Foreign Investment Laws

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Foreign investment plays a vital role in the Australian economy by supporting existing jobs and creating new jobs, encouraging innovation and the induction of new technologies and skills, providing access to markets and promoting competition.

It is interesting to note that:

  • at the end of 2018, the stock of total foreign investment in Australia was worth around $3.5 trillion;
  • Treasury’s foreign investment approvals data showed that there was $163 billion of proposed investment approved in the 2017-18 financial year;
  • Firms with FDI, support 1 in 10 jobs and also make a significant contribution to the one in five jobs that are trade-related in Australia.

The Foreign Investment Review Board (FIRB) is the “gatekeeper” to foreign investment in Australia. FIRB is a non-statutory body established in 1976 to advise the Treasurer and the Government on Australia’s Foreign Investment Policy and its administration.

Australia’s foreign investment laws strike a balance between ensuring that Australia remains an attractive investment destination, while maintaining community confidence in foreign investment and protecting Australia’s interests.

Australia’s system uses a set of monetary thresholds, with investment proposals above those thresholds being screened against a national interest test.

The national interest test is broad. The national interest, and what would be against it, includes factors such as:

  • Impact on the economy;
  • Impact on the community;
  • National security;
  • Competition;
  • Taxation; and
  • The character of the investor.

FIRB assesses applications against this national interest test and works with investors to manage any identified concerns against the broad national interest criteria.  Where national interest concerns are identified, the Government’s preference is to apply conditions as part of the approval to manage risks and to allow the investment to proceed.

Tim Hayter, Principal, Mid West Lawyers

This information is general in nature and should not be relied upon as legal advice. Formal legal advice should be sought for your particular circumstances. 

Elder Abuse

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With our ageing population elder abuse is becoming increasingly more common. In WA, elder abuse is defined as “any act which causes harm to an older person and occurs within an informal relationship of trust, such as family or friends”.

Elderly people face a higher risk of abuse, exploitation and neglect. This makes elderly people more vulnerable than the general population.

In some situations, a crime has been committed against elderly members of the community who are unable to escape, report or even acknowledge mistreatment. Often the perpetrator is a family member of the elder.

Elder abuse can take one or more of the following forms:

  • Financial;
  • Physical;
  • Sexual;
  • Psychological;
  • Neglect;
  • Social.

Financial elder abuse can be very deliberate, or it can arise through poor financial decision making. For these reasons, it is important that elders should be very careful who they allow to control their financial affairs.

To reduce the risk of financial elder abuse, the elderly should:

  • have an up to date and valid Will;
  • have a valid Enduring Power of Attorney;
  • seek professional independent advice;
  • not give any gift or loans until they have calculated that they have sufficient funds to meet future age care wants, needs and expenses;
  • before making any loans determine if the loan is to be repaid, and if so, engage a lawyer to prepare a loan agreement;
  • properly document in writing any living arrangements and any financial contribution to properties.

If you or someone you know is experiencing elder abuse, or has a question about elder abuse, please call the Elder Abuse Helpline on 1800 655 566 for a confidential discussion.

Tim Hayter, Principal, Mid West Lawyers

This information is general in nature and should not be relied upon as legal advice. Formal legal advice should be sought for your particular circumstances. 

Buying A Second-Hand Car

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Many disputes arise from the purchase of second-hand cars, particularly from private sellers. In WA, buyers of second-hand cars in the private market have little protection. However, second-hand cars purchased through a dealership generally provide greater protection through consumer warranties.

The sale of cars in WA is regulated by the provisions of the Motor Vehicle Dealers Act 1973 (MVDA). There are no laws in WA which protect buyers in the private market if they buy a second-hand lemon. There are also no cooling-off periods for the purchase of used cars in WA.

However, the MVDA is currently subject to review and the issue of “lemon laws” has been identified as part of that review.

Prior to buying a second-hand car it is prudent to engage a qualified mechanic to perform an inspection of the vehicle and to search the Personal Property Security Register (PPSR) with the car details. 

The PPSR search should show if the car has been used as security for a loan, reported as stolen or written off in an insurance claim. If the PPSR search shows that the car has been used as security for a loan, the security interest registered against the car should be discharged prior to the buyer making payment. If the buyer purchases the car without the security interests being discharged, the lender is entitled to repossess the car from the buyer.

It is important that the buyer checks that the identification number on the engine matches the number stated on the licence registration papers for the car.

The buyer should also be careful to determine the cost of licence duty for the car before buying the car.

Tim Hayter, Principal, Mid West Lawyers

This information is general in nature and should not be relied upon as legal advice. Formal legal advice should be sought for your particular circumstances.

Penalties For Firebugs

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Deliberately lit fires cause substantial damage to people, animals, property and the environment in WA.

In WA, over 300 arson related charges are laid by WA Police every year.

