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					    DWREPORT | SUMMER 2011
SERVICE PROFILE


Estate Wise
                                                                                                                      INSIDE THIS ISSUE


Introducing a new on-line estate planning support and advisory service                                                 2 | Competition & Consumer
                                                                                                                       Laws
for accountants, financial advisers and their clients.                                                                 When a Business is a “Consumer”
                                                                                                                       .... Plus the New Regulations
Estate Wise is an internet-based  In essence, the relevant client              “It’s simple to navigate and fast
estate planning service supported data is submitted on-line at the             to operate. The system also             4 | Where There’s a “Will”
by DW that has been designed      Estate Wise website - www.                   allows the client and their adviser     There’s a Way
                                                                                                                       The Importance of Having a Will
to provide the perfect balance    estatewise.com.au - following                to access any support they
of traditional estate planning    which the draft estate planning              need throughout the process,
                                                                                                                       5 | Modern Awards
services and innovative on-line   documentation will be forwarded              and backs all this up with the          All SA Private Sector Employees
                                  to the client and their nominated
tools. It’s fast, easy, cost-effective                                         peace of mind of requiring              Now Covered by Modern Awards
and unintimidating, whilst still  advisers within hours. The                   experienced lawyers to sign off
providing the security of expert, panel on the right shows the                 on all documents and ensure             6 | SA STILL the Highest
one-to-one consultation.          estate planning documentation                they’re absolutely appropriate for      Business Tax State
                                  currently available, with more               the client’s particular needs and       2010 IPA Business Tax Calculator
Estate Wise makes it possible for (including business succession               circumstances.”
individuals, either by themselves documentation) soon to be                                                            8 | Hit the Ground Running
                                                                                                                       Paid Parental Leave
or through their accountant,      added.                                       Jeremy added that, throughout
financial planner or DW, to                                                    the system’s extensive test phase,      9 | Small Business Employers
achieve their estate planning     Then the client need only arrange            all clients who trialled it received    & Unfair Dismissal
objectives from almost anywhere. an appointment with a member of               their documents on time and             The Small Business Fair Dismissal
                                  the DW Wills, Estates & Business             in accordance with initial cost         Code
                                  Succession team for one-to-one               estimates.
                                                                                                                       10 | WorkCover 2011
                                  legal approval and execution of                                                      The Year of the Rabbit or the Year
                                  their documentation. Simple!              “What’s more, only one meeting             of Uncertainty?
                                                                            with a lawyer was required to
                                         If you are an accountant or        finalise the documents in those            13 | Love Me (Legal) Tender
                                                                                                                       The Many Ways of Making
                                         financial adviser, Estate Wise and cases, though of course more
                                                                                                                       Payment
                                         DW will work with you to enable time may be required in more
                                         you to deliver expert estate       complex cases.”                            14 | The Spam Act
                                         planning outcomes to your clients                                             Virgin Blue Fined for Sending
                                         from within your own office                                                   Unwanted Marketing Emails
                                                                            Documents on Demand
                                         environment and in a way that
                                                                                                                       15 | International Franchising
                                         suits you.
                                                                               A rapid turnaround is                   Report on 2011 IFA Convention in
                                                                                                                       Las Vegas
                                         Best of both worlds                   available on the following
                                                                               draft documents:                        16 | Staff Profile: Christian
                                         According to Estate Wise founder                                              Munt
                                                                               • Testamentary Trust Wills              Head of the Family
                                         Jeremy Duffy, the service provides
                                         an “ideal blend” of traditional and
                                         innovative legal delivery methods,    • Simple Wills
                                         retaining the best qualities
                                         of each and removing their
                                                                               • Powers of Attorney
                                         weaknesses.                           • Powers of Guardianship
                                         “The Estate Wise system and           • Medical Powers of
                                         website is solely focused on
                                         estate planning, so doesn’t
                                                                                 Attorney
                                         confuse the client with hundreds      • Anticipatory Directions
                                         of different documents and
                                         services across multiple areas of     • Death Benefit
                                         law,” says Jeremy.                      Directions.
 Jeremy Duffy of Estate Wise
                                                                               continued on page 2
DWREPORT | SUMMER 2011 | PAGE 2


