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News & Events

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  Protecting National Security or Enabling National Intrusion?

  Since its passing on 9 December 2018, controversy has tainted the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018, primarily centring on the need to balance national security concerns and the right to privacy. Put forward by the Department of Home Affairs, the bill was proposed to keep pace with the increasing use of encrypted communications. It was designed to aid law enforcement and intelligence agencies to combat serious crimes, with an emphasis on “terrorism”. In fulfilling its design, it amends several statutes, all with the aim of empowering these agencies to access encrypted electronic devices that would be considered “private”. The amendments further seek to protect law enforcement and intelligence agencies, and providers from legal action. For the agencies, this is done through amending the Administrative Decisions (Judicial Review) Act 1977 to ensure that the actions carried out under the new legislation are not subject to judicial review. For those assisting law enforcement agencies, the Criminal Code Act 1995 is amended to offer protection from criminal liability, provided the conduct is consistent with the requests.

  While the effect of this legislation has the potential to ripple outwards, it primarily concerns ‘designated communications providers’,[1] which include carriers, carriage service providers, device manufacturers, and software and application providers. Thus, virtually all electronic communications will be open to scrutiny as there won’t appear to be a reason to exclude device or carriage service suppliers.

  The core purpose of this legislation is to create a new scheme that regulates communication providers while allowing them to voluntarily assist intelligence and law enforcement agencies. Yet the legislation empowers these agencies to compel providers to grant them access to encrypted data. There are three mechanisms by which this can occur:

  • Technical assistance requests;
  • Technical assistance notices; or
  • Technical capability notices.

  While the former is a voluntarily action, the latter two are mandatory notices; if a communication provider does not comply with a notice, civil penalty provisions apply (with penalties up to $9,999,990).[2]

  Both technical assistance requests and technical assistance notices involve law enforcement and intelligence agencies asking or compelling communications providers to assist them in accessing encrypted data where they are already capable of such assistance. Technical capability notices, however, involve these agencies compelling communications providers to create a new capability that gives the law enforcement and intelligence agencies access. The latter is the most controversial, and as such involves a few caveats, one being that the notice cannot require the provider to construct a capability that removes electronic protection.[3] In other words, law enforcement and intelligence agencies cannot compel companies to create a built-in ‘backdoor’ to their system.

  Additionally, technical assistance notices and technical capability notices can only be issued if:

  • it is in the interests of national security or
  • it is in the enforcement of criminal law for serious Australian or foreign offences.[4]

  Technical assistance requests can be issued for these reasons and to protect Australia’s national economic wellbeing.

  Moreover, any request or notice can only be issued if:

  • the requirements proposed are reasonable and proportionate;
  • it is practicable to comply; and
  • it is technically feasible to comply.[5]

  Even with the accountability mechanisms described above, concerns still exist about the powers granted to government officials. Scattered throughout the legislation are provisions that enable law enforcement and intelligence agencies to bypass the restrictions “if not practicable”. For example, before issuing technical capability notices it is necessary to provide a written consultation notice to the communication provider, informing them of the proposed notice and inviting them to make submissions to alter the notice.[6] This period must run for at least 28 days.[7] However, section 317W(3) allows this period of consultation to be ignored if it is impractical or if the Attorney-General is ‘satisfied that the technical capability notice should be given as a matter of urgency’.[8]

  Ultimately, this newly passed legislation alters the landscape of Australian cyber security. With more changes potentially on the horizon, it would be prudent for those specifically targeted by these changes to understand their obligations.

  What it means for us, is that we have more reason to remain vigilant as to what, politically, passes for our “national interest”, and also that we have a means of monitoring potential corrupt access and use of not only these powers but the information that is revealed.

  For more information on the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018, or any questions relating to this article, please contact Shaneel Parikh.

  [1] Telecommunications and other Legislation Amendment (Assistance and Access) Act 2018, s 317C.

  [2] Ibid, s 317ZA(3) and 317ZB(1): 47,619 penalty units for a body corporate; 238 penalty units for any other person or entity.

  [3] Ibid, s 317ZGA(1).

  [4] Ibid, s 317A,.317A and s317B. A serious Australian offence is one which carries a penalty of a minimum 3 year imprisonment.

  [5] s 317P (for technical assistance requests); and s 317V (for technical capability notices).

  [6] Ibid, s 317W(1).

  [7] Ibid.

  [8] Ibid, s 317W3(a)and (b).

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  Safety first: last chance to comply with NSW cladding regulations

  With the fire to the Melbourne building, Neo200, on 4 February 2019, combustible cladding has again been thrust into focus as a continuing safety risk. Fortunately, no one was injured in the blaze however it is a timely reminder for owners of their responsibilities under the Environmental Planning and Assessment Amendment (Identification of Buildings with External Combustible Cladding) Regulation 2018 (NSW) (the Regulation).

