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Defamation Laws in Australia – The Proposed Changes

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2020 marks a year of significant changes to Australia’s defamation laws. These laws haven’t been reformed for 15 years and haven’t had serious modifications since the invention of the internet. 

What is defamation?

The Defamation Act of 2005 got rid of the distinction between libel and slander. Now both are referred to as defamation.

Defamation law applies to communication in all forms. This includes a conversation held in person, email communication, online publication, a Facebook status update, as well as newspaper and magazine publication, among others.

Defamation laws seek to find a fair balance between reputation and freedom of speech. 

Current Libel Laws 

Australia has been dubbed the “defamation capital of the world”. With well under half the population of the UK, New South Wales has double the number of libel cases.

In the past year, there have also been a large number of high profile defamation suits with enormous payouts. One by the actor Rebel Wilson, which saw her win a record payout of $4.7 million from Woman’s Day. Another saw actor Geoffrey Rush win $2.9 million from The Daily Telegraph. 

 

The Problem

With no legislation specifically for defamation on the internet, the laws aren’t keeping up with the advancements in technology.  Currently, every time something considered defamatory is downloaded off the internet it can be brought before the court multiple times. The last changes to Australian defamation laws were made in 2005 when things like Facebook were still in their infancy. 

Many current cases are now based on defamatory social media posts. Many of the cases in court are now between individuals, instead of media outlets.

Also, experts have suggested Australia’s current laws have muzzled reporting on allegations of sexual misconduct as part of the #MeToo movement.
 

Currently the principal award in a defamation suit is for damages, which is problematic in itself.  Many people who have been defamed would consider the costs and embarrassment of suing as undesirable. Alternative remedies should be proposed like retractions an declarations of falsity as well as take-down orders rather than only monetary remedies.

The principal problem is how to ensure free speech is maintained without the devastating effects defamation can unfairly have on reputation. The balance between supporting responsible journalism in a time of fake news and online trolling is not going to be an easy one to address. Ensuring that trivial cases are not the ones consuming the courts time is another enormous issue. 

What could change? 

There are many other countries looking to make appropriate changes for the age of the internet. Canada, Scotland,and Ireland are a few that are examining their respective defamation laws.

The biggest changes should naturally be for online news articles. Currently, any time an article is viewed it is considered a new publication. This means publishers have indefinite liability each time an article is clicked. Introducing a once-only defamation rule for pieces published online makes sense and will enforce a stricter time limit on internet content.

A new public interest defence is built on a model from New Zealand of “responsible communication in the public interest”, which protects certain communications by requiring the wronged party to first prove that the matter is of public interest. It’s a defence similar to qualified privilege. 

A threshold of serious harm is another proposed reform borrowed from UK laws that states that a person can’t sue unless they have actually suffered serious harm. 

Changes to the cap on damages is another proposed change. 

This article does not constitute legal advice.

The opinions expressed in the column above represent the author’s own.

Start managing your legal needs with Zegal today

READ MORE: Australia’s R&D Tax Incentives

FURTHER READING: Labour Hire Licencing Act Australia

Australia’s New Whistleblower Laws: What Employers Need To Do

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Here’s what employers need to know

As of 1 July 2019, Australia’s new whistleblower laws apply. Following more than 12 months in Parliament, the new Federal whistleblower protection regime was enacted covering the corporate, financial and tax sectors. The new laws aim to expose corporate (and in some cases, personal) misbehaviour.

The Whistleblower Laws introduced:

  • expanded whistleblower protections for all Australian companies;
  • a requirement for larger Australian companies to introduce a Whistleblower Policy; and
  • new significant penalties for breaches of whistleblower protections, ranging up to $10.5million.

Who can make whistleblower disclosures?

The category has now expanded to include employees, officers and suppliers of companies as well as their family members.

Disclosures made anonymously are still protected by the laws.

What classifies as a protected disclosure?

Protected disclosures include where a person has reasonable grounds to suspect that:

  • there has been misconduct or an “improper state of affairs or circumstances” regarding any of the entities covered by the laws or their related bodies corporate;
  • conduct that breaches the Corporations Act 2001 or conduct that breaches the ASIC Act or a range of specified insurance, life insurance and superannuation statutes;
  • conduct that relates to an offence against any law of the Commonwealth which is punishable by imprisonment for 12 months or more; or
  • presents a danger to the public or the financial system.

