Australian Privacy Principles provides businesses with the flexibility to tailor their personal information handling practices to their diverse needs and business models. The Australian Privacy Principles are also technology neutral, applying equally to paper-based and digital environments.
Following are the kinds of businesses in Australia which are required to comply with Australian Privacy Principles:
APP1: Open and transparent management of personal information
APP2: Anonymity and pseudonymity
APP3: Collection of solicited personal information
APP4: Dealing with unsolicited personal information
APP5: Notification of the collection of personal information
APP6: Use or disclosure of personal information
APP7: Direct marketing
APP8: Cross-border disclosure of personal information
APP9: Adoption, use or disclosure of government related identifiers
APP10: Quality of personal information
APP11: Security of personal information
APP12: Access to personal information
APP13: Correction of personal information
APP's overseas applicability
Any personal information of Australians which is sent overseas to be stored on servers or data centres will also need to comply with Australian Privacy Principles.
APP may also apply to businesses conducted on a world-wide basis, which are not Australian based but target various countries including people in Australia by collecting their personal information. Also, there are additional factors which need to be considered before concluding whether Australian Privacy Principles applies to an overseas business.
From 22nd February 2018 onwards, any breaches caused to the personal information stored by an APP entity, will need to be reported to the Office of the Australian Information Commissioner (OAIC). Under the current law, government agencies and businesses covered by the Privacy Act are required to notify as soon as practicable any individuals affected by a data breach that is likely to result in serious harm. The OAIC must also be notified of such data breaches.
Failure to report eligible data breaches will be considered to be an interference with the privacy of an individual affected by the breach and will result in civil penalties of up to AUD $2.1 million for serious or repeated interferences.
Complying with Overseas Privacy Laws
Australian businesses who collect personal information from customers, clients or end-users located in other countries, will need to comply with the privacy laws of all those countries. The recent European Union’s General Data Protection Regulation (GDPR) which came into effect on 25th May 2018 is an example of the far reaching consequences of privacy laws on Australian businesses. The GDPR applies to businesses that:
The details of the applicability and compliance of the EU GDPR will be dealt in another article. The best way to ensure your business is in compliance with applicable privacy laws is to contact AJR Lawyers for bespoke advice and services regarding your business.
Buying a house whether for a residential or investment purpose can be a daunting task, as there are many aspects to grapple with and handle. It is important as a Purchaser or as a Vendor you completely understand the process involved in order to facilitate the acquisition/sale process. To help you completely understand the process, I have laid down below the steps involved in purchasing a residential property.
1. Home Loan Pre-Approval
Getting a pre-approval from the bank before going to search for property is extremely important. Firstly, this will help you in determining the budget for purchasing the property. Secondly, it will show the buyer that you are serious about buying the property. And thirdly, it will help you in reducing any delays in making an offer.
2. Identifying the Property
Once you have the budget set out, you then find the property you want to buy. This can be done either by yourself or through real estate agents. Ensure that you have an idea of the location, price and size of the house you exactly want to purchase. Conduct a thorough inspection of the house to ensure that you are satisfied with the house.
3. Methods of Purchase
A property is normally purchased either through a private treaty or through an auction.
(a) Private Treaty
The most common way to buy property is by private treaty or sale through a real estate agent or directly from the owner. If a property isn't going to auction, you are saved from the stress of auction day, but are then faced with the daunting question of how much should you offer. If a home price tag says $500,000, this may not be how much the vendor really wants. Many agents say that it's usually wise to make a lower offer within 5 per cent of the asking price, although this percentage can increase in a slow market. The most common tactic is a verbal offer to the seller's real estate agent.
Alternatively, a sales summary can be prepared by your solicitor and forwarded to the vendor. A sales summary contains the date of the offer, the address of the property, the offered purchase price, the deposit amount and the balance to be paid, details of your finance, any special conditions and the proposed settlement date. Once your private-treaty offer is accepted and you've accepted the sale contract, it's time to pay the 10 per cent deposit.
