable in ROAD TRANSPORT: accordance with Marine Navigation Levy Collection Act 1989 and Regulations 1990. Marine Navigation (Regulatory Functions) Levy Act 1991 and Regulations 1992 impose Interstate Transport.—Interstate Road Transport Act 1985. Motor vehicles traveling levy for safety and regulatory services: 17c per ton up to 5,000 tons, 17.1c per ton between prescribed interstate routes to be registered. Interstate Road Transport Charge between 5,000 and 20,000 tons, 17c per ton between 20,000 and 50,000 tons, 15.5c per Act 1985 imposes registration fees (see Schedule to Act). Size and weight restrictions ton over 50,000 tons, payable in accordance with Marine Navigation (Regulatory Func- regulated by Road Transport Reform (Heavy Vehicle Standards) Regulations 1995, Road tions) Levy Collection Act 1991 and Regulations 1991. Transport Reform (Mass and Loading) Regulations 1995 and Road Transport Reform (Oversize and Overmass Vehicles) Regulations 1995. Trade Practices Act 1974 (see Pt I, category Business Regulation and Commerce) prohibits restrictive trade practises. Pt X creates specific partial and conditional excep- National Road Rules.—National Transport Commission Act 2003 establishes Com- tions to §45 (contracts, arrangements or understandings that restrict dealings or affect mission to develop and maintain nationally consistent operational and regulatory reforms competition) and §47 (exclusive dealing) for International Liner Cargo Shipping. Ex- on road, rail and intermodal transport. Act provides for making regulations in line with ceptions permit continued conference operations by Australian flag shipping through intergovernmental agreement. Under Road Transport Reform (Vehicles and Traffic) Act registered agreements. 1993 Commonwealth makes regulations for Australian Capital Territory (see Pt II, cat- egory Introduction, topic Government and Legal System) adopting Australian Road Rules Maritime Security.—Maritime Transport and Offshore Facilities Security Act 2003 1999 published by National Transport Commission (current edition Oct. 22, 2003). applies to (subject to constitutional limitations) non-military ships, passenger ships, cargo Australian Road Rules adopted in whole or substantially in each State or Territory: Traffic ships of 500 or more gross tonnes, mobile offshore drilling units or ship prescribed by Regulations 1999 (NT); Road Transport (Safety and Traffic Management) (Road Rules) regulation and foreign ships that are passenger ships and, if foreign, ships in Australian Regulation 1999 (NSW); Australian Road Rules 1999 (SA); Road Traffic Code 2000 waters intending to proceed to Australian ports. Act mandates development of and (WA); Road Safety (Road Rules) Regulations 1999 (Vic); Transport Operations (Road compliance with security plans, possession of International Ship Security Certificates, Use Management-Road Rules) Regulations 1999 (Qld); Traffic (Road Rules) Regulations compliance with security directions, provision of certain information. Secretary of De- 1999 (Tas). partment can establish maritime security zones subject to additional security require- ments. Failure to comply attracts penalties. Maritime Transport Security Amendment Act SHIPPING: 2005 extends Act’s coverage to Australia’s offshore oil and gas facilities and prescribes additional security measures such as introduction of security identification cards and Navigation Act 1912 applies to Australian and foreign non-defense or military ships. offshore security plans. Maritime Transport and Offshore Facilities Security Amendment Foreign application limited to imported ships, Australian crewed or operated ships and (Maritime Security Guards and Other Measures) Bill 2006 proposes to amend Act to ships operating within Australian territorial waters. Act provides for ships’ seaworthiness, create additional powers for maritime security guards. lifesaving appliances, fire protection, deck and load lines, signals, radio equipment, Border Protection Legislation Amendment Act 1999 amended Customs Act 1901, compasses, collisions, gear, dangerous goods, accidents, prevention of pollution, crew Migration Act 1958 and Fisheries Management Act 1991 to strengthen people smuggling employment, qualifications, health, accommodation, survey and safety certificates, pas- prevention powers by introducing new powers for Australian authorities to board, chase, sengers, coasting trade, wrecks and salvage, ship owners’ liability, legal proceedings and search, move and destroy ships and aircraft involved in people smuggling, or which are tonnage measurement. Trading ship under State or Territory jurisdiction can be brought unseaworthy or pose serious risks to navigation, safety, public health or environment. under Federal jurisdiction on application by owner. Act creates Marine Council (§424) Customs Legislation Amendment (Airport, Port and Cargo Security) Act 2004 amends which has power to make recommendations on suitability of person for service at sea, Customs Act 1901 to require operators of aircraft and ships leaving Australia to provide and has jurisdiction over collision regulations. Act provides for regulations relating to information about passengers and crew. Customs officers able to detain and question maritime pilots in Australian coastal sea. Act adopts provisions of International Con- persons suspected of committing certain offenses. Regulations prescribe rules relating to vention on Salvage (London 1989). Navigation (Ship Reporting) Regulations 1981 stipu- reporting deadlines: Customs Regulations 1926 as amended. (§26C). late form of sailing plans, position reports and final reports required under Navigation Act 1912. Compensation.—Seafarers Rehabilitation and Compensation Act 1992 establishes system of compensation and rehabilitation for seafarers injured in course of employment. Admiralty Jurisdiction.—Admiralty Act 1988 applies to all non-inland ships and Act applies to employees on prescribed ship engaged in trade or commerce with other maritime claims. Admiralty jurisdiction conferred on Federal Court, Federal Magistrates’ countries or among States and Territories. Prescribed ship is ship to which Pt II of Court (for acts in personam only) and State and Territory Supreme Courts. Actions in Navigation Act applies but does not include Government ships. Compensation payable rem against ship, including service of process, must comply with Act. Provision for by employer for medical expenses, loss of earning capacity, damage to property and claims under international maritime liability conventions. non-economic loss. Employer to pay benefit on death of, or permanent injury to, em- Limitation of Liability for Maritime Claims Act 1989 applies nearly all provisions ployee. Employer to insure full liability under Act. Rehabilitation provisions to get of Convention on Limitation of Liability for Maritime Claims (London 1976) as amended employee back to suitable employment. Act establishes Seafarers Safety Rehabilitation at London May 2, 1996. and Compensation Authority to monitor operation of Act. Carriage of Goods.—Carriage of Goods by Sea Act 1991 adopts International Con- Shipping Registration Act 1981 requires Australian-owned ships to be registered. vention for Unification of Certain Rules of Law Relating to Bills of Lading, (Brussels Ship is any vessel capable of navigating high seas. Australian-owned if majority owned 1924) as amended by SDR Protocol (Brussels 1979) and United Nations Convention on by Australian nationals. Fishing vessels, government and defense force ships, pleasure the Carriage of Goods by Sea, including Annex 1 and 2 of Final Act of the UN craft and ships less than 24 meters exempt. Australian Maritime Safety Authority can Conference on the Carriage of Goods by Sea (Hamburg 1978). Act’s adoption of con- exempt Australian-owned ship operated by foreign resident under demise charter from ventions introduces regime of marine cargo liability. Carrier to ensure ship seaworthy, registration. cargo-worthy, properly manned, equipped, supplied, loaded. Due diligence defense for Naval Defence Act 1910 provides for organization of Australian Navy. Amended by carrier and vessel from liability for loss or damage arising from unseaworthiness. Defence Legislation Amendment (Enhancement of the Reserves and Modernization) Act Pollution.—Navigation Act 1912, construction certificates to ensure tankers environ- 2001 to modernize organization and structure of Reserve Forces—enables call out of mentally safe. Offenses if uncertified tankers, including foreign tankers, enter Australian Naval Reserve Forces in circumstances less than in defense of Australia. Defence Leg- port. Protection of the Sea (Prevention of Pollution from Ships) Act 1983 implements islation Amendment (Aid to Civilian Authorities) Act 2006 amends 1910 Act to enable International Convention for the Prevention of Pollution from Ships (London 1973) as call out of Australian Navy as last resort in response to incidents or threats to Com- amended by 1978 Protocol. Act gives effect to Australia’s obligations under Annex IV monwealth interests. During call out, Commonwealth responsible for criminal offenses of Protocol on Environmental Protection to the Antarctic Treaty. Act bestows benefits and committed by personnel.

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Australia is party to many international conventions, treaties and agreements. These TREATIES AND CONVENTIONS include Geneva Conventions of 1949 (and Protocols I and II), Status of Refugees TREATIES: Convention 1951, Patent Co-operation Treaty 1970, Treaty on the Non-proliferation of Nuclear Weapons 1968 and 1974, United Nations Convention on the Law of the Sea Australia-U.S. Free Trade Agreement agreed Feb. 8, 2004, Washington, signed May 1982, South Pacific Nuclear Free Zone Treaty 1985, Treaty on Fisheries between the 18, 2004, Washington. Entered into force Jan. 1, 2005. Governments of Certain Pacific Island States and the Government of the U.S.A. 1987, Australia-Thailand Free Trade Agreement signed July 5, 2004. Entered into force Jan. United Nations Framework on Climate Change 1992 (Kyoto Protocol 1977 signed but 1, 2005. not ratified), Convention for Pacific Settlement of International Disputes and Convention Australia-Singapore Free Trade Agreement entered into force July 28, 2003. on Nuclear Safety (Vienna 1994), Comprehensive Nuclear-Test-Ban Treaty 1996, Con- Australia-New Zealand Closer Economic Relations Trade Agreement entered into vention on Prohibition of Use, Stockpiling, Production and Transfer of Anti-Personnel force Aug. 18, 1988. Mines and their Destruction (Oslo 1997), Rome Statute on the International Criminal Australia is party to General Agreement on Tariffs and Trade. It has entered into Court 1997, International Convention for the Suppression of the Financing of Terrorism, bilateral preferential trade agreements with Canada, Malaysia, New Zealand and Papua United Nations Convention against Corruption (New York, Oct. 31, 2003) and numerous New Guinea. In addition it has concluded bilateral trade agreements with following human rights Treaties and Conventions. See also Australian Treaty List, Treaty Series, countries: Bahrain, Bolivia, Brazil, Bulgaria, China, Croatia, Cyprus, Czech Republic, Department of Foreign Affairs and Trade. Egypt, Estonia, European Union, Fiji, Hungary, India, Indonesia, Iran, Iraq, Israel, Italy, Note: High Court in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 Japan, Jordan, Kazakhstan, Republic of Korea, Latvia, Lebanon, Lithuania, Mexico, CLR 273 held, ‘‘ratification of a convention is a positive statement by the executive Morocco, Nigeria, Oman, Pakistan, Peru, Philippines, Poland, Romania, Russia, Thai- government of this country to the world and to the Australian people that the executive land, Turkey, Ukraine, United Arab Emirates, U.S.A., Venezuela, and Socialist Republic government and its agencies will act in accordance with Convention’’ (at 432). Therefore, of Vietnam. Australia also has arrangement with U.S.A. for consultation on trade matters absent any statutory or executive indications to contrary, Australia’s ratification of Con- (TIFA). vention is adequate foundation for legitimate expectation that decision-makers will act May 13, 2003 Australia and U.S.A. exchanged instruments of ratification of protocol in conformity with terms of Convention. However, since this decision, Minister for amending Australia-United States Income Tax Convention for evidence of double taxa- Foreign Affairs and Attorney-General have issued joint statement concerning legitimate tion and prevention of fiscal evasion in respect to taxes on income, bringing protocol into expectations based on treaties. Statements in both 1995 and 1997 have said, on behalf effect. Protocol amends tax treaty between Australia and U.S.A. For withholding tax, of Commonwealth Government, that act of entering into treaty should not give rise to protocol to have effect to payments made on or after July 1, 2003. For other taxes such expectations but matter has not yet been resolved by legislation and principle still covered, protocol has effect in respect to income, profits or games of years of income applies. beginning on or after July 1, 2004. Australia and East Timor signed East Timor Treaty and Memorandum of Understand- International Sale of Goods.—United Nations Convention on Contracts for the In- ing concerning international agreement for Greater Sunrise Field on May 20, 2002 and ternational Sale of Goods, in force on Apr. 1, 1989. See also Pt II of this Digest, category exchanged Notes constituting agreement governing exploration and exploitation of Business Regulation and Commerce, topic Sales and Pt V, Selected International Con- petroleum in area. East Timor Treaty came into force on Apr. 2, 2003. See also category ventions. Minerals, Water and Fishing Rights, topic Mines and Minerals. Terrorism.—Sept. 28, 2001 UN Security Council adopted Resolution 1373 (2001), See also Pt I, categories Courts and Legislature, topic Administrative Appeals, subhead imposing series of obligations on UN Member States to suppress terrorism. Includes Treaties; Citizenship, topic Discrimination; Dispute Resolution; Environment, topic En- obligation to freeze assets, funds or economic resources of persons and entities who vironmental Regulation; Foreign Trade and Commerce, topics Customs, Foreign Trade commit or attempt to commit, terrorist acts or participate in or facilitate commission of Regulations; Intellectual Property, topics Copyright, Design, Patents; Taxation, topics terrorist acts. From Dec. 13, 2002, obligation implemented in Australia through Pt 4 of Income Tax, Treaties and Agreements; Mineral, Water and Fishing Rights, topics Energy, Charter of the United Nations Act 1945 and Charter of the United Nations (Terrorism Mines and Minerals; Transportation, topic Shipping. Pt II, categories Courts and Leg- and Dealings with Assets) Regulations 2002. Pt 4 of Act and 2002 Regulations replace islature, topic Administrative Appeals, subhead Treaties; Business Regulation and Com- Charter of the United Nations (Anti-terrorism Measures) Regulations 2001 that had been merce, topic Sales. in operation since Oct. 15, 2001. PART II THE STATES INTRODUCTION HOLIDAYS: In all States Jan. 1 (New Year’s Day), Jan. 26 (Australia Day), Good Friday, Easter GOVERNMENT AND LEGAL SYSTEM: Monday, Apr. 25 (Anzac Day), Queen’s Birthday (which is celebrated on proclaimed date), Dec. 25 (Christmas Day) and Dec. 26 (Boxing Day, or Proclamation Day in South States continue to retain constitutions which, as colonies, they possessed prior to Australia) are public holidays. Labour Day, celebrated on different days in different federation, except as modified by Commonwealth Constitution and as amended by State States, is also a holiday, as is Easter Tuesday (in Tasmania). Some places celebrate public Parliaments from time to time. holidays in honor of premier horse race (e.g., Melbourne Cup Day in Melbourne only on first Tues. in Nov., or Adelaide Cup Day in Adelaide in May) or agricultural show The governors of the States are appointed by the Queen on the advice of the State (e.g., Brisbane Show Day in Queensland, Alice Springs Show Day in Northern Territory). Government, and occupy a similar position and carry out similar duties to the Governor- Individual States’ holidays include Foundation Day (June: Western Australia), Canberra General in the Commonwealth and the Queen in England. Day (Mar.: Australian Capital Territory), Picnic Day (Aug.: Northern Territory), May Day (May: Northern Territory). Parliament.—Every State has separate parliament, which, except in State of Queens- Bills of Exchange and promissory notes apparently payable on Sundays or public land, consists of two houses, both being elected. Sitting patterns of each house in States holidays, may be paid on the day following. In general, no person is compellable to do and Territories vary. See website for each State and Territory for current sitting schedule: any act or make any payment on public holiday which he would not be obliged to do http://www.parliament.nsw.gov.au (NSW); http://www.parliament.sa.gov.au (SA); http:// or make on Sun. Position with regard to Sun. is governed by statutes in each State www.parliament.tas.gov.au (TAS); http://www.parliament.vic.gov.au (Vic); http://www. regulating particular situations. parliament.wa.gov.au/index.htm (WA); http://www.parliament.qld.gov.au (QLD); http:// In all States and Territories, where last day of period prescribed by statute or ordinance www.legassembly.act.gov.au (ACT); http://www.nt.gov.au/lant (NT). for doing anything falls on Sat., Sun., or public or bank holiday in place where thing is Statute of Westminster 1931 (U.K.), Act of United Kingdom Parliament, established to be done, thing may be done on first day following that is not Sat., Sun., or public or in U.K. legislation independence of government of Commonwealth of Australia, and bank holiday. governments of other former Dominions of U.K. Statute of Westminster was adopted by Commonwealth of Australia passing Statute of Westminster Adoption Act 1942 (Cth). It OFFICE HOURS AND TIME ZONE: had no application to States. State legislatures had no power to amend or repeal para- mount British legislation which had entered into legislation of States. British amending New South Wales, Victoria, Queensland, Tasmania and Australian Capital Territory are acts would not apply unless clear and unequivocal statement that British parliament ten hours ahead of Greenwich Mean Time (GMT). South Australia and Northern Territory intended amending acts to apply to States. However, all States have enacted Australia are 9.5 hours ahead of GMT. Western Australia is eight hours ahead of GMT. From end Acts (Request) legislation which, with Australia (Request and Consent) Act 1985 and Oct. to end Mar., New South Wales, Victoria, South Australia and Australian Capital identical legislation in U.K. Parliament, remove legal incidents of colonial status from Territory (Tasmania from beginning Oct. to end Mar.) have daylight savings time, one Mar. 3, 1986. State legislative power defined in broad terms, but Australia Act 1986 extra hour ahead of GMT. Office hours are generally from 9 a.m. to 5 p.m. means States cannot repeal, amend or enact legislation that is repugnant to Common- wealth Constitution and Constitution provides that Commonwealth legislation prevails in event of inconsistency with any state legislation. (§109). BUSINESS ORGANIZATIONS Territories.—Northern Territory (Self-Government) Act 1978 substantially grants lo- AGENCY: cal autonomy to Northern Territory. Act gives Northern Territory control over its own Existence of relationship of principal and agent is question of fact, and agency may treasury as well as general grant of plenary legislative powers to elected unicameral exist notwithstanding fact that agent is described as buyer, or referred to by some term Legislative Assembly. Many South Australian laws passed between 1841 and 1910 still inconsistent with agency, and vice versa. Relationship of principal and agent may arise: apply in Northern Territory. (a) By express appointment; (b) by implied agreement whereby conduct of parties toward In Australian Capital Territory, Seat of Government (Administration) Act 1910 grants each other makes it reasonable to infer consent to relationship of agency; (c) as result power to Governor-General to make Ordinances for government of Australian Capital of doctrine of estoppel whereby principal represents to third party by conduct or words Territory. Under Seat of Government Acceptance Act 1909, certain laws of New South that person is their agent; (d) by ratification whereby principal ratifies and adopts contract Wales have effect in Australian Capital Territory. Australian Capital Territory (Self- entered into by professed agent without previous authority; (e) as result of doctrine of Government) Act 1988 establishes independent Legislative Assembly. Commonwealth necessity; or (f) as result of presumption arising from cohabitation. Agent owes certain still retains power to disallow legislation passed by territory legislatures. duties to their principal including duty to perform and certain fiduciary duties (e.g., to