The penalties for arson in WA are severe. Criminal damage by fire can lead to a maximum penalty of life imprisonment.

The legislation relating to arson offences was amended in 2009, with tougher penalties and new offences added to the Criminal Code in WA.

Section 444 of the Criminal Code makes it an offence to destroy or damage property in WA. If the destruction or damage is caused by fire, this offence is now punishable by a maximum penalty of life imprisonment.

Under section 445 of the Criminal Code a person commits an offence if they unlawfully destroy or damage the property of another person without that person’s consent. This offence can lead to a maximum penalty of imprisonment for two years and a fine of $24,000.

Arson offences in WA are dealt with by the Supreme Court of WA as they carry a maximum penalty of life imprisonment.

Section 32 of the Bush Fires Act 1954 makes it an offence to light or attempt to light a fire or to place a flammable thing or substance in a position that it may ignite or be set on fire in circumstances where it is likely to injure a person or damage a property. This offence can lead to a maximum penalty of imprisonment for 20 years.

Rewards of up to $50,000 are offered for reporting information that leads to the identification and conviction of arsonists. The rewards are made available through the State Government and the Insurance Council of Australia’s Arson Reward Scheme.

DFES actively encourages people with knowledge of suspicious fires or arson to report this information to Police. Please ring Crime Stoppers on 1800 333 000.

Tim Hayter, Principal, Mid West Lawyers

This information is general in nature and should not be relied upon as legal advice. Formal legal advice should be sought for your particular circumstances.

Hiring Backpackers

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Hiring backpackers or working holiday makers can be the perfect solution to help during busy times. However, it is important to remember that there are strict laws around hiring non-Australian citizens.

Employers are responsible for checking all workers’ rights to work in Australia. It is an offence under the Migration Act 1958 to knowingly or recklessly allow workers to work, or to refer workers for work, where those workers are from overseas and either illegally in Australia or working in breach of their visa conditions.

If you knowingly, or recklessly allow someone without a valid working visa to work or refer them for work you could face criminal charges. People found to be working illegally can also be removed from the workplace without any notice being given to their employer. This can disrupt the workplace and might end up costing the employer money due to loss of income.

There is a free online service which employers can use to check the different types of visas, Visa Entitlement Verification Online (VEVO). This is the safest and easiest way to check work entitlements of all new workers from overseas as it provides you with current visa information.

Employers may also like to read the “Do your employees have a valid visa to work in Australia?” booklet.

Australian citizens and permanent residents only need 1 single check at the time of employment.

Temporary visa holders must be rechecked to ensure that no changes have occurred. Employers should check these visas on VEVO every 3 months. If the employer discovers an employee is an illegal worker, the employer must end the working relationship immediately.

Tim Hayter, Principal, Mid West Lawyers

This information is general in nature and should not be relied upon as legal advice. Formal legal advice should be sought for your particular circumstances.

Record Keeping By Employers

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Employers who engage employees under relevant federal workplace laws are required to:

  • make and keep accurate and complete records for all of their employees (e.g. time worked and wages paid); and
  • issue pay slips to each employee.

These record-keeping and pay slip obligations are designed to ensure that employees receive their correct wages and entitlements.

Employee records must:

  • be in a form that is readily accessible to a Fair Work Inspector;
  • be in a legible form and in English (preferably in plain, simple English);
  • be kept for seven years;
  • not be altered unless for the purposes of correcting an error; and
  • not be false or misleading to the employer’s knowledge.

Employee records are private and confidential. Generally, no one can access them other than the employee, their employer, and relevant payroll staff.

Employers must make copies of an employee’s records available at the request of an employee or former employee.

However, Fair Work Inspectors and organisation officials (such as a trade union) may access employee records (including personal information) to determine if there has been a contravention of relevant Commonwealth workplace laws.

Tim Hayter, Principal, Mid West Lawyers

This information is general in nature and should not be relied upon as legal advice. Formal legal advice should be sought for your particular circumstances.

Cash Payments Of More Than $10,000 To Be Outlawed

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The Currency (Restrictions on the Use of Cash) Bill 2019 is currently on its second reading in the House of Representatives. The House of Representatives is one of the two houses of the Australian Federal Parliament, the other being the Senate. It is sometimes called the ‘people’s house’ or the ‘house of government’.

This Bill creates new offences that apply if an entity makes or accepts cash payments with a value that equals or exceeds the cash payment limit of $10,000. However, the offence does not apply if the payment is either of a kind specified in the rules made under the Bill or made or accepted in circumstances of a kind specified in the rules.

The Treasurer may specify how to convert an amount of foreign or digital currency into Australian dollars in the rules made under the Bill. This Bill also provides rules, similar to the rules that apply in the context of the taxation law and under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006, about the consequences that apply when an offence is committed by an entity that is not a legal person.