It’s important to note that disclosures about personal work-related matters are not generally protected by the laws. This includes: 

  • employment matters that impact upon the employee personally;
  • interpersonal conflict with another employee;
  • decisions regarding promotions, demotions, terms and conditions of employment; and
  • in regards to disciplinary action against the discloser.

Who can protected disclosures be made to?

Protected disclosures can be made to:

  • officers of a company;
  • senior managers;
  • auditors of a company;
  • actuaries of a company; and
  • trustee’s of a superannuation entity.

In certain circumstances, if a discloser has taken the prescribed steps yet has reasonable grounds to believe action is not being taken corresponding to the issue, there is also protection towards disclosing to a journalist or member of Parliament.

Penalties 

If the confidentiality of a whistleblower’s identity is breached, fines of up to $1.05m apply to individuals and up to $10.5m apply to companies involved in the breach.

If a whistleblower is threatened or victimised, fines of up to $1.05m apply to individuals and up to $10.5m apply to companies involved in the.

New Requirements

The laws require all public companies to introduce a Whistleblower Policy.

This also applies to companies with:

  • consolidated ‘Group’ revenue in excess of $50m;
  • consolidated gross assets of more than $25m or more; or
  • 100 or more employees at the end of the financial year.
The Whistleblower Policy must be in place by 1 January 2020. A company that fails to comply may face fines of up to $12,600.

Employers Need To:

  • Implement a whistleblower policy. The policy must set out information regarding:
      1. the protection available to whistleblowers;
      2. the person/organisations to whom protected disclosures may be made, and how they can be made;
      3. how the company will support whistleblowers and protect them;
      4. how the company will investigate protected disclosures;
      5. how the company will ensure fair treatment of employees mentioned in protected disclosures, or to whom such disclosures relate;
      6. how the policy is to be made available to officers and employees of the company
  • Train staff. Employers must train senior managers and those to whom protected disclosures may be made know how to identify a whistleblower report, and the steps they must take if they receive one. It is important to adequately cover the importance of protecting the whistleblower’s right to anonymity from the outset. Employers must also train all staff to know how the whistleblower regime works under the Act. They must also provide training detailing the protections provided to eligible whistleblowers.
  • Assess procedures. The new regime requires analysis of any existing whistleblower procedures. Companies should also ensure procedures to protect whistleblowers’ information will be secure and comply with privacy laws. 

 

READ MORE: The Hong Kong Australia Free Trade Pact Outcomes

 

 

How to Start a Business in Australia as a Foreigner

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How To Set Up A Business As a Foreigner In Australia

As one of the larger economies in the world with a large middle and upper-middle class citizenship, Australia has always been an attractive market for business expansions. There are also other considerations that help make it even more attractive. These include the strong trade agreements between Latin America and Australia, the vibrancy of its natural resources and mining sectors, and the shaky political and economic climates of countries such as USA, UK, and China.

Aside from the above, a vital consideration for foreign entrepreneurs is Australia’s ease of market entry.

Here’s a brief introduction to how foreign entrepreneurs could set up their businesses Down Under:

READ MORE: Hong Kong Australia Free Trade Pact Outcomes

Deciding On Your Business Structure

Naturally, the first step is deciding how your business is to be set up:

Sole trader: an individual trading in his own name;

Partnership: an association of people or entities conducting a business together (not as a company);

Trust: an entity standing as a fiduciary entity holding property or income for the benefit of its trustees;

Company: a separate legal entity distinct from its owners / shareholders. Companies in Australia must be registered with the Australian Securities and Investments Commission (“ASIC”). Or alternatively, one may also consider registering a business as a foreign company, or acquiring an existing Australian company. 

The business structure adopted will have a bearing on factors such as:

Required licenses and paperwork to be submitted;

Taxation; and

Potential liability and control over business.

Luckily, the business structure adopted is not something that is fixed. As the business develops, investors are free to change the structure anytime they like to suit the business’ needs.

set up a business in Australia

Australian Business Number (“ABN”)

The ABN Is a unique number by which the business would be identified by other businesses or the Australian government. It also enables a business to register a domain name ending with .au or .net.au. The registration is a simple process that may be completed online.