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AGENCY . . . continued partners. Partnership will also be dissolved by expiration of time specified in partnership make full disclosure, avoid conflicts of interest and not to profit from position). Third agreement; by death of any one member of partnership, unless there is agreement to persons dealing with agent may have recourse against principal or agent or both. A del contrary; by bankruptcy of any one partner, unless there is agreement to contrary; or by credere agent guarantees to their principal due performance by third persons of contract happening of any event which renders business of firm illegal. Courts have wide powers he enters into on behalf of principal. Del credere agency may be implied from facts to dissolve partnerships. showing agent was charging additional commission for risk. Relevant Acts are Partnership Act 1892 (NSW); Partnership Act 1958 (Vic); Partner- ship Act 1891 (SA); Partnership Act 1891 (Qld); Partnership Act 1895 (WA); Partnership ASSOCIATIONS: Act 1891 (Tas); Partnership Act 1963 (ACT); Partnership Act 1997 (NT). Unincorporated associations or partnerships of more than 20 persons formed for purpose of acquisition of gain by association or partnership or by individual members thereof are prohibited unless partnership or association is incorporated or formed under BUSINESS REGULATION AND Australian law (Corporations Act 2001 §115) or is limited partnership. Corporations Act 2001 permits partnerships in certain proclaimed professions to consist of more than 20 COMMERCE persons. Limit for solicitors is 400 persons, for architects, chemists, and veterinary BILLS OF SALE: surgeons is 100 persons, for sharebrokers, stockbrokers, medical practitioners, actuaries, See category Mortgages, topic Chattel Mortgages. patent attorneys and trademark attorneys is 50 persons, and for accountants is 1,000 persons. Law also makes provision for winding up of associations. COMMERCIAL REGISTER: In all States and Territories provision has been made for incorporation of associations not formed for purpose of trading or securing pecuniary benefit to members and which See category Business Organizations, topics Business Names, and Corporations. also (for purposes of South Australia, Western Australia, Tasmania and Northern Terri- tory) have purpose that falls within certain listed purposes (Associations Incorporation CONSUMER PROTECTION: Act 1981 [Vic]; Associations Incorporation Act 1984 [NSW]; Associations Incorporation All States and Territories have enacted legislation establishing bodies to investigate Act 1981 [Qld]; Associations Incorporation Act 1985 [SA]; Associations Incorporation matters affecting interests of consumers and to make recommendations in relation thereto Act 1987 [WA]; Associations Incorporation Act 1964 [Tas]; Associations Incorporation to respective Governments, to advise and receive complaints from consumers and to Act 1991 [ACT]; Associations Act 2003 [NT]). Incorporated body has power to hold conduct research into matters affecting consumers. See Fair Trading Act 1999 (Vic); Fair property and deal with it as fully and effectually as natural person and may sue or be Trading Act 1987 (NSW); Fair Trading Act 1989 (Qld); Fair Trading Act 1987 (SA); sued in its corporate name. Contracts made on behalf of such body may be under Consumer Affairs Act 1971 (WA); Fair Trading (Consumer Affairs) Act 1973 (ACT); common seal or executed by person acting under its express or implied authority and will Consumer Affairs and Fair Trading Act 1990 (NT); Consumer Affairs Act 1988 (Tas). be effective in law and will bind association and its successors and all other parties New South Wales, Victoria and Queensland have enacted legislation establishing and thereto. Personal liability of members to creditors of association is limited solely to enabling Tribunals to deal with consumer claims. (Consumer Claims Act 1998 [NSW] express provision in rules or trust deed of association. Winding up of incorporated and Consumer, Trader and Tenancy Tribunal Act 2001 [NSW]; Fair Trading Act 1999 associations is, with necessary modifications, governed by winding up provisions of [Vic]; Small Claims Tribunals Act 1973 [Qld]). Corporations Act 2001. In New South Wales, Northern Territory and Victoria, incorpo- Remaining States and Territories provide for small claims proceedings within existing rated association may be directed to become registered as company. Acts also deal with court systems (Magistrates Court [Civil Division] Act 1992 [Tas] Pt 5, Div. 4; Small other matters, such as required contents of rules of association, voting when interested Claims Act 1974 [NT]; Magistrates Court Act 1991 [SA] Pt V, Div. II; Magistrates Court party, amalgamations, accounts, auditors, meetings, etc. Tasmania is currently reviewing Act 1930 [ACT] Pt 4.6; Magistrates Court [Civil Proceedings] Act 2004 [WA]). In its Associations Incorporation Act. addition there are various other provisions which differ between States and Territories but include requirements relating to safe design and construction of goods, product safety and BUSINESS NAMES: recall, product information standards, dangerous goods, misleading and deceptive con- Legislation in each State and Territory regulates business names (Business Names Act duct, unconscionable conduct, false or misleading representations, gifts and prizes, bait 1962 [Vic]; Business Names Act 2002 [NSW]; Business Names Act 1962 [Qld]; Business advertising, referral selling, pyramid selling, unsolicited credit and debit cards, unso- Names Act 1996 [SA]; Business Names Act 1962 [WA]; Business Names Act 1962 [Tas]; licited goods, mock auctions, door to door sales and unordered goods (See Fair Trading Business Names Act 1963 [ACT]; Business Names Act 1963 [NT]). Act 1999 [Vic]; Fair Trading Act 1987 [SA]; Fair Trading Act 1987 [WA]; Fair Trading Any person, company or partnership trading or carrying on business under name not Act 1987 [NSW]; Fair Trading Act 1989 [Qld]; Fair Trading Act 1990 [Tas]; Consumer being their full name or names, must register name as business name in State or Territory Affairs and Fair Trading Act 1990 [NT]; Fair Trading Act 1992 [ACT]; Fair Trading concerned, showing name or names of persons or company so trading or carrying on [Consumer Affairs] Act 1973 [ACT]; Sale of Hazardous Goods Act 1977 [Tas]; Door to business, and must register changes of these and other particulars from time to time, and Door Trading Act 1987 [WA]; Door to Door Trading Act 1986 [Tas]; Door-to-Door must notify proper officer if business is discontinued. Rules as to “carrying on business” Trading Act 1991 [ACT]; and Unordered Goods and Services Act 1973 [Tas].) Some Acts and acts not regarded as such (e.g., Victoria—not carrying on business merely because also imply certain terms into sales and/or leases of goods to consumers (e.g., Pt 2A Fair funds invested or property held in State). Business name must be used and cannot be Trading Act 1999 [Vic]; Consumer Transactions Act 1972 [SA]). registered merely as device to prevent use by others. Business names will not be reg- Pt V Fair Trading Act 1987 (SA), Consumer Affairs and Fair Trading Act 1990 (NT) istered if deceptive or likely to cause confusion with other business names or company and Credit Reporting Act 1978 (Vic) confer on consumers certain rights in relation to names reserved or registered in State or Territory in question. Australian Securities and accumulated information that might be used to their detriment, e.g., credit information. Investments Commission may act as agent of proper officer. Business name registers kept In New South Wales similar provisions apply by self-regulation of interested parties. in each State and Territory. Privacy Act 1988 provides for national regulation of consumer credit reporting to prevent Business Names Acts do not expressly confer on persons registered any right to enjoin privacy abuse and to establish uniformity between States and Territories in this area. See others from misappropriating registered business names, but such persons have usual also Pt I, category Business Regulation and Commerce, topic Banking and Currency, rights against those who misappropriate distinctive features of their businesses, e.g., subhead Privacy. action for ‘‘passing-off.’’ (See Pt I, category Intellectual Property, topic Trademarks, Chattel Securities Act 1987 (Vic) and Chattel Securities Act 1987 (WA) regulate subhead Unregistered Trademarks.) granting and taking of security over goods (see category Mortgages, topic Chattel Mort- gages). All States and Territories have consumer credit legislation in force; Consumer CORPORATIONS: Credit (Victoria) Act 1995, Consumer Credit (New South Wales) Act 1995, Consumer Credit (Queensland) Act 1994, Consumer Credit (Tasmania) Act 1996, Consumer Credit Governed by Corporations Act 2001. See Pt I, category Business Organizations, topic (Northern Territory) Act 1995, Consumer Credit (South Australia) Act 1995, Consumer Corporations. Credit Act 1995 (ACT), Consumer Credit (Western Australia) Act 1996. Acts incorporate Consumer Credit Code which operates in all States and Territories. Code regulates FOREIGN CORPORATIONS: negotiation of credit contracts, interest charges, fees, mortgages, guarantees, related sale See Pt I, category Business Organizations, topic Corporations. contracts, related insurance contracts, enforcement and advertising. Code not limited to financial institutions. Applies to any person who carries on business, if consumer credit PARTNERSHIPS: provided as part of, or incidentally to, business. Membership.—See topic Associations. See also topic Interest. Liability.—Partners are jointly liable for debts of partnership, and may sue and be CONTRACTS: sued in partnership name. Order in bankruptcy may be made against partnership and operates as sequestration of estates of several partners. Corporations may be partners, The law of contracts throughout Australia, especially with regard to necessity for provided they have such power under their constitution or other charter or (if pursuant consideration and effect of sealing, follows English law. Certain contracts require written to Corporations Act company chooses not to list any objects) provided such power is not evidence to make them enforceable. See topic Frauds, Statute of. See also category expressly prohibited in those documents. In most States and Territories there is statutory Property, topic Deeds. provision for limited partnerships whereby some partners may have limited liability: Electronic Commerce.—See topic Information Technology, Internet and New Media, Partnership Act 1891 (Qld); Limited Partnerships Act 1909 (WA); Limited Partnerships subhead Electronic Commerce. Act 1908 (Tas); Partnership Act 1892 (NSW); Partnership Act 1891 (SA); Partnership Act Excuses for Nonperformance.—Nonperformance of contract legal and valid at time 1963 (ACT); and Partnership Act 1958 (Vic); Partnership Act 1997 (NT). of agreement only excused if clause specifically excuses performance in circumstances Form.—No particular formalities are necessary to constitute a partnership, the contract or if contract frustrated. Contract regarded as frustrated if event or change of circum- for which may be either verbal or written, expressed or implied (except partnerships stances so fundamental that strikes at root of contract and entirely beyond what was effecting transfer of interest in real property and partnerships that will exist for more than contemplated by parties when they entered into agreement. At common law, loss lay a year which must be evidenced in writing). where it fell, unless total failure of consideration, when money recoverable. New South Agreement for partnership which is to last for more than a year need not be in writing, Wales, Victoria, South Australia have Frustrated Contracts Acts, to apply subject to if it has been partly performed. Where no fixed term has been agreed upon for part- express provision in contract for frustrating event. Under statute, money paid before nership, any partner may dissolve partnership at any time by giving notice to other frustrating event recoverable, whether failure of consideration total or partial. Relief

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CONTRACTS . . . continued tralia prohibited: (a) Any Internet content classified RC or X18+ by Classification Board; available in certain circumstances involving unjust, harsh or oppressive contracts or and (b) content hosted in Australia classified R18+ and not subject to restricted access unconscionable conduct. See Contracts Review Act 1980 (NSW) and Trade Practices Act system. Unless content falls within above categories ACMA cannot take action. Act does 1974. Misrepresentation Act 1972 (SA) generally similar to common law. Funerals not make it offense for content host to host prohibited content, however, under Broad- (Pre-Paid Money) Act 1993 (Vic) gives certain rights and protections to persons who casting Services Amendment (Online Services) Act 1999, Internet content hosts must prepay for funerals. delete Australian hosted content from server if determined “objectionable” or “unsuitable See also topics Consumer Protection and Interest. for minors” on receipt of take-down notice from ACMA. Failure to do so may be offense. Applicable Law.—Essential validity of contract governed by its proper law which, in Content Hosted in Australia.—Commonwealth law applies to Internet content hosts case of contract with private international element, if not expressly specified by parties, (ICHs) including Internet Service Providers (ISPs), but not to content creators/providers. is law of country with which contract has most “real connection”. Capacity to enter For purpose of investigating complaint about Internet content and administering regis- commercial contract generally governed by proper law. Courts will not enforce contract tered Internet industry code of practice, ACMA regards Internet content host to be person which is valid by its proper law but performance of which is illegal by law of place of or organization that owns or manages computer hardware on which Internet content is performance. stored. If ACMA determines content is sufficiently serious (e.g., illegal content), may also Where parties expressly stipulate that contract will be governed by particular law, that refer matter to relevant State or Territory police force. State and Territory criminal law law will be proper law of contract provided that selection is bona fide and no infringe- applies to content providers and creators. Laws enable prosecution of Internet users for ment of public policy i.e., selecting another law for purpose of avoiding application of making available material deemed “objectionable” or “unsuitable for minors”. (Note: As particular State or law. of July 2006, not all States and Territories had such laws in force.) As of Mar. 1, 2005 Legislation in each State and Territory gives effect to United Nations Convention on ISPs and ICHs also have obligation to report child pornography and child abuse material Contracts for the International Sale of Goods acceded to on Mar. 17, 1988 and came into to Australian Federal Police. (§474.25 of Broadcasting Services Act 1992). force on Apr. 1, 1989. Content Hosted Outside Australia.—ACMA may forward details of prohibited and potential prohibited content hosted outside Australia to makers or suppliers of filter Government Contracts.—Ordinary law of contract applies. software products listed in schedule of registered code of practice for ISPs. Makers or Sale of Goods.—See topic Sales. suppliers of these products have agreed to update their products to give effect to these Franchises, Dealerships and Distributorships.—Franchising regulated by mandatory notifications. Code requires Australian ISPs to provide one of these products to their industry code of conduct prescribed under Pt IVB, Trade Practices Act 1974 and Trade subscribers. If ACMA determines content is sufficiently serious may refer matter to Practices (Industry Codes—Franchising) Regulations 1998. See Pt I, category Business Australian Federal Police, or to law enforcement officials in country concerned. Regulation and Commerce, topic Franchises. Certain Acts regulating specific franchising Spam.—Spam Act 2003 regulates commercial email and other commercial electronic industries remain in force. messages with “Australian link”. Prohibits sending unsolicited commercial electronic States and Territories have Acts dealing with business franchise licenses for tobacco messages. Commercial electronic messages sent must include sender information and products and/or petroleum products. See Pt I, category Business Regulation and Com- contain functional unsubscribe facility. Address harvesting software must not be supplied, merce, topic Monopolies, Restraint of Trade and Competition. Consumer protection, acquired or used. Act enforced by ACMA with breaches subject to significant civil intellectual property, tax, agency and misrepresentation issues may also arise. Distribu- penalties, injunctions or court-ordered compensation. Telecommunications Act 1997 also tors may have to observe fiduciary rules of equity in actions affecting supplier. States and applies. Territories have Acts regulating motor vehicle traders. Acts and regulations deal with licensing, conduct of business, obligations of dealers, rights of buyers and (not Tasmania) establishment of compensation fund. See Motor Dealers Act 1974 (NSW); Sale of Motor INTEREST: Vehicles Act 1977 (ACT); Second-hand Vehicle Dealers Act 1995 (SA); Motor Car Usury.—Consumer Credit Code developed as national initiative to standardize credit Traders Act 1986 (Vic); Motor Vehicle Dealers Act 1973 (WA); Fair Trading (Code of practice. Consumer Credit Code and Consumer Credit Code Regulations known as Practice for Motor Vehicle Traders) Regulations 1996 (Tas); Property Agents and Motor template Act and Regulations. Template law exists as law of Queensland (Consumer Dealers Act 2000 (Qld). States and Territories also have Acts and regulations dealing with Credit [Queensland] Act 1994 and Consumer Credit [Queensland] Regulation 1995). secondhand dealers and pawnbrokers. For securities dealers, see Pt I, category Business Other States and Territories have passed enabling legislation which adopts template Organizations, topic Corporations. legislation and applies it in State or Territory as “in force from time to time”. Amend- ments to Code or Regulations only need to be made to template legislation and auto- FRAUDS, STATUTE OF: matically apply in other States and Territories without amendment to enabling acts (see Statute of Frauds 1677 originally received into Australia but now repealed in States Consumer Credit [Queensland] Amendment Act 1998). There are some differences in and Territories except Western Australia. Writing requirements akin to original provisions way Tasmania and Western Australia legislation has been established, compared with have been legislatively introduced. Certain contracts must either be in writing or be other jurisdictions. evidenced in writing. Most important category which applies to all States and Territories “Credit provider” defined as any person who provides credit, and includes prospective is contracts for sale or disposition of interest in land. Writing requirements also apply credit providers. Code applies to credit providers if they charge for credit and if their to contracts of guarantee (Northern Territory, Queensland, Tasmania, Victoria, Western customers are individuals or residential strata corporations who use it mostly for per- Australia); contracts not to be performed within a year of being made (Tasmania); and sonal, household or domestic purposes. sale of goods over A$20 (Tasmania, Western Australia); agreements in consideration of Consumer Credit Code outlines key provisions governing: (a) Contract formation and marriage (Tasmania) and promises by executor or administrator to answer damages out formalities; (b) contract formation and formalities relating specifically to mortgages and of estate (Tasmania). guarantees; (c) changes to obligations under credit contracts, mortgages and guarantees; Contract that does not comply with writing requirements still valid, but will not be (d) ending and enforcing credit contracts, mortgages and guarantees; (e) related sale and enforced by court or form basis of damages award. In some circumstances court will insurance contracts and linked credit providers; (f) credit advertising and related conduct order specific performance or equitable damages if party has sufficiently committed to involving promotion of credit including requirement for comparison rates in advertise- contract (doctrine of part performance). ments; (g) consumer leases; and (h) civil penalty regime and other remedies for breaches Consumer Credit Code requires certain guarantees to be in writing. See topic Interest. of Code. Extends to housing loans for domestic use only. Adoption of 1980 United Nations Convention on Contracts for International Sale of Provision in State and Australian Capital Territory legislation for courts or credit Goods (Vienna Convention) by all States alters application of Statute of Frauds in some tribunals to reopen transaction where proceedings have been commenced for recovery of States. See topic Sales. any money lent by credit provider. Depending on circumstances, for example, if court satisfied that: (a) Interest charged is excessive; or (b) transaction is harsh and uncon- INFORMATION TECHNOLOGY, INTERNET AND NEW MEDIA: scionable; or (c) transaction is such that court of equity would give relief, open to court to relieve person sued from payment of any sum in excess of sum adjudged by court to Electronic Commerce.—Commonwealth Government released information economy be fairly due in respect of principal. Some differences apply in Tasmanian legislation (i.e., policy in Dec. 1997 which stated commitment to providing light-handed regulatory no Administration Act for Tasmania and no requirement for registration of credit pro- framework to develop electronic commerce. Enacted Electronic Transactions Act 1999 viders or credit brokers). Enforcement relies entirely on provision of Code. based upon United Nations Commission on International Trade Law (UNCITRAL) See Consumer Credit (Queensland) Act 1994; Consumer Credit (New South Wales) Model Law on Electronic Commerce. Electronic Transactions Act had two-stage imple- Act 1995; Consumer Credit Administration Act 1995 (NSW); Consumer Credit (Victoria) mentation: before July 1, 2001 only applied to Commonwealth laws specified in regu- Act 1995; Credit (Administration) Act 1984 (Vic); Consumer Credit (South Australia) lations; from July 1, 2001 applies to all Commonwealth laws unless specifically ex- Act 1995; Credit Administration Act 1995 (SA); Consumer Credit (Western Australia) empted. Act takes form of uniform model law for adoption in all States and Territories. Act 1996; Credit (Administration) Act 1984 (WA); Consumer Credit (Tasmania) Act Uniform law: (a) Allows people to deal with many Commonwealth, State and Territory 1996; Consumer Credit (Northern Territory) Act 1995; Consumer Credit Act 1995 departments and agencies electronically; (b) provides that law should not discriminate (ACT); Consumer Credit (Administration) Act 1996 (ACT). between different forms of technology; and (c) gives electronic transactions same legal State and Territory Credit Acts (not Northern Territory) govern provision of loan status as written documents. Act primarily relates to dealings between persons and contracts to consumers (excluding corporations) where amount is less than A$20,000 (in Commonwealth government agencies, not dealings between private parties. All States Queensland, A$40,000 and in Australian Capital Territory, A$30,000), contracts where and Territories have now enacted mirror legislation closely modeled on Electronic Trans- goods are provided on credit (i.e., hire purchase); and continuing credit contracts where actions Act. credit is provided on ongoing basis for goods or services. See Credit Act 1984 (NSW), Internet censorship regime in Australia comprises Commonwealth, State and Territory Credit Act 1984 (Vic), Credit Act 1987 (Qld), Credit Act 1984 (WA) and Credit Act 1985 legislation and regulation. Australian Communications and Media Authority (ACMA) (ACT). See also Consumer Affairs and Fair Trading Act 1990 (NT) which regulates credit administers co-regulatory scheme (i.e., Government, industry and community) for In- providers in Northern Territory. ternet content. (See ACMA website: http://www.acma.gov.au.) Scheme established under schedule 5 of Broadcasting Services Act 1992 aims to address community concerns about LICENSES, BUSINESS AND PROFESSIONAL: illegal and offensive content on Internet. Scheme applies to content on World Wide Websites, Usenet newsgroups and other types of stored information that can be accessed Licenses may be required in different industries for activities including broadcasting, over Internet. Ordinary email, chat room and other content accessed in “real time” not airlines, provision of consumer credit, banking, dealing in securities or providing finan- covered by scheme. Under Act, following categories of Internet content hosted in Aus- cial services or advice. Individuals may need license to keep, raise or experiment on