                                                      NEWS & VIEWS | Sandy Donaldson & Lisa Dowdy




                                                      Competition & Consumer Laws
                                                      When a Business is a “Consumer”..... Plus the New Regulations
Estate Wise                                           From I January 2011 the name                           involved such as section 18 of                        including, for example, letters
                                                      of the Trade Practices Act 1974                        the ACL relating to misleading or                     of engagement for professional
                                                      (Cth) changed to the Competition                       deceptive conduct (the successor                      services. Terms in such a
continued from page 1
                                                      & Consumer Law Act 2010                                to the well known and often                           contract that are unfair, within the
                                                      (Cth) [Act] (see our newsflash                         litigated section 52 of the Trade                     meaning of the ACL, will be void.
Benefits for accountants and
                                                      in November last year, entitled                        Practices Act).
financial advisers
                                                      “Business Beware: The New                                                                                    Standard form contracts for
                                                      Competition and Consumer                               Also, importantly, the consumer                       goods or services should, among
The Estate Wise service also
                                                      Laws”). The changes effected                           guarantees prescribed by the                          other things, be amended to
offers other specific benefits
                                                      by the Act include the substantial                     ACL apply to supplies to a                            include one single price, inclusive
for accountants and financial
                                                      requirements contained in The                          “consumer”, but by reason of                          of GST (and other charges), in
advisers, says DW Senior
                                                      Australian Consumer Law set out                        the definition of “consumer” in                       order to comply with section 48
Associate Kieren Moore.
                                                      in Schedule 2 of the Act [ACL].                        the ACL this includes supply in                       of the ACL.
                                                                                                             business to business transactions
Kieren notes that the Estate Wise
system can be customised to
                                                      The purpose of the ACL is to                           where the amount payable for                          “The ACL is described
                                                      create a single national law                           the goods or services does not
complement the current service
                                                      concerning consumer protection,                        exceed $40,000.00.                                         as a “consumer
offering of any financial planning
or accountancy practice.
                                                      thereby allowing consumers                                                                                       law”, but many of
                                                      consistency in cross state                             Services are Included
                                                      transactions. The creation of                                                                                  its provisions apply
“This is a fantastic way for such
                                                                         Transactions affected include
                                                      this national legislation allows
professionals to significantly
                                                                         supplies of services not just
                                                      for enforcement by both national
                                                                                                                                                                         whether or not
strengthen their client
relationships, and therefore their
                                                                         goods. Consumer guarantees
                                                      and state regulatory bodies. The                                                                                  a “consumer” is
                                                                         applicable with respect to
                                                      powers granted to these bodies
practices, and increase their
                                                                         services including (for example)
                                                      under the ACL are broad, and                                                                                         involved”.
revenues” he says.
                                                                         professional services, comprise
                                                      can include substantial civil and
                                                      criminal penalties.guarantees that services:                                                                 New Regulations
“It allows them to quickly and
                                                                         •	 will be rendered with due
easily address the estate planning                                                                                                                                 Some of the sections of the
                                   The states and territories have             care and skill (section 60);
needs of their clients at any time                                                                                                                                 ACL require regulations for their
                                   adopted, or will adopt, identical     •	 are fit for a particular
and with complete legal certainty,                                                                                                                                 full effect. Regulations entitled
                                   legislation to ensure consistency           purpose, if made known
including those arising from any                                                                                                                                   the Trade Practices (Australian
                                   in the approach. South Australia            expressly or by implication
significant transaction or change                                                                                                                                  Consumer Law) Amendment
                                   has passed the Statutes                     (section 61(1));
in circumstances.                                                                                                                                                  Regulations 2010 (No. 1) were
                                   Amendment & Repeal (Australian •	 will achieve a result, if it is
                                   Consumer Law) Act 2010, which               made known expressly or by                                                          made on 16 November 2010
It also provides further                                                                                                                                           [Regulations].
                                   gives the ACL effect in South               implication, that the result
networking, referral opportunities
                                   Australia, and other states and             is to be achieved by the
and growth for participating                                                                                                                                       The Regulations contain a
                                   territories have or will pass similar       services (section 61(2)); and
financial planning and accounting                                                                                                                                  three-step program for the
                                   legislation.                          •	 are to be supplied within a
professionals.”                                                                                                                                                    introduction of certain prescribed
                                                                               reasonable time, unless a
                                   The ACL extends beyond                      time is fixed (section 62).                                                         requirements and other matters,
Estate Wise and DW will work                                                                                                                                       with the more straightforward
                                   consumer transactions                 These guarantees cannot be
with Financial Advisers to                                                                                                                                         obligations commencing from
                                                                         excluded.
effectively turn their practices                                                                                                                                   the start of this year, others
into one-stop Estate Planning      The ACL is described as a
                                                                         In addition, in circumstances                                                             commencing on 1 July 2011 and
Services for clients.              “consumer law”, but many of its
                                                                                                                                                                   some of the most prescriptive
                                   provisions apply whether or not a where the services are “wholly
                                                                         or predominantly for a personal,                                                          requirements not commencing
To learn more, visit               “consumer” is involved.
                                                                         domestic or household use or                                                              until 1 January next year.
www.estatewise.com.au or
speak to a member of the           For example, some sections apply consumption”, the “unfair contract
                                                                         terms” provisions of the ACL                                                              Unsolicited supplies and
DW Wills, Estates & Business where something occurs “in                                                                                                            agreements
                                   trade or commerce”, regardless        will apply to businesses which
Succession team on
                                   of whether or not a consumer is       provide standard contracts,
(08) 8410 2555.                                                                                                                                                    The first schedule of the
                                                                                                                                                                   Regulations contains
                                                       “The purpose of the ACL is to create a single                                                               requirements relating to
                                                                                                                                                                   “unsolicited supplies” and
                                                       national law concerning consumer protection,                                                                “unsolicited consumer
                                                                                                                                                                   agreements”.
                                                        thereby allowing consumers consistency in
                                                                  cross state transactions”.
Disclaimer: DWReports are short summaries of topics of interest. They are not intended as advice or to be comprehensive and must not be relied upon without obtaining appropriate professional advice.
                                                                                                                                                            DWREPORT | SUMMER 2011 | PAGE 3

       “...it is important that all businesses urgently review their terms
       of trade and other documentation in relation to both consumer
      and business to business transactions to ensure compliance with
                            these legislative changes”.

