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Job interview - Pitfalls

Yukio Hayashi    23 Apr 2019


Q: I heard that it is illegal for an interviewer to ask questions about personal information, such as age, family structure, medical history and nationality during a job interview. Is that true? (a HR personnel)

A: It is not illegal to ask questions about such personal information. However, federal and state laws prohibit discrimination in Australia, and in principle, discrimination based on role and gender in a family, medical history, disability and age is prohibited.

Therefore, it is generally acknowledged that in order to avoid claims of discrimination from interviewees, asking for any personal information that is not material to the work should be avoided.

It should also be noted that companies of a certain size are obliged to disclose notes taken by interviewers during interviews in accordance with privacy laws, if requested by interviewees.

Below are comments on some questions in relation to personal information.

Example 1: Questions about age

A question about age during an interview is sometimes necessary if a position requires a candidate to be at or over a certain age to do the job. For example, in liquor shops, employers must ensure that employees are at least 18 years old.

Example 2: Questions about family structure, especially about pregnancy / childbirth and having dependents

Any question about family structure should be avoided unless there is a solid ground for the need of such information. In addition, it is against the anti-discrimination law in Australia if a person is not employed due to the need to raise children, care for elderly parents and care for families with physical and mental disabilities.

Example 3: Questions about medical history

Discrimination on the grounds of disability, such as illness or injury, is illegal in Australia, so you should avoid asking questions like "Do you have any major injuries or have a chronic illness?" in the interview unless your job requires such information. Some types of work are incompatible with illness or injury. For an occupation such as mover in which carrying heavy loads is a major part of the job, asking the question "Do you currently have an injury or illness that prevents you from carrying heavy loads?" is considered reasonable.

In addition, although occupational discrimination due to HIV infection is basically prohibited, in a case held in 1999, occupations with a high risk of bleeding (e.g. military personnel) were allowed to ask questions about HIV infection. As such, depending on circumstances, it may not be illegal to ask questions about medical history.

Example 4: Questions about race or nationality

Discrimination based on race or nationality is prohibited. However, employers are allowed to ask questions to confirm whether candidates are eligible to work, such as questions about visa conditions or Australian citizenship. For this reason, it may be reasonable to ask for visa details, a copy of your Australian birth certificate or a copy of your passport.

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Yukio Hayashi

Yukio Hayashi

Senior Partner

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Modern Slavery Reporting Requirements

In Australia, the Modern Slavery Act 2018 commenced operation on 1 January 2019, creating reporting obligations for certain entities. The term modern slavery is used to describe situations where coercion, threats or deception are used to exploit victims and undermine or deprive them of their freedom. It describes serious exploitation and not substandard working conditions or the underpayment of workers. The Australian government, in support of UN Guiding Principles, aims to combat modern slavery in the Australian community and in the global supply chains of Australian goods and services.    Who needs to report? Entities that have:  Consolidated revenue of at least $100 million for the relevant reporting period (a financial year), and which Are Australian identities, or  Undertake business in Australia in that financial year   What do I need to report?  The mandatory criterion are: The reporting entity’s structure, operations and supply chains;  Modern slavery risks in the reporting entity’s operations and supply chains (including those of subsidiary entities); Actions taken (including by subsidiary entities) to assess and address those modern slavery risks, including due diligence and remediation processes; How the reporting entity assesses the effectiveness of actions taken; and  The process of consultation with subsidiary entities in preparing the modern slavery statement.   When do I need to report by? Affected entities must report in respect of the first full reporting period following commencement and must report within 6 months of that period ending. For example, the reporting period for entities with a 30 June year end will be 1 July 2021 to 30 June 2022, with reporting due by 31 December 2022. Further information Further information and links to the online registers can be found here: https://www.homeaffairs.gov.au/criminal-justice/Pages/modern-slavery.aspx  Please contact H & H Lawyers for further legal advice for submitting a modern slavery report.     [Disclaimer] The contents posted are general legal information, not legal advice, and the author and publisher have no legal responsibility for the contents. Each post is based on the law that was in force at the time of writing. Please consult a lawyer directly for accurate legal advice.