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LICENSES, BUSINESS AND PROFESSIONAL . . . continued Stoppage in Transitu.—See England Law Digest. animals; shoot game; fish; own or carry gun or other dangerous weapons; and other Notices Required.—No notices required to perfect right of damages or rescission. activities regulated by government. Identical with English law in this area. See also Pt I, categories Business Organizations, topic Corporations; Business Regu- lation and Commerce, topic Banking and Currency; and Transportation, topics Air Navi- Applicable Law.—See topic Contracts. gation, Shipping. Warranties.—Various Acts including Pt V of Trade Practices Act 1974 provide for certain conditions or warranties to be implied into contracts for sale of goods which may MONOPOLIES, RESTRAINT OF TRADE AND COMPETITION: not be excluded from contract although liability may be limited, for example, implied Several States have enacted laws in area of restrictive trade practices. However, undertakings as to title, encumbrances, quiet possession and quality. See Pt I, category legislation, outlined below, has not been rigorously enforced and less significant than Business Regulation and Commerce, topic Consumer Protection. Trade Practices Act 1974 and Competition Policy Reform Act 1995. Competition Policy Fair Trading Act 1999 (Vic) makes provision for non-excludable terms (similar to Reform Act 1995 (Vic), (NSW), 1996 (NT), (ACT), (Qld), (SA), (WA), (Tas) provide those listed above) to be implied in sales of goods and of services and certain leases of that Competition Code, contained in Competition Policy Reform Act 1995, applies as law goods where cash price of goods or services or rent does not exceed A$40,000 or, if it in each State or Territory. does exceed that amount, where goods or services are for personal, domestic or house- As result of infrastructure privatization, most States and Territories have enacted hold use or consumption. (Pt 2A). Consumer Transactions Act 1972 (SA) includes similar legislation to prevent abuse of monopoly power and ensure third-party rights of access non-excludable conditions relating to sale of goods and services to consumers. Manu- to essential infrastructure such as gas pipelines and electricity networks, for example Gas facturers Warranties Act 1974 (SA) implies conditions and warranties (equivalent to those Pipelines Access Acts of States and Territories and National Electricity Code. given by retailers under Sale of Goods Acts) into supply of goods by manufacturers or South Australia.—Prices Act 1948 deals with price control and imposes statutory importers to consumers despite absence of contractual relationship between them. restrictions on certain trade practices relating to limits on purchases, misleading adver- Where contract of sale is not severable and buyer has accepted goods or part thereof tising and attempts to obtain differential terms. Requirements as to price tickets also or where contract is for specific goods, property in which has passed to buyer, breach established. of any condition to be fulfilled by seller can only be treated as breach of warranty and not as ground for rejecting goods and treating contract as repudiated unless term of Western Australia. —Petroleum Products Pricing Act 1983 provides for some enquiry contract express or implied to that effect. See Pt I, category Business Regulation and into and control over excessive prices for petroleum products and services. Commerce, topic Consumer Protection. Victoria.—Under Collusive Practices Act 1965, tendering or bidding, abstaining from tendering or bidding and joint tendering or bidding in accordance with collusive ten- International Sale of Goods.—All States and Territories have enacted legislation to dering or bidding agreement forbidden. “Collusive bidding agreement” and “collusive give effect to United Nations Convention on Contracts for the International Sale of tendering agreement” defined to include agreement with purpose or effect of preventing Goods: Sale of Goods (Vienna Convention) Act 1986 (NSW), (WA), (SA), (Qld); 1987 or restricting competition among all or any parties in respect of tendering or bidding. (Tas), (Vic), (NT), (ACT). ‘‘Tender’’ defined as offer for supply or acquisition of goods or services made in response Consumer Protection.—See topic Consumer Protection. to invitation published by or on behalf of Government of Victoria, Victorian statutory corporation, municipality or certain charitable institutions and hospitals. STATUTE OF FRAUDS: ‘‘Agreement’’ includes arrangement or understanding, formal or informal, express or See topic Frauds, Statute of. implied and whether enforceable or intended to be enforceable by legal proceedings or not and whether made within or without Victoria. These practices punishable by fines or imprisonment or both. CITIZENSHIP Restraint of Trade.—Common law doctrine of restraint of trade still exists insofar as consistent with Trade Practices Act. (§4M). Prima facie, any restraint of trade void at ALIENS: common law, and onus upon person desirous of supporting restraint to show it is reasonable in interest of parties and public. Question of reasonableness or otherwise See category Immigration, topic Aliens. matter of law determined by court, and not question of fact for jury. Evidence as to reasonableness cannot be given by persons engaged in trade, but judge will have regard DISCRIMINATION: to all circumstances of case, and may hear evidence of nature of business and conditions Anti-discrimination Acts in States prohibit discrimination in areas extending beyond under which carried on. employment, such as education, provision of goods and services and accommodation. Reasonableness of contract in restraint of trade examined in relation to consideration Legislative prohibitions against sexual harassment in workplace are in force in all States. given, and time and space for which restraint extends. Commonwealth legislation also covers anti-discrimination in Sex Discrimination and Consideration of covenants in restraint of trade usually arises out of contracts of Human Rights Acts (see Pt I, category Citizenship, topic Discrimination). employment, or contracts for purchase of goodwill of business, in both of which classes Each Act prescribes certain exceptions to prohibition against discrimination and es- of contracts may be necessary to restrain right of vendor or employee, after conclusion tablishes procedures by which complaints can be heard and determined. of sale or employment, from depriving purchaser or employer of benefit received under All anti-discrimination Acts allow special measures designed to achieve equality. Most contract. jurisdictions have legislated to implement affirmative action programs in relation to See also topic Consumer Protection; and Pt I, category Business Regulation and employment opportunities in public service. Commerce, topic Monopolies, Restraint of Trade and Competition. Particular acts in individual States provide as follows: Victoria.—Equal Opportunity Act 1995 makes it unlawful to sexually harass or dis- PUBLICATIONS: criminate on basis of age, impairment, industrial activity, lawful sexual activity, marital National Classification Code has been enacted by Commonwealth, States and Terri- status, physical features, political belief, pregnancy, race, religion, sex, status as parent/ tories (except Queensland). Classification (Publications, Films and Computer Games) Act carer, breast-feeding, gender identity, sexual orientation and any personal association 1995 provides for classification of publications, films and computer games. Classification with someone with such attribute. Act then specifies areas in which discrimination is based on principles that: (a) Adults should be able to read, hear and see what they want; prohibited including employment, education, provision of goods, services or land, ac- (b) minors should be protected from material likely to harm or disturb them; (c) everyone commodation, clubs, sport and local government. Act allows for limited exceptions on should be protected from exposure to unsolicited material that they find offensive; and public interest grounds. Equal Opportunity Commission may require persons to appear (d) consideration should be given to community concerns about depictions of violence or produce documents to assist complaint investigations or conciliations—penalty for particularly sexual violence and portrayal of persons in demeaning manner. (See: Clas- failure applicable. sification [Publications, Films and Computer Games] [Enforcement] Act 1995 [ACT]; Classification [Publications, Films and Computer Games] Enforcement Act 1995 [NSW]; New South Wales.—Anti-Discrimination Act 1977 prohibits discrimination on Classification [Publications, Films and Computer Games] Act 1995 [SA]; Classification grounds of race, sex, marital status, responsibility as carer, disability (excluding addiction [Publications, Films and Computer Games] Enforcement Act 1995 [Tas]; Classification to prohibited drug), transsexuality, homosexuality, age and infectious diseases. Prohibi- [Publications, Films and Computer Games] [Enforcement Act] 1995 [Vic]; Classification tion extends to discrimination occurring in employment and other areas (such as edu- of Publications, Films and Computer Games Act 1985 [NT]; Classification [Publications, cation, membership of clubs, provision of goods and services, access to places and Films and Computer Games] Enforcement Act 1996 [WA]). vehicles, accommodation etc.). Classification of Publications Act 1991, Classification of Films Act 1991 and Clas- Queensland.—Anti-Discrimination Act 1991 prohibits discrimination on grounds of sification of Computer Games and Images Act 1995 operate in Queensland, covering sex, relationship status, pregnancy, parental status, breast-feeding, age, race, impairment, classification, demonstration, advertising and supply of publications, films and computer religion, political belief or activity, trade union activity, lawful sexual activity, gender games. Arrangements exist for censorship to be conducted by Commonwealth authorities. identity, sexuality, family responsibilities and personal association. Extends to discrimi- Internet.—See topic Information Technology, Internet and New Media, subhead In- nation occurring in areas of employment, education, provision of goods and services, ternet. superannuation, insurance, land, accommodation and clubs. South Australia.—Equal Opportunity Act 1984 prohibits discrimination on grounds RESTRAINT OF TRADE: of sex, sexuality, marital status, pregnancy, age, race, physical or intellectual impairment. See topic Monopolies, Restraint of Trade and Competition. Areas in which discrimination is prohibited include employment, education, provision of goods, services or land, accommodation, conferral of qualifications, superannuation (with SALES: exceptions). English Sale of Goods Act 1893 has been generally adopted throughout Australian Western Australia.—Equal Opportunity Act 1984 prohibits discrimination on grounds States. Local Acts are largely uniform and codify principles of law relating to sale of of sex, marital status, pregnancy, age, family responsibility or family status, race, gender goods which have evolved from court decisions: Sale of Goods Act 1923 (NSW); Goods history, sexual orientation, religious or political conviction or impairment. Areas in which Act 1958 (Vic); Sale of Goods Act 1896 (Qld); Sale of Goods Act 1895 (SA); Sale of discrimination is prohibited include employment, education, provision of goods, services Goods Act 1895 (WA); Sale of Goods Act 1896 (Tas); Sale of Goods Act 1972 (NT); and facilities, accommodations, clubs, application forms, land, sport, superannuation and Sale of Goods Act 1954 (ACT). access to places and vehicles.

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DISCRIMINATION . . . continued ritory Act revokes rule that infant has father’s domicile. See Commonwealth legislation Tasmania.—Anti-Discrimination Act 1998 prohibits direct and indirect discrimination (Domicile Act 1982) effecting similar changes, Pt I, category Citizenship, topic Domicile. on grounds of race, age, sexual orientation, lawful sexual activity, gender, marital status, pregnancy, breastfeeding, parental status, family responsibilities, disability, industrial RACIAL DISCRIMINATION: activity, political belief or affiliation, political activity, religious belief or affiliation, religious activity, irrelevant criminal or medical records, or association with person who See topic Discrimination. has, or is believed to have, any of these attributes. Areas in which discrimination is prohibited include employment, education, clubs, facilities, provision of goods and ser- vices and administration of laws, awards and certified agreements. CIVIL ACTIONS AND PROCEDURE Australian Capital Territory.—Discrimination Act 1991 prohibits discrimination on COSTS: grounds of sex, sexuality, transsexuality, relationship status, status as parent or carer, pregnancy, race, religious or political conviction, disability, membership or nonmem- No fixed rule, but successful litigant usually awarded order for their costs in action bership of association of employees or employers, age, profession, trade, occupation, on ‘‘party and party’’ basis. Normally leads to less than full reimbursement as not all legal spent criminal conviction, breast-feeding or association with person identified by refer- costs are covered on this basis. ence to any of these attributes. Areas in which discrimination is prohibited include Plaintiff outside jurisdiction may be required to give security for costs. So may employment, education, access to premises, provision of goods and services, access to corporations incorporated within Australia. facilities, accommodation and clubs and provision of information. Human Rights Act 2004 recognizes fundamental civil and political rights in ACT law and provides for DAMAGES: Human Rights Commissioner to review, educate and advise on human rights. Human In Australia common law generally prevails. Statutory provision in all States provides Rights Commission provides community and government with independent mechanism exception to common law rule that no action for damages in respect of death normally for resolution of disputes concerning health and disability services, and services for maintainable, allows action at law in cases where deceased has left dependants who will elderly. suffer pecuniary loss as result of death. See category Estates and Trusts, topic Death, Northern Territory.—Anti-Discrimination Act 1992 prohibits discrimination on subhead Actions for Death. grounds of race, sex, sexuality, age, marital status, pregnancy, parenthood, breast-feeding, In Victoria thresholds exist for recovery of damages for noneconomic loss. Pt VBA impairment, trade union or employer association activity, religious belief or activity, of Wrongs Act 1958 (Vic) creates threshold of 5% impairment in case of injury and 10% political opinion, affiliation or activity, irrelevant medical record and irrelevant criminal impairment in case of psychiatric injury in definition of “threshold level”. If injury record and personal association. Areas in which discrimination is prohibited include satisfies “threshold level” deemed to be “significant injury”. Unless plaintiff has “sig- employment, education, accommodation, provision of goods, services and facilities, clubs nificant injury” damages are unrecoverable for noneconomic loss. and superannuation and insurance. Some States have introduced “proportionate liability” schemes under which persons (including entities and governments) responsible only for proportion loss or damage Racial Discrimination.—Each State and Territory prohibits discrimination based on caused by their own negligence. Legislation applying proportionate liability principles person’s race. High Court held that provisions of Anti-Discrimination Act 1977 (NSW) now enacted by Federal, New South Wales, Victorian, Tasmanian and Western Australian relating to racial discrimination were invalid as being inconsistent with Racial Discrimi- parliaments. nation Act 1975 (Cth). However, subsequent enactment of Racial Discrimination Amend- Every State and Territory has legislation providing for reduction of damages where ment Act 1983 removes inconsistency by providing that Commonwealth Act not intended victim guilty of contributory negligence. to limit operation of State law furthering objects of International Convention on Elimi- nation of all forms of Racial Discrimination and capable of operating concurrently. DEPOSITIONS AND DISCOVERY: Concurrent operation is ensured by provision that actions or proceedings taken under State law in respect of act or omission remove entitlement for proceedings under Com- Evidence of witnesses abroad may be taken on commission, before commissioner monwealth Act. See Pt I, category Citizenship, topic Racial Discrimination. Equal Op- appointed by court. Depositions of persons here may also be taken with object of using portunity Act 1995 (Vic) establishes Equal Opportunity Commission and enables Equal them as evidence in foreign courts. But see Pt I, category Civil Actions and Procedure, Opportunity Commission to initiate investigations in certain discriminatory circum- topic Actions. stances of serious nature where lodging of complaint by one person only in class or group would be inappropriate. See also Anti-Discrimination Act 1991 (Qld) and Anti-Discrimi- EVIDENCE: nation Act 1991 (NT). See topic Depositions and Discovery. Harassment and Vilification.—Anti-Discrimination Act 1977 (NSW) prohibits sexual harassment and public vilification on grounds of race, transgender, homosexuality and JUDGMENTS: HIV/Aids. Equal Opportunity Act 1996 (Vic) prohibits sexual harassment. Racial and Under §105 Service and Execution of Process Act 1992, judgment may be registered Religious Tolerance Act 2001 (Vic) makes it unlawful to incite hatred against, serious in court of another State by lodging sealed copy of judgment. Faxed copy may be lodged contempt for, or revulsion or severe ridicule of, another person or group of people on if sealed copy lodged within seven days. On registration, judgment has same force and basis of their race or religion. Anti-Discrimination Act 1991 (Qld) prohibits vilification effect and is enforceable as if given by court in which registered, except for interest and on grounds of race, religion, sexuality or gender identity. Racial Vilification Act 1996 stay of proceedings. Interest is assessed on same basis as in court in which judgment (SA) makes racial vilification unlawful. Equal Opportunity Act 1984 (WA) prohibits given. Court in which judgment registered may stay proceedings to allow judgment sexual and racial harassment. Western Australian Criminal Code criminalizes possession, debtor to appeal. Rules of private international law about recognition and enforcement publication and display of written or pictorial material that is threatening or abusive with of foreign judgments cannot prevent enforcement of judgment under Act. intention of inciting racial hatred. Anti-Discrimination Act 1998 (Tas) prohibits any Commonwealth Constitution provides that full faith and credit must be given through- conduct which offends, humiliates, intimidates, insults or ridicules another person on out Commonwealth to laws, public acts and records and judicial proceedings of every basis of gender, marital status, pregnancy, breastfeeding, parental status and family State. (§118). However due to system of registration described above full faith and credit responsibilities. Act makes it unlawful to sexually harass, victimize, incite hatred (by is not as significant in relation to interstate judgments as it is in U.S.A. public act) or promote discrimination on grounds of race, disability, sexual orientation, lawful sexual activity and religion. Discrimination Act 1991 (ACT) prohibits sexual Foreign Judgments.—Under common law, judgments of foreign courts have been harassment and vilification on grounds of race, sexuality, transsexuality and HIV/Aids. recognized in Australian States under certain conditions, general requirements being as Anti-Discrimination Act 1992 (NT) prohibits sexual harassment. Criminal penalties apply follows: (a) Judgment must be final and conclusive; (b) judgment must be for sum certain in most states and territories for serious vilification (except Tasmania). (not being tax or penalty); (c) enforcement of judgment would not be contrary to public policy of State in which sought to be registered; (d) foreign court must have had Disability Discrimination.—Each State and Territory prohibits discrimination based jurisdiction, according to Australian rules of private international law (for judgments in on person’s physical or intellectual impairment. Guardianship and Administration Board personam by presence or residence of judgment debtor in foreign country, or voluntary Act 1986 (Vic), Guardianship Act 1987 (NSW), Guardianship and Administration Act submission to jurisdiction of foreign court, by appearance or contract, for judgments in 2000 (Qld), Guardianship and Administration Act 1990 (WA), Guardianship and Man- rem by situation of property in foreign country); (e) judgment not obtained by fraud; and agement of Property Act 1991 (ACT), Aged and Infirm Persons’ Property Act 1979 (NT), (f) judgment debtor not denied natural justice. Guardianship and Administration Act 1995 (Tas) and Guardianship and Administration On June 27, 1991 Commonwealth Foreign Judgments Act 1991 replaced State systems Act 1993 (SA) establish Guardianship Boards or Tribunals to appoint guardians in respect for registration and enforcement of foreign judgments, and in certain circumstances of persons with disability and to appoint administrators of estates of persons with replaced common law action on judgment debt. Act applies to judgments of country if disability. Acts also create office of Public Advocate or Public Guardian to investigate Governor-General satisfied that substantial reciprocity of treatment assured in that coun- complaints or allegations of abuse of disabled persons and to promote community try. As at July 2006 following countries’ superior courts are covered: Most British involvement in provision of services to disabled people. ‘‘Disability’’ encompasses se- Commonwealth countries, including County Courts of U.K., Canada, New Zealand, as nility and mental and physical impairment. See Pt I, category Citizenship, topic Dis- well as Special Administrative Region of Hong Kong, France, Germany, Israel, Italy, crimination, subhead Disability Discrimination and, category Family, topic Guardian and Korea, Poland, British Virgin Islands, Cayman Islands, Falkland Islands, Gibraltar, Mont- Ward, this part. serrat, St. Helena, Switzerland, Taiwan and Japan; also inferior courts of Switzerland, New Zealand, Poland, Canada and U.K., but no jurisdictions of U.S.A. Act also provides DOMICILE: that court not taken to have jurisdiction merely because judgment debtor enters appear- In Australia, domicile has its common law meaning. It connotes ‘‘permanent home’’, ance or participates in proceeding for purpose of protecting or obtaining release of seized place person is presumed at time in question to consider their true home, wherever they property, to contest jurisdiction of court or to invoke court’s discretion. may be resident or traveling for time being. Any evidence of person’s hopes, intentions In South Australia there is provision to register all foreign judgments where juris- and behavior is relevant in aiding court to establish their domicile. diction of original court is recognized under rules of private international law and Each of States and Northern Territory have introduced Acts which revoke rule that wife judgment is final or conclusive, where circumstances in which jurisdiction assumed by has husband’s domicile and modify rule that infant has father’s domicile where parents original court justify recognition of judgment on basis of comity and judgment is final living separately and apart, in which case infant’s domicile is that of parent with which or conclusive, or where seen as just and equitable to enforce judgment. infant lives. Acts also make provision for domicile of adopted children. Northern Ter- See Pt I, category Civil Actions and Procedure, topic Actions.

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LIMITATION OF ACTIONS: or as consequence of written complaint by person affected by decision complained of or Various statutory provisions exist in States and Territories for limiting time plaintiff on reference by either House of Parliament or committee thereof. If Ombudsman decides may take to commence action. Actions for torts must generally be brought within six to investigate matter, must first inform principal officer of body concerned and outline years (three years in Northern Territory); actions for simple contract debts generally complaint to them; response of body is communicated to complainant; if complainant still within six years; actions upon contracts under seal within 12, 15 or 20 years and actions dissatisfied Ombudsman proceeds to investigate. If administrative action of body is for personal injuries in Victoria, Queensland, South Australia, Tasmania, ACT and in defective in one of number of specified ways Ombudsman notifies principal officer of New South Wales within three years. May be shorter limits for actions against Crown intention to make adverse finding and notifies principal officer and responsible Minister or public authorities (e.g. in Western Australia all actions against Crown limited to two of reasons for adverse finding and recommendations to remedy it. If body does not accept years). recommendations and Ombudsman dissatisfied with response of body then Ombudsman In New South Wales certain defamation cases must be brought within one year from can send copies of report and body’s comments to higher authority (e.g. Premier, Gov- date defamatory material published. In most other States limitation period is six years. ernor-in-Council, etc.) and may lay such documents before both Houses of Parliament. Cause of action founded on deed generally not maintainable after 12 years except in Any further action is up to higher authority or Parliament. Parliamentary Committee in Victoria and South Australia, where period is 15 years, and in Western Australia, where New South Wales exists to monitor and review Ombudsman’s exercise of powers. period is 20 years. Action to recover land not maintainable by Crown after 30 years or Committee has power of veto on any proposed appointment or reappointment as Om- by any other person after 12 years. budsman. (§§6A, 31BA). See Ombudsman Act 1974 (NSW); Ombudsman Act 1973 Limitation Act 1974 (Tas) provides that where option to purchase land or right of (Vic); Ombudsman Act 2001 (Qld); Ombudsman Act 1972 (SA); Parliamentary Com- preemption in respect of land does not provide for time limit for exercise of option or missioner Act 1971 (WA); Ombudsman Act 1978 (Tas); Ombudsman (Northern Territory) right, action arising out of that option or right must be brought within one year of grant Act 1978 (NT); Ombudsman Act 1989 (ACT). of option or right. Administrative Law Act 1978 (Vic), Administrative Decisions (Judicial Review) Act Action for contributions between tortfeasors generally not maintainable after two years 1989 (ACT), Judicial Review Act 1991 (Qld) and Judicial Review Act 2000 (Tas) confer from date cause of action for contribution first accrued and four years after expiration specific statutory remedies in relation to taking of administrative action. Victorian Act of limitation period for principal cause of action. operates in addition to common law remedies. Queensland and Tasmania Acts abolish Limitation Act 1981 (NT) provides that actions based on contract and tort must be common law prerogative writs. brought within three years of date of accrual of action and cause of action founded on Administrative Appeals Tribunal.—Generalist tribunals established in Victoria, Aus- deed not maintainable after 12 years. tralian Capital Territory and New South Wales: Victorian Civil and Administrative Tri- Limitation Act 1985 (ACT) provides that defamation action must be brought within bunal Act 1998 (Vic); Administrative Appeals Tribunal Act 1989 (ACT); Administrative one year from date of first publication of matter complained of. Decisions Tribunal Act 1997 (NSW). Acts establish Victorian Civil and Administrative Motor Accidents Compensation Act 1999 (NSW) provides for scheme of compulsory Tribunal (VCAT), Administrative Appeals Tribunal (AAT) and Administrative Decisions third-party insurance and for payment of compensation relating to death or injury to Tribunal (ADT) to provide for review of certain administrative decisions upon their persons as consequence of motor accidents, and sets period of six months from date of merits upon application by person whose interests affected by decision (in New South accident to make claim. Wales by “interested person”). Such person may also obtain statement of reasons for Action to recover any tax, fee, charge or other impost paid under authority of any Act decision from decision-maker. must be commenced within 12 months after date of payment: Limitation Act 1935 (WA); Victorian Attorney-General or Premier can certify that on public interest grounds Limitation of Actions Act 1958 (Vic); Recovery of Imposts Act 1963 (NSW); Limitation certain information is not to be disclosed in reasons of decision-maker, in course of of Actions Act 1974 (Qld). tribunal hearing or in decision of VCAT. Australian Capital Territory Act confers similar Limitation Act 1974 (Tas) and Limitation Act 1981 (NT), Limitation Act 1985 (ACT), power. New South Wales decision-maker must disclose certain Freedom of Information Limitation of Actions Act 1936 (SA), same but with six months limitation period. (FOI) exempt documents to ADT; however New South Wales Cabinet Office Director- Time begins to run as soon as cause of action accrues, which is date it is complete. General may certify that cabinet documents not to be disclosed to ADT (see subhead In action upon executory promise cause of action is breach, and time runs not from Freedom of Information, infra). promise but from breach. In case of promise to pay on demand time runs from date of On reviewing decision, Tribunals can exercise all powers and discretions conferred on promise. In case of contract of indemnity time runs from time when damage was suffered, decision-maker; they can affirm or vary original decision or set aside original decision and not from time when event happened which causes damage. and either substitute their own decision or remit matter for reconsideration by original In relation to personal injuries, action usually accrues at time damage suffered, but in decision-maker in accordance with such directions and recommendations as Tribunals New South Wales (where cause of action accrued before Sept. 1, 1990), Queensland, might give. Victoria and Western Australia time runs from date when claimant first became aware Substantive jurisdiction of each Tribunal is conferred upon Tribunal by wide variety of facts material to cause of action. In Western Australia—currently only applies where of Acts. Intended that jurisdiction of ADT be expanded progressively. ADT and Om- injuries attributable to inhalation of asbestos and claimant did not become aware of budsman may make arrangements to transfer reviewable decisions between them. Gen- material facts until after Jan. 1, 1984. eral Division of ADT also makes original decisions in certain areas of dispute. Flexibility of court to extend time for up to five years in New South Wales, where Appeal from decision of Tribunals on question of law lies to Supreme Court. cause of action accrues on or after Sept. 1, 1990. If plaintiff unaware of injury at relevant In Victoria FOI appeals are reviewed by VCAT’s Administrative Division (as opposed time court may grant further extension if it decides that just and reasonable to do so. In to Civil Division), General List. Administrative Division of VCAT exercises jurisdiction Victoria, South Australia and Tasmania court has discretion to extend limitation period of former Victorian Administrative Appeals Tribunal. Complaints about breaches of if just and reasonable to do so. In Northern Territory court has discretion to extend privacy by public sector agencies heard and determined by Privacy Commissioner, with limitation period if satisfied of certain matters. Western Australia intends to provide for appeals to VCAT (Information Privacy Act 2000 [Vic]). As to registration of conciliated extension of limitation period. agreements see category Dispute Resolution, topic Alternative Dispute Resolution. See Action against statutory body, such as Railway Commissioners, must generally be also Pt I, category Business Regulation and Commerce, topic Privacy. preceded by notice in writing, to be given within short period such as three or six months. FOI appeals in Australian Capital Territory reviewed by AAT. FOI appeals in New Effect of Acknowledgment.—Acknowledgment in writing or part payment of debt South Wales reviewed by General Division of ADT. provides remedy for recovery thereof, although it had theretofore become barred by As to Administrative Decisions (Judicial Review) Act 1989 (ACT), Judicial Review limitations. Similarly, written acknowledgment of title to land may extinguish any ad- Act 1991 (Qld), Judicial Review Act 2000 (Tas) and Administrative Law Act 1978 (Vic) verse claim of person making acknowledgment. see Pt I, category Courts and Legislature, topic Administrative Appeals. Person Under Disability.—Each State and Territory suspends running of limitation period where person to whom cause of action accrues is under disability (infant, mentally Freedom of Information.—Each State and Territory (except Northern Territory) has deficient, mentally disordered), but usually maximum period 30 years from date cause Freedom of Information Act: Freedom of Information Act 1989 (ACT); Freedom of of action arises. Information Act 1989 (NSW); Freedom of Information Act 1992 (Qld); Freedom of Information Act 1991 (SA); Freedom of Information Act 1991 (Tas); Freedom of In- Forum Shopping.—Various Acts provide that limitation laws to be regarded as sub- formation Act 1982 (Vic); Freedom of Information Act 1992 (WA). Governments obliged stantive law of jurisdiction and thus govern claim brought in another jurisdiction under to publish information about its activities and “internal law”. Members of public have substantive laws of first jurisdiction. See Choice of Law (Limitation Periods) Act 1993 legally enforceable right of access to government documents unless those documents (NSW); Limitation Act 1985 (ACT); Choice of Law (Limitation Periods) Act 1993 (Vic); excluded from operation of legislation. Applies to most documents of each State or Choice of Law (Limitation Periods) Act 1994 (NT) and (WA); Choice of Law (Limitation Territory government, its Ministers and its agencies. Periods) Act 1996 (Qld). Different Acts have slightly different categories of exempt documents. Exempted documents generally include cabinet documents, documents affecting international re- lations and relations with Commonwealth or other States or Territories, law enforcement COURTS AND LEGISLATURE documents, documents affecting personal privacy, documents affecting legal proceedings or subject to legal professional privilege, documents relating to trade secrets, documents ADMINISTRATIVE APPEALS: containing material obtained in confidence, documents affecting economy, certain docu- Ombudsman.—All States and Territories have enacted legislation creating office of ments relating to operation of agencies, documents to which secrecy provisions of other Ombudsman (Parliamentary Commissioner in Western Australia). Ombudsman has ex- enactments apply, some internal governmental working documents, certain documents tensive powers to investigate any administrative action taken by State Government arising out of companies and securities legislation (not Western Australia, Tasmania or Departments, Statutory Authorities or Local Government Authorities i.e., by Executive; Queensland) and documents adversely affecting government’s financial or property in- however, decisions of Ministers and Cabinet generally not reviewable (in Victoria this terests (not Victoria or Tasmania). is result of practice rather than legislation). Ombudsman have only non-determinative Queensland exempts documents concerning investigations by Ombudsman and audits powers. Can make recommendations to bodies, but body concerned not bound to accept by Auditor-General; Tasmania exempts documents communicated by other States and recommendation. Ombudsman generally cannot conduct investigation where aggrieved information likely to threaten endangered species; Western Australia exempts documents person has right of appeal to tribunal or remedy by way of proceedings in court of law relating to adoption, artificial conception and precious metal transactions. unless such alternative course is unreasonable or immediate investigation warranted to Acts also allow for documents held by government and agencies relating to citizen to avoid injustice. Investigation may be conducted either on own motion of Ombudsman be amended by citizen where record incorrect.