If the home you crave is being sold via auction, it is critical that you have pre-approval finance. You also need enough of a deposit or a deposit bond. While private treaty sales allow a cooling-off period in which buyers can conduct inspections, auctions don't usually allow for a cooling off period. Your bid is binding, so make sure you really want the property before you raise your hand. Most important of all is to not exceed your maximum spending limit. Inspections on homes up for auction need to be done prior to the bidding stage. Get a copy of the conditions of sale and the vendor's statement well in advance of the auction and have your legal representative check the terms and conditions.
There are usually two types of auctions: on-site auctions and in-room auctions. To bid at either, either express interest to the auctioneer before the auction begins, or simply raise your hand, call a bid, or use any other type of gesture or signal to the auctioneer. The name which you give the auctioneer before the auction is the name which will go on the contract and it cannot be changed later. When bidding for another person, advise the auctioneer in writing beforehand.
Most properties for sale by auction have a reserve price, which is a minimum price the owners are prepared to accept for the property. The reserve price is not made public until the bidding exceeds it. Once the reserve is reached, the property will generally be sold to the highest bidder.
4. Vendor Documents
After asking the Vendor/agent for the legal documents of the property, the following documents will be provided to you:
5. Exchanging Documents & Paying Deposit
Exchanging contracts legally completes the process of buying a home. Up to this point, the contract is usually not binding and both you or the vendor have the right to change your minds.
Do not exchange contracts (with or without the cooling-off period) unless you have got your loan approved in writing from the bank. After discussing the contract with your solicitor and making the proper inquiries and necessary financial arrangements, you will be ready to exchange contracts.
At the time of the exchange you will be required to pay a deposit. While it is usual for a vendor to ask for a 10 per cent deposit, a different amount can be agreed on and recorded in the contract. The deposit should be paid into the agent’s trust account and not directly to the seller.
6. Cooling-off Period
When you buy a residential property in NSW or Queensland, there is a 5 business-day cooling-off period after you exchange contracts. During this period, you may get out of the contract as long as you give a written notice. The cooling-off period starts as soon as you exchange and ends at 5pm on the fifth business day after exchange.
A cooling-off period does not apply if you buy a property at auction or exchange contracts on the same day as the auction after it is passed in. If you use your cooling-off rights and withdraw from the contract during the 5 business-day period, you will have to pay the vendor 0.25% of the purchase price.
7. Time between Exchange and Settlement
There is normally a period of 6 weeks between exchange and settlement, and the purchaser's solicitor will have to organise various documents, inspections and enquiries in regards to the property to ensure that the property is legally alright and monetarily in the interest of the purchaser.
In order for the purchase to proceed, the solicitor will obtain, interpret and advise the purchaser on the following documents:
(i) Building Inspection Report
A building inspection checks structural soundness, including:
(ii) Pests Inspection Report
There can be many issues in a house which are not visible to the untrained eye, and which specialist who deal with these kind of issues can identify and advise. Lot of properties around Australia have been around for sometime, and therefore it is essential to organise a pests inspection prior to purchase.
(iii) Pre-Purchase Strata Inspection (for Strata Properties)
A pre-purchase strata inspection report is needed to ensure that any legal or monetary issues concerning the property are factored into the purchase price or where required it can help the purchaser in deciding whether to proceed with purchasing the property.
The Strata Inspection Report will include:
(iv) Owners Corporation Certificate (for Strata Properties)
The Owners Corporation Certificate is required since it is issued by the Owners Corporation in a format prescribed by law and therefore if any outstanding levy or expense which remains unpaid by the owner is not mentioned in the report, it will not be required to be paid by the Purchaser.
The Owners Corporation Certificate will contain the following details:
(v) Strata Plan Search (for Strata Properties)
This is to correctly identify the unit you have inspected and to match it with the legal title to the property you are buying. The actual plan registered at the Titles Office showing the building on the land, the lots making up the plan and the common property.
(vi) Survey Report
If the seller does not have a recent survey attached to the contract, your solicitor will need to obtain a survey report, which shows buildings and fences, the correct boundaries and any encroachments onto the land or on the neighbouring property.
Your Solicitor will make enquires about the property to the Electricity, Water and local government authorities. This will show council and water rates, arrears and if the land is subject to a land tax charge in the hands of the seller.