“Unsolicited supplies” relate to                      repair of electronic devices that                     Due to the prescriptive nature of                      What action must be taken by
door to door or telephone sales,                      are “capable of retaining user-                       these Regulations, businesses                          businesses?
whereas “unsolicited consumer                         generated data”. Such devices                         will need to carefully review
agreements” are agreements for                        (which include computer hard                          their documentation in relation                        As previously advised, it is
the supply of goods or services                       drives, mobile phones, media                          to warranties to ensure strict                         important that all businesses
that are made from negotiations                       players and games consoles)                           compliance with the applicable                         urgently review their terms of
not occurring at the supplier’s                       must contain a statement noting                       requirements by next year (and                         trade and other documentation
place of business (or are made                        that repairs “… may result in the                     to ensure that documents are                           in relation to both consumer
by telephone) and where the                           loss of data…”.                                       presently compliant with the                           and business to business
consumer did not invite those                                                                               provisions of the ACL and                              transactions to ensure
                                                      Warranties against defects
negotiations.                                                                                               Regulations that are already in                        compliance with these legislative
                                                                                                            force).                                                changes.
                                                      The third schedule, containing
These regulations prescribe
                                                      the most complicated and                                                                                     The time to act is NOW.
requirements for contracts and
                                                      prescriptive requirements,        MORE INFO:
notices, and include obligations
                                                      will come into effect from 1
for specific statements, text and
                                                      January 2012. These relate to
formats, such as;
                                                      the legislative requirements for
•	 on invoices and other
                                                      “warranties against defects”. The
     documents, to ensure, where
                                                      ACL (in section 102) provides
     applicable, that they are not
                                                      for the Regulations to prescribe
     deemed to assert a right
                                                      requirements on the form and
     to payment, the statement
                                                      content of warranties against
     that “This is not a bill. You
                                                      defects.
     are not required to pay any
     money”;                                          Regulation 90, in the third
•	 the name, address and                              schedule, includes the
     details of the supplier                          requirements that any warranty:
     must be included in any
     “unsolicited consumer                            •	     must be transparent;
     agreement”; and                                  •	     must concisely state what
•	 information regarding                                     is required to be done by
     termination rights must                                 the consumer to have the
     be supplied before and at                               warranty honoured and entitle
     the time of entering any                                the consumer to make a
     “unsolicited consumer                                   claim, including the details of
     agreement”, including a                                 to where a claim should be
     statement on the front page                             sent;
     of the unsolicited consumer                      •	     must include contact
     agreement that “you have the                            information of the person
     right to cancel this agreement                          or business providing the
     within 10 business days...”.                            warranty; and
                                                      •	     must state the period of the
                                                             warranty.
    “...this includes a
                                                      The following wording must
supply in a business to                               also be included: “Our goods
 business transaction                                 come with guarantees that
                                                      cannot be excluded under the
   where the amount                                   Australian Consumer Law. You
                                                      are entitled to a replacement or
 payable for the goods                                refund for a major failure and
                                                                                                              Lisa Dowdy Associate                         Alastair Donaldson Partner
  or services does not                                for compensation for any other
                                                                                                              direct +618 8229 0964                        direct +618 8229 0916
                                                      reasonably foreseeable loss or
exceed $40,000.00”.                                   damage. You are also entitled
                                                                                                              LDowdy@dwlaw.com.au                          SDonaldson@dwlaw.com.au

                                                      to have the goods repaired or
Repair of electronic devices
                                                      replaced if the goods fail to be of
The second schedule of the                            acceptable quality and the failure
Regulations, which comes into                         does not amount to a major
effect from 1 July 2011, inserts a                    failure”.
new regulation in relation to the


Disclaimer: DWReports are short summaries of topics of interest. They are not intended as advice or to be comprehensive and must not be relied upon without obtaining appropriate professional advice.
DWREPORT | SUMMER 2011 | PAGE 4


INSIGHT | Melanie Bird & Christopher Bruce


Where There’s a “Will” There’s a Way
The Importance of Having a Will
It is difficult for anyone when a loved one passes away but when that                                       Distribution
person has not left a will, this can add significant legal complications,
which can often last many years. Not only does this cause a great                                           Depending on the nature of the estate assets, the administrator(s)
deal of added stress to a grieving person, it also can cause family                                         may need to apply to the Supreme Court for a grant of Letters of
breakdowns, numerous disputes, significant (and potentially avoidable                                       Administration (the equivalent application if the deceased left a will is
or minimisable) taxation liabilities and significant legal fees. With                                       called ‘Probate’). For example, if the deceased held land either solely,
these issues it is difficult to understand why over half of Australia’s                                     or as a tenant in common, the administrator will not be able to deal
adult population have not made a formal will.                                                               with the deceased’s legal title in the land until the grant has issued.

Intestacy                                                                                                   Once the value of the estate is established and the grant of Letters
                                                                                                            of Administration has (if necessary) been made, the net assets of the
Dying without leaving a valid will is referred to as “dying intestate”.                                     estate can be distributed. The formula for distribution of an intestate
If a person dies intestate, the property belonging to the deceased                                          estate is governed by section 72G of the Administration and Probate
(the estate) is inherited according to a strict set of provisions called                                    Act (SA), which provides as follows:
the intestacy rules. In other words, instead of the property being
distributed to the deceased’s nominated beneficiaries under a will,      1.                                        If there is a surviving spouse and no children, the whole of the
the estate is distributed to family relations in a specific, inflexible                                            estate will go to the spouse;
order. This often results in unintended consequences. Dying
intestate also gives rise to the issue of who is to be responsible for   2.                                        If there is a surviving spouse and children and the value of the
administration of the estate and the administrator(s) potentially having                                           estate does not exceed $100,000.00, the whole of the estate
to account to the Public Trustee.                                                                                  will go to the spouse;