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ADMINISTRATIVE APPEALS . . . continued Requests may be refused in certain cases. Repeated request or request which would CRIMINAL LAW substantially and unreasonably divert resources may be refused. CRIMINAL LAW: Refusal to grant access reviewable by internal system of review. External (de novo) Criminal law of Australia was initially based on common law. Tasmania, Northern review is by way of application to VCAT in Victoria, Administrative Appeals Tribunal Territory, Western Australia and Queensland have subsequently codified law and other in Australian Capital Territory. Ombudsman may make new determination in South States have augmented common law by comprehensive Crimes Acts and Police Offences Australia and Tasmania. Information Commissioner may make new determination in Acts. Australian Capital Territory introduced Criminal Code 2002 (commenced operation Queensland and Western Australia. Right of appeal against determination to District on Jan. 1, 2003). Commonwealth Acts deal with certain national aspects of criminal law Court in South Australia. In New South Wales decision may be reviewed by Ombudsman such as treason, extradition and terrorism. or ADT. Australian Capital Territory and every State allows right of appeal to Supreme Court on question of law. Act can be used in conjunction with other statutory remedies. Victorian Act extends access regime to local government, removes exemption on DEBTOR AND CREDITOR cabinet documents if solely of technical or statistical nature, but widens definition of ASSIGNMENTS: cabinet document in other ways. Act permits Minister to give unreviewable certificate Assignments of debts and other rights are in general effected by deed, but may in many that document is exempt cabinet document, and changes fee structure. cases be carried out by writing not under seal. As a rule no particular form is required, Queensland Act also exempts cabinet matters. provided the intention of the parties is clear. Assignments of book debts are not required New South Wales Act provides, inter alia, that Ombudsman may recommend release to be registered in order to have legal effect. of documents if in overall public interest although exempt documents. Before deed will be admissible in evidence it must bear appropriate stamp duty. See Northern Territory Information Act 2002 provides for access to government documents category Taxation, topic Stamp Tax. unless those documents excluded from operation of legislation. Information Commis- sioner oversees regime. Act exempts certain documents including those which relate to ATTACHMENT: unreasonable interference with privacy; exposing business unreasonably to disadvantage; prejudicing maintenance of law and order; breaching confidentiality; or Cabinet, Territory Of Persons.—Persons in contempt of court may be committed to prison, but attach- and Executive Council information. ment no longer available in any jurisdiction. For all practical purposes, imprisonment for debt has been abolished. Fraudulent debtors, however, may be examined before court, Treaties.—South Australian Administrative Decisions (Effect of International Instru- and committed to prison in default of payment. Enforcement of Judgments Act 1991 (SA) ments) Act 1995 provides that international agreement not incorporated into Australian provides for arrest and imprisonment of debtor in limited circumstances. Other juris- law does not give rise to legitimate expectation. High Court held signing of treaty could dictions provide for arrest of debtors, and restraint of debtor’s property if debtor intends give rise to legitimate expectation that government decision-makers would make deci- to abscond: Supreme Court Act 1995 (Qld) §90; Debtors Act 1870 (Tas) §5(2); Supreme sions consistent with Australia’s obligations under treaty, irrespective of whether treaty Court Act 1986 (Vic) §§87-100; Restraint of Debtors Act 1984 (WA) Pt II. obligations have been enacted into Australian law (see Minister for Immigration and Of Property.—In some States there is procedure where, in relation to cause of action Ethnic Affairs v. Teoh [1995] 183 CLR 273). However, approach questioned by High arising in jurisdiction, assets of nonresident defendant can be attached pending resolution Court in decision of Re Minister for Immigration & Multicultural Affairs; Ex parte Lam of action. (2003) 195 ALR 502. EXECUTION: COURTS: Attachment or execution may issue to enforce a judgment. Attachment of persons can issue only by leave of court but execution against land or goods, unless restrained, can In each of the States there is a Supreme Court, and there are also subordinate courts, issue as of course upon judgment for sum of money. Land and goods must be within such as county courts, district courts, courts of petty sessions, or magistrates’ courts, in jurisdiction of court. addition to special courts, such as courts of marine enquiry, licensing courts, coroners’ There is no equitable relief against execution of judgment but it is a tort to levy courts, and industrial courts. Each court is established under an Act and has Rules which manifestly excessive execution on debtor’s goods, even in absence of malice. govern procedure. By Judiciary Act 1903 (amended by Judiciary Amendment Act 1999) When court official responsible for execution (sheriff) receives notice of presentation several courts of States are, within their limits of jurisdiction (whether such limits are of creditor’s bankruptcy petition they must refrain from continuing with execution or as to locality, subject matter, or otherwise) invested with federal jurisdiction in all matters making payment to any creditor until petition is withdrawn, dismissed or has lapsed. in which High Court has original jurisdiction, or in which original jurisdiction can be Where execution has issued both legal and equitable interests pass but title to land conferred on it; except that jurisdiction of High Court is exclusive as to matters (other passes subject to all registered encumbrances. Equitable interests in general may be than trials of indictable offenses) involving any question, however arising, as to limits seized and sold with following exceptions: Trust properties, even where they are held for inter se of constitutional powers of Commonwealth and those of any State or States, and benefit of trustee and other beneficiaries; goods held on bailment; goods subject to bill as to limits inter se of Constitutional powers of any two or more States. of sale or under hire purchase; patent rights and claims of purely personal nature in tort. In cases where other forms of execution are inapplicable receiver may be appointed Cross Vesting.—Jurisdiction of Courts (Cross Vesting) Acts 1987 established system by way of equitable execution, or garnishee order may be obtained. of cross-vesting between Federal, State and Territorial Courts without detracting from In settlement of debts generally, sheriff apportions them in order in which he or she existing jurisdiction of any court so as to reduce inconvenience and expense occasionally receives them. But where writs are issued simultaneously if any step is taken by sheriff caused to litigants by jurisdictional limitations in those courts. Proceedings could be under one writ which necessitates a return to such writ for his protection, such return transferred where there is more appropriate forum. In 1999, High Court ruled that must be made before any step is taken under other writ. cross-vesting legislation constitutionally invalid insofar as it purported to confer state Exemptions from execution limited to tools of trade, clothing and bedding. No ex- jurisdiction upon Federal Courts. States enacted Federal Courts (State Jurisdiction) Act emption in relation to homesteads. 1999 to counter effects of decision. See topic Garnishment and Pt I, category Civil Actions and Procedure, topic Actions. Family Court.—Family Court of Australia (Additional Jurisdiction and Exercise of Supplementary Proceedings.—See topic Garnishment. Powers) Act 1988 extends jurisdiction of Family Court. See Pt I, category Introduction, topic Government and Legal System. GARNISHMENT: Where judgment or order is for recovery or payment of money, party entitled to Appeal to High Court.—Since 1984, Judiciary Act provides that appeals lie from enforce it may apply to have debtor examined as to whether any and what debts are State Courts to High Court only with special leave of High Court, unless provisions of owing to him; and any debts owing to debtor may be attached in satisfaction of judgment another Act permit appeal. In granting leave to appeal, High Court required to have and garnishee order may be obtained requiring person owing money to debtor to pay regard to questions of law that are of public importance or require resolution of dif- same to judgment creditor. Civil Procedure Act 2005 (NSW), Uniform Civil Procedure ferences between conflicting precedents, provided administration of justice requires that Rules 2005 (NSW), Supreme Court Rules (ACT), Supreme Court Act 1935 (WA), High Court consider question. No right of appeal from decision of High Court either in Supreme Court Act 1986 (Vic), Supreme Court Rules (Tas) and Supreme Court Rules its original or appellate jurisdiction. Australia Act 1986 terminates appeals to Privy (NT) allow courts to make garnishee order over salary or wages. Enforcement of Judg- Council from State Courts, thus effectively making High Court of Australia final court ments Act 1991 (SA) requires consent of judgment debtor before garnishee order made of appeal. over salary or wages. Debt is bound as soon as order is served on person liable to pay Also see category Dispute Resolution, topic Alternative Dispute Resolution. same, but judgment creditor acquires no greater right than judgment debtor possessed. Uniform Civil Procedure Rules 2005 (NSW), Enforcement of Judgments Act 1991 (SA), LAW REPORTS: Judgment Debt Recovery Act 1984 (Vic), Debtors Act 1870 (Tas) and Uniform Civil Procedure Rules 1999 (Qld) allow court to order that judgment debt be paid by install- See topic Reports. ments. Registered maintenance agreements treated as debts to Commonwealth. See Pt I, category Family, topic Divorce. LEGISLATURE: LIENS: See category Introduction, topic Government and Legal System. Common law lien is mere right to retain possession of property upon which lien exists, and cannot as rule be enforced by sale. Lien arises by implication of law or by statute. REPORTS: Particular Liens.—Particular lien entitles holder to retain property until payment of particular charges incurred in relation to property. Such liens arise, for example: (a) Principal State Law Reports are: New South Wales Law Reports, South Australian Where creditor is compellable by law to receive goods or to perform certain services to State Reports, Queensland Reports, Tasmanian Reports (formerly Tasmanian State Re- owner of such goods, as in case of common carriers and inn-keepers; (b) where creditor ports), Victorian Reports, Western Australian Reports. has spent money, skill or labor upon property, as in case of workmen; (c) under maritime See Pt I, category Courts and Legislature, topic Reports. law in case of salvage.

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LIENS . . . continued SEALS: General lien entitles holder to retain property as security for payment of full indebt- At common law, seals are necessary in execution of deeds, but no particular form of edness of owner no matter on what account charge in relation to property was incurred. seal is needed, although this position has been altered by statute in many jurisdictions. Examples of general liens: liens of solicitors, bankers, factors, stockbrokers and insurance With exception of Tasmania and Northern Territory, all other States and Territories do brokers. In order to establish general lien by custom of trade, must be shown that there not require physical act of sealing to ensure validity; enough that document expressed was certain usage, that such usage reasonable and not inconsistent with law, and that so to be deed, or sealed. Corporations Act 2001 (Cth) §127(1) does not require companies universally acquiesced in that everybody in trade knew it or ought to have known it. to execute document with common seal if document signed by two company directors, However, in case of above examples, judicial notice has resulted in it being unnecessary director and company secretary or sole director/secretary if proprietary company. Docu- to demonstrate actual proof of usage for such liens to be established. ment may be treated as deed even though seal has been accidentally torn off. In general contracts under seal are valid, notwithstanding absence of any mutual consideration as PLEDGES: required in contract without seal. Contract in restraint of trade which would otherwise Delivery of possession to pledgee essential to pledge. Pledge includes lien which may be void, is not made valid by execution under seal; and contract under seal may be be available when contract is barred by Statute of Limitations. When two or more articles impeached for absence of consideration if fraudulent as against creditors. are pledged together, each is security for whole debt. Pledgee must exercise care and is liable for any loss or injury due to negligence; but is not liable if property is stolen without fault or accidentally destroyed. Each State and Territory has Pawnbrokers Act: EMPLOYMENT Second-Hand Dealers and Pawnbrokers Act 1989 (Vic); Pawnbrokers and Second-hand Dealers Act 1996 (NSW); Second-hand Dealers and Pawnbrokers Act 2003 (Qld); Sum- LABOR RELATIONS: mary Offences Act 1953 (SA); Second-hand Dealers and Pawnbrokers Act 1996 (SA); Most Australian employees covered by Federal legislation (Workplace Relations Act Second-hand Dealers and Pawnbrokers Act 1994 (Tas); Pawnbrokers and Second-hand 1996). Due to constitutional limitations on Federal Parliament’s legislative power, Fed- Dealers Act 1994 (WA); Consumer Affairs and Fair Trading Act 1990 (NT); Pawnbrokers eral legislation does not cover some employees (main classes are employees of indi- Act 1902 (ACT). Every pawnbroker must be licensed, except in South Australia and viduals, partnerships, or non-trading/non-financial corporations such as certain charities, Tasmania need only notify police and in Victoria need only be registered. Must keep in and State Public Service employees. For these excluded employees, States have power book particulars in relation to every pledge received by him. Articles subject of pledge to regulate labor relations and industrial disputes within territorial limits. Queensland, can only be sold in accordance with statutory provisions. Acts also regulate pawnbrokers’ Western Australia, South Australia, Tasmania and New South Wales do so by means of business in number of other ways. conciliation and arbitration: Industrial Relations Act 1996 (NSW); Industrial Relations Act 1999 (Qld); Fair Work Act 1994 (SA); Industrial Relations Act 1984 (Tas) and Industrial Relations Act 1979 (WA). No State industrial relations system for Victorian DISPUTE RESOLUTION employees, all covered by Federal system. See Pt I, category Employment, topic In- dustrial Relations. ALTERNATIVE DISPUTE RESOLUTION: Workers Compensation is provided for in State legislation which imposes obligation Alternative dispute resolution processes are being incorporated into rules and practises on employer or employer’s insurer to pay compensation to employee who suffers per- of all Australian courts and tribunals. Many areas of law have mandatory and voluntary sonal injury or death arising out of or in course of their employment. Employee common alternative dispute resolution avenues. Courts may order alternative dispute resolution law rights in respect of compensable injury generally limited. This will include injury even where parties do not consent. suffered on way to or from work unless journey interrupted by personal business. Alternative dispute resolution methods include mediation, conciliation, conferences, Employers obliged either to obtain insurance cover for full amount of their liability, or and approved or private arbitrators. in case of large employers to satisfy stringent prudential requirements to operate as Arbitration.—All States and Territories have acts to regulate commercial arbitration “self-insurers”. Workers compensation authorities and tribunals set up to hear compen- and arbitration agreements: Commercial Arbitration Act 1986 (ACT); Commercial Ar- sation claims and make awards: Workplace Injury Management and Workers Compen- bitration Act 1984 (NSW); Civil Procedure Act 2005 (NSW); Commercial Arbitration sation Act 1988 (NSW); Accident Compensation Act 1985 (Vic); Workers’ Compensation Act 1985 (NT); Commercial Arbitration Act 1990 (Qld); Commercial Arbitration Act and Rehabilitation Act 2003 (Qld); Workers Rehabilitation and Compensation Act 1986 1986 (SA); Commercial Arbitration Act 1986 (Tas); Commercial Arbitration Act 1984 (SA) and WorkCover Corporation Act 1994 (SA); Workers Rehabilitation Compensation (Vic); Commercial Arbitration Act 1985 (WA). Act 1988 (Tas); Workers’ Compensation and Injury Management Act 1981 (WA); Work See also Pt I, categories Business Regulation and Commerce, topic Privacy, and Health Act 1986 (NT); Workers’ Compensation Act 1951 (ACT) and Workers Com- Dispute Resolution, topic Alternative Dispute Resolution. pensation Regulation 2002 (ACT). Dust Diseases Tribunal Act 1989 (NSW) sets up tribunal in New South Wales to determine claims relating to death or injury resulting from certain dust diseases (e.g., asbestosis). Employee claims generally conciliated and, DOCUMENTS AND RECORDS if not resolved, determined by relevant court or tribunal. Occupational Health and Safety legislation exists in all States and Territories: Oc- ACKNOWLEDGMENTS: cupational Health & Safety Act 2004 (Vic), Occupational Health and Safety Act 2000 Where deed is executed abroad, advisable it be acknowledged before notary public in (NSW), Workplace Health and Safety Act 1995 (Qld), Occupational Health, Safety and British possessions, or before Australian or British consul elsewhere. Welfare Act 1986 (SA), Workplace Health and Safety Act 1995 (Tas), Occupational Safety and Health Act 1984 (WA), Work Health Act 1986 (NT) and Occupational Health AFFIDAVITS: and Safety 1989 (ACT). Key purpose of legislation is to impose on employers and others Affidavits sworn in and for particular State must be sworn in prescribed manner. In who control workplace obligation to ensure health and safety of people in that workplace. Victoria, there is extensive class of persons who can witness affidavit, including, any Person or other entity that breaches legislation may be liable to significant fines. Other judge or associate to any judge; master of Supreme or County Court or secretary of such purposes of legislation are to establish regime for enforcing key health and safety master; justice of peace or bail justice; member or further member of either House of obligations and to provide for making of regulations that impose specific rules on Parliament of Victoria; public notary; legal practitioner; member of police force of or particular types of hazards that may be present in workplace (e.g., certain hazardous above rank of sergeant or for time being in charge of police station; senior officer of substances, working with scaffolding, etc.). Local Council. Affidavits sworn out of State for use within State must be before any See Pt I, category Employment, topic Industrial Relations. person having authority to administer oath in that place, or before Australian consular officer, ambassador, envoy, Minister, chargé d’affaires, secretary of embassy or legation, consular agent of any part of Her Majesty’s dominions. Provision is made for making ENVIRONMENT of affirmations in lieu of swearing affidavits. For purposes of certain legislation other officials may have affidavits sworn before ENVIRONMENTAL REGULATION: them. State environmental legislation is generally divided into following topics: pollution Statutory declarations which are used in certain cases in substitution for affidavits, may control; land use planning; biodiversity conservation; and environmental impact assess- be made before a wider class of officials. Oath not administered, but making of false ment. declaration constitutes perjury. Pollution Control.—All States have enacted legislation which provides for environ- mental control body or bodies. Functions of these bodies include environmental planning, NOTARIES PUBLIC: surveying and researching pollution problems and making recommendations to govern- In Victoria, under Public Notaries Act 2001, application for appointment as notary ment and, in some cases, regulation of environmental hazards. See Protection of the public must first be made to Board of Examiners for Legal Practitioners constituted under Environment Administration Act 1991 (NSW); Protection of the Environment Operations Legal Profession Act 2004. If person is admitted to legal practice in Victoria; has held Act 1997 (NSW); Environment Protection Act 1970 (Vic); Environment Protection Act practising certificate for period of five years authorising person to engage in legal practice 1993 (SA); Environmental Protection Act 1986 (WA); Environmental Protection Act as principal; and has completed, to satisfaction of Board of Examiners, course of study 1994 (Qld); Environmental Management and Pollution Control Act 1994 (Tas); Envi- related to notarial practice approved by Council of Legal Education, certificate of eli- ronment Protection Act 1997 (ACT); Waste Management and Pollution Control Act 1998 gibility is issued. Application is then made to Supreme Court. (NT). Protection of the Environment Administration Act 1991 (NSW) establishes En- Applications for appointment in other States and Territories have introduced own vironment Protection Authority (EPA) to assume general responsibility for environmental statutory appointments for notaries. In Western Australia, pursuant to Public Notaries Act protection under wide variety of legislation. Protection of the Environment Operations 1979, appointment of public notary by order of Full Court of Supreme Court. In New Act 1997 (NSW) consolidates environmental legislation in New South Wales, and en- South Wales Public Notaries Act 1997 provides for appointment by New South Wales ables Government to set environment protection policies to establish environmental Supreme Court. Public notaries are similarly appointed in Tasmania under Notaries standards and implement protection measures of National Environment Protection Coun- Public Act 1990 and in Northern Territory under Public Notaries Act 1992. cil. Act establishes licensing arrangement relating to air pollution, water pollution, noise In South Australia appointment of public notaries governed by Legal Practitioners Act pollution and waste management, regulated by EPA and local councils. Licenses remain 1981 and made by judge of South Australian Supreme Court. in force until suspended, revoked or surrendered but are subject to regular review. Act