  What buildings does the Regulation apply to?

  The Regulation applies to:

  • residential apartment buildings;
  • other residential buildings, such as hotels, boarding houses, backpacker accommodation and aged care buildings;
  • public buildings, such as cinemas, child care centres and schools; and
  • mixed used buildings, part of which are used for residential purposes or accommodation, which have external combustible cladding.

  External combustible cladding is defined in the Regulation as:

  • any cladding or cladding system comprising metal composite panels, including aluminium, zinc and copper, that is applied to any of the building’s external walls or to any other external area of the building, or
  • any insulated cladding system…that is applied to any of the building’s external walls or to any other external area of the building.

  The Regulation does not apply to buildings which are solely used for retail or commercial purposes or houses.

  What do owners need to do?

  The owner or Owners Corporation must register the building on the NSW Cladding Registration Portal.

  For existing buildings, registration is required by 22 February 2019. For newly constructed buildings, registration must occur within 4 weeks after the building is first occupied. A failure to register will incur a $1,500 fine for individuals or a $3,000 fine for corporations.

  If an owner or Owners Corporation is unsure whether combustible cladding has been applied to the building, they should seek advice from an appropriately qualified building professional.

  Seeking legal advice will ensure that you are aware of your obligations and understand the importance of the cladding regulations. If you have any questions about cladding regulations, please get in touch with Julian Pozza or reach out to our Real Estate Team.

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  Essential Guide to Local Government Law: Development Control Orders Under the EPA Act

  Development control orders (orders) are powerful tools for a council to use to deal with compliance issues. Orders are given in accordance with s.9.34 and Schedule 5 of the Environmental Planning and Assessment Act 1979 (the Act), and failure to comply with an order can have significant financial and legal consequences for the recipient.

  This Essential Guide will assist local councils to determine when it is appropriate to give an order, how to give a valid order, and what to do in an emergency.

  When can a council give an order?

  A council has the power to give any order identified in the Table in Schedule 5 of the Act in the circumstances described in that Table. Column 1 of the Table identifies the types of orders a council can give; Column 2 outlines the circumstances in which the various kinds of order can be given; and Column 3 identifies who the order can be given to.

  When should a council give an order?

  A council must determine whether in the individual circumstances of each case it is appropriate to give an order. Some of the things to be considered are:

  • The seriousness and continuing nature of the breach;
  • The impacts of the breach on adjoining owners/occupiers, the general public or the environment;
  • Any hardship to the recipient, including expense and inconvenience – an order must not cause injustice disproportionate to the ends secured by the order;
  • Whether there has been excessive delay by the Council in responding to the breach;
  • The time for compliance with an order, balancing the public interest in bringing about compliance and any hardship for the recipient;
  • Whether an order will, or is likely to, make the recipient or other persons homeless – if so, the council must consider availability of satisfactory alternative accommodation in the locality;
  • Whether the order will affect the heritage significance of the item (if an order is for a heritage item on the State Heritage Register or under order by s.136 of the Heritage Act 1977); and
  • Whether more than one order is to be given to the same recipient, and whether they should be given in the same instrument.

  It is appropriate for a council to give an order – what next?

  The council (or an employee with the appropriate delegation) must first give notice to the person to whom the proposed order is directed of the following:

  1. the intention to give the order
  2. the terms of the proposed order
  3. the proposed time for compliance; and
  4. that the recipient may make representations to the council as to as to why the order should not be given or as to the terms of or period for compliance with the order.

  If the Council ultimately decides to give the order, the terms of the order will need to closely follow the terms of the proposed order set out in this notice. Some care should therefore be taken when drafting the notice to ensure the terms of the proposed order are clear and able to be readily understood by the person to whom it is given.

  The language used and information contained in a notice is very important and will affect the clarity, validity, and enforceability of the proposed order – language used in the notice should be consistent. It is also important that the notice correctly identifies the recipient (making sure that the recipient is a legal person and not, for example, simply a business name), their relationship to the land, why they are being given the notice), and the premises (lot/DP reference and street address).