There are two forms of intestacy, a total intestacy where the                                               3.     If there is a surviving spouse and children and the value of the
deceased dies without leaving a valid will, and a partial intestacy                                                estate does exceed $100,000.00, the spouse is entitled to
where the deceased’s will does not provide for the distribution of all                                             $100,000.00 plus half of the remaining balance of the estate and
estate property in the circumstances. For the purposes of this article,                                            the children are entitled to the balance of the estate (equally);
we will concentrate on a total intestacy.
                                                                                                            4.     If there is no surviving spouse but are children, the children will
Part 3A of the Administration and Probate Act 1919 (SA) deals                                                      be entitled to the whole of the estate;
with the distribution of an intestate estate. Firstly, one or more
administrators need to be appointed to administer the estate. The                                           5.     If there is no surviving spouse or children, the whole of the estate
administrator(s) will usually be one or more of the beneficiaries under                                            will go to surviving relatives (section 72B of the Administration
the intestacy rules. Once the appointment has been made it is the                                                  and Probate Act defines “relatives”).
responsibility of the administrator(s) to determine the net value of
the estate. The net value of the estate is calculated by determining                                        6.     If there are no qualifying relatives or dependents, the assets of
the estate assets and their value and then deducting the debts and                                                 the deceased will pass to the Government.
liabilities of the deceased, including funeral expenses, testamentary
expenses, costs of the administration of the estate and claims of                                           The above distribution formula can obviously cause problems
creditors. If the deceased is survived by a spouse, the value of all                                        when there are ex-partners, step children, step parents, blended
personal chattels must also be deducted.                                                                    families, etc involved. There may also be issues surrounding parents
                                                                                                            of the deceased and a putative spouse. This in itself can cause
A spouse also includes a “putative spouse”. A putative spouse                                               complications if a parent decides to dispute any application seeking a
is entitled to claim rights to the estate if a relationship exists in                                       declaration for putative spouse status.
accordance with the criteria outlined in the Family Relationships
Act 1975 (Cth). A court must declare that a person is a “putative                                           Furthermore, if a spouse/domestic partner resides in a dwelling
spouse” so a partner left behind who is not a legal wife/husband must                                       house, which was also the dwelling of the deceased, and the house
take steps to establish in the court that they are in fact a “putative                                      is not subject to the survivorship rules, the surviving spouse must
spouse”. This can result in significant delay in the distribution of                                        take steps in accordance with section 72L of the Administration and
estate assets to a partner who is not legally recognised as the                                             Probate Act. That is, the spouse has only three months from either
husband or wife of the deceased.                                                                            the date of the administration grant or the date from when notice
                                                                                                            is served by the administrator to elect to acquire the deceased’s
                                        “... instead of the property being                                  interest in the dwelling house. This may cause significant problems if
                                          distributed to the deceased’s                                     the surviving spouse is not financially sound. This type of problem can
                                         nominated beneficiaries under                                      be addressed by having a valid will.
                                          a will, the estate is distributed                                 Court can vary the entitlements
                                         to family relations in a specific,
                                       inflexible order. This often results                                 Whilst Part 3 of the Administration and Probate Act provides a
                                                                                                            formula for distribution of an intestate estate, the Court still has power
                                         in unintended consequences”.
                                                                                                            to vary the entitlement to beneficiaries. A claim can be made under


Disclaimer: DWReports are short summaries of topics of interest. They are not intended as advice or to be comprehensive and must not be relied upon without obtaining appropriate professional advice.
                                                                                                                                                            DWREPORT | SUMMER 2011 | PAGE 5


                                                                                                            NEWS & VIEWS
        “... it is difficult to understand why over
        half of Australia’s adult population have
                   not made a formal will”.


section 7 of the Inheritance (Family Provision) Act 1972 (SA). The
persons entitled to make such a claim are:                                                                                                         Margaret Kaukas & Megan Langford

•	
•	
      spouse of the deceased
      a person divorced from the deceased                                                                    Modern Awards
•	    a domestic partner of the deceased                                                                     All SA Private Sector Employees Now Covered
•	    a child of the deceased
•	    a child of a spouse or domestic partner who was maintained by                                          by Modern Awards
      the deceased immediately before death                                                                 2011 will see yet another change in South Australia’s workplace
•	    a grandchild of the deceased                                                                          relations system, with the remainder of unincorporated employers
•	    a parent of the deceased                                                                              becoming covered by the national regime of modern awards.
•	    a brother or sister of the deceased.
                                                                                                            Since the beginning of 2010, modern awards have applied to
To be successful in such a claim, certain criteria must be met.                                             employers that are trading corporations, but employers structured as
Without descending into detail, essentially a claim will be upheld                                          sole traders, partnerships, incorporated associations and non-trading
if any of the above class of persons can persuade a Court that                                              corporations have, to date, not been required to comply with modern
they have been left without adequate provision for their proper                                             awards, by reason of a “transitional period”.
maintenance, education and advancement in life. These types of
applications can be complex, timely, very expensive and the outcome
difficult to anticipate. While an application of this nature can also be
brought if the deceased leaves a will, a will provides guidance to the
Court as to the deceased’s last wishes.
 “By failing to make a valid will, a person foregoes the
 right to express his or her wishes on how their estate
                                                                                                            On 1 February 2011, the transitional period for sole traders,
              is to be distributed on death”.                                                               partnerships, incorporated associations and non-trading corporations
By failing to make a valid will, a person foregoes the right to express                                     ended, and such entities must therefore comply with the modern
his or her wishes on how their estate is to be distributed on death.                                        awards.
Leaving a valid will affords protection to those loved ones left behind.
It also means that the set distribution formula as outlined above is                                        This is the final stage of the plan in which South Australia (and
not applied and the executor(s) can generally administer the estate                                         three other States) referred their industrial relations powers to the
in accordance with the deceased’s parting wishes. For those of                                              Commonwealth, to standardise award coverage throughout the
you who do not have a will or know someone that does not, it is an                                          majority of Australia.
important legal and moral tool that should be attended to by all of us.
The complications for those left to deal with an intestate estate can    Employers new to modern award coverage should find their
cause heartache, stress and wastage of the estate.                       applicable award and ascertain precisely what their transition
                                                                         requirements are. Penalties, loadings and wages will be ‘phased’ up
It is recommended that a lawyer with estate planning expertise be        or down, to match the transitional rates ‘corporate’ employers have
consulted before making a will. It can be the case that the majority of been paying since 1 July 2010. Transitional requirements under the
a person’s wealth is not capable of being left in a will, such as assets awards vary however, so every employer should ensure that they have
held jointly, superannuation and money held in a family trust. Further, carefully checked their specific obligations.
a simple will kit may be largely ineffective in providing any tax saving
                                                                         The transition process will continue until 2014, at which time all
or asset protection benefits.
                                                                         employers must comply with all minimum standards in the modern
                                                                         awards.
Donaldson Walsh has expertise in the areas of estate planning, the
administration of estates and with respect to contested estates.         It is critical that employers comply with modern awards, as a failure to
MORE INFO:                                                                                                  do so can result in significant fines, and claims for underpayment of
                                                                                                            award entitlements.