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ENVIRONMENTAL REGULATION . . . continued Murray-Darling Basin Act 1992 (NSW), Murray-Darling Basin Act 1996 (Qld), Murray- also imposes significant penalties for major offences, and imposes duty to notify au- Darling Basin Act 1993 (SA), Murray-Darling Basin Act 1993 (Vic). thorities of pollution that causes or threatens material harm to environment. Miscella- Most States (except New South Wales which has consolidated its environmental neous amendments made by Protection of the Environment Operations Amendment Act legislation: see Protection of the Environment Operations Act 1997 [NSW]) have specific 2005: apply to grant and treatment of environmental protection licenses; increases pen- antipollution legislation applying to pollution control, litter, waste disposal and protection alties; further empowers officers; and creates new offense of land pollution. of waters. For example, Pollution of Waters by Oil and Noxious Substances Act 1986 Environment Protection Act 1970 (Vic) establishes Victorian EPA and contains pro- (Vic), Marine Act 1988 (Vic); Marine Pollution Act 1987 (NSW); Marine Pollution Act visions designed to prevent pollution of land, air and water. Act contains provisions to 1999 (NT); Protection of Marine Waters (Prevention of Pollution From Ships) Act 1987 lower level of disposal of solid wastes and reduce environmental impact through neigh- (SA). Safe Drinking Water Act 2003 (Vic) places obligations on water suppliers and borhood environmental improvement plans and sustainability covenants. Act introduces water storage managers in relation to drinking water quality and risk management. See accredited license system for corporations, clarifies lenders’ liability for contaminated also Waste Management and Pollution Control Act 1998 (NT); Zero Waste SA Act 2004 sites and provides for creation of State Environment Protection Policies. (SEPPs). SEPPs (SA). provide framework for environmental decision making and set of environmental objec- Radiation Act 2005 (Vic) aims to protect health and safety of persons and environment tives giving effect to Environment Protection Act 1970 (Vic). Furthermore, Act imposes from harmful effects of radiation. Outlines radiation protection principle; provides for significant penalties for polluting corporations, creates Environmental Protection Board, regulation of matters including licensed activities and testing of prescribed radiation imposes landfill levy and provides for Industry Waste Reduction Agreements. Commis- sources; establishes Radiation Advisory Committee. sioner for Environmental Sustainability Act 2003 (Vic) establishes role of Commissioner Some States provide for protection of ozone in atmosphere. Environmental Manage- for Environmental Sustainability to report on environmental issues and audit Government ment and Pollution Control Act 1994 (Tas) provides for control of ozone depleting agencies. Sustainability Victoria Act 2005 (Vic) establishes Sustainability Victoria (SV), substances. See also Environment Protection Act 1993 (SA); Environment Protection Act provides for SV to be successor in law of Sustainable Energy Victoria and EcoRecycle 1997 (ACT), Electricity (Greenhouse Gas Emissions) Act 2004 (ACT); Ozone Protection Victoria and amends Environment Protection Act 1970 (Vic) by transferring EcoRecycle Act 1989 (NSW); Environmental Protection Act 1994 (Qld); Environment Protection Act Victoria’s functions and powers to SV. 1970 (Vic), Electricity Industry (Wind Energy Development) Act 2004 (Vic). In recog- Planning and Heritage.—Most States have environmental planning legislation which nition of measures to reduce greenhouse gas emissions, several States have introduced aims to balance conflicting land uses. See Planning and Environment Act 1987 (Vic); laws to give legally recognized rights associated with carbon sequestrated by trees and Land (Planning and Environment) Act 1991 (ACT); Environmental Planning and As- forests: see Forestry Rights Act 1996 (Vic); Forestry Rights Registration Act 1990 (Tas); sessment Act 1979 (NSW); Planning Act 1999 (NT); Development Act 1993 (SA); Forestry Act 1959 (Qld); Carbon Rights Act 2003 (WA), Tree Plantation Agreements Act Integrated Planning Act 1997 (Qld). Planning and Development (Consequential and 2003 (WA). Greenhouse measures that target electricity industry are found in Electricity Transitional Provisions) Act 2005 (WA) repealed Western Australian Planning Commis- Supply Act 1995 and Electricity Industry Act 2000 (Vic). In Victoria, Geothermal Energy sion Act 1985; Town Planning and Development Act 1928; Metropolitan Region Town Resources Act 2005 (Vic) facilitates use of geothermal energy resources. Electricity Planning Scheme Act 1959. Repealed Acts’ provisions consolidated by Planning and Industry (Wind Energy Development) Act 2004 (Vic) designed to facilitate wind farm Development Act 2005 (WA). Act aims to provide efficient and effective land use investment in Victoria. planning system and promote sustainable use and development of land in Western There is increasing State concern over protection of water resources. Water Manage- Australia. ment Act 2000 (NSW) provides for protection, conservation and integration of State The Land Use Planning and Approvals Act 1993 (Tas), State Policies and Projects Act water sources. Act establishes Water Administration Ministerial Corporation. Relevant 1993 (Tas) and Resource Management and Planning Appeal Tribunal Act 1993 (Tas) Minister can determine area to be water management area and establish committee to relate to Tasmania’s resource management and planning system, objective of which is to carry out specific tasks. Act provides for principles of water sharing and use, classifi- promote sustainable development of natural and physical resources and maintenance of cation of water sources and management of drainage and flood plains. Act also provides ecological process and genetic diversity. See also Natural Resource Management Act for granting, renewal and registration of various categories of access licenses to non- 2002 (Tas). Natural Resources Commission Act 2003 (NSW) establishes independent landowners, irrigation corporations and boards, private water trusts, and public works. National Resources Commission to advise Government on natural resource management. See also Water Resources Act 1997 (SA), River Murray Act 2003 (SA); Water Act 2000 Most States have shown increasing interest in conservation of significant buildings, (Qld); Water Management Act 1999 (Tas); Water Act 1989 (Vic), Water Industry (En- works, objects, places (including parks and reserves) and flora and wildlife. Relevant vironmental Contributions) Act 2004 (Vic); Water Resources Act 1998 (ACT). Catchment statutes are: Heritage Act 1977 (NSW), National Parks and Wildlife Act 1974 (NSW), Management Authorities Act 2003 (NSW) establishes authorities to develop and imple- Wilderness Act 1987 (NSW), Native Vegetation Act 2003 (NSW), Threatened Species ment catchment action plans. Wild Rivers Act 2005 (Qld) aims to preserve natural values Conservation Act 1995 (NSW), Historic Houses Act 1980 (NSW), Rural Lands Protec- of rivers with all or almost all natural values intact, including by establishing framework tion Act 1998 (NSW); Coastal Management Act 1995 (Vic), Aboriginal Heritage Act to declare wild rivers and regulating activities and taking of natural resources in wild 2006 (Vic), National Parks Act 1975 (Vic), Wildlife Act 1975 (Vic), Heritage Act 1995 river areas. (Vic), Heritage (World Heritage) Act 2004 (Vic), Flora and Fauna Guarantee Act 1988 Legislation in all States and Territories regulates transportation and packaging of (Vic), Heritage Rivers Act 1992 (Vic); National Parks and Wildlife Act 1972 (SA), Coast dangerous goods; directed more at public safety than environmental issues. See: Dan- Protection Act 1972 (SA), Aboriginal Heritage Act 1988 (SA), Native Vegetation Act gerous Goods Act 1985 (Vic), Road Transport (Dangerous Goods) Act 1995 (Vic); 1991 (SA), Wilderness Protection Act 1992 (SA), Heritage Places Act 1993 (SA), Heri- Dangerous Substances Act 2004 (ACT); Road and Rail Transport (Dangerous Goods) Act tage (Heritage Directions) Amendment Act 2005 (SA), Historic Shipwrecks Act 1981 1997 (NSW); Dangerous Goods Act 1998 (NT), Dangerous Goods (Road and Rail (SA); Wildlife Conservation Act 1950 (WA), Conservation and Land Management Act Transport) Act 2003 (NT); Dangerous Goods Safety Management Act 2001 (Qld), Trans- 1984 (WA), Maritime Archaeology Act 1973 (WA), Aboriginal Heritage Act 1972 (WA), port Operations (Road Use Management) Act 1995 (Qld), Transport Operations (Road Reserves (National Parks, Conservation Parks, Nature Reserves and Other Reserves) Act Use Management - Dangerous Goods) Regulation 1998 (Qld), Transport Infrastructure 2004 (WA), Heritage of Western Australia Act 1990 (WA); National Parks and Reserves Act 1994 (Qld), Transport Infrastructure (Dangerous Goods by Rail) Regulation 2002 Management Act 2002 (Tas), Historic Cultural Heritage Act 1995 (Tas), Aboriginal (Qld); Dangerous Substances Act 1979 (SA); Dangerous Goods Safety Act 2004 (WA), Relics Act 1975 (Tas), Nature Conservation Act 2002 (Tas); Nature Conservation Act Dangerous Goods (Transport) Act 1998 (WA). 1992 (Qld), Aboriginal Land Act 1991 (Qld), Aboriginal Cultural Heritage Act 2003 (Qld), Torres Strait Islander Cultural Heritage Act 2003 (Qld), Queensland Heritage Act 1992 (Qld), Wet Tropics World Heritage Protection and Management Act 1993 (Qld), ESTATES AND TRUSTS Marine Parks Act 2004 (Qld); Territory Parks and Wildlife Conservation Act 1976 (NT), ADMINISTRATION: Parks and Reserves (Framework for the Future) Act (2003) 2004 (NT), Heritage Con- servation Act 1991 (NT), Northern Territory Aboriginal Sacred Sites Act 1989 (NT); See topic Executors and Administrators. Nature Conservation Act 1980 (ACT), Heritage Act 2004 (ACT). The Public Land (Administration and Forests) Act 1991 (Tas) establishes Public Land Use Commission DEATH: to promote balanced use of public land based on evaluation of its potential to fulfill No statutory presumption of death of an absentee. Presumption arises at common law social, economic and environmental needs, amongst other objectives. if unseen or unheard of for seven years by those likely to see or hear of person if alive. Environmental Impact Assessment.—States are responsible for environmental im- Shorter period may give rise to presumption of death where person was aged, infirm, ill pact assessment (EIA) and approval of actions that have or may have significant effect or exposed to extraordinary peril. Courts likely to accept grant by foreign court made on environment and do not fall within Commonwealth jurisdiction under Environment upon presumption of death. Presumption is rebuttable and persuasive. Upon presumption Protection and Biodiversity Conservation Act 1999. Some States have separate EIA arising at common law, State statutes confer jurisdiction to distribute estate subject to legislation. See Environmental Assessment Act 1982 (NT); Environment Effects Act certain safeguards. 1978 (Vic). Other States incorporate EIA in existing legislation. See Environmental Application of rule does not establish death at any particular time; only produces result Planning and Assessment Act 1979 (NSW); Environmental Management and Pollution that person might be presumed dead at date when question of death arose in legal Control Act 1994 (Tas); Environmental Protection Act 1986 (WA). proceedings. Human Tissue Act 1983 (NSW) (§33), Human Tissue Act 1982 (Vic) (§41), Trans- Courts and Tribunals.—In Victoria, Magistrates’ Court hears most prosecutions for plantation and Anatomy Act 1979 (Qld) (§45), Death (Definition) Act 1983 (SA) (§2), breaches of Environment Protection Act 1970 (Vic) and Victorian Civil and Adminis- Human Tissue Act 1985 (Tas) (§27A), Human Tissue Transplant Act 1979 (NT) (§23) trative Tribunal hears planning matters. New South Wales has established Land and and Transplantation and Anatomy Act 1978 (ACT) (§45) define death to be either: (a) Environment Court which handles all proceedings under State environment protection Irreversible cessation of all functions of brain; or (b) irreversible cessation of circulation legislation and all environmental planning appeals and objections. (See Land and En- of blood. vironment Court Act 1979 [NSW].) Queensland has Planning and Environment Court. Common law principle that competent adult can refuse medical treatment. Some (See Integrated Planning Act 1997 [Qld].) See also Environment Resources and Devel- jurisdictions also have legislation providing competent adults with mechanism giving opment Court Act 1993 (SA). effect to refusal of treatment if later become incompetent: Natural Death Act 1988 (NT); Miscellaneous.—Commonwealth, South Australia, New South Wales, Victoria and Medical Treatment Act 1994 (ACT); Consent to Medical Treatment and Palliative Care Queensland have each introduced Murray-Darling Basin Acts to approve and give effect Act 1995 (SA); Medical Treatment Act 1988 (Vic). to interstate agreements to regulate and preserve water and resources of Murray and Rights of the Terminally Ill Act 1995 (NT) commenced operation in 1996. Act con- Darling rivers and basins and halt salination. See Murray-Darling Basin Act 1993 (Cth), firmed right of terminally ill person to request assistance from medically qualified person

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DEATH . . . continued and Territories except Western Australia, father and mother of intestate equally entitled to voluntarily terminate life in humane manner. First legislation to legalise voluntary to estate whether there are brothers and sisters or not. In Western Australia, if no brothers euthanasia in world. Four people utilised Act to end their lives before it was overruled or sisters, parents entitled to whole property; if brothers and sisters, parents are entitled by Commonwealth legislation. Euthanasia Laws Act 1997 revoked right of Territories to to A$6,000 plus half balance. Brothers and sisters, and children of deceased brothers and legalise euthanasia, nullifying Northern Territory’s Act. Bill tabled Mar. 2003 in Com- sisters, entitled to other half of balance. monwealth Parliament to repeal Euthanasia Laws Act 1997, once again giving effect to See topics Executors and Administrators, Wills; category Family, topic Infants. Rights of the Terminally Ill Act 1995 (NT). Currently under consideration. Bills also tabled in South Australia and Western Australia conferring right to voluntary euthanasia, EXECUTORS AND ADMINISTRATORS: although both lapsed on prorogation of State Parliaments. May be re-introduced. See Upon grant of probate of will of deceased person, or letters of administration of estate, Euthanasia Laws (Repeal) Bill 2004, Voluntary Euthanasia Bill 2002 (WA), Dignity in all property, whether real or personal, devolves upon executor or administrator. See Dying Bill 2005 (SA). Administration and Probate Acts in South Australia, Victoria, Tasmania, Northern Ter- Actions for Death.—No action for damages in respect of death is available at common ritory and Australian Capital Territory, Succession Act 1981 (Qld), Wills, Probate and law. Administration Act 1898 (NSW) and Administration Act 1903 (WA). Each jurisdiction has statutory exceptions to common law rule where deceased had Eligibility and Competency.—Any person of full age and capacity may act as an dependants who will suffer pecuniary or quantifiable nonpecuniary loss as result of death. executor, but company cannot so act unless specially authorized by its incorporating Such action founded upon negligence of person causing death and usually brought by statute. Trustee companies, specially authorized by Act of Parliament to administer executor or administrator of deceased person’s estate on behalf of that person’s depen- estates, exist in all jurisdictions. Such companies are not required to enter into any bond, dants. Damages which can be claimed are for loss of material pecuniary benefit sustained even where acting as administrators. Private individuals, however, may be required to by dependants as result of deceased person’s death. Dependants must show that deceased enter into guarantees when acting as administrators. Each State and Territory has Public could have sued and recovered against wrongdoer at time of death. See Civil Law Trustee or equivalent which may act as executor. (Wrongs) Act 2002 (ACT); Compensation (Fatal Injuries) Act 1974 (NT); Compensation Where will omits to appoint executor, or appointed executor has died or is unable or to Relatives Act 1897 (NSW); Supreme Court Act 1995 (Qld); Civil Liability Act 1936 unwilling to act, letters of administration cum testamento annexo may be granted. Where (SA); Fatal Accidents Act 1934 (Tas); Wrongs Act 1958 (Vic); Fatal Accidents Act 1959 administration has not been completed and no one available to complete it, letters of (WA). administration de bonis non may be granted. All jurisdictions have specific statutory provision for damages to be claimed by Resealing.—Probate or letters of administration granted in any State, or in any other deceased’s estate in respect of funeral and medical expenses occasioned by death. These jurisdiction with which reciprocal arrangements exist, may be resealed in any State. may be claimed where no dependency and pecuniary loss can be proved. See category Employment, topic Labour Relations, subhead Workers Compensation. INTESTACY: DECEDENTS’ ESTATES: See topic Descent and Distribution. See topics Descent and Distribution, Executors and Administrators, Wills. TRUSTS AND TRUSTEE COMPANIES: English law generally applicable. Each State and Territory has Trustee Act (New South DESCENT AND DISTRIBUTION: Wales Trustee Act 1925 applies in that State and in modified form in Australian Capital Exact method of distribution on intestacy differs somewhat in particular States and Territory). Territories. All States and Territories have Administration and Probate Acts (except Trustee companies are generally incorporated under Act of Parliament, with power to Queensland which has Succession Act 1981, New South Wales which has Wills, Probate act as executors and administrators, and to make charge for their services. Victorian and Administration Act 1898 and Western Australia which has Administration Act 1903). Trustee Companies Act 1984 allows corporations to apply to Victorian Attorney-General Where deceased leaves surviving spouse or partner and no issue, spouse or partner is for authority to carry on business as trustee company. Tasmanian Trustee Companies Act entitled to whole estate. 1953 allows any company or association to present petition to Parliament to have it Each jurisdiction provides for either de facto spouses, putative spouses or partners: declared to be trustee company. Queensland, New South Wales, South Australia, Western Administration and Probate Act 1958 (Vic) (§3); Family Relationships Act 1975 (SA) Australia and Australian Capital Territory also have Trustee Companies Acts. Northern (§11); Wills, Probate and Administration Act 1898 (NSW) (§32G[1]); Administration and Territory has Companies (Trustees and Personal Representatives) Act 1981. See also Probate Act 1935 (Tas) (§44); Succession Act 1981 (Qld) (§5AA); Administration and topic Executors and Administrators. Each State and Territory has Public Trustee (see e.g., Probate Act 1929 (ACT) (§44); Administration and Probate Act 1969 (NT); Adminis- State Trustee [State Owned Company] Act 1994 [Vic]) who/which may act as executor tration Act 1903 (WA) (§15). Australian Capital Territory introduced Civil Unions Act and allow members of public greater access to trustee, administrative and will-making 2006 but disallowed by Commonwealth Governor-General. If and when legislation be- services. comes effective, formal civil unions given equivalent treatment to marriages in all legislation in Australian Capital Territory. WILLS: Provision is made in legislation of some jurisdictions for spouse’s share of estate to Statutory law relating to wills embodied in Wills Acts of various States: Wills, Probate be distributed between surviving spouse and de facto spouse: In Victoria if deceased and Administration Act 1898 (NSW); Wills Act 1997 and Administration and Probate Act leaves both surviving spouse and surviving domestic partner spouse’s share of estate is 1958 (Vic); Wills Act 1936 (SA); Succession Act 1981 (Qld); Wills Act 1970 (WA); Wills shared according to sliding scale (Administration and Probate Act 1958, §51A); in Act 1992 (Tas); Wills Act 1968 (ACT); Wills Act 2000 (NT). Formal requirements of Australian Capital Territory, if deceased leaves surviving spouse and eligible partner if wills in all States and Territories follow English pattern and are as follows: eligible partner has lived with deceased continuously for at least five years eligible Will must be in writing and signed at foot (in Western Australia, New South Wales, partner is entitled to spouse’s share of estate; if eligible partner has lived with deceased South Australia, Northern Territory, Queensland and Victoria signature can be elsewhere for less than five years spouse’s share of estate is shared equally between eligible partner on will) or end thereof by testator (or by some other person in testator’s presence and and spouse (Administration and Probate Act 1929, §45A); in Queensland if deceased by their direction), such signature being made or acknowledged by testator in presence leaves both surviving spouse and de facto spouse, spouse’s share of estate is distributed of at least two witnesses present at same time; such witnesses must attest and subscribe either in accordance with written agreement between them as to distribution or in will in presence of testator. In all jurisdictions document may still be taken as will of accordance with distribution order by court or in equal shares (Succession Act 1981, deceased notwithstanding that it has not been executed with requisite formalities, pro- §36); in South Australia if deceased leaves surviving spouse and de facto (putative) vided court satisfied there can be no reasonable doubt that deceased intended document spouse, spouse’s share of estate is shared between them (Administration and Probate Act to constitute deceased’s will. 1919, §72H). Where beneficiary under will witnesses will, gift to such witness or witness’s spouse Where deceased leaves surviving spouse and issue: (a) New South Wales: spouse void except in Australian Capital Territory, South Australia, Victoria and Western Aus- entitled to first A$200,000, household chattels, and one-half of remainder of estate, with tralia. In New South Wales, Northern Territory and Tasmania exceptions apply, including issue receiving other half of remainder; (b) South Australia: spouse entitled to first where: there are at least two other witnesses to will who are not beneficiaries, or other A$10,000, household chattels, and one-half of remainder of estate, with issue receiving beneficiaries give consent. In Queensland gift to interpreter of will or spouse of inter- other half of remainder; (c) Victoria: spouse entitled to first A$100,000, household preter void. chattels, and one-third of remainder of estate, with issue apportioned balance; (d) Western In all States and Territories, will may be made by person aged 18 years or over or Australia: spouse entitled to first A$50,000, household chattels, and one-third of re- (except in Western Australia) married person under 18 years. mainder of estate, with issue receiving balance of estate; (e) Tasmania: spouse entitled to first A$50,000, household chattels, and one-third of remainder, with issue receiving Testators’ Family Maintenance.—In all jurisdictions there are statutory provisions balance of estate; (f) Queensland: spouse entitled to first A$150,000, household chattels, giving certain defined eligible persons including spouse and children of testator or and one-half of remainder of estate if one issue or one-third of remainder where more intestate right to apply to courts to obtain increased share of deceased person’s estate than one issue, with issue receiving balance of estate; (g) Australian Capital Territory: where either will or intestacy provisions (see topic Descent and Distribution) do not make spouse entitled to first A$150,000, household chattels, and one-half of remainder of estate adequate provision: Courts have power to alter provisions to provide for maintenance of if one issue or one-third of remainder where more than one issue, with issue and next applicant: Family Provision Act 1969 (ACT) (§8); Family Provision Act 1970 (NT) (§7); of kin receiving balance of estate; (h) Northern Territory: spouse entitled to personal Family Provision Act 1982 (NSW) (§7); Succession Act 1981 (Qld) (§41); Inheritance chattels, first A$120,000 and one-half of remainder of estate where one child or issue of (Family Provision) Act 1972 (SA) (§7); Testator’s Family Maintenance Act 1912 (Tas) one child, or one-third of remainder of estate if more than one issue, with issue being (§3); Administration and Probate Act 1958 (Vic) (§91); Inheritance (Family and De- entitled to balance. In Northern Territory, where not survived by issue, but survived by pendents Provision) Act 1972 (WA) (§6). See topic Descent and Distribution on Civil parent, sibling or issue of sibling, spouse entitled to personal chattels, and A$500,000. Unions Act 2006 (ACT). If no surviving parent, spouse also entitled to one-half of remainder of estate, any Foreign Wills.—Generally probate of will of foreign testator will be granted by State surviving parent, parent otherwise entitled to remainder of estate. All jurisdictions except court concerned only if will complies with law of foreign country in which testator was Tasmania give surviving spouse right to elect to take deceased’s interest in matrimonial domiciled at death or with law of State concerned. In all jurisdictions probate will be or shared home. granted if execution of will conformed to internal law in force in place where executed Similar distributions available in other jurisdictions where parents or next of kin other or in place where, at time of execution or of testator’s death testator was domiciled or than issue survive deceased. If deceased leaves neither spouse nor children, in all States had their habitual residence or in country of which, at either of such times, was national.