  The following checklist can assist to ensure a notice (and therefore an order) is drafted correctly:

  1. Explicitly state the intention of the council to give an order to the recipient. Detailed characterisation of how a breach has arisen will often be of assistance for the recipient to understand why a notice is being given:
     • Identify the relevant legislation and, if relevant, environmental planning instrument).
     • What are the relevant statutory provisions giving rise to the alleged breach?
     • How do those provisions apply in the particular circumstances?
     • Clearly identify the actual breach being alleged.
     • If the breach of a consent condition is alleged, clearly identify the actual condition and describe the way in which it is alleged that the condition is not being complied with.
  2. Be specific when drafting the terms of the proposed order:
     • State exactly what it is that the recipient is to do, or refrain from doing, to remedy the breach.
     • Ensure that the recipient will be able to understand what is expected of them to avoid further compliance action.
  3. The proposed time for compliance must be reasonable and clear. Immediate compliance may be required where there is a serious risk to health or safety, or in an emergency. However, if immediate compliance is unnecessary, give real consideration to what will need to be done to comply with the order and how long that is likely to take.
  4. Inform the recipient of their right to make representations, including:
     • what the recipient may make a representation to the council about – i.e. why the order should not be given, the terms of the proposed order or the period for compliance with it;
     • to whom representations might be made – this may be the Council itself, a Council committee or a nominated person at the Council;
     • the date by which any representation is to be made (this needs to be a date that is reasonable in the circumstances); and
     • that a legal practitioner or agent may make the representations on their behalf.

  For certain kinds of orders, notice must also be given to other people:

  1. If a heritage item will be affected by the proposed order, the council must give notice of the proposed order to the Heritage Council and consider any submissions it makes before deciding whether to give the order.
  2. If a council proposes to give an order in relation to development for which another person is the consent authority, the council must give the other person notice of its intention to give the order.
  3. If a council proposes to give an order in relation to building work or subdivision work for which the council is not the certifier, the council must give the principal certifier notice of its intention to give the order.

  How is a notice served on the recipient?

  A notice, and any subsequent order, must be served using one of the methods prescribed in s.10.11 of the Act. Service must be effected correctly for the notice and any subsequent order to be enforceable.

  Giving an order

  When a council gives a notice expressing its intention to give an order, sometimes the recipient will remedy the breach of their own accord. If the breach has been remedied, it would be inappropriate and possibly unlawful for the Council to proceed to give the order.

  If the recipient of the notice makes representations to the council or nominated person during the time period detailed in the notice, the council must consider those representations before determining whether to give the proposed order.  A failure to consider any such representations may invalidate a subsequent order, so it is important to make sure a record is made of how the representations have been taken into account. It is also good practice to set out the consideration of the representations in the body of any subsequent order. Having considered any representations, the council may proceed to give the recipient an order if it is still appropriate to do so (either in the terms proposed in the notice, or amended), or not give an order.

  If given, an order must state that the recipient has the right to appeal against the order to the Land and Environment Court of NSW (the LEC) within 28 days of the date of service of the order.

  Reasons for giving the order must also be provided to the recipient at the same time (either within the order itself or in an accompanying document), except in an emergency. A council should ensure that the reasons are not a mere restatement of the circumstances specified in the Table in Schedule 5 in which the order may be given. The reasons should be sufficient to enable the recipient to be able to understand why the order has been given and to decide whether to accept the order or to appeal.

  An order takes effect from the time of service, or a later time if it is specified in the order itself. Methods of service are set out in s.10.11 of the Act.

  The situation is an emergency – what can be done?

  A council may proceed straight to giving an order when it is expressed to be given in an emergency. A number of requirements are dispensed with or are different in an emergency:

  • no requirement to give a notice;
  • no requirement for a council to hear or consider representations;
  • the time for compliance in the order can be “immediate”; and
  • reasons may be given the next working day.

  There is no definition of an “emergency” under the Act. While a council has some discretion to decide whether an emergency exists, its decision needs to be justifiable.  To be an emergency, there will usually be harm of some kind if the order is not given.

  For further information or assistance with orders, please contact Alan Bradbury and the Local Government & Planning team.

  The content contained in this guide is, of course, general commentary only. It is not legal advice. Readers should contact us and receive our specific advice on the particular situation that concerns them.

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  Stating the obvious, why you need an ACT Disclosure Statement

  The Leases (Commercial and Retail) Act 2001 (ACT) states that a Disclosure Statement must be issued to a tenant but by who, when and what information needs to be included?

  Who?

  For a new lease, the landlord must give the tenant a Disclosure Statement. Where there is an assignment of lease, the tenant must provide a copy of the Disclosure Statement (issued by the landlord) to the assignee.

  Where the tenant intends to exercise an option to renew and the tenant requests a Disclosure Statement, the landlord must give the tenant a Disclosure Statement. If the tenant can’t find their copy, they can ask the landlord for a copy to give to the potential assignee or subtenant.

  What is it?

  A summary of the terms of the lease and a statement as to the outgoings to be recovered from the tenant (if any).

  It is important to note that the Leases Act doesn’t just apply to a ‘lease’, it also applies to some licences meaning that a landlord may be required to provide a Disclosure Statement to a licensee.