Recent changes in FIRB

The Australian government has made significant changes to Australian foreign investment law, also known as the FIRB regime. This article will summarise the pivotal changes to this regime.   Key legislation: Foreign Acquisitions and Takeovers Act 1975 (Cth) (FATA) Foreign Investment Reform (Protecting Australia's National Security) Regulations 2020 (Cth)  Foreign Acquisitions and Takeovers Regulation 2015 (Cth) (FATR) The test of national security is of increasing importance in determining approval of foreign investment in Australia, as seen by the introduction of new FIRB laws in the form of the Foreign Investment Reform (Protecting Australia’s National Security) Regulations 2020 (the 2020 Amendments), which came into effect on 1 January 2021. The 2020 Amendments serve to implement major reforms to the FIRB regime in Australia with respect to foreign government investors and national security, with the key changes relating to the following areas: Mandatory notification of FIRB for ‘notifiable national security action’. Treasurer’s ‘last resort powers’ of unwinding a transaction after FIRB approval. Treasurer’s ‘call-in’ powers and reviewing national security actions. Treasurer’s ability to extend decision making periods. Harsher penalties for non-compliance with FIRB regime. Increased FIRB powers of compliance and enforcement. Re-defining ‘foreign government investor.’ Change in ‘significant action’ control test.   Mandatory notification of FIRB for ‘notifiable national security action’ Prior to the recent reforms the foreign investment laws in Australia required foreign persons to notify any ‘notifiable action’ or ‘significant action.’ The new 2020 Amendments now also require mandatory notification of ‘notifiable national security action’. This is when a foreign person: acquires a 'direct interest' (10%+ or in a position of control or influence) in a 'national security business' (see point 2 below regarding what is considered 'national security business') acquires an interest in Australian land that is defence premises, or in which an Australian national intelligence agency has or will have an interest which is either publicly known or could be known upon making reasonable inquiries or which is land covered by an area of Australian land declared by the Treasurer by legislative instrument; or starts to carry on a 'national security business'. The exemptions from notifiable and significant actions are also applicable to the new notifiable national security actions, however there will be no money lending exemptions for notifiable national security actions and there are changes to existing exemptions. Moreover, this reform introduces a new concept of ‘national security business’ which covers the following: (critical infrastructure) where the business is a responsible entity or a direct interest holder (holding 10%+) in relation to a critical infrastructure asset under the Security of Critical Infrastructure Act 2018 (Cth), including the electricity, gas, water, and ports sectors. (telecommunications) where the business is a carrier or carriage service provider under the Telecommunications Act 1997 (Cth) (defence) where the business does any of the following: develops or manufactures critical goods or critical technology intended for a military end-use or military use by "relevant defence persons" (being defence and intelligence personnel in activities relating to Australia's national security, or the defence force of another country in activities that may affect Australia's national security); supplies critical goods or critical technology that are, or are intended to be, for a military end-use or military use by relevant defence persons; or provides or intends to provide critical services to relevant defence persons; or (data and personal information) where the business: stores or has access to information with a security classification. stores or maintains personal information of Australian defence and intelligence personnel collected by Australia's Defence Force, Defence Department, or an Australian national intelligence agency, which if accessed could compromise Australia's national security; or collects, stores, maintains or has access to personal information of Australian defence and intelligence personnel that has been collected as part of an arrangement with the Australian Defence Force, Defence Department or an Australian national intelligence agency, which if disclosed could compromise Australia's national security. To the extent a foreign person starts or acquires an interest in these national security businesses (as described above), it will be necessary to notify FIRB.   Treasurer’s ‘last resort powers’ of unwinding a transaction even after FIRB approval Prior to the 2020 Amendments, if an action is a risk to ‘national interest’, the Treasurer could prohibit the transaction or make divestment orders even if the transaction had already occurred. However, the previous regime restricted these divestment powers to only when the applicant had breached a condition under an existing FIRB approval or failed to notify FIRB when it was required to do so. The Treasurer was also unable to change or make new conditions to an existing FIRB approval without the applicant’s consent or unless the Treasure was sure there would not be a disadvantage to the applicant. Under the new regime, the Treasurer now holds wide ranging ‘last resort’ powers that can approve or reject anything on the grounds of ‘national security’. Even after FIRB has approved the investment, the Treasurer, subject to satisfying a list of newly introduced requirements, now has the authority to impose additional conditions, change existing conditions or order the divestment and sale of the investments.  