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WILLS . . . continued approval of Victorian Civil and Administrative Tribunal required; in New South Wales, Probate also granted of will executed on board vessel or aircraft if execution of will Guardianship Tribunal; in South Australia, Guardianship Board; in Tasmania, Guard- conformed to internal law in place with which vessel or aircraft may be taken to be most ianship and Administration Board; in Western Australia, Guardianship and Administra- closely connected. In practice, upon production of an exemplified copy of probate granted tion Board. Any person aggrieved may challenge decision in court. by proper court of foreign country where testator died domiciled, Australian court Guardianship and Administration Act 1986 (Vic) established Office of Public Advocate concerned will follow such grant in granting probate in State or Territory upon appli- to advocate on behalf of people of all ages with disabilities, defined in Act to include cation before it of executor. intellectual, psychiatric and physical disabilities, brain injury and dementia. Judicial In addition to above rules will, to extent that it disposes of immovables (i.e., in general, criteria for consent unsettled, but paramount consideration best interests of person. land), is valid if execution conformed to internal law in place where property was Provision for enduring guardians, consent to medical or dental treatment on behalf of situated. persons incapable of giving consent, and registration of interstate guardianship and administration orders. Since decisions of Secretary Department of Health and Community Services v JWB FAMILY and SMB (Re Marion) (1992) 175 CLR 218 and P v P (1994) 181 CLR 583, Family Court is appropriate forum for sterilization. Decision of Family Court will prevail in any DESERTION: dispute between it and Board as mentioned above. See Pt I, category Family, topic Divorce. Power of Attorney by competent donor may continue to operate in some circum- stances in event of subsequent incapacity of donor in all States and Territories: Victoria: DIVORCE: Instruments Act 1958 (Vic); Conveyancing Act 1919 (NSW); Powers of Attorney and See Pt I, category Family, topic Divorce. Agency Act 1984 (SA); Powers of Attorney Act 2000 (Tas); Powers of Attorney Act 1956 State Acts in this field have been superseded by Commonwealth legislation. State law (ACT); Powers of Attorney Act 1980 (NT); Powers of Attorney Act 1998 (Qld); Guard- only relevant to unmarried couples. ianship and Administration Act 1990 (WA). In general, de facto spouses are not under duty to maintain one another. However, Property (Relationship) Act 1984 (NSW) deals with redistribution of property when de HUSBAND AND WIFE: facto relationship breaks down. All couples (including same sex) can apply for court See Pt I, category Family, topics Divorce, Marriage. orders relating to distribution of property or maintenance. Also gives limited rights to On marriage a woman’s property remains her own unless she makes disposition of it maintenance, and governs cohabitation and separation agreements. Domestic Relation- to the contrary. De facto relationships recognized in all States. ships Act 1994 (ACT) and De Facto Relationships Act 1991 (NT) provide similar rights. Married women hold and dispose of property, make contracts and carry on business Pt IX Property Law Act 1958 (Vic) gives some indirect recognition to de facto rela- separately from their husbands as if they were single. In all States married women may tionships by allowing compensation for lost and gained financial resources upon break- be liable in respect of any tort, contract, debt or obligation incurred prior to entering down of relationship. Statute Law Amendment (Relationships) Act 2001 (Vic) introduced marriage and in New South Wales and Western Australia contractual liability of married term “domestic partner” into Act to include relationships irrespective of gender. Family woman is limited to her own property. However, distinction of little importance, as Court Amendment Act 2002 (WA) amends Family Court Act 1997 (WA) to give de facto married women subject to provisions of Commonwealth Bankruptcy Act 1966. Resulting couples similar rights and remedies as married couples. Provides de facto couples with trust relationship will arise between husband and wife if spouse contributes to joint legal rights in relation to property and maintenance. property. Spouses can sue each other in contract or tort. Married woman no longer State legislation is not uniform and different provisions are applicable to division of acquires domicile of husband, and there is no legal obligation to assume surname of property in each State. spouse. In Australian Capital Territory, effect of Married Persons’ Property Act 1986 is GUARDIAN AND WARD: to abolish rule that husband is liable for contracts entered into by his wife for necessaries. Inherent jurisdiction of Supreme Court of each State and Territory includes exercise INFANTS: of parens patriae power for protection of person and property of infants and mentally Age of Majority is now 18 years whether male or female, married or not, in all States infirm. Also powers bestowed by relevant Supreme Court Acts; statutory powers do not and Territories (e.g., Age of Majority Act 1977 [Vic]). derogate from inherent powers. Powers of Family Court include making decisions about medical treatment (see sub- Contracts.—In general infants not bound by contracts except for “necessaries” (such head Medical Treatment, infra); in case of conflict between State boards and Family as food, shelter, clothing, medical services and good teaching whereby they may profit Court, Family Court prevails. afterwards). This remains law in all jurisdictions except New South Wales. Generally, contracts other than for necessaries may be ratified either orally or in writing upon Children.—Under Constitution, guardianship, custody of children other than in mat- attainment of age of majority. Contracts of minors (other than for necessaries) are rimonial cause is States’ matter. However, revocable reference of certain powers to voidable at option of minor, but adult cannot plead minor’s incapacity to contract as Commonwealth by all states (except Western Australia), so that Family Law Act (Cth) defense, so minor could enforce rights against adult in most cases. Contracts that are applies to dispute over guardianship, custody, access or maintenance of child, except unfair or prejudicial to minor may be cancelled by court after looking at whole contract. where child already subject to State custody or care under State welfare law, or where interim protection order sought, as under, e.g., Children and Young Persons Act 1989 Torts.—In general infants are liable for torts, if he or she was capable of intending (Vic). All other guardianship powers transferred to Commonwealth by Jurisdiction of act. Courts (Cross-vesting) Acts of each State. As result of 1999 challenge to constitutionality Actions.—An infant may sue by guardian, if any, or next friend. A guardian ad litem of cross vesting legislation, Federal Court no longer vested with State jurisdiction. or next friend may upon request be appointed by court to protect interest of any minor Federal Court may only exercise non-federal jurisdiction where it forms integral part of in any suit relating to property in which minor may be or may become interested. federal matter. Welfare provisions of Family Law Act cover areas under States’ wardship Status of Children.—Legislation passed in all States except Western Australia re- jurisdiction such as medical treatment, blood transfusions and emotional well-being of moves legal disabilities of children born out of wedlock (e.g., Status of Children Act child but do not give power to make child ward of court. In Western Australia, only State 1974 [Vic] §3). Relationship between every child and father and mother determined law applies to ex-nuptial children. Paramount consideration in all cases is welfare of irrespective of whether father and mother are or have been married to one another. Acts child. See Child Protection Act 1999 (Qld). See also Pt I, category Family, topic Divorce. apply to every person irrespective of date or place of birth or domicile of father or Jurisdictional requirement is ordinary residence, though physical presence sufficient mother. Acts provide that child born to woman during her marriage or within ten months territorial connection if protection needed. Child may be ward of person, State or Su- after marriage dissolved by death or otherwise will in absence of contrary evidence be preme Court. If ward of Supreme Court, judge awards guardianship to party and can presumed to be child of mother and her husband or former husband. Acts provide that make orders with respect to custody, access, maintenance. Judge retains personal re- relationship of father and child for any purpose related to succession to property, etc. sponsibility for child until age 18. Ward of Supreme Court may not be removed from recognized only if father and mother of child were married to each other at time of its jurisdiction, allowed to leave school or marry without judge’s permission. conception or some subsequent time or paternity has been admitted (expressly or by Mental Illness.—Supreme Court has inherent jurisdiction to make orders concerning implication) by or established against father in his lifetime. Methods of establishing estate of person with mental illness, and all States have legislation whereby guardian/ paternity also provided for in Acts. Legitimation Act 1909 repealed by Acts Repeal and committee of person and/or administrator of estate may be appointed where person over Amendment (Births, Deaths and Marriage Regulation) Act 1998. 18 suffering mental disability (variously defined) and unable to manage own affairs. Artificial Conception.—Status of Children Act 1996 (NSW) provides that where Views of person to be taken into account in most States. Guardian should be of same married woman, or woman in defacto relationship, with her husband’s, or defacto equiva- sex and reside near patient in same jurisdiction, and is often appointed by Guardianship lent’s, consent has undergone fertilization procedure resulting in pregnancy (including Board. Some States include deterioration through age of mental faculties. artificial insemination and in vitro fertilization) husband, or defacto equivalent, will be Relevant legislation includes: Guardianship and Administration Act 1986 (Vic); Guard- irrebuttably presumed to have caused pregnancy and be father of child. Similar provi- ianship Act 1987 (NSW); Guardianship and Administration Act 2000 (Qld); Guardianship sions exist in Status of Children Act 1974 (Vic), Family Relationships Act 1975 (SA), and Administration Act 1990 (WA); Guardianship and Administration Act 1993 (SA); Status of Children Act 1978 (Qld), Parentage Act 2004 (ACT), Status of Children Act Guardianship and Management of Property Act 1991 (ACT), Aged and Infirm Persons’ 1979 (NT), Status of Children Act 1974 (Tas), and Artificial Conception Act 1985 (WA). Property Act 1979 (NT), Guardianship and Administration Act 1995 (Tas) and Mental Queensland, Australian Capital Territory, South Australia, Tasmania and Victoria have Health Acts of all States and Territories. enacted legislation prohibiting commercial surrogacy agreements. Legislation is not uni- Public Trustee (Victoria—State Trustees Limited) may be preferred administrator of form but there are some similarities: (a) Advertising of surrogacy agreement is prohib- estate. ited; (b) all surrogacy agreements are void; and (c) provisions apply in circumstances Foreign order of appointment of guardian not regarded as foreign judgment for pur- where woman becomes pregnant pursuant to surrogacy agreement and also where woman poses of law applicable to recognition of foreign judgments in general. Forum itself must who is already pregnant enters into surrogacy agreement. make appointment, even if only confirming foreign appointment. Surrogate Parenthood Act 1988 (Qld) prohibits surrogacy agreements; applies where Guardianship orders may be enduring or temporary, plenary or limited, depending on offender ordinarily resident in Queensland at time proscribed act occurs, irrespective of relevant jurisdiction, and appeal and review rights exist in all States. where act occurs. Family Relationships Act 1975 (SA) prohibits surrogacy agreements. Medical Treatment.—Consent to major nontherapeutic medical treatment (e.g., ster- Under Infertility Treatment Act 1995 (Vic) surrogacy agreement, whether or not for ilization), usually only with consent of guardian and approval of court. In Victoria, payment or reward, void; penalties for both those commissioning arrangements and

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INFANTS . . . continued power defined. Extremely wide definition of associate. ‘‘Acquire’’ includes obtain, gain, surrogate; publishing advertisements for surrogacy, and giving or receiving payment for receive or acquire by purchase, exchange, lease, will, devolution or operation of law, by making agreement or acting as surrogate, prohibited. Surrogacy Contracts Act 1993 (No. grant or gift, by enforcement of security. ‘‘Interest in land’’ includes licenses and leases 4) (Tas) in substantially similar terms to Victorian Act. In Australian Capital Territory granted under various statutes, but expressly does not include, among others, easements, situation governed by Parentage Act 2004. leases for less than 25 years, most security interests. Reproductive Technology (Clinical Practices) Act 1988 (SA) establishes South Aus- Any person, trustee or trust becoming, or ceasing to be, foreign person, trustee or trust tralia Council on Reproductive Technology which governs artificial fertilization proce- must notify Registrar within 90 days. Registrar has broad powers to elicit information. dures in South Australia. Infertility Treatment Act 1995 (Vic) regulates artificial fertili- Serious penalties may be imposed for breach of Act, including, ultimately, forfeiture zation procedures, prohibits certain research and establishes Infertility Treatment without compensation where foreign person has failed to notify, and not appealed against Authority. Minister’s determination. See Pt I, category Immigration, topic Aliens.

MARRIAGE: See Pt I, category Family, topic Marriage. INTELLECTUAL PROPERTY MARRIED WOMEN: TRADEMARKS: See topic Husband and Wife; Pt I, category Family, topic Marriage. See Pt I, category Intellectual Property, topic Trademarks.

TRADENAMES: HEALTH See category Business Organizations, topic Business Names. HEALTH: All States and Territories have enacted Health Acts and Food Acts and Regulations which prescribe standards for public health. Victoria and New South Wales also enacted LEGAL PROFESSION provisions restricting sale and advertising of patent medicines. Note: At Federal level ATTORNEYS AND COUNSELORS: National Health Act 1953 (Cth) regulates national health services, subsidy and benefit schemes and insurance. In all jurisdictions, admission is as barrister and solicitor or ‘‘legal practitioner’’. Statutory control of packaging, marketing and content of therapeutic goods and cos- Each jurisdiction has Acts dealing with matters such as powers and functions of metics exists in some States: Poisons and Therapeutic Goods Regulations 2002 (NSW), statutory and professional bodies, definitions of legal work and persons permitted to do Therapeutic Goods and Cosmetics Act 1986 (NT), Therapeutic Goods Act 1994 (Vic), it, requirements for legal education, admission and practising certificates including prac- Therapeutic Goods Act 2001 (Tas). Therapeutic Goods Act 1989 (Cth) applies in South titioners’ fees, regulation of trust accounts, indemnity and insurance, fidelity funds and Australia, Western Australia and Australian Capital Territory. Commonwealth Act management and receivership of failed practices, disciplinary offences, procedures and amended by various Therapeutic Goods Amendment Acts. penalties and determination of fee scales and arrangements and ongoing costs disclosure Food Standards Australia New Zealand Authority (FSANZA) (formerly Australia New obligations. In 2004, States and Territories enacted uniform provisions regulating pro- Zealand Food Authority and prior to that National Food Authority) is statutory authority fession and established new bodies responsible for regulating profession on national basis which commenced operating under Food Standards Australia New Zealand Act 1991 on across State and Territory borders (although variations between States and Territories still July 1, 2002. Act provides for cooperation between State and Territory governments, exist). See Legal Profession Act 2004 (Vic); Legal Profession Act 2004 (Qld); Legal industry and community for maintaining uniform food regulation and labeling require- Practitioners Act 1974 (NT); Legal Practitioners Act 1981 (SA); Legal Practice Act 2003 ments in Australia and New Zealand. (WA); Legal Practitioners Act 1970 (ACT); Legal Profession Act 2004 (NSW); Legal On Dec. 20, 2002, Australian Food Standards Code (Volume 1 of Food Standards Profession Act 1993 (Tas). Detailed regulation in statutory rules and rules of professional Code) and New Zealand food regulations replaced, following two year transition period, bodies. In each jurisdiction law societies represent legal practitioners. Bar associations by joint Food Standards Code for both Australia and New Zealand. It specifically represent legal practitioners specializing as barristers. Membership of this is voluntary. regulates residue limits, processing requirements, health claims, and food hygiene issues. Eminent barristers may be appointed Senior Counsel by Governor-in-Council or Chief Genetically Modified Foods.—Current regulatory system includes number of agen- Justice in all States except South Australia where appointment is as Queen’s Counsel. cies with specific roles in control and regulation of genetically modified products (such Queen’s Counsel and Senior Counsel are subject to particular rules, for example, in as imports, food, agricultural and veterinary chemicals) including: FSANZ; Office of the relation to fees or type of work undertaken. Gene Technology Regulator; Therapeutic Goods Administration; Australian Pesticides Admission to Practise.—Certain legal work must be conducted by qualified practi- and Veterinary Medicines Authority and Australian Quarantine and Inspection Service. tioner with current practising certificate if fee to be charged. For admission to legal Safety of genetically modified foods continues to be assessed and regulated by FSANZ profession person must have recognized legal education, usually law degree. Recognition under direction of Australia New Zealand Food Regulation Ministerial Council com- at discretion of local admission body. Also require post-graduate training in practice or prising Health and Agricultural Ministers from Commonwealth, each State and Territory, practical institutional course. Applicant must be fit and proper person. Following ad- and New Zealand. mission, practising certificate must be obtained on payment of annual fee. Professional indemnity insurance must be acquired. Mutual recognition legislation makes interstate admission virtually automatic on application. Mutual recognition principle also extends IMMIGRATION to New Zealand practitioners. National practising certificate regime provides reciprocal recognition of practising certificates in all States and Territories. Admission of overseas ALIENS: practitioners governed by Acts and Rules of States and Territories. Some States have Foreign Ownership of Land Register Act 1988 (Qld) establishes register of details of residency requirements. May have to apply for direction that existing qualifications interests in land in Queensland presently held or acquired by foreign persons. Any foreign sufficient for admission in State or Territory. Further study may be necessary, e.g., Legal person or trustee (including Australian citizen) who acquires or disposes of legal estate Practice (Admission) Rules 1999 (Vic) relating to qualification and admission of appli- or interest after Apr. 17, 1989 must notify Registrar within 90 days. Person who, as cants. Practitioners from jurisdictions based on common law may have fewer require- trustee holds legal interest in land for foreign person, must notify Registrar within 90 ments to satisfy. days of disposal of equitable interest if result is that trustee no longer holds legal estate Specialization Schemes.—Formal accreditation available in Victoria, Western Aus- for foreign person. Person who, as trustee holds equitable interest in land must give tralia, Queensland and New South Wales, but not necessary as prerequisite to practise details of beneficiary’s interest, and whether or not beneficiary foreign person, if re- in area. Requirements differ but include five years full time practise with substantial quested by person who, as trustee, holds legal estate. At present, no similar scheme exists involvement in specialty area in preceding period, written assessment and provision of in other States and Territories. references. Foreign person.—In Foreign Ownership of Land Register Act 1988 defined widely Business Structure.—Practitioners may practise as sole practitioners. Solicitors may as foreign natural person, foreign corporation, corporation in which foreign natural practise in partnership. Legal practises may incorporate in New South Wales, Western person or foreign corporation holds controlling interest, or two or more hold aggregate Australia, Victoria, Queensland, South Australia, Tasmania and Northern Territory. Must controlling interest. Foreign natural person is person who is not Australian citizen and be at least one legal practitioner director. Structure allows limitation of liability. Barristers whose right to reside in Australia is limited to set time imposed by law, or who is not more restricted by rules but varies between jurisdictions, e.g., barristers usually must domiciled in Australia. practise as sole practitioners in chambers approved by Bar Council, are forbidden from Foreign corporation.—In Foreign Ownership of Land Register Act 1988 means body practising with non-barristers (except in Western Australia, South Australia and Tasma- (incorporated or unincorporated) formed outside Australia and external Territories. nia) and are prevented from advertising. See category Business Organizations, topic Foreign Trust.—In Foreign Ownership of Land Register Act 1988 means unit trust Associations. in which foreign person holds controlling interest, or two or more hold aggregate con- Fees.—Terms of retainer between practitioner and client. Guidance for fees charged trolling interest, or trust other than unit trust in which not less than 15% of total income available from professional associations. Legal practitioner has lien over client’s docu- of trust paid to, or applied for benefit of, foreign person, or not less than 40% total ments until all taxed costs paid. Right qualified with respect to third parties. Uniform income of trust paid to, or applied for, benefit of two or more foreign persons, together legislation confers stricter obligations on legal practitioners for upfront and ongoing with any associate(s), or trust other than unit trust in which trustee holds not less than disclosure of costs. Bar Rules prohibit barristers from reducing their fees. Contingency 15% of capital of trust for foreign person, or not less than 40% of capital of trust for fees on percentage basis prohibited except in South Australia although in some juris- two or more foreign persons, together with any associates. dictions legal practitioners may agree to be paid normal fee only if client is successful. Substantial Interest.—In Foreign Ownership of Land Register Act 1988 person (alone Barristers cannot enter speculative or contingency fee arrangements. See category Civil or with associate) controls at least 15% voting power deemed controlling interest, two Actions and Procedure, topic Costs. or more persons (with or without associates) control at least 40% voting power deemed Legal professional privilege conferred upon clients to protect confidential communi- aggregate controlling interest, unless Minister declares such persons not in position to cations from disclosure if made for purposes of giving or obtaining legal advice or in determine policy of corporation or unit trust. Tracing provisions apply. Control of voting contemplation of or for purpose of litigation.