                                                                                                            For further information on modern awards and the transition process,
                                                                                                            contact DW’s Workplace Relations Team.

                                                                                                            MORE INFO:
                                                                                                            Margaret Kaukas Senior Associate
                                                                                                            direct +618 8229 0928
                                                                                                            MKaukas@dwlaw.com.au
                                                                                                            OR
Melanie Bird Senior Associate                         Chris Bruce Associate                                 Megan Langford Solicitor
direct +618 8229 0984                                 direct +618 8229 0971                                 direct +618 8229 0924
MBird@dwlaw.com.au                                    CBruce@dwlaw.com.au                                   MLangford@dwlaw.com.au


Disclaimer: DWReports are short summaries of topics of interest. They are not intended as advice or to be comprehensive and must not be relied upon without obtaining appropriate professional advice.
DWREPORT | SUMMER 2011 | PAGE 6



INSIGHT | Sandy Donaldson & Tim Duval

SA STILL the Highest Business Tax State
2010 IPA Business Tax Calculator
Last year we reported on the findings in the Institute of Public Affairs                                    Land Tax and Stamp Duty: The Big Items
(“IPA”) State Business Tax Calculator for 2009 (see DW Report,
Summer 2010). In the 2009 Calculator, the IPA concluded that                                                South Australia is very competitive in the area of payroll tax. The
“South Australia has the highest business taxes of the six Australian                                       payroll tax imposition on a reference business for SA is lower than
states”.                                                                                                    all other States and Territories, other than NT. Payroll tax is by far
                                                                                                            the major component of tax burdens on businesses (33.4% for a
In the 2010 Calculator, the IPA finds that:                                                                 reference business for all States and Territories, according to the
                                                                                                            IPA).
  “For the second consecutive year, South Australia is
                                                                                                            However, the taxes that push SA above all others are land tax and
   assessed as imposing the highest level of business                                                       stamp duty. SA is above average for stamp duty, though less than
                       taxes”.                                                                              Victoria and ACT, and for land transfer duty. It is the second highest
                                                                                                            (coming after Victoria) for all business stamp duties.
The Calculator can be viewed on the IPA Website at
http://ipa.org.au. The methodology used in the Calculator is to                                             Land tax is the stand-out tax which pushes SA above the rest. As the
calculate the tax liabilities of a hypothetical “reference business”,                                       IPA reports:
based on methodology used by the World Bank, being one which is
assumed to have:
•	 60 employees;
                                                                                                                   “The annual South Australian land tax liability of
•	 assets of $16 million;                                                                                         $41,895.00 is a massive 106 percent above the
•	 profit of $5 million.                                                                                                         states’ average”.
Constraints on Business Growth                                                                              This is illustrated by the IPA graph:

The IPA advocates reform of State and Territory taxation and notes
that “State business taxes are widely held to impede efficiency,
which constrain business growth and hence the development of
Australia’s market-based economy”.

The Australian front page on 10 January 2011, reporting on the IPA
Calculator, leads with the headline:

        “HIGH TAX HURTS THE LAGGARD STATES”
It goes on to say:

     “High taxes in NSW and South Australia risk
     entrenching the nation’s two-speed economy
 providing a new impetus for business and workers to
  flow to the mining boom states of Queensland and
                  Western Australia.”
State and Territory Comparisons                                                                             Escalation in Values and Tax

The main results table in the Calculator sets out the aggregate                                             It is not surprising that the “take” of SA from land tax and property-
business tax burden on a reference business in each State and                                               related stamp duty has soared. Both land tax and stamp duty are
Territory as follows (from high to low):                                                                    assessed in SA on sliding scales, increasing according to value,
                                                                                                            and property values, as everyone is well aware, have increased
                                                                                                            substantially in the last decade.
  SA                                     $281,744.00
  ACT                                    $275,015.00                                                        Land tax rates in SA for the 2010/2011 year, and beyond, increase
  NSW                                    $270,129.00                                                        on the basis of the following “thresholds”:
  TAS                                    $265,248.00                                                         Up to $300,000                     NIL
  QLD                                    $264,630.00                                                         $300,000-$550,000                  0.5% over $300,000
  VIC                                    $256,830.00                                                         $550,000-$800,000                  +1.65% over $550,000
  WA                                     $256,195.00                                                         $800,000-$1 million                +2.4% over $800,000
  NT                                     $234,656.00                                                         Over $1 million                    +3.7% over $1 million


                                                                                                            The thresholds are indexed for the 2011/2012 financial and
                                                                                                            subsequent years on the basis of Valuer-General valuations.