Foreign investors should be weary of these changes and obtain legal advice to ascertain the extent of how FIRB and the Treasurer may impact the mode of investment desired. A recent example of the Treasurer exercising such power was in the rejection of China State Construction Company’s proposed $300 million acquisition deal for the major Australian building contractor Probuild over concerns of national security.   Treasurer’s ‘call-in’ powers and reviewing national security actions The Treasurer’s new ‘call-in power’ allows them to review any action which was not previously notified to FIRB, is a significant action or reviewable national security action, or may pose a national security concern. After the review, the Treasurer can make prohibition or divestment orders if satisfied the action would result in a risk to national security. The Treasurer can initiate a review any time within 10 years after the action occurs.   Treasurer’s ability to extend decision making periods Previously, the Treasurer’s ability to extend the FIRB assessment decision making period was limited to a public interim order, which could prevent the applicant from proceeding with a transaction by up to 90 days. The previous regime also allowed for applicants to request for an extension of decision time, so as to avoid a public interim order. However, the 2020 Amendments now allows the Treasurer to extend the decision period up to 90 days unilaterally and the applicant cannot complete the investment until the Treasurer has delivered its decision.   Harsher penalties for non-compliance with FIRB regime  The 2020 Amendments increase and include a wider range of criminal and civil penalties for non-compliance with the FIRB regime, e.g.: failure to give notice of notifiable action or notifiable national security action;  taking an action notified to FIRB prior getting FIRB approval; breaching a FIRB approval condition. Depending on the extent of the non-compliance or misrepresentations to FIRB, as at the date of this article, the Treasurer has the powers to impose penalties that include up to 10 years imprisonment for individuals or civil penalties of up to $1.11 million for individuals or up to $555 million for corporations.   Increased FIRB powers of compliance and enforcement The 2020 Amendments provide the Treasurer with increased powers, beyond giving infringement notices and fines. The Treasurer will have monitoring and investigation powers with other government agencies and will have access to premises with consent or with a warrant to gather more information. The Treasurer will also have the power to accept enforceable undertakings from foreign persons and the power to give directions to persons to prevent or address suspected breaches of the FIRB regime. For example, a direction may be issued to a foreign person to comply with provisions of relevant legislation or existing FIRB approval conditions. Finally, the Treasurer will also revoke FIRB approval upon proof that the grant of approval was based on false or misleading information. Foreign persons who undertake actions pursuant to a no-objection notice must notify the government within 30 days after taking the actions.   Re-defining ‘foreign government investor’ Previously, foreign government investors were defined as a corporation, trustee of a unit trust or general partner of a limited partnership, in which a foreign government investor from more than one foreign country collectively have at least 40% interest. Certain types of foreign persons may no longer be considered a foreign government investor under the new 40% rule Even if 40% or more  of its interests are held collectively by more than one foreign government investors, a fund vehicle may still not be considered a foreign government investor under the 40% test if: No investor from one country holds 20% or more interest in the fund vehicle No foreign government investor in the fund vehicle has access to non-public information about the fund’s investments that affect the financial metrics of the underlying investment. The foreign government investors are truly passive and exert no control. This is an important change for foreign fund vehicles that invest into Australia.   Change in ‘significant action’ control test The previous regime ensured any foreign person with the acquisition of interests in an Australian entity constituted a ‘significant action’ only if there is a change in control. However, this caused a drafting anomaly where a person who already had substantial interest in an Australian entity could increase that interest without such increase constituting a significant action. The 2020 Amendments change this control test so that it would no longer need to be satisfied where the acquirer already has a pre-existing substantial interest in the relevant Australian entity by itself or with one or more associates.   Moneylending activities require FIRB approval in relation to National Security Assets In relation to moneylending activities by foreign persons, there is a general exemption for the requirement to obtain FIRB approval for moneylending activities.  However, with these new regulatory reforms, the exemption no longer applies for moneylending activities that involves the acquisition of security interests in a national security business or national security land.   [Disclaimer] The contents posted of this website are general legal information, not legal advice, and the author and publisher have no legal responsibility for the contents. Each post is based on the law that was in force at the time of writing. Please consult a lawyer directly for accurate legal advice.