See note at head of Digest as to 2006 legislation covered. See Topical Index in front part of this volume. AUS–38 AUSTRALIA LAW DIGEST MINERAL, WATER AND FISHING RIGHTS

ATTORNEYS AND COUNSELORS . . . continued Gas.—Legislation, namely Pipelines Act 2005 (Vic), Pipelines Act 1967 (NSW), Gas Complaints and Discipline.—Statutory bodies or law societies and bar associations Pipelines Act 2000 (Tas), Petroleum Pipelines Act 1969 (WA), and Energy Pipelines Act deal with complaints against practitioners for professional misconduct or unprofessional 1982 (NT) regulates construction, ownership, use and operation of pipelines. conduct. Systems vary across jurisdictions. In Queensland, New South Wales and Vic- All States, Territories and Commonwealth agreed in 1997 to enact legislation in all toria all complaints made to Legal Services Commissioner. Penalties include reprimand, jurisdictions establishing uniform national framework for third party access to all gas fines, restrictions on right to practise and revoking license to practise. pipelines. Legislation: (a) Facilitates development and operation of national market for natural gas; (b) prevents abuse of monopoly power; (c) promotes competitive market for Contacts.—Law Council of Australia, 19 Torrens Street, Braddon, ACT, 2612, +612 natural gas; (d) provides rights of access to gas pipelines that are fair and reasonable to 6246 3788, email: [email protected]; Law Institute of Victoria, 470 Bourke Street, owners and operators; and (e) provides for resolution of disputes. National Third Party Melbourne, Vic, 3000, +613 9607 9311, email: [email protected]; Victorian Bar Access Code for Natural Gas Pipeline Systems (Gas Code), contained in Schedule 2 to Council, Level 5, Owen Dixon Chambers East, 205 William Street, Melbourne, Vic, Gas Pipelines Access (South Australia) Act 1997 (SA). Gas Code and Schedule 1 to Act 3000, +613 9225 7111, website: http://www.vicbar.com.au; Law Society of New South together make up Gas Pipelines Access Law, in turn implemented by each State and Wales, 170 Phillip Street, Sydney, NSW, 2000, +612 9926 0333, email: Territory. See, for example, Gas Pipelines Access (Northern Territory) Act 1998 (NT); [email protected]; New South Wales Bar Association, Selborne Chambers, Gas Pipelines Access Act 1998 (ACT); Gas Pipelines Access (Tasmania) Act 2000 (Tas); 174 Phillips Street, Sydney, 2000, +612 9232 4055, website: http://www.nswbar.asn.au; Gas Pipelines (Western Australia) Act 1998 (WA); Gas Pipelines Access (Victoria) Act Law Society Northern Territory, Suite G16, 1st Floor, 48-50 Smith Street, Darwin, 0800, 1998 (Vic); Gas Pipelines Access (New South Wales) Act 1998 (NSW); Gas Pipelines +618 8981 5104, email: [email protected]; Queensland Law Society Inc., Access (Queensland) Act 1998 (Qld). Note: Gas Code recognized as effective access 179 Ann Street, Brisbane 4000, +617 3842 5842, email: [email protected]; Queensland regime for purposes of Pt III of Trade Practices Act 1974. Bar Association, Level 5, Inns of Court, 107 North Quay, Brisbane, Queensland 4000, Other relevant legislation includes: Gas Industry Act 2001 (Vic); Gas Supply Act 1996 +617 3238 5100; Law Society of South Australia, 124 Waymouth Street, Adelaide, SA, (NSW); Gas Safety Act 2000 (ACT); Gas Supply Act 2003 (Qld), Petroleum and Gas 5000, +618 8229 0222, email: [email protected]; Law Society of Western Australia, (Production and Safety) Act 2004 (Qld); Gas Act 1997 (SA); Gas Act 2000 (Tas). Level 4, 89 St George’s Terrace, Perth, WA, 6000, +618 9322 7877, email: [email protected]; Western Australian Bar Association Inc., 77 St Georges Ter- Geothermal.—South Australia, New South Wales and Tasmania incorporate regula- race, Perth, WA, 6000, +618 9220 0444, email: [email protected]; Law Society of the tion of geothermal energy in general mining and resources legislation. (See Petroleum ACT, Level 3, 11 London Circuit, Canberra City, ACT, 2601, +612 6247 5700, email: Act 2000 [SA], Mining Act 1992 [NSW] and Mineral Resources Development Act 1995 [email protected]; Law Society of Tasmania, 28 Murray Street, Hobart, Tas [Tas].) In New South Wales and Tasmania geothermal substances are included in defi- 7000, +613 6234 4133, email: [email protected]. nition of mineral in mining legislation. (See topic Mines and Minerals.) Geothermal energy defined separately in South Australian petroleum and resources legislation. BARRISTERS AND SOLICITORS: Queensland and Victoria have enacted specific geothermal legislation. Geothermal Ex- ploration Act 2004 (Qld) provides that all geothermal energy on or below surface is See topic Attorneys and Counselors. property of Crown. (§11). Act prohibits unauthorized geothermal exploration. (§13). Geothermal Energy Resources Act 2005 (Vic) prohibits unauthorized geothermal energy exploration and extraction. (§§14-15). Geothermal energy and geothermal energy re- sources are Crown property (§12) until extracted by authorized persons under Act (§16). MINERAL, WATER AND FISHING RIGHTS Unlike South Australian and New South Wales regulatory schemes, Queensland and ENERGY: Victorian geothermal exploration permits granted by competitive tender. (c. 3 Queensland Act, Pt II Victorian Act). Queensland and Victorian Acts establish geothermal registers. Increasing awareness of possible energy shortages and prospect and problems of (Queensland Act §122, Victorian Act §152). Note: Water legislation may apply to some increasing uranium mining industry have prompted States to consider energy legislation. geothermal resources (e.g., hot groundwater). In Victoria and South Australia privatization reforms have seen disaggregation of elec- See also Pt I, category Mineral, Water and Fishing Rights, topic Energy. tricity generators and distributors. Queensland has undergone process of disaggregation and corporatisation. Western Australia remains in process of privatizing its gas industry. MINES AND MINERALS: Privatization intended to bring about competition reforms. Ownership of Minerals.—Petroleum and natural gas belong to Crown. In South Nuclear.—Energy and Utilities Administration Act 1987 (NSW) establishes Energy Australia and Northern Territory, all other minerals belong to Crown. (See Mining Act Corporation of New South Wales (§7). Functions of Corporation include to investigate, 1971 [SA], Native Title Act 1993 [Cth] and Mining Act 1980 [NT]). In Victoria, Mineral plan and advise on locating, developing, extracting, allocating, transporting, distributing, Resources Development Act 1990 provides that Crown owns all minerals except (a) pricing, conserving, utilizing and supplying energy and energy resources. (§§11-12). With Those in respect of which minerals exemption is current; and (b) those separated from ministerial approval, Corporation empowered (inter alia) to deal with land (§17) and land by holder of license, miner’s right or tourist fossicking authority. (§9). Property in enter contracts in relation to oil, gas, coal and nuclear energy industries (§18) and also minerals passes from Crown to holder of license, miner’s right or tourist fossicking empowered to acquire and hold shares in company having objects relating to develop- authority when minerals are separated from land in accordance with relevant authority. ment of energy and energy resources if approval of Governor of State obtained (§14). (§11). Royalties are payable to Crown in accordance with license. (§12). In all juris- Nuclear Activities (Prohibitions) Act 1983 (Vic) prohibits mining for uranium or thorium dictions just compensation must be paid for use of native title land as well as private land. (§5), construction or operation of certain facilities (including nuclear reactor, conversion, (See e.g., Pt 8 Mineral Resources Development Act 1993 [Vic], Land Titles Validation enrichment, reprocessing, storage or disposal facilities) (§8) and unauthorized possession Act 1994 [Vic].) In all other States and ACT, minerals (usually including gold) belong of or dealings with nuclear material (§9). Nuclear Activities Regulations Act 1978 (WA) to Crown, unless alienated in original Crown grant of land. In Tasmania, Mineral Re- allows certain nuclear activities under ministerial supervision. Nuclear Waste Storage and sources Development Act 1995 provides that any gold, silver, atomic substance, helium, Transportation (Prohibition) Act 1999 (WA) prohibits construction or operation of hydrogen and oil in natural state existing above or below ground belong to Crown. (§6). nuclear waste storage facility (§7) and transport of nuclear waste (§7A). Nuclear Waste Note: Geothermal substances included in definition of mineral in some States. See topic Storage Facility (Prohibition) Act 2000 (SA) prohibits construction or operation of Energy, subhead Geothermal. nuclear waste storage facility (§8) and importation or transportation of nuclear waste for Minerals Exploration.—In most jurisdictions any person may take out miner’s right delivery to storage facility within South Australia (§9). Uranium Mining and Nuclear which grants entitlement to occupy land (with certain exceptions) and to commence Facilities (Prohibitions) Act 1986 (NSW) prohibits uranium mining (§7) and construction mining operations (e.g., Mineral Resources Development Act 1995 [Tas] §84). Term of or operation of certain nuclear facilities (§8). Nuclear Waste Transport Storage and miner’s right varies depending upon jurisdiction, generally at Minister’s discretion (e.g., Disposal (Prohibition) Act 2004 (NT) prohibits construction or operation of nuclear waste Mining Act 1992 [NSW] §71). Land subject to mining authority deemed to be mining storage facility (§6) and importation of nuclear waste into Northern Territory for storage land possessed by holder of right (e.g., Mining Act 1992 [NSW] §58). Some States have (§7). established specialist bodies to hear issues relating to minerals exploration and devel- Solar and Wind.—Sustainability Victoria Act 2005 (Vic) establishes Sustainability opment (inter alia), e.g., Land and Resources Tribunal Act 1999 (Qld) and Lands and Victoria (§5) with objective to facilitate and promote sustainable use of natural resources Mining Tribunal Act 1998 (NT). in Victorian local government, businesses and households. (§§6, 7). Perth International In return for payment of royalties, lease may be granted to miners. Royalties returned Centre for Application of Solar Energy Act 1994 (WA) establishes Perth International from minerals found on public lands remain property of Crown (e.g., Mining Act 1992 Centre for Application of Solar Energy. (§4). Centre to (inter alia) promote and encourage [NSW] §§283-284). development of solar energy industry within Australia and assist developing countries in Mining lease or license generally granted on application showing reasonable prob- matters relating to solar energy technology. (§18). Note: Perth International Centre for ability of finding minerals on land not occupied by holder of miner’s right. Mining Act Application of Solar Energy Repeal Bill 2005 (WA) proposes to repeal Act and abolish 1992 (NSW) provides for transfer of parts of leases. (§123). Mineral Resources Devel- Centre as statutory authority. Minerals and Energy Research Act 1987 (WA) promotes opment Act 1990 (Vic) establishes Mining and Environment Advisory Committee (§48) and co-ordinates development of minerals and energy industries in Western Australia and to advise Minister on authorizing licensees, amendments to planning schemes on ex- establishes Minerals and Energy Research Institute of Western Australia (MERIWA). ploration (§49), and sets up Mining Register (§69). Act provides that licensee must (§4). Note: Minerals and Energy Research Amendment Bill 2006 proposes to amend Act rehabilitate land and compensate owners/occupiers of private land for loss/damage sus- and provide additional powers of MERIWA, including increased capacity of state re- tained from work done under license. (§§78, 85-86). License may be subject to conditions search institutions reporting to Minister. including protection of environment (e.g., §26 Mineral Resources and Development Act 1990 [Vic]). Electricity.—Recent establishment of National Electricity Market. Participating States Offshore Minerals Act 1999 (NSW), Offshore Minerals Act 2000 (SA), Offshore and Territories are South Australia, Victoria, New South Wales, Australian Capital Ter- Minerals Act 1998 (Qld), and Offshore Minerals Act 2003 (WA) regulate exploration for, ritory and Queensland. National Electricity Law including National Electricity Rules set and recovery of, minerals (other than petroleum) in first three nautical miles of State’s out in Schedule to National Electricity (South Australia) Act 1996 (SA) now implemented territorial sea. Acts are result of Offshore Constitutional Settlement between States and by other participating States (see National Electricity [Victoria] Act 2005 [Vic]; National Commonwealth. All States and Territories have restrictions on mining in public areas, Electricity [New South Wales] Act 1997 [NSW]; Electricity [National Scheme] Act 1997 including national parks (e.g., §6 Mineral Resources and Development Act 1990 [Vic]). [ACT]; Electricity—National Scheme [Queensland] Act 1997 [Qld]; Tasmania National Most require consent of Parliament even for prospecting. Relevant legislation includes Scheme [Tasmania] Act 1999 [Tas]). Mining Act 1992 (NSW), Mining Act 1980 (NT), Mineral Resources Act 1989 (Qld),

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MINES AND MINERALS . . . continued (Qld), and Mineral Resources Development Act 1995 (Tas). No specific petroleum Mining Act 1971 (SA), Mineral Resources Development Act 1995 (Tas), Mining Act legislation in Australian Capital Territory. States and Commonwealth have also passed 1978 (WA). No express provision for exploration titles in ACT Land (Planning and legislation for regulation and control of exploration and exploitation of petroleum re- Environment) Act 1991, however right to extract minerals may be granted through lease sources of submerged lands, e.g., Petroleum (Submerged Lands) Act 1982 (NSW), or agreement. (§219). National Parks (Marine National Parks and Marine Sanctuaries) Petroleum (Submerged Lands) Act 1982 (Vic), Petroleum (Submerged Lands) Act 1982 Act 2002 (Vic) establishes 13 marine parks and 11 marine sanctuaries under National (Tas). Victoria, New South Wales and Northern Territory legislation mirrors Common- Parks Act 1975. Mineral Resources Development Act 1990 (Vic) restricts National Park wealth Act and Commonwealth-State cooperative responsibility and establishes National land declared under National Parks Act 1975 from being subject to mining lease or other Offshore Safety Authority. See also Pt I, category Mineral, Water and Fishing Rights, authority, however right to extract minerals may be granted. (§6). topic Mines and Minerals. Short term titles (usually renewable from year to year on compliance with expenditure Compensation.—Minister may require compensation to be paid to owner of freehold conditions) are available for prospecting (e.g., §140 Mining Act 1992 [NSW]). land declared to be mining land. Owner of land is liable in trespass for unauthorized Mining Management Act 2001 (NT) relates to inspection and management of mines interference with land so declared. See, e.g., Pt 11 Petroleum (Onshore) Act 1991 (NSW). with focus on safety, health and environment. Act establishes Mining Board of industry See also Pt I, categories Business Organizations, topic Corporations, subhead Termi- representatives to advise Minister on investigations and research matters. (§§49-58). Act nology, catchline No Liability Company; Citizenship, topic Aliens; Foreign Trade and requires mining operator to obtain authorization to commence mining. (§35). Application Commerce, topic Customs; Mineral, Water and Fishing Rights, topic Mines and Minerals. for authorization must include mining management plan. (§35[3]; see also §§40-42). Authorizations may contain operational conditions that can be amended by Minister. WATER AND FISHING RIGHTS: (§§37-38). Responsibility for control and management of mining site and activities on site rests with operator of site. (§9). Act requires consultation and cooperation on site to Water.—Legislation regulating water includes Water Resources Act 1998 (ACT), ensure safety and health. States have similar legislation: Mine Health and Safety Act Water Management Act 2000 (NSW), Water Act 1992 (NT), Water Act 2000 (Qld), 2004 (NSW); Mining and Quarrying Safety and Health Act 1999 (Qld); Mines and Works Natural Resources Management Act 2004 (SA), Water Management Act 1999 (Tas), Inspection Act 1920 (SA); Mineral Resources Development Act 1990 (Vic); Mines Safety Water Act 1989 (Vic), Rights in Water and Irrigation Act 1914 (WA). and Inspection Act 1994 (WA). Note: Water Management (Water Property Rights) Amendment Bill 2006 (NSW) pro- Most jurisdictions also have legislation that deals with particular types of mining. See poses compensation for compulsory acquisition of water access licenses and incentives for example Coal Mine Health and Safety Act 2002 (NSW), Coal Mining Safety and for water reduction. Health Act 1999 (Qld). Nuclear Activities (Prohibitions) Act 1983 (Vic) prohibits mining Note: Water Resources Legislation Amendment Bill 2006 (WA) proposes substantial for uranium or thorium (§5); similarly Uranium Mining and Nuclear Facilities (Prohi- amendments to Rights in Water and Irrigation Act 1914 (WA), in accordance with transfer bitions) Act 1986 (NSW) prohibits uranium mining (§7) (see Mineral, Water and Fishing of water resource management to Minister under Water Agencies (Powers) Act 1984 Rights, topic Energy, subhead Nuclear). Opal Mining Act 1995 (SA) regulates pros- (WA). pecting and mining for opals and other precious stones. National Water Commission Act 2004 establishes National Water Commission. (Pt II). National Water Initiative signed June 2004 by all States except Western Australia, ad- Aboriginal Land Rights.—Aboriginal Land Rights (Northern Territory) Act 1976 dresses water access entitlements, environment, water planning, risk sharing, water mar- (Cth) (Pt IV), Aboriginal Land Act 1978 (NT) and Northern Territory Aboriginal Sacred kets and trading, water pricing, institutional reform. Note: Will result in staged legislative Sites Act 1989 (NT) qualify rights of mining interests and operations on aboriginal land. reforms until 2014. Other jurisdictions have legislation that controls (to varying extent) mining and explo- ration on aboriginal sacred sites. For example see Aboriginal Land Act 1991 (Qld) (Pt Fisheries Regulation.—States and Territories cooperate with Commonwealth to regu- VII) and Mineral Resources Act 1989 (Qld). late Australian fisheries. States and Territories responsible for coastal and inland waters. In important case of Mabo v Queensland (No. 2) (1992) (175 CLR 1), High Court of Commonwealth responsible for Australian fishing zone (see Pt I, category Mineral, Water Australia held that native title survived European settlement of Australia. Accordingly, and Fishing Rights, topic Water and Fishing Rights, subhead Fisheries Regulation). For Aborigines who can show continuous occupation of land during European settlement can marine species with broad distribution, cooperative regulation can also be species de- claim native title to land. As result certain titles to land required confirmation. Validation pendent. Generally States and Territories responsible for freshwater, coastal and seden- of mining licenses and compensation for certain customary titles provided for by Land tary marine species, Commonwealth responsible for more widely distributed species. Titles Validation Act 1994 (Vic) (Pt II). Native Title Act 1993 (Cth) provides mechanism Commonwealth responsible for commercial fishing, States and Territories responsible for for native title claim. National scheme implemented by Native Title (Queensland) Act recreational fishing. 1993 (Qld); Native Title Act 1994 (ACT); Native Title (New South Wales) Act 1994 Fisheries Act 2000 (ACT), Fisheries Management Act 1994 (NSW), Fisheries Act (NSW); Validation (Native Title) Act 1994 (NT); Native Title (South Australia) Act 1994 1988 (NT), Fisheries Act 1994 (Qld), Fisheries Act 1982 (SA), Living Marine Resources (SA) and Native Title (State Provisions) Act 1999 (WA). Management Act 1995 (Tas), Inland Fisheries Act 1995 (Tas), Fisheries Act 1995 (Vic) High Court in Wik Peoples v State of Queensland (1996) 187 CLR 1 held that native and Fish Resources Management Act 1994 (WA) provide for regulation, conservation and title could coexist with pastoral leases. Decision meant compensation payable if native management of State and Territory fisheries and fishery resources. Relevant State and title subsequently extinguished. Government responded with Native Title Act Amend- Territory authorities administer Acts and issue permits and licenses. ment Act 1998: (a) Validates certain grants of land; (b) confirms extinguishment of native title on ‘‘exclusive’’ tenures; (c) allows provision of Government services to land on which native title may exist; (d) extinguishes native title which coexists with pastoral MORTGAGES leases to extent of inconsistency (enhances rights of pastoralists); (e) grants statutory access rights for native title claimants who have physical access to land; (f) establishes CHATTEL MORTGAGES: stringent registration test for native title claimants seeking right to negotiate over mining Mortgages of ordinary chattels, such as household furniture, trade stock, machinery or activity; (g) removes right to negotiate in respect of future government and commercial plant, are known as bills of sale; but in addition to these, there are farming and pastoral development; (h) gives Government right to regulate and manage surface and subsurface securities, such as liens on crops, liens on wool, and stock mortgages. Provisions are water, off-shore resources and water; (i) sets more stringent registration test for native included to protect creditors against unauthorized realization. In all jurisdictions mort- title claims and introduces sunset clause; (j) facilitates negotiation of voluntary binding gages made by companies must be registered under Corporations Act 2001. Registration agreements. Constitutionality questioned. requirements of Bills of Sale Acts then do not generally apply other than in Queensland. High Court recently narrowed scope of native title rights under Native Title Act 1993. All States and Territories except Victoria have Bills of Sale legislation; under these Confirmed grant of pastoral or mining leases under relevant Western Australian or Acts effects of failure to register relevant instruments vary, i.e., may cause mortgage or Northern Territory legislation extinguishes native title rights to control access to land or other security over chattel to be avoided either as against all persons save grantor and to be asked for permission to use land. If claims to protect cultural knowledge go beyond grantee (for example in Queensland) or as against certain nominated persons (for ex- denial or control of access to land or waters, they are not protected by Native Title Act ample in South Australia, Australian Capital Territory and New South Wales where bill 1993. See Western Australia v Ward (2002) 213 CLR 1. of sale is avoided only against official receiver or trustee in bankruptcy of grantor, Native Title extends to Australian Coastal Waters but in non-exclusive way. High Court assignee or trustee under any assignment by grantor for benefit of creditors, sheriff’s rejected exclusive right over coastal seas because inconsistent with public right to navi- officer seizing goods of grantor in course of execution, and judgment creditor on whose gate, fish and the right of innocent international passage: see Commonwealth of Australia behalf such execution has been issued) or to be totally void as security (as is general case v Yarmirr (2001) 208 CLR 1. in Tasmania, subject to certain qualifications), and in New South Wales in case of trader’s Note also Racial Discrimination Act 1975 may affect titles granted, or acts performed, bill of sale. Upon registration, effect of instrument dates from time of execution, priority between 1975 and 1996. from time of registration. These Acts also imply certain powers and covenants into bill of sale e.g., power to seize or sell on default (Queensland, South Australia, Western Environment. —Balance must be struck between mining interests and environmental Australia), covenant to keep goods in good repair (except in New South Wales), covenant and conservation interests. Mining (Strategic Prospectivity Zones) Act 1993 (Tas) guar- to pay principal and interest (Queensland, South Australia, Western Australia, Tasmania) antees mining access to areas of Tasmania with very high potential for efficient mining. and covenants relating to title (Tasmania, Queensland). Assignment of bill of sale need See also Mineral Resources Development Act 1990 (Vic), Mineral Resources Develop- not be registered (Bills of Sale Act 1898 [NSW]; Bills of Sale Act 1899 [WA]; Bills of ment Act 1995 (Tas), Land (Planning and Environment) Act 1991 (ACT). National Parks Sale and Other Instruments Act 1955 [Qld]; Bills of Sale Act 1886 [SA]; Bills of Sale (Marine National Parks and Marine Sanctuaries) Act 2002 (Vic) establishes 13 marine Act 1900 [Tas]; Instruments Act 1935 [NT]; Instruments Act 1933 [ACT]). Victorian parks and 11 marine sanctuaries under National Parks Act 1975. Act bans commercial legislation only applies in relation to stock, wool and crop securities (see Instruments Act Note: fishing in designated areas and restricts mineral and petroleum exploration. Na- 1958 [Vic]). tional Parks and Crown Land (Reserves) Acts (Amendment) Bill 2006 (Vic) proposes to In Victoria, Chattel Securities Act 1987 regulates creation and operation of all security add French Island, Otway, and Grampians to areas to which Act applies. interests in goods, and provides for registration of mortgages, hire purchase agreements Petroleum exploration regulated independent of other minerals. Miners must obtain and leases relating to motor cars and trailers and vessels within meaning of Marine Act petroleum exploration permit or petroleum prospecting license (depending on jurisdic- 1988 (Vic). Act makes mortgage, hire purchase agreement or lease interest void against tion). Permit holder may apply for petroleum production license or petroleum mineral purchaser unless registered. Information relating to goods registered in other States and lease (again, depending on jurisdiction). See Petroleum Act 1998 (Vic), Petroleum (On- Territories may be obtained from Victorian register. See also Chattel Securities Act 1987 shore) Act 1991 (NSW), Petroleum Act 2000 (SA), Petroleum Products Regulation Act (WA). Motor Vehicles Securities Act 1984 (Tas) provides for registration of security 1995 (SA), Petroleum Act 1967 (WA), Petroleum Act 1984 (NT), Petroleum Act 1923 interests in motor vehicles, boats and trailers and makes bills of sale relating to these void