Disclaimer: DWReports are short summaries of topics of interest. They are not intended as advice or to be comprehensive and must not be relied upon without obtaining appropriate professional advice.
                                                                                                                                                            DWREPORT | SUMMER 2011 | PAGE 7




Stamp duty rates start at 1% for the price or value of the property                                         Recommendation 52 in the Report states:
that is transferred up to $12,000.00 and progressively escalate to a
maximum 5.5% on the excess over $500,000.00.                                                                  “Given the efficiency benefits for broad land tax, it
                                                                                                               should be levied on as broad a base as possible.
The stamp duty thresholds are not indexed, and have not been                                                   In order to tax more valuable land at higher rates,
changed for a long time. According to a chart on Myrpdata.com
(www.myrp.com.au), the median Adelaide house price in November                                              consideration should be given to levying land tax using
2000 was around $150,000.00 and in November 2010 was around                                                  an increasing marginal rate schedule with the lowest
$400,000.00. That is an increase of 267%, and an increase of                                                 rate being 0, with thresholds determined by the per-
stamp duty revenue of that percentage is obviously substantial.
However, because of the flexible and unindexed thresholds, the
                                                                                                                               square-metre value.”
stamp duty on the purchase of a property for $150,000.00 in 2000                                            Recommendation 53 goes on to state:
would have been $4,830.00. Whereas in 2010, duty on a property
purchased for $400,000.00 would be $16,330.00, an increase of                                                     “In the long run, the land tax base should be
338%. This example concerns a residential, rather than a business                                           broadened to eventually include all land. If this occurs,
property, but the principle is the same.
                                                                                                             low-value land, such as most agricultural land, would
The imposts do not end there, of course. Registration fees at the                                           not face a tax liability where its value per square metre
Lands Titles Office are calculated on the basis of consideration,                                                      is below the lowest rate threshold.”
notwithstanding the payment of stamp duty and notwithstanding that
the amount of consideration has no relevance to the work required                                           These recommendations have not received anywhere near the same
for registration of the transfer. The registration fee for a transfer                                       publicity as the recommendations of the Henry Review in relation
of a $400,000.00 sale would be $2,561.00 (so the total of stamp                                             to taxation of non-renewable resources, which appear in the same
duty and fees on such a sale is $18,891.00). In addition, however,                                          section of the Report.
there are local government rates and the Emergency Services Levy,
calculated under the arcane formulas under the Emergency Services                                           Given this thinking, it is unlikely that there will be any substantial
Funding Act 1998.                                                                                           alteration to the land tax system in South Australia. Unfortunately
                                                                                                            this is contrary to the recommendations in the Henry Report, relating
Tax Reform?                                                                                                 to abolishing stamp duty on real property and extending the base
                                                                                                            of land tax, by removing or limiting current exemptions, which, while
The IPA Calculator notes that “variations in tax competitiveness                                            increasing the overall amount of land tax, may permit a reduction in
between States and Territories appear to be mainly driven by                                                land tax rates.
differences in property taxation”, and goes on to say that “South                                           New “Landholder” Stamp Duty
Australia should target land tax reductions as a priority”.
                                                                         Far from reducing stamp duties, the state government announced as
Is this likely? The answer is probably “no”. Governments must            part of the state budget handed down on 16 September 2010 that
collect tax, and are notoriously short-sighted and politically motivated it intends to replace the land rich provisions in the Stamp Duties Act
in determining the style and rate of taxes.                              with a landholder model, as exists in some other states. A draft Bill
                                                                         has been proposed with a view to introduction of the new model on
Stamp duty is not a particularly equitable or efficient tax, and the     1 July 2011. The landholder model for stamp duty will substantially
States are obliged to continue to phase out business-related stamp       widen the scope of entities and assets that will give rise to a liability
duties in accordance with the New Tax System agreement between           for stamp duty.
the States and the Commonwealth on the introduction of the GST.          MORE INFO:

In the Final Report of the Henry Review “Australia’s Future Tax
System”, it is said that:

 “Ideally, there would be no role for any stamp duties,
  including conveyancing stamp duties, in a modern
    Australian tax system. Recognising the revenue
     needs of the States, the removal of stamp duty
should be achieved through a switch to more efficient
  taxes, such as those levied on broad consumption                                                          Alastair Donaldson Partner                             Tim Duval Solicitor
  or land bases. Increasing land tax at the same time                                                       direct +618 8229 0916                                  direct +618 8229 0953
                                                                                                            SDonaldson@dwlaw.com.au                                TDuval@dwlaw.com.au
 as reducing stamp duty has the additional benefit of
        some offsetting impacts on asset prices.”