Cash is increasingly being replaced with various forms of electronic non-cash payments. These most commonly involve the use of debt or credit arrangements facilitated by banks and other payment system providers which, whilst generally designated in Australian currency, are forms of contractual arrangement between parties.

These alternative payment methods are often more convenient for consumers or businesses and increasing involve a lower costs as they simplify record keeping and avoid the security, insurance and other costs associated with handling and holding large amounts of cash. They also generally offer significant regulatory benefits as they typically create clear records of transactions. As a result there are economic benefits arising from the growing use of these alternative payment methods.

To give effect to this limit, this Bill establishes new offences for entities that make or accept cash payments that equal or exceed the cash payment limit of $10,000. The use of criminal sanctions reflects the harm to the wider community that was identified in the Final Report of the Black Economy Taskforce. The use of an effective deterrent is required to change existing practices that have facilitated participation in black economy and particularly the use of cash payments to conceal income and criminal activity.

Tim Hayter, Principal, Mid West Lawyers

This information is general in nature and should not be relied upon as legal advice. Formal legal advice should be sought for your particular circumstances.

agribusiness blog

The current status of Glyphosate in Australia

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Recently there has been increased media coverage in Western Australia and nationally concerning the use and safety of products containing the active ingredient glyphosate.

 

Claim Against Bayer in NSW by Farmer

Ross Wild, a New South Wales farmer aged 67, has been diagnosed with non-Hodgkin’s lymphoma. Mr Wild claims that long-term exposure to Roundup’s active ingredient, glyphosate, has caused him to suffer this illness.

Monsanto manufactures the product known as “Roundup”. Monsanto is owned by pharmaceutical conglomerate Bayer. Mr Wild has commenced legal proceedings in the Victorian Supreme Court to claim damages against Bayer.

Mr Wild has used Roundup on his farming property in Moama, New South Wales since its introduction in Australia in 1976. Mr Wild’s lawyer said the Roundup bottles did not provide adequate warnings of the dangers of using the product. He also said that Mr Wild’s clothes and body had been “drenched” in the herbicide over a 40-year period of use of Roundup.

Mr Wild is claiming damages against Bayer for failing to provide proper warnings on the dangers of using Roundup, as well as compensation for pain and suffering, loss of income and medical expenses.

The claim comes after a string of successful lawsuits against Monsanto in the U.S., where juries have been willing to accept that the weed killer is directly responsible for causing cancer.

In Australia, a successful claim will need to persuade a Court that glyphosate is responsible for causing cancer and that Monsanto is ultimately liable. To date no Australian Court has found Monsanto or Bayer to be liable for any damage, loss or injury arising from the use of products containing glyphosate.

 

The APVMA’s Position

In 2016, the Australian Pesticides and Veterinary Medicines Authority (APVMA) considered glyphosate and found no grounds to place it under formal reconsideration again.

The APVMA has released the following statement in relation to Glyphosate:

“APVMA is aware of recent international decisions concerning glyphosate.

Products containing glyphosate are registered for use in Australia, and APVMA approved products containing glyphosate can continue to be used safely according to label directions. Australian law requires appropriate warnings on product labels, which include relevant poisons scheduling, first aid, and safety directions detailing personal protective equipment when handling and using products containing glyphosate. The APVMA reminds users of the importance of following all label instructions.

As the national regulator for agricultural chemicals, we continue to track and consider any new scientific information associated with safety and effectiveness of glyphosate, including information from other regulators.

In 2016, following the IARC assessment, the APVMA considered glyphosate and found no grounds to place it under formal reconsideration again. The APVMA completed a review of glyphosate in 1997, which set Australia’s health based guidance values at a level that remains protective. Different labels have different purposes. More information on how to read a label can be found on our website.”

 

Summary

The safe use of agricultural and veterinary chemicals requires following the label instructions.

All chemical products have instructions for safety and use on the label. The labels are there for your safety and provide practical information on how to use each product. Always read the label instructions and use only as directed.

Products containing glyphosate are safe to use in areas which will be later used by people and animals provided the label instructions are followed. The label instructions will tell you how long people or animals should avoid an area that has been treated—always follow these instructions.

We will be monitoring legal developments in relation to glyphosate to ensure that our clients take all appropriate measures to limit their liability.

If you require any advice concerning the subject of this article, contact us on + 61 8 9921 6040 or email thayter@midwestlawyers.com.au.

 

Mid West Lawyers Expand

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On 17 October, 2011 Allion Legal transferred its Geraldton practice to Mid West Lawyers.

Mid West Lawyers has since merged with Hayter & Co to create a specialist commercial law firm based in Geraldton, Western Australia.

Tim Hayter (formerly Principal at Allion Legal) has been appointed as Principal at Mid West Lawyers.

Mike Hayter (formerly Principal at Hayter & Co) has been appointed as a Consultant of the firm.