Business Name and Intellectual Property

Businesses should then proceed to decide on the name under which they will be trading. This may also be done online via the ASIC website, on which one may search the business names register to determine the desired name’s availability. Registration of available names can then be done at the Business Registration Service site.

As registration of business names do not necessarily grant the owner complete legal protection. Businesses should also consider protecting their trademarks and domain names.

DOCUMENT: Trademark Licence Agreement

Licences

Depending on the business’ nature, location and industry, different licences may be required for its lawful operation. The Australian government’s website is very comprehensive, listing every licence and how to obtain them. 

Taxes

The paying of taxes are, of course, a given, and life will be infinitely easier for a business to have a clear system organised right from the business’ inception.

The Australian Taxation Office issues a unique Tax File Number (“TFN”) to all individuals and entities in Australia. This is a mandatory requirement. Sole traders and proprietors operating under their own names may use their own TFNs for taxation purposes. Partnerships, companies and trusts will however have to apply for one.

As in many other countries, there are different taxes to be paid depending on the business. Some examples include:

Goods and Services Tax (“GST”)

GST is payable under different circumstances. The most relevant ones would be where a business operates in the Goods and Services industry and has a turnover of $75,000 or more. Or if you’re a business importing services or digital goods individually worth less than $1,000 and make more than $75,000 annually.

Pay as You Go Withholding Tax (“PAYG”)

A business will have to apply for PAYG withholding tax if it is required to withhold tax from payments to workers, or other entities (i.e. employees, directors, contractors etc.) Businesses must first register for PAYG before the first occasion it is required to withhold tax.

Fringes Benefit Tax (“FBT”)

If the business provides some type of fringe benefits to its employees, such as work cars, payment of expenses like educational fees or health insurance costs, the business will first have to register for FBT.

Grants

Amongst the abundant support provided by the Australian government, one of the benefits of doing business in Oz are the numerous funds and grants. This again depends on the location and nature of the business. For instance, start-ups in Adelaide may be entitled to a $20,000 Small Business Development Fund. New businesses should pay attention to the potentially very useful tools and grants they may be entitled to.

set up a business in Australia

Visas

Foreign entrepreneurs wishing to set up a business in Australia may be entitled to apply for Business Innovation and Investment Visas if they have been nominated by a state or territorial government. Such nominations may be applied for online.

One may also be eligible for a Business Talent Visa if one: 

wholly or partially own an overseas business, have net business and personal assets of $1.5 million plus, and has an annual business turnover of at least 3 million;

or has obtained at least $1 million in venture capital funding in Australia for a high-value business idea.

Setting up a business is always a risky venture, especially when you’re setting one up in a foreign country. This risk however may be calculated and controlled if enough planning and careful consideration is invested beforehand.

This article does not constitute legal advice.

Start managing your legal needs with Zegal today

READ MORE: 5 Reasons to Start a Business in Australia

READ MORE: What is Common Seal in Australia?

READ MORE: How To Start A Business In New Zealand

What is a Common Seal?

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What is common seal ?

A common seal, also called company seal or corporate seal is physical illustration emboss with company name and Business number of association or business.

Common seal was historically used to seal contracts, deeds and share certificates, to make them valid.

A company in Australia may have Common seal with company’s name and Australia company number (ACN).

Execution of Common seal in Australia

The Act does not prescribe how documents must be executed by companies without a seal. However, Section 127(1) of the Act provides that a company may execute a document without using a common seal if the document is signed by:

  • two directors of the company;
  • a director and secretary of the company; and
  • for a proprietary company that has a sole director who is also the sole company secretary – that director.

Common uses of company seals include

  • Significant contracts (i.e. not the purchase of a roll of stamps)
  • Real (landed) property transfers and land contracts
  • Loan documents, mortgages and guarantees
  • Occasions where its use is required by a third party

Is common seal or company seal mandatory in Australia?

Prior 1988, common seals were mandatory in Australia, Only documents/ deeds with common seal were considered valid. So in a sense it was compulsory then. The Company law Review ACT 1988 abolished common seal.