Disclaimer: DWReports are short summaries of topics of interest. They are not intended as advice or to be comprehensive and must not be relied upon without obtaining appropriate professional advice.
DWREPORT | SUMMER 2011 | PAGE 8


NEWS & VIEWS | Megan Langford


Hit the Ground Running
Paid Parental Leave
Since 1 January 2011, new                             Which employees are eligible?
parents across Australia have had
access to paid parental leave.                        Employees must meet several
                                                                                                                       “After 1 July, the FAO will provide payments
But what exactly is paid parental                     criteria to be eligible for parental                                to employers, who will be expected to
leave, and what impact will it have                   leave pay. Specifically, employees                                  forward them to employees, generally
on employers?                                         must:                                                                   through their usual pay cycle”.
A short explanation of the new                        •	     Be the primary carer of the                    The employer’s role before                             and the payment of funds to
entitlements, and what role                                  child                                          1 July 2011                                            employees. This may mean that
employers are expected to play                        •	     Be on leave (or at least not                                                                          many employers need to upgrade
in the administration of this new                            working) after the birth or                    Most importantly, employers are                        their payroll systems to meet their
scheme follows.                                              adoption                                       not expected to make parental                          forthcoming responsibilities.
                                                      •	     Be an Australian resident,                     leave payments out of their own
In brief                                                     and                                            pockets. This scheme is funded                         For further information
                                                      •	     Satisfy the “work test” and                    by the Federal Government.                             about the “paid parental
“Paid parental leave” is actually                            the “income test”.                             Further, employers are not                             leave” scheme, contact DW’s
something of a misnomer – it is                                                                             currently responsible for the                          Workplace Relations Team.
not a new form of leave. Rather,                      Satisfying the work test requires                     administration of the scheme,
it is an entitlement of up to                         employees to have worked                              though this will change as of 1
18 weeks’ pay at the Federal                          at least 10 of the 13 months                          July 2011.
minimum wage for eligible                             preceding the birth or adoption,
employees during the first 12                         and at least 330 hours in those                       Employees requesting paid
months after the birth or adoption                    10 months, with less than an                          parental leave should always
of a child. More correctly                            eight week period without                             be directed to the Family
named “parental leave pay”, it is                     working during this time.                             Assistance Office (“FAO”). The
intended to interact with the 12                                                                            FAO assesses eligibility and
months’ unpaid leave provided                                                                               determines the payments that
to employees under the National                                                                             employees will receive. Until 1
Employment Standards, and is                                                                                July, the FAO will make direct
additional to any paid parental                                                                             payments to employees.
leave programmes that employers
already have in place.                                                                                      Gearing up

“...it is an entitlement of up                                                                              After 1 July, the FAO will provide
   to 18 weeks’ pay at the                                                                                  payments to employers, who will
                                                                                                            be expected to forward them to
Federal minimum wage for                                                                                    employees, generally through
 eligible employees during                                                                                  their usual pay cycle. However,
  the first 12 months after                                                                                 when an employee has less
                                                                                                            than 12 months’ service prior
 the birth or adoption of a                                                                                 to the expected date of birth or
              child”.                                 The income test requires                              adoption, and will receive less
                                                      employees to have earned no                           than 8 weeks’ pay, the FAO can
The scheme allows employees                           more than $150,000 in individual                      provide the payments directly.
to maintain contact with their                        adjusted taxable income in the
employers during their leave with                     previous financial year.              Employers will need to register
10 days of ‘keep in touch’ time,                                                            for the parental leave pay scheme
to be used for activities such                        In the event that a parent is no      through Centrelink Business
as training. Employers will be                        longer the primary carer, he or       Online Services and provide
required to pay the worker for                        she can transfer any remaining        information to the FAO, such as
days the employee spends at the                       entitlement to parental leave pay bank account and payroll details.
workplace for ‘keep in touch time’.                   to their partner or the child’s other Employers will also be required
                                                      parent, provided he or she is         to keep financial records for the
                                                      eligible and takes on the primary receipt of funds from the FAO
                                                      carer role.

                                                    “...employers are not expected to make parental
                                                     leave payments out of their own pockets. This                                                                        Megan Langford Solicitor
                                                    scheme is funded by the Federal Government”.                                                                          direct +618 8229 0924
                                                                                                                                                                          MLangford@dwlaw.com.au


Disclaimer: DWReports are short summaries of topics of interest. They are not intended as advice or to be comprehensive and must not be relied upon without obtaining appropriate professional advice.
                                                                                                                                                            DWREPORT | SUMMER 2011 | PAGE 9