  When?

  A landlord must provide the Disclosure Statement at least 14 days prior to the lease being entered into. That is, upon execution of the lease by the parties or the tenant entering into possession of the premises (whichever is earlier).

  If a tenant exercises an option to renew a lease and requests a Disclosure Statement, a landlord must provide the Disclosure Statement within 14 days of the tenant’s request.

  What information should it include?

  A Disclosure Statement must be in the prescribed form, state the landlord’s accounting period (if not a financial year) and contain a written estimate of the outgoings to be recovered from the tenant. It is particularly important for the nature of all outgoings to be stated as they may not otherwise be recoverable from the tenant.

  Where the landlord becomes aware of a significant change to the information contained in the Disclosure Statement, the landlord must tell the tenant as soon as possible in writing.

  What happens if a Disclosure Statement is not provided?

  If the landlord is required to provide a Disclosure Statement and fails to do so within the required timeframes, the tenant may terminate the lease within the first three (3) months of the term. In some circumstances though, the landlord may not be able to meet those time frames and in those cases the landlord should request that the tenant waive the time limits. This requires the tenant to obtain independent legal advice and have a “Section 30 Certificate” signed by a solicitor.

  In summary

  The Disclosure Statement is an important part of the lease agreement and the landlord should consider the information to be included in the Disclosure Statement carefully. A failure to state certain information (such as the nature of the outgoings) or state information correctly can lead to serious financial consequences.

  Seeking legal advice will ensure that you are aware of your obligations and understand the importance of the Disclosure Statement. If you have any questions about leasing, please get in touch with Benjamin Grady, Sandy Meaney or reach out to our Real Estate Team.

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  Unfair Contract Terms and the Banking Royal Commission: Business Breakfast Club February Summary

  This month at Business Breakfast Club, Lauren Babic of BAL Lawyers discussed unfair contract terms with a specific focus on the remedies available for small businesses and consumers, and the Australian Competition and Consumer Commission’s (ACCC) approach to unfair contract terms. We also had a roundtable discussion about the recent report of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry.

  Unfair Contract Terms and Remedies Available

  Terms that allow one party to unilaterally change the contract without the consent of the other party should be a warning sign that the terms may be unfair. We looked at the case of Australian Competition and Consumer Commission v Servcorp Limited [2018] FCA 1044 and specifically the contracts in that case to identify any unfair terms. The clauses the Court considered unfair related to limiting the performance of the contract, no reciprocal indemnity clauses, automatic renewal clauses, and terminating the contract for convenience without giving the other party any equal rights which might balance the relationship.

  Once a term is deemed to be unfair, that term becomes void and is no longer binding on the parties. The rest of the contract will continue to operate without the unfair term. A party who seeks to impose or enforce an unfair term may be held to be engaging in unconscionable conduct or misleading and deceptive conduct.

  ACCC’s Approach

  In 2016, the ACCC conducted a review of standard form contracts in a number of industries. Of the contracts reviewed, the most commonly occurring problems were terms that allowed the contract provider to unilaterally vary all terms, broad and unreasonable power to protect themselves against loss or damage, and an unreasonable ability to terminate the contract.

  If you find an unfair term in a contract to which you are a party, the ACCC recommends that you:

  1. negotiate with the contract provider to amend the unfair term;
  2. contact the ACCC or the relevant state or territory fair trading agency;
  3. seek legal advice;
  4. seek dispute resolution assistance; or
  5. seek a ruling from a court or tribunal that the term is unfair.

  For more information, please contact Lauren Babic. The next Business Breakfast Club will be held on 8 March 2019 on Undue Influence and Unconscionable Conduct: What Thorne v Kennedy means for business contracts. If you would like to attend, please contact us.

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  A.C.T Schools & Child Care Providers Complimentary Legal Seminar: Reportable Conduct & Investigations

  We invite you to join BAL Lawyers for an informative session on these key legal issues faced by schools and child care providers in the ACT. Come and benefit from the experiences of our Canberra based Employment lawyers, and your peers. We look forward to welcoming you!

  Topics to be discussed include:

  • The ACT Reportable conduct scheme – overview and Q&A
  • Best practice workplace investigations
  • Performance management made easy

  Click here to meet your presenter, Gabrielle Sullivan

  THE DETAILS

  WHERE: BAL Lawyers, Level 9, Canberra House, 40 Marcus Clarke Street, Canberra City.

  WHEN:  Wednesday 20 February 2019 9:30am to 12.00pm. 

  COST:  Complimentary. Morning coffee and tea supplied.

  Limited spaces are available, so the ‘first in, first served’ rule will be applied.

  Click here to view the invitation and RSVP or RSVP to events@ballawyers.com.au

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