Regardless, companies today still use common seal as it give more legitimacy to document for people unfamiliar with the Australian way of document execution.

Read: Incorporating company in Australia  

What Federal Registration of legislation says about Company seal ?

Company may have common seal

         (1)  A company may have a common seal. If a company does have a common seal, the company must set out on it:

                 (a)  for a company that has its ACN in its name—the company’s name; or

                 (b)  otherwise—the company’s name and either:

                          (i)  the expression “Australian Company Number” and the company’s ACN; or

                         (ii)  if the last 9 digits of the company’s ABN are the same, and in the same order, as the last 9 digits of its ACN—the expression “Australian Business Number” and the company’s ABN.

Note 1:    A company may make contracts and execute documents without using a seal (see sections 126 and 127).

Note 2:    For abbreviations that can be used on a seal, see section 149.

         (2)  A company may have a duplicate common seal. The duplicate must be a copy of the common seal with the words “duplicate seal”, “share seal” or “certificate seal” added.

         (3)  A person must not use, or authorise the use of, a seal that purports to be the common seal of a company or a duplicate if the seal does not comply with the requirements set out in subsection (1) or (2).

         (4)  An offence based on subsection (3) is an offence of strict liability.

Note:       For strict liability, see section 6.1 of the Criminal Code.

This article does not constitute legal advice.

Related Posts:
Australia Company Incorporation Guide
Australia’s R&D Tax Incentive
Australia’s Corporation Act: Replaceable Rules
New Whistleblower Laws in Australia

Reasons to start a business in Australia

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Aside from its breathtaking beauty, Australia has plenty to offer in the world of business and startups for giving reasons to start a business in Australia. Ranked 19th on the 2016 Global Innovation Index, the land down under is home to one the most flexible economies in the world. The business environment is well regulated and transparency is high. The political landscape is stable and a strong framework of regulations gives investors ample confidence to put their money into promising ventures.

liveability index

Source: The Economist

The cities of Melbourne, Adelaide and Perth were ranked among the world’s top 10 most liveable cities in 2016. All in all, Australia is recognised as one of the easiest places in the world to start a business.  Australian government also have different kinds of  grants for businesses.

If you are thinking about becoming your own boss, here are some reasons to start a business in Australia.

1. You’ll be part of a growing startup ecosystem thanks to strong government support

The growing startup culture in Australia has meant greater support from various stakeholders such as the Australian government and fellow entrepreneurs. The Australian government has invested heavily in Research and Development. The research & development (R&D) tax incentive helps businesses stay one step ahead through a tax offset that promotes innovation in even the smallest companies. One of the big products that originated from Australia is the anti-hacking software kernel seL4 which regulates access to a computer’s hardware and is able to distinguish between trusted and untrusted software, thereby protecting secure data from hackers.

In addition, the Entrepreneurs’ Programme was introduced to increase the productivity and competitiveness of businesses by providing funding and access to a national network of private sector advisors and enablers. The Entrepreneurs’ Programme offers funding support for incubators that help startups enter global markets.

2. You will have access to the resources to succeed given the availability of funding

Access to funds is a key factor that drives innovation as it allows entrepreneurs to develop and commercialise their ideas. The tax incentives for eligible investors that came into place on 1 July 2016 to encourage support for innovative, high-growth potential startups include the following:

  • A 20 per cent non-refundable carry-forward tax offset on investment, capped at $200,000 per investor, per year.
  •  A 10 year capital gains tax exemption for qualifying investments held for at least twelve months.

Venture Capital Limited Partnerships (VCLP) were introduced to draw in foreign investors to Australia with the purpose of boosting the local VC market with multiple tax benefits. The investments must be toward businesses that have total assets valued under $250 million, with 50% of assets and employees located in Australia.

In particular, there has been growing investment in the fintech sub-sector, with the industry expected to be worth $4.2 billion by 2020 based on its current trajectory. In 2016, Australia was ranked the sixth most attractive place for investors in venture capital and private equity in the Venture Capital & Private Equity Country Attractiveness Index.