(viii) Stamp Duty
This is paid on the purchase price of the property and has to be paid within 3 months of exchange, unless your eligible for any First Home Buyer Schemes in your State. There are different stamp duty rates for various thresholds, where the applicable stamp duty will be advised by your solicitor.
A lender will require the property to be insured in order to lend money, therefore soon after the exchange of contracts it is best to insure the property immediately, if it is not insured. If you are buying a home unit, a Certificate of Currency should be obtained from the insurer of the owners’ corporation to make sure the property is adequately insured.
(x) Mortgage Documents
Lender will prepare the mortgage documents, which the purchaser's solicitor will review.
(xi) Requisitions on Title
Requisitions obtain information from the seller which may not have been previously disclosed or discovered during inspection of the property.
(xii) Settlement Statement
Close to settlement, a settlement statement is sent to the seller for completion. This details the final amount owing, including the adjustments for rates and taxes as at the date of settlement. The seller will inform your solicitor how the cheques are to be drawn.
Settlement usually takes place about 6 weeks after contracts are exchanged (although a longer or shorter settlement period can be negotiated with the vendor). This is when you pay the rest of the sale price and become the legal owner of the property.
On settlement day, your solicitor will meet with the vendor’s solicitor and representatives from your bank and the vendor’s bank. At settlement, each party will exchange the necessary cheques and documents for title in the property to be transferred to your name.
As can be seen from the above article, AJ has an in-depth understanding and experience in handling conveyancing matters and whether you are buying or selling a property, you will be provided with stress-free legal service tailored for your circumstances at affordable cost.
Copyright in Australia is governed by the Copyright Act, 1968 (Cth).
Copyright exists for works like literary, dramatic, artistic and musical works. Copyright also exist for sound recordings, cinematograph films, sound and television broadcasts and published editions of works.
There are no formal requirements for registration of copyright, except for using the copyright symbol on the copyrightable work as soon as it is created.
There are various factors which determine whether copyright protection can be afforded in Australia. The factors to be considered are the residential status of the author, the place of making the copyrightable work and the place of first publication.
Copyright protection is given for the following duration:
Just like in Trademarks, once a copyright is created and secured, it becomes an asset of the author and can be monetised according to the author's desire.
A trademark identifies a particular good or service with the name or brand of the business. A business name or domain name are not trademarks unless they are registered as trademarks.
Once a trademark is created, it is extremely important for a trademark to be registered, in order for the trademark to have the maximum protection from any infringement. On registration of the trademark, the registration is valid for an initial period of 10 years and can be subsequently renewed for 10 year periods thereafter.
There are a few aspects which are required to be met in order for a Trademark to be registered. The most important aspect of all, is that the Trademark which is sought to be registered should be capable of distinguishing the applicant's goods or services from those of another.
There are various classes of goods and services under which a trademark can be registered. Deciding which class of goods or services to register will depend on various factors such as the existing business for which the trademark is being used, the future business for which the trademark might be utilised, etc.
As the business grows, the trademark will also grow in value through the brand and goodwill of the business. A major benefit of registering a trademark will allow the owner of the trademark to treat the trademark as an asset of the business and therefore the trademark can be monetised through assignments, licenses, joint-ventures and sale of business.
As a Manufacturer or Retailer of a product, or as a provider of services you are governed by Australian Consumer Laws (ACL) and are obligated to provide goods and services which comply with Australian Consumer Laws.
The Manufacturer or Retailer needs to ensure that the product being sold:
A Retailer also guarantees the consumer is buying goods:
Australian consumers are governed by Australian Consumer Law laid down in Schedule 2 of the Competition and Consumer Act, 2010.
Under Australian Consumer Law (ACL), most products and services bought in Australia (from 1 January 2011) come with automatic guarantees that the items or services will work and do what you asked for.
Businesses must provide these automatic guarantees regardless of any other warranties they give to you or sell you. If a business fails to deliver any of these guarantees, you have consumer rights for:
Guarantees on Products
Products must be of acceptable quality, that is:
Products must also:
If you have to deal with any issues concerning your rights as a consumer and need legal advice or legal representation, please do contact AJR Lawyers, and you will be provided with bespoke advice and representation at affordable costs.
AJ has vast experience and knowledge in corporate and commercial laws and these are his views and opinions on issues commented upon here.