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Workplace Update: New Whistleblower Laws

Recent events such as the raids on the ABC and other journalists have brought into focus the risks faced by whistleblowers who leak evidence of corruption or other serious crimes.

It is therefore somewhat timely that the federal parliament recently passed the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2019, which substantially bolsters whistleblower protections within the private sphere.

Who do the new laws apply to?

The Bill amends the Corporations Act and other legislation (new laws) by imposing strict whistleblowing protection obligations on the following regulated entities:

  • companies or constitutional corporations
  • certain financial institutions
  • insurers (including life insurance companies)
  • superannuation entities and trustees
  • any associated entities of the above

The new laws do not apply to government departments, nor do they increase the whistleblower protections for commonwealth employees.

Key Effects

In essence, the new laws:

  • allow the making of protected disclosures about a wider range of misconduct such as corporate corruption, fraud, bribery and money laundering, as well as other serious criminal offences that pose a danger to the public or financial system
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Fines and Prison – Tougher Personal & Company Penalties

The Treasury Laws Amendment (Strengthening Corporate and Financial Sector Penalties) Act came into effect on 13 March 2019.  It is a response to the Banking Royal Commission which called for increased penalties for corporate wrongdoing.

The new Act amends the Corporations Act, the National Consumer Credit Protection Act, the Australian Securities and Investments Commission Act and the Insurance Contracts Act 1984.  Below we focus on the changes to the Corporations Act.

What are the new maximum penalties for individuals?

The new maximum pecuniary penalty for individuals is the greater of:

  • $945,000; or
  • 3 times the benefit gained/detriment avoided.

The new maximum prison penalties for serious criminal offences (including breaches of director’s duties) have been increased to 15 years.

The new maximum civil penalty for individuals is the greater of:

  • $1.05 million; or
  • 3 times the benefit gained/detriment avoided.

What are the new maximum penalties for companies?

The new maximum pecuniary penalty for companies is the greater of:

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Child Birth Maintenance: Covering the Cost of Having Your Child

You might have heard of spousal maintenance, but few have heard of the term “child birth maintenance.” Child birth maintenance is different from both spousal maintenance and child support because it is specifically concerned with supporting women through the birth of their child. Family law lawyers explore this topic below.

The Family Law Act s 67B states that a father (who is not married to the child’s mother) is liable to make a proper contribution towards:

  • The maintenance of the mother for the childbirth maintenance period in relation to the birth of the child, and
  • The mother’s reasonable medical expenses in relation to the pregnancy and birth.

The Childbirth Period

The childbirth period is defined as two months before the child is born (unless a doctor advises the mother to stop working for medical reasons prior to this) to 3 months after the child is born.

What Kinds of Expenses?

When deciding what expenses can be accounted for, Judge Demack in Millar & Johnston [2015] FCCA 543 (13 March 2015) suggested family law lawyers need to distinguish between items that have been purchased for the mother or the child. Items purchased for the child would rather come within the scope of child support.

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No ‘Character of the Local Area’ in diverse neighbourhoods

Under clause 16A of the State Environmental Planning Policy (Affordable Rental Housing) 2009, a consent authority must not consent to a development if the design is incompatible with the character of the local area.

In the recent decision of Louden Pty Ltd v Canterbury-Bankstown Council [2018] NSWLEC 1285 (Louden), clause 16A played a prominent role in Commissioner Gray’s judgement. In that case, the Council had refused the development, inter alia, because the development’s design did not match the local aesthetic. The Council relied on the argument that the setbacks and design of the proposal were inconsistent with other residential flat buildings in the local area.

However, Commissioner Gray rejected this argument in favour of the Applicant’s reliance on Project Venture Developments v Pittwater Council [2005] NSWLEC 191 (Project Venture). There, Roseth SC stated [at 22]: Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve.
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When does an employee of a company become an “officer”?

By Jeffrey Brown, a Principal of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group.