3. Australia’s strong trade relations with other countries sets the stage for expanding your business abroad

trading partners

Source: Austrade

With strong trading ties with major economies across Asia, Europe and North America, Australia is a good base for expanding the reach of your business abroad. In 2015-16, two-way trade in goods and services totalled A$661 billion, making up 40% of Australia’s nominal GDP. Australia maintains strong trade relations with Asia-Pacific Economic Cooperation (APEC) countries, while the ASEAN region is a significant market. If you are eager to grow their business, Australia’s strong trade relations will stand you in good stead as you get access to cheaper resources and overseas markets.

Learn: Minimum wages in Australia 

4. Australia’s strong talent pool allows you to build a solid team

Australia boasts of a high literacy rate at 99 percent as it has a thorough educational and training system. You will have a ready supply of tertiary-educated workers given that more than 40% of Australian workers hold a tertiary qualification.

workforce literacy

Source: Austrade

If you’re looking for technical talent for your startup, you’re in luck. According to a report by startup rating platform Oddup, 20,000 new technical professionals have relocated to Melbourne over the last five years. The overall workforce are skilled and educated possessing diverse language skills. A cultural melting pot with people from all over, Australia is also the place for you to build a diverse team with members each bringing different perspectives and experiences that will help make your business more robust.

5. Innovation is rewarded with strong intellectual property (IP) laws

Australia has a strong record of innovation, with its R&D spending placing it among the world’s leading innovative countries such as the USA, Japan, Sweden and South Korea. Accordingly, there are strong IP laws in place to protect your trademarks, patents, copyrights, designs and so on. This is crucial as intellectual property is a core asset of a business.

Ranked 12th on the International Property Rights Index in 2016, Australia administers IP legislation via IP Australia. Access the eServices site to apply, register, renew and pay for IP rights. Make the most of the Australian jurisdiction’s strong IP legislation to give your business a competitive advantage over the rest.

Are you an entrepreneur in Australia with more reasons to start a business in Australia and why your mates should join you in starting up down under?

Let us know in the comments below!

Your favourite online legal software – now available in Australia

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From Zero to One to Five

The idea for Zegal started in 2012 as two ambitious lawyers who dreamt about revolutionising the way businesses perceived and managed legal.

Daniel Walker and Jake Fisch, Co-Founders of Zegal (2012). Read the story

We’re stoked to announce today that Zegal, the business that was born out of Daniel’s living room, has launched into our fifth country, Australia, with a suite of 44 documents designed for startups to use.

Claim your free trial. Start drafting legal documents with Zegal today.

 

Your favourite online legal software – now available in Australia
Zegal now available for 4 countries: Hong Kong, Singapore, New Zealand, and Australia

 

The launch of our Startup Plan in Australia promises Australian startups a suite of 44 documents they will need through the phases of Pre-Startup, Startup, Growth, and Maturity. Subscribers pay a one fixed price upfront for a personalised on-boarding session, and a monthly subscription to get unlimited access to the document library to create, store, and organise their documents.

 

Sign-up Today

To celebrate our launch, we will waive the on-boarding fee (worth AUD 1,100) for all users who sign up for a Startup Plan in Australia or New Zealand for the month of February.


Register an Australia Account     Register a New Zealand Account

 

 

By signing up for a free trial, you also get to upload and e-sign your documents for free. No more bulky attachments and unnecessary printing and scanning!

GIF - Upload & Sign
Upload and sign your own documents with a FREE Zegal account. Sign up now – no minimum commitment, no credit card required.

 

The availability of multiple user accounts also lets you share documents and set permissions and workflow. This means your team managers can be empowered to create documents or access legal help whenever they need – cutting out unnecessary back-and-forth administrative processes.

Zegal Startup Plan
Zegal’s for Startups. View 44 documents for Australia

 

What sets Zegal apart is most notably the availability of expertise and support from our Client Service team. While the idea of legal self-service sounds appealing; we understand if you still have questions! Help is just a click away within your Zegal app.

What’s next for Zegal in Australia and New Zealand?

Keep an eye out for increased Dragon activity in ANZ – we’ll have Dragons on the ground who will play a huge role in developing the startup ecosystems in Australia and New Zealand, especially with our signature Legal Academy series of events.

Ready to try everyone’s favourite online legal service?

Start Zegal free trial

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