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CHATTEL MORTGAGES . . . continued Powers of Attorney Act 1998 (Qld), Instruments Act 1958 (Vic) Pt XI, Powers of as against purchaser unless holder of such bills of sale is registered as holder of security Attorney and Agency Act 1984 (SA), Powers of Attorney Act 1956 (ACT), Powers of interests. Attorney Act 2003 (NSW), Powers of Attorney Act 2000 (Tas) provide for abridged form Motor Vehicle and Boats Securities Act 1986 (Qld) provides for registration of in- of Power of Attorney authorizing donee of power to do on behalf of donor all things struments creating security interests in motor vehicles, boats, outboard motors and trailers which donor can lawfully do by attorney (within scope). and takes such interests outside scope of Bills of Sale and Other Instruments Act 1955. All States and Territories provide form of power that is not revoked by incapacity of Unregistered interest unenforceable against those not party to it. Two registered interests donor of power where such incapacity occurs after execution of instrument creating have priority according to date of registration; unregistered interest loses priority to later power. See category Family, topic Guardian and Ward. Some States have enactments registered interest unless notice of it was had. Assignment of interest need not be modeled upon §§126 and 127 of English Property Law Act 1925, providing that powers registered, but may be. given for valuable consideration, and expressed in instruments creating them to be Registration of Interests in Goods Act 1986 (NSW) provides for registration of security irrevocable, cannot be revoked as against purchasers by death, mental disability or interests, interest of lessors and interests of owners under hire purchase agreements in bankruptcy of donor: (Powers of Attorney Act 1956 [ACT]; Property Law Act 1969 [WA] motor vehicles and other prescribed goods. Such goods do not need to be registered under Pt VIII; Powers of Attorney Act 2000 [Tas]; Powers of Attorney Act 2003 [NSW]). Bills of Sale legislation. Goods Securities Act 1986 (SA), Registration of Interests in Powers of Attorney Act 1998 (Qld) and Powers of Attorney Act 2003 (NSW) provide Motor Vehicles and Other Goods Act 1989 (NT) and Sale of Motor Vehicles Act 1977 for enduring power of attorney which not revoked by impaired capacity of donor of (ACT) are to similar effect. power. Pt XIA Instruments Act 1958 (Vic) details more formal requirements for making enduring power of attorney. By virtue of Guardianship and Management of Property Act COLLATERAL SECURITY: 1991 (ACT) if guardian is appointed for person who is mentally ill, Tribunal that See category Debtor and Creditor, topic Pledges. appointed guardian may make whatever orders it thinks fit regarding continued operation of irrevocable power executed by such person. MORTGAGES: Power of Attorney must be registered in Tasmania and, except in Victoria, must be registered in all other States and Territories for certain dealings in relation to land to take See topic Chattel Mortgages and category Property, topic Real Property. effect pursuant to such power of attorney.

PROPERTY REAL PROPERTY: ABSENTEES: Most land throughout Australia has been brought under the Torrens system of title registration whereby State guarantees indefeasible title to land included in register. Generally the position with regard to nonresidents is dealt with under particular topics. Interest of registered proprietor considered to be paramount and protected against all There are no provisions specifically directed to protecting absentees’ property. prior interests and estates existing (except in case of fraud or statutory exception). In respect of each piece of land under this system Certificate of Title is issued by Gov- CONVEYANCES: ernment, all original certificates being kept in central office and duplicate being issued See topic Deeds. to registered proprietor (except in Queensland). Registration of instrument operates to place record of each registrable transaction on face of register. Examination of register CURTESY: or title search in relevant State or Territory will reveal location of land in question, Abolished. dimensions, registered owner and any registered encumbrances or restrictive covenants to which it is subject. Number of exceptions to indefeasibility exist so that unregistered DEEDS: third parties may claim interest in property where: (a) Registration procured by fraud (notice of earlier interest does not amount to fraud); (b) estate or interest expressed by Execution.—Deeds by individuals are universally signed, sealed and delivered, and statute to take priority over registered interest e.g., adverse possession, easements; (c) attested. Neither signature nor attestation is requirement at common law, although re- specific legislative exception such as compulsory acquisition of land by State; (d) ob- quired by statute for certain documents. Attestation has value of recording delivery, ligations able to be enforced against registered proprietor personally (contracts and which is of importance in case of deeds by individuals. Gratuitous promises by deed personal equities); (e) in limited circumstances where registered proprietor is volunteer. under seal are enforceable notwithstanding lack of consideration. Delivery means de- First registered interest obtains priority over subsequent registered interest (depends on livered in old legal sense, namely, an act done so as to evince an intention to be bound. date of lodgment for registration). Equitable and common law principles apply to reso- Sealing requires only that deed be expressed to be sealed; affixation of seal not required. lution of priority between unregistered interests. Compensation for deprivation of interest Corporations Act 2001 (Cth) provides that corporation may execute document as deed in lot payable by State in some circumstances (e.g., Real Property Act 1900 [NSW]; Land provided that: (a) Document expressed to be executed as deed; and (b) common seal of Title Act 1994 [Qld]). Transfer of Land (Computer Register) Act 1989 (Vic) amends company affixed to document and witnessed by two directors of company, or director and Transfer of Land Act 1958 (Vic) to facilitate automation of register and simplify pro- secretary of company, or in case of sole director company that sole director; or (c) if no cessing of dealings with land titles, as has already occurred in New South Wales and common seal document is signed by company officers mentioned above. (§127). Cor- Queensland. Transfer of Land (Electronic Transactions) Act 2004 (Vic) amends Transfer porations Act permits persons dealing with company to assume deed duly executed if of Land Act 1958 (Vic) to provide for lodgment and registration of electronic land signed or sealed and witnessed by officers mentioned above unless actual knowledge or transaction and empowers Registrar to require verification of identity before registering. suspicion of irregularity in execution. Deed must be delivered to become operative: Land not yet under Torrens system is dealt with under old conveyancing system under Presumption in case of corporation is affixing of common seal imports delivery; cor- which title is traced through series of conveyances. poration may, however, by express words suspend operation of deed. Application may be made to bring any land under Torrens system. Note: Corporations Act permits execution without affixing company seal. (§127[1]). Conveyancers Licensing Act 2003 (NSW) and Conveyancers Act 1994 (SA) provide Generally, admissibility in evidence of deeds is dependent upon deed bearing appro- for licensing and regulation of persons involved in conveyancing legal work in relation priate stamp duty, if any. to residential property. See also categories Documents and Records, topic Seals; Taxation, topic Stamp Tax. Guidelines for foreign investment set by Commonwealth. Foreign Acquisitions and DOWER: Takeovers Act 1975 (Cth) controls acquisition of Australian urban land by foreigners. Foreign Ownership of Land Register Act 1988 (Qld) establishes register of details of Abolished. foreign interests in Queensland land. See also Pts I and II, category Immigration, topic Aliens. PERPETUITIES: In Australian Capital Territory with a few exceptions, land is not freehold but Crown Future limitations, vesting of which is postponed beyond lives in being and 21 years land, leased to tenants usually for a maximum period of 99 years. afterwards, void; but restriction does not apply to charitable bequests, trusts for accu- mulation of income for payment of settlor’s debts, and certain other limited cases. Mortgages.—Mortgage of general law land takes form of actual conveyance of land In Victoria, New South Wales, Queensland, Tasmania, Australian Capital Territory, to mortgagee with equitable right of redemption being reserved to mortgagor on repaying Northern Territory and Western Australia statute reforms common law rule against per- full amount of loan with interest. Under Torrens system mortgage does not take form of petuities and abolishes rule against accumulations. Reformed rule applies ‘‘wait and see transfer but is effected by statutory instrument of mortgage which is registered as rule’’ and power is given to specify perpetuity period of up to 80 years. In New South encumbrance on certificate of title and remains there until discharge is noted on certificate Wales and Australian Capital Territory, perpetuity period is automatically 80 years. In and register. Mortgagor has statutory right to discharge of mortgage and retains right to South Australia rule against perpetuities is abolished. possession. Mortgage instrument would generally provide that mortgagee is entitled to In all jurisdictions except South Australia direction to accumulate income generated take possession upon mortgagor’s default or breach of attornment. Irrespective of from property is void if disposition of accumulated income offends rule against perpe- whether mortgage document is in registrable form, unregistered mortgage will only create tuities; valid if vests within perpetuity period and “wait and see” is permitted. Direction equitable interest in mortgagee. Once registered, mortgage overrides later unregistered to accumulate without direction as to its disposition is not valid. In South Australia where interests, including unregistered mortgages. Between two or more registered mortgages, disposition provides for accumulation or partial accumulation of income for period priority is determined according to date of registration (unless agreed otherwise). exceeding 80 years, court may on application vary terms of disposition so as to vest Mortgagor of Torrens land may create several mortgages in succession. Prior mort- capital and income within 80 year period. gagee is under no obligation nor will court compel them to produce certificate of title to allow registration of second or subsequent mortgage. POWERS OF ATTORNEY: Leases.—In all States, leases may be granted by Torrens system registered proprietor Powers of attorney very strictly construed in Australia, and wide general powers of land (as lessor) to tenant (as lessee). Lease is grant of right to exclusive possession restricted by enumeration of more particular powers. Attorney under power has no of land for definite term less than that which lessor has in land. Lessee then has leasehold authority to appoint sub-agents, unless right is expressly included in appointment. All estate created in its favor. Lessor has reversionary interest i.e., upon termination of lease States and Territories have Acts dealing with execution and revocation of powers of interest granted to lessee will revert back to registered proprietor. attorney and effect of revocation of power of attorney on donee of power and on third Lease derived from longer leasehold interest is sublease. Original lease is head-lease. party. Original lessee becomes sublessor and new lessee becomes sublessee.

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REAL PROPERTY . . . continued STAMP TAX: Under general law land, lease is void for purpose of creating legal estate unless made Stamp duty is State and Territory based tax which applies to defined category of by deed (or in Northern Territory and Queensland, by deed or in writing). Rule does not instruments and transactions. No uniformity between States and Territories as to types apply to lease taking effect in possession for term not exceeding three years. Under of instruments and transactions on which stamp duty applies. Some dutiable instruments Torrens system, lessee gets legal title by executing instrument of lease and registering and transactions include: transfers of property (e.g., land, goodwill, plant, intellectual instrument. In New South Wales, Tasmania, Victoria and Western Australia, lease not property), mortgages and charges, hiring arrangements, trust arrangements and leases. registrable unless for period in excess of three years or in South Australia, in excess of Rates of duty applicable to dutiable instruments and transactions vary depending on one year. In Australian Capital Territory, Northern Territory and Queensland, Torrens nature of particular instrument or transaction. For example, property transfers can attract legislation does not specify minimum period for lease to be registered. duty at rates of up to 6.75% on unencumbered value of some property. For example, Leases may also be enforceable in equity where not created by deed or term within exemption can apply in most States and Territories to transfer of property between group minimum statutory exception where there are sufficient acts of part-performance (e.g., companies (subject to certain conditions being met). Consequence of not paying duty on lessee entering possession) under rule in Walsh v Lonsdale (1882) 21 Ch.D.9. dutiable instruments is that instrument cannot be enforced in court proceedings except Most States have legislation specific to particular types of leases—e.g., retail leasing criminal proceedings in some States. is regulated under Retail Leases Act 2003 (Vic), Retail Leases Act 1994 (NSW), Retail Shop Leases Act 1994 (Qld), Retail and Commercial Leases Act 1995 (SA) and Com- mercial Tenancy (Retail Shops) Agreements Act 1985 (WA). TRANSPORTATION Leases are also subject to overarching provisions of Trade Practices Act 1974 (Cth). See Pt I, category Business Regulation and Commerce, topic Consumer Protection. Aircraft.—See Pt I, category Transportation, topic Air Navigation. AUTOMOBILES: TAXATION See topic Motor Vehicles. BUSINESS TAXES: MOTOR VEHICLES: Financial Institutions Duty.—FID abolished as of July 1, 2001, in exchange for Road Traffic Rules.—Despite national reform (see Pt I, category Transportation, topic Commonwealth channelling GST revenue to States and Territories. Road Transport) some variation in road traffic rules between States. Registration, Licensing.—Registration and Licensing regulated by various State and Debits Tax. —States and Territories abolished tax on debits made to various debitable Territory legislation: Road Transport (Driver Licensing) Act 1999 (ACT) and Road accounts from July 1, 2005 (except New South Wales: already abolished from Jan. 1, Transport (Driver Licensing) Regulation 2000 (ACT); Road Transport (Vehicle Regis- 2002). Debit transactions before July 1, 2005 subject to rates on sliding scale: for debits tration) Act 1999 (ACT) and Road Transport (Vehicle Registration) Regulation 2000 between A$1-A$100 debits tax is 30¢ (15¢ in Northern Territory); A$100-A$500, 70¢; (ACT); Road Transport (Driver Licensing) Act 1998 (NSW) and Road Transport (Driver A$500-A$5,000, A$1.50; A$5,000-A$10,000, A$3 and above A$10,000, A$4. See Debits Licensing) Regulation 1999 (NSW); Vehicle and Traffic (Driver Licensing and Vehicle Tax Acts as amended. Tasmania imposes rates at half rate listed above. Registration) Regulations 2000 (Tas); Transport Operations (Road Use Management— Driver Licensing) Regulations 1999 (Qld); Road Safety (Drivers) Regulations 1999 (Vic) EMPLOYMENT TAXES: and Road Safety (Vehicles) Regulations 1999 (Vic); Road Traffic (Drivers’ License) Payroll tax imposed annually by all States and Territories on wage, salary, bonus, Regulations 1975 (WA) and Road Traffic (Licensing) Regulations 1975 (WA); Motor commission, allowance or benefit (‘‘wages’’) paid or payable by employer to employee Vehicles Act 1959 (SA) and Motor Vehicles Regulations 1996 (SA); Motor Vehicles Act (deemed to include contractors) that have relevant connection with State. Threshold 1949 (NT) and Motor Vehicles Regulations 1977 (NT). amounts and rates vary between States: e.g., 6% of excess over A$600,000 p.a. in New Motor vehicles must be registered in State of vehicle’s garage address and bear South Wales and 5.25% of excess over A$550,000 p.a. in Victoria. Wages of related/ distinguishing registration number. Vehicles registered in one State may be driven in associated businesses are ‘‘grouped’’. Employers to register and forward monthly return another temporarily. Drivers must not drive vehicle without license of appropriate class. and end of financial year returns. See Pay-roll Tax Acts. Foreign license must be in English or accompanied by International Driving Permit. Persons holding international or interstate license intending to become permanent State ESTATE TAX: or Territory resident must obtain local license within three months. New residents of State must transfer vehicle registration within three months. Probate or death duties have been abolished in all States. See: http://www.transport.sa.gov.au; http://www.transport.nsw.gov.au; http://www. transport.quld.gov.au; http://www.ipe.nt.gov.au; http://www.dpi.wa.gov.au; http://www. GIFT TAX: rego.act.gov.au; http://www.vicroads.vic.gov.au; http://www.transport.tas.gov.au. Gift duty as such is no longer imposed in any State. Insurance.—All States and Territories have comprehensive scheme of compulsory third-party insurance and compensation for injuries sustained in motor accidents. INCOME TAX: SHIPPING: Income tax is imposed only by the Commonwealth although States too have consti- tutional power. See also Pt I, category Taxation, topic Income Tax. Bills of Lading regulated by Sea-Carriage Documents Act (various years) in each State and Northern Territory. Where ship has connection with State or Northern Territory, marine safety, registration PROPERTY TAXES: of vessels regulated by State legislation: Marine Act 1988 (Vic); Transport Operations Land tax imposed annually on legal and equitable (joint and several) ‘‘owner’’ of (Marine Safety) Act 1994 (Qld); Marine Safety Act 1998 (NSW); Marine Act 1981 (NT); freehold (and leasehold in ACT) interest in land by all States and Territories (except Western Australian Marine Act 1982 (WA); Harbours and Navigation Act 1993 (SA). Northern Territory). Exemptions apply (e.g., principal residence). Land value based on Under co-operative scheme and inter-governmental agreement with Commonwealth, unimproved value of land. Threshold amounts and scale of rates vary between States and States and Northern Territory each enacted Crimes at Sea Act (various years). Criminal Territories: e.g., A$100 and 1.7% of excess over A$352,000 in NSW. See Land Tax Acts. law of State or Territory applies extraterritorially to adjacent areas.

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