Recent changes in FIRB

The Australian government has made significant changes to Australian foreign investment law, also known as the FIRB regime. This article will summarise the pivotal changes to this regime.    Key legislation: Foreign Acquisitions and Takeovers Act 1975 (Cth) (FATA) Foreign Investment Reform (Protecting Australia's National Security) Regulations 2020 (Cth)  Foreign Acquisitions and Takeovers Regulation 2015 (Cth) (FATR) The test of national security is of increasing importance in determining approval of foreign investment in Australia, as seen by the introduction of new FIRB laws in the form of the Foreign Investment Reform (Protecting Australia’s National Security) Regulations 2020 (the 2020 Amendments), which came into effect on 1 January 2021. The 2020 Amendments serve to implement major reforms to the FIRB regime in Australia with respect to foreign government investors and national security, with the key changes relating to the following areas: Mandatory notification of FIRB for ‘notifiable national security action’. Treasurer’s ‘last resort powers’ of unwinding a transaction after FIRB approval. Treasurer’s ‘call-in’ powers and reviewing national security actions. Treasurer’s ability to extend decision making periods. Harsher penalties for non-compliance with FIRB regime. Increased FIRB powers of compliance and enforcement. Re-defining ‘foreign government investor.’ Change in ‘significant action’ control test.   Mandatory notification of FIRB for ‘notifiable national security action’ Prior to the recent reforms the foreign investment laws in Australia required foreign persons to notify any ‘notifiable action’ or ‘significant action.’ The new 2020 Amendments now also require mandatory notification of ‘notifiable national security action’. This is when a foreign person: acquires a 'direct interest' (10%+ or in a position of control or influence) in a 'national security business' (see point 2 below regarding what is considered 'national security business') acquires an interest in Australian land that is defence premises, or in which an Australian national intelligence agency has or will have an interest which is either publicly known or could be known upon making reasonable inquiries or which is land covered by an area of Australian land declared by the Treasurer by legislative instrument; or starts to carry on a 'national security business'. The exemptions from notifiable and significant actions are also applicable to the new notifiable national security actions, however there will be no money lending exemptions for notifiable national security actions and there are changes to existing exemptions. Moreover, this reform introduces a new concept of ‘national security business’ which covers the following: (critical infrastructure) where the business is a responsible entity or a direct interest holder (holding 10%+) in relation to a critical infrastructure asset under the Security of Critical Infrastructure Act 2018 (Cth), including the electricity, gas, water, and ports sectors. (telecommunications) where the business is a carrier or carriage service provider under the Telecommunications Act 1997 (Cth) (defence) where the business does any of the following: develops or manufactures critical goods or critical technology intended for a military end-use or military use by "relevant defence persons" (being defence and intelligence personnel in activities relating to Australia's national security, or the defence force of another country in activities that may affect Australia's national security); supplies critical goods or critical technology that are, or are intended to be, for a military end-use or military use by relevant defence persons; or provides or intends to provide critical services to relevant defence persons; or (data and personal information) where the business: stores or has access to information with a security classification. stores or maintains personal information of Australian defence and intelligence personnel collected by Australia's Defence Force, Defence Department, or an Australian national intelligence agency, which if accessed could compromise Australia's national security; or collects, stores, maintains or has access to personal information of Australian defence and intelligence personnel that has been collected as part of an arrangement with the Australian Defence Force, Defence Department or an Australian national intelligence agency, which if disclosed could compromise Australia's national security. To the extent a foreign person starts or acquires an interest in these national security businesses (as described above), it will be necessary to notify FIRB.   Treasurer’s ‘last resort powers’ of unwinding a transaction even after FIRB approval Prior to the 2020 Amendments, if an action is a risk to ‘national interest’, the Treasurer could prohibit the transaction or make divestment orders even if the transaction had already occurred. However, the previous regime restricted these divestment powers to only when the applicant had breached a condition under an existing FIRB approval or failed to notify FIRB when it was required to do so. The Treasurer was also unable to change or make new conditions to an existing FIRB approval without the applicant’s consent or unless the Treasure was sure there would not be a disadvantage to the applicant. Under the new regime, the Treasurer now holds wide ranging ‘last resort’ powers that can approve or reject anything on the grounds of ‘national security’. Even after FIRB has approved the investment, the Treasurer, subject to satisfying a list of newly introduced requirements, now has the authority to impose additional conditions, change existing conditions or order the divestment and sale of the investments.  