Later this year the High Court will turn its attention to what makes a person an “officer” of a corporation. Their judgment will be eagerly awaited by those advising companies and their senior management staff.

Earlier this month the High Court of Australia granted special leave to the Australian Securities & Investments Commission (ASIC) to appeal the decision of the Queensland Supreme Court, Court of Appeal in ASIC v King [2019] HCA Trans 104 (17 May 2019).

The Corporations Act imposes civil and criminal penalties on “officers” of corporations if they contravene the Act or neglect their duties.

Mr King was a senior employee of the MFSIM Group of Companies. He, along with a number of other senior employees, was prosecuted by ASIC for contravention of their responsibilities as “officers” of MFSIM.

The Court of Appeal in Queensland concluded that, although Mr King was involved in the management of the affairs of the corporate group and in particular its parent company, in order for him to be an “officer” of the corporation he had to hold a formal “office” or recognised position. Having concluded that he held no such formal recognised office, the Court of Appeal declined to impose a penalty on him under the Act.
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Case Note: Port Macquarie-Hastings Council v Mansfield

In the recent decision of Port Macquarie-Hastings Council v Mansfield [2019] NSWCCA 7 (Mansfield), the NSW Court of Criminal Appeal overturned an earlier decision of the Land and Environment Court in relation to the power of councils to compel production of documents under the former section 119J (now section 9.22) of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act).

Background

Mr Mansfield was accused of carrying out a development that was prohibited under the Local Environmental Plan. After some investigations and before the commencement of the criminal proceedings, Council’s investigation officer, Craig Henderson, issued a number of notices under section 119J (now section 9.22) of the EPA Act. From the documents produced under those notices, Council learned two companies may have further documents relating to the alleged offence and issued a subpoena to each of the two companies after criminal prosecution had commenced.

Mr Mansfield challenged the validity of the two subpoenas in the Land and Environment Court, primarily on the basis that Council must not rely on the information gathered from section 119J notices to issue the subpoena because the section 119J notices were not validly issued in the first place.
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New Land and Environment Court Class 3 Compensation Claims Practice Note

On 15 March 2019, the Chief Judge of the Land and Environment Court of New South Wales issued a new Practice Note for Class 3 Compensation Claim proceedings relating to the acquisition of land. The purpose of this new practice note was to implement a significant change to the way in which compensation proceedings are managed. More specifically, the new practice note is better aimed at facilitating just, quick and cheap resolutions of what can often be very complex compensation cases.

Change 1 – Earlier Conciliation conferencing

The biggest change in the practice note is that conciliation conferencing will be one of the initial procedural steps undertaken prior to preparation of expert evidence. The old practice note provided that conciliation conferences were to take place approx. 16 weeks after the initial directions hearing, following preparation of all of the expert evidence and relevant pleadings. Under the new practice note, parties should now expect to attend a conciliation conference approx. 4 weeks after the initial directions hearing.
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Potential Changes to NSW Aboriginal Planning Rules through the Aboriginal Land SEPP

New South Wales in the near future could potentially require consideration for ‘development delivery plans’ (‘DPP’) for development applications under land owned by Local Aboriginal Land Councils (LALCs’). The State Environmental Planning Policy (Aboriginal Land) 2019 (“SEPP”) brought into force on 6 February 2019 currently applies to certain mapped lands owned by the Darkinjung Local Aboriginal Land Council. However, the plan anticipates a review 12 months post commencement to consider extensions to include Darkinjung land; and potential extension to include further LALCs across NSW.

The DPP promotes strategic and independent planning decisions for LALC whilst considering regional strategic plans for the area adopted under the Aboriginal Land Rights Act 1983 and other matters considered relevant by the LALC and Minister. Part 2 under the SEPP provide the following requirements for DPPs:

DPP must set out the following [9(1) of the SEPP]:

  • Set out the general objectives and nature of for the land
  • Set out a basis for which the development is proposed
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