Foreign investors should be weary of these changes and obtain legal advice to ascertain the extent of how FIRB and the Treasurer may impact the mode of investment desired. A recent example of the Treasurer exercising such power was in the rejection of China State Construction Company’s proposed $300 million acquisition deal for the major Australian building contractor Probuild over concerns of national security.   Treasurer’s ‘call-in’ powers and reviewing national security actions The Treasurer’s new ‘call-in power’ allows them to review any action which was not previously notified to FIRB, is a significant action or reviewable national security action, or may pose a national security concern. After the review, the Treasurer can make prohibition or divestment orders if satisfied the action would result in a risk to national security. The Treasurer can initiate a review any time within 10 years after the action occurs.   Treasurer’s ability to extend decision making periods Previously, the Treasurer’s ability to extend the FIRB assessment decision making period was limited to a public interim order, which could prevent the applicant from proceeding with a transaction by up to 90 days. The previous regime also allowed for applicants to request for an extension of decision time, so as to avoid a public interim order. However, the 2020 Amendments now allows the Treasurer to extend the decision period up to 90 days unilaterally and the applicant cannot complete the investment until the Treasurer has delivered its decision.   Harsher penalties for non-compliance with FIRB regime  The 2020 Amendments increase and include a wider range of criminal and civil penalties for non-compliance with the FIRB regime, e.g.: failure to give notice of notifiable action or notifiable national security action;  taking an action notified to FIRB prior getting FIRB approval; breaching a FIRB approval condition. Depending on the extent of the non-compliance or misrepresentations to FIRB, as at the date of this article, the Treasurer has the powers to impose penalties that include up to 10 years imprisonment for individuals or civil penalties of up to $1.11 million for individuals or up to $555 million for corporations.   Increased FIRB powers of compliance and enforcement The 2020 Amendments provide the Treasurer with increased powers, beyond giving infringement notices and fines. The Treasurer will have monitoring and investigation powers with other government agencies and will have access to premises with consent or with a warrant to gather more information. The Treasurer will also have the power to accept enforceable undertakings from foreign persons and the power to give directions to persons to prevent or address suspected breaches of the FIRB regime. For example, a direction may be issued to a foreign person to comply with provisions of relevant legislation or existing FIRB approval conditions. Finally, the Treasurer will also revoke FIRB approval upon proof that the grant of approval was based on false or misleading information. Foreign persons who undertake actions pursuant to a no-objection notice must notify the government within 30 days after taking the actions.   Re-defining ‘foreign government investor’ Previously, foreign government investors were defined as a corporation, trustee of a unit trust or general partner of a limited partnership, in which a foreign government investor from more than one foreign country collectively have at least 40% interest. Certain types of foreign persons may no longer be considered a foreign government investor under the new 40% rule Even if 40% or more  of its interests are held collectively by more than one foreign government investors, a fund vehicle may still not be considered a foreign government investor under the 40% test if: No investor from one country holds 20% or more interest in the fund vehicle No foreign government investor in the fund vehicle has access to non-public information about the fund’s investments that affect the financial metrics of the underlying investment. The foreign government investors are truly passive and exert no control. This is an important change for foreign fund vehicles that invest into Australia.   Change in ‘significant action’ control test The previous regime ensured any foreign person with the acquisition of interests in an Australian entity constituted a ‘significant action’ only if there is a change in control. However, this caused a drafting anomaly where a person who already had substantial interest in an Australian entity could increase that interest without such increase constituting a significant action. The 2020 Amendments change this control test so that it would no longer need to be satisfied where the acquirer already has a pre-existing substantial interest in the relevant Australian entity by itself or with one or more associates.   Moneylending activities require FIRB approval in relation to National Security Assets In relation to moneylending activities by foreign persons, there is a general exemption for the requirement to obtain FIRB approval for moneylending activities.  However, with these new regulatory reforms, the exemption no longer applies for moneylending activities that involves the acquisition of security interests in a national security business or national security land.     [Disclaimer] The contents posted are general legal information, not legal advice, and the author and publisher have no legal responsibility for the contents. Each post is based on the law that was in force at the time of writing. Please consult a lawyer directly for accurate legal advice.


Police Interview & Exercising the Right to Silence

The police can request to interview a suspect. The suspect must acknowledge in the police interview that it is voluntary and that they understand they have the right to silence. This is because everything said can be used as evidence, and later in court it may be used to the suspect’s detriment. The right to silence cannot be exercised if the police ask for the suspect’s name, address and birth date. If a suspect does not answer the questions for this information it could be grounds for prosecution. To maintain the validity of the evidence from a police investigation, the police must follow proper procedure and not violate the suspect’s rights. If proper protocol is not adhered to, the evidence from the interview may not be used later in court. A suspect has the constitutional right to not have their own words used against them. If a suspect does not want to answer a question, they should reply with “I would like to exercise my right to silence” or “No comment”. Even if the suspect’s case goes to trial, the judge or jury cannot consider the right to silence negatively in their verdict. Legally, it cannot be concluded that the right to silence signifies “the suspect must not want to answer the question to hide the truth” or “the suspect is lying”. The right to silence is a crucial constitutional right to the individual. The police must inform the suspect before conducting an interview that “You have the right to remain silent and anything you say may be used as evidence”. Any confession from a suspect prior to the police having formally given this caution may not be used in court. This is like the Miranda Rights often proclaimed in Hollywood movies, except in Australia, the police do not have to say “You have the right to a lawyer”. Any confession made in the interview must be made voluntarily, otherwise it may not be used in court. The police may not threaten, blackmail, torture or suggest that if the suspect confesses they will be given a lighter sentence or other benefits. There are also other rights to the suspect as a part of this process. The suspect has a right to an interpreter and may not be questioned if drunk, intoxicated by drugs or in pain. If the suspect is a minor[1] , their guardian must be present for a police interview to be done. All this is to protect the rights of the suspect. A suspect’s assumption that cooperating with police by answering all their questions will somehow benefit them is faulty. Consenting to a police interview without having a lawyer present will almost never be of benefit to the suspect. Even if the police say something along the lines of “I would just like to hear your opinion”, their intentions must be questioned since the police are almost definitely seeking to achieve a quick confession from the suspect. Therefore, it is best to contact a lawyer immediately and, in the meantime, to exercise the right to silence.


Fixed Fee Agreement

Legal fees are normally calculated by time spent on the case, which is called the time charge rate. When a lawyer accepts a case, they have a duty to provide an estimate of the legal fees to their client. Failure to do so may lead to cases where legal fees cannot be claimed. However, if the client has already paid the legal fees in advance, the legal fees can be evaluated to determine if they are appropriate, with a portion being returned if required.  Normally, people  prefer to choose a fixed fee structure over a time charge rate. In a fixed fee structure, the client and lawyer agree upon a fixed fee for the whole legal process. Contrary to the time charge rate, the client has the assurance of not having to pay any further premiums. Furthermore, the lawyers do not have to calculate their time spend on a 6min basis when filing their invoice, and a fixed fee avoids any future conflict over the legal fees exceeding the initial estimate. For these reasons, within legal circles, there is a continued dispute over whether a time charge rate or fixed fee agreement is better.  However, a fixed fee agreement is not without its issues. If the client has not fully explained the details of the case from the start, the legal issues change as the case progresses or if the lawyer sets a fixed fee but then continues to add additional charges, the fixed fee agreement would become problematic.  For example, in one case study Person A was prosecuted and taken to court. Person A sought the services of a lawyer and agreed on a fixed fee under a contract of $100,000 for the whole legal process until the end of the jury trial. The lawyer, after accepting the case, prepares various kinds of evidence and comments and seeks the services of a barrister. However, due to a lack of evidence, the case does not progress to the jury, and the prosecution side withdraws their case. The lawyer billed Person A $100,000, and Person A reported the lawyer to the law society.  What happens in this case? Assuming no exceptional circumstances, the fixed fee agreement may become invalid. This is because the lawyer calculated the fixed fee assuming the case would go to a jury trial, but this did not occur. In such an instance, the fixed fee agreement is not reasonable. As such, the amount should be amended to reflect the actual hours worked on the case.   Let us consider a different example. A lawyer has accepted a traffic accident case and has divided the fixed fee agreement into parts for each stage of the process. This is shown below.  1. Preliminary procedure prior to the case - $2,500  2. Compulsory conference with the other side - $3,000  3. Filing a statement of claim - $4,000 4. Submitting documents - $1,000 5. Conciliation - $2,000 6. Hearing and trial - $6,000 Stages 1 and 2 have progressed, and following the conference, the opinion is leaning towards a settlement. The case was eventually settled out of the court. However, the lawyer invoiced the client for the total of the five stages ($12,500), claiming this was correct. The client argued this was extravagant and filed a complaint with the law society.  The fixed fee agreement’s partition into parts seems to not pose an issue. However, the lawyer only completed 1, 2 and 5, yet submitted 3 and 4 to be invoiced. Similar to the prior case, the initial invoice becomes invalid and only 1, 2 and 5 should be invoiced, totaling only $7,500. As can be seen, sometimes within a fixed fee agreement the lawyer’s legal fees may not be just or reasonable. The lawyer has a duty to explain the fees for their services to the client, and when things do not go as expected, the lawyer should not always receive the agreed initial payment.  People often have the  assumption that if they consult another lawyer, the lawyers will side together. Although other countries may differ, in Australia, this is not the case. A lawyer should not for their occupational benefit cover up another lawyer’s faults or even commit wrongdoings themselves since doing so would exacerbate the issues and eventually be uncovered. Only by acting conscientiously can lawyers maintain their professionalism, respect, integrity and trust with clients.  


Australia Trade marks Law

Australia’s intellectual property office, IP Australia (www.ipaustralia.gov.au), and New Zealand’s intellectual property office, IPONZ (www.iponz.govt.nsw), are their respective countries’ intellectual property rights administrative agencies. IP Australia and IPONZ administer applications for trade marks and handle oppositions to intellectual property rights. They also process other administrative work such as renewal, transfer and cancellation of trade marks. Australia/ New Zealand laws allow trade marks for characters, numbers, figures and combinations of these, and trade marks can also include smell, sound and colour. A registered trade mark is valid for 10 years, and upon payment of renewal fees, may be renewed on a 10-year basis. However, even a registered trade mark, if not used for a certain period, may be cancelled by opposition from a third party.  Trade marks can be registered in one of two ways: the first is to register the trade mark internationally through the Madrid Protocol; the second is to register through IP Australia/IPONZ. A product or service to be trade marked must be classified in accordance with the International NICE classification which lists 1 to 45 classes. The procedure to register trade marks in Australia and New Zealand are as follows:  Investigation of previous trademarks.        -  A review of possible infringement and registration of the same or similar trade marks.    2. Trade mark application        - The applicant’s English name, address, trade mark and designated products/services.        - Details of priority right if claiming under a treaty.        - English translation of the trade mark if not written in English.        - For applications in New Zealand - whether the trade mark will be used in New Zealand.    3. Assessment of the trade mark application        - Takes up to 4-5 months from the date of application (can apply for expedited examination in cases of emergency).        - For applications in New Zealand, takes 3-4 weeks from the date of application.        - Review whether there have been conflicts with prior trade marks, distinguishing features of the trademark, etc.        - If any reason for rejection has been identified, an initial report of the examination will be issued and the applicant will have 15 months           from the date of the report to respond to that.        - For application in New Zealand, the applicant must respond to the rejection within 12 months from the date of the initial report.        - When applying for a trademark in Australia/New Zealand through the Madrid Protocol, if an examination report has been issued,           an agent must be appointed in Australia/New Zealand for the purpose of responding to the rejection.      4. Application notice and objection        - Upon the satisfaction of all requirements, notification will be advertised on the public notice board for two months.        - For applications in New Zealand, the public notice will continue for 3 months.        - If an objection is filed within the deadline, a separate objection procedure will be carried out.     5. Registration of trade mark         - If there is no objection, the registration of the trade mark will be completed and a certificate of registration will be issued electronically            (in a PDF format).         - The validity of the trade mark is for 10 years (can be renewed every 10 years). An owner of a registered trade mark is entitled to the exclusive use of the trade mark in Australia/New Zealand. Furthermore, it is necessary to conduct an investigation for existing trade marks to avoid infringing on others’ trademark rights when entering the Australian/New Zealand market. If the trade mark you wish to use is registrable, it is best to register it as soon as possible in order for it to be protected. Registering a trade mark will prevent future infringement on the trade mark rights by other competitors. In addition, upon the registration, customs in Australia and New Zealand can seize products being imported if a registered trade mark is infringed. Registered trade marks can use the ® symbol which gives consumers an exclusively protected brand image. Subsequently, a registered trade mark is a property asset which can be renamed, transferred and licensed. Finally, when attracting investment funds from international banks, investors or governments, there are often cases in which it would be advantageous to register your trade mark in the respective country you are considering entering the market in.