NEWS & VIEWS | Margaret Kaukas


Small Business Employers & Unfair Dismissal
The Small Business Fair Dismissal Code
                                                                                                                             “This results in a slightly less onerous
Synopsis
                                                                                                                              responsibility upon “small business
From 1 January 2011 the method of calculating whether an                                                                    employers” in relation to dismissal than
employer is a “small business employer” for the purposes of the                                                                   applies to other employers”.
“Small Business Fair Dismissal Code” has been simplified.
The Fair Work Act provides that a dismissal by a “small business        •	 Other Dismissal: In other cases, if, prior to the dismissal, the small
employer” will not be unfair if the small business employer has acted      business employer has: given the employee a valid reason, based
consistently with the “Small Business Fair Dismissal Code” (outlined       on the employee’s conduct or capacity to do the job, why he or
further below). This results in a slightly less onerous responsibility     she is at risk of being dismissed; warned the employee verbally
upon “small business employers” in relation to dismissal than applies      or in writing that he or she is at risk of dismissal if there is no
to other employers.                                                        improvement; and provided the employee with an opportunity to
                                                                           respond to the warning and a reasonable chance to rectify the
Prior to 1 January 2011 a “small business employer” was defined as         problem. Rectification of the problem might involve the small
an employer who – at the time of the dismissal or immediately before       business employer providing additional training and ensuring that
the dismissal – employed less than 15 full-time equivalent employees.      the employee knows the employer’s job expectations.
Full-time equivalent employees were calculated by reference to a
complicated formula provided in the legislation.                        •	 Procedural Matters: In discussions with an employee in
                                                                           circumstances where dismissal is possible, the employee is allowed
                   As from 1 January 2011 a “small business                to have another person (who is not a lawyer acting in a professional
                      employer” is calculated by a simple head count       capacity) to assist.
                       of all employees, including:
                                                                        Associated Entities
                        •	     Casual employees, but only if at the
                        relevant time the casual employee had been      The Corporations Act defines one entity (the associate) to be an
                        employed on a regular and systematic basis;     associated entity of another entity (the principal) if:
                         •	 Employees of associated entities (see       •	 The associate and the principal are related bodies corporate; or
                           below);                                      •	 The principal controls the associate; or
                            •	 The employee who is being dismissed      •	 The associate controls the principal and the operations, resources
                            and any other employee who is being            or affairs of the principal are material to the associate; or
                             dismissed at the same time.                •	 The associate has a qualifying investment in the principal and has
                                                                           significant influence over the principal, and the interest is material
                            Small business employers – including           to the associate; or
                           franchisors and franchisees – may need to •	 The principal has a qualifying investment in the associate and has
                          review their manuals and processes to take       significant influence over the associate, and the interest is material
                          account of this change.                          to the principal; or
                                                                        •	 A third entity controls both the principal and the associate, and the
                           Small Business Fair Dismissal Code              operations, resources or affairs of the principal and the associate
                                                                           are both material to the third entity.
                             The Small Business Fair Dismissal Code
                             provides that it will be fair for a “small  The definition of “associated entities” contained in the Corporations
                           business employer” to dismiss an employee Act will not usually apply to fellow franchisees. However, when
                          in the following circumstances:                a franchisee operates multiple sites of the franchised business
                                                                                                             these ‘multi-sites’ may be considered associated entities. If
                                    •	 Summary Dismissal: Without notice
                                                                                                             the combined employee head count of the multi-site operations is
                                    or warning when the employer believes on
                                                                                                             15 or more, the franchisee should seek appropriate legal advice.
                                   reasonable grounds that the employee’s
                                   conduct is sufficiently serious to justify
                                   immediate dismissal. Serious misconduct                                   For further information on the Small Business Fair Dismissal
                                   includes theft, fraud, violence and serious                               Code, identification of a “small business employer”, and advice
                                   breaches of occupational health and safety                                in relation to whether a particular entity is an “associated
                                   procedures. For a dismissal to be deemed                                  entity”, please contact DW’s Workplace Relations Team.
                                   fair it is sufficient, but not essential, that
                                   an allegation of theft, fraud or violence be
                                   reported to the police, and that the small
                                   business employer has reasonable grounds
                                     for making the report to police.



Margaret Kaukas Senior Associate
direct +618 8229 0928
MKaukas@dwlaw.com.au


Disclaimer: DWReports are short summaries of topics of interest. They are not intended as advice or to be comprehensive and must not be relied upon without obtaining appropriate professional advice.
DWREPORT | SUMMER 2011 | PAGE 10


INSIGHT | John Walsh                                                                                             “Employers and workers alike face another year of
                                                                                                                  uncertainty with a range of issues likely to impact
WorkCover 2011                                                                                                      upon the troublesome WorkCover Scheme”.
The Year of the Rabbit or the Year of Uncertainty?
Employers and workers alike face                      Scheme in South Australia. That                       decrease from 3% to 2.75%                              for and the one factor influencing
another year of uncertainty with                      radical legislative reform resulted                   in 2010/11. It remains to be                           WorkCover’s unfunded liability
a range of issues likely to impact                    in an overhaul of the Act in 2008.                    seen whether that will occur.                          that is within its control and he
upon the troublesome WorkCover                        At the time MLC John Darley was                       In the meantime WorkCover                              expresses pleasure that, “we have
Scheme.                                               successful in incorporating into                      is developing a new employer                           reduced the number of long term
                                                      the legislative change a review of                    premium payment system for                             claims (ie, claims greater than
Towards the end of last year there                    the impact of the changes. The                        South Australia to replace the                         three years old) to 1,718, which
were a number of announcements                        review is in process now and                          bonus penalty scheme which                             is the lowest number of long term
made and decisions taken                              submissions were accepted until                       ceased on 30 June 2010. It was                         claims since August 2001”.
which, together with judicial                         4 March. The review is headed                         originally hoped by WorkCover                          The reduction in claims liability
interpretation of the Scheme, will                    by Bill Cossey AM, a former                           that the changes would be                              and the reduction in the number
impact this year and beyond.                          senior public servant and it can                      implemented by 30 June 2011.                           of long term claims is, however,
                                                      be expected to be a political hot                     It can be expected that there will                     heavily influenced by the very high
Scheme Performance                                    potato because many in the union                      be winners and losers out of any                       level of redemption payments
                                                      movement feel that the reforms                        change but more about that later.                      made pursuant to Section 42 of
The Annual Report was released                        have not achieved the aim of                                                                                 the Act. Section 42 of the Act
on 30 September 2010 for                              increasing the return to work                         Scheme Performance                                     was amended amongst the raft
the financial year 2009/10.                           rate and reducing the unfunded                                                                               of changes implemented in 2008
WorkCover announced a profit of                       liability but they have unfairly                      The generally positive                                 and it is the clear intention of the
$77 million for the financial year, a                 penalised injured workers. They                       commentary by WorkCover                                legislation to significantly limit
reduction in the unfunded liability                   may well be right.                                    around the release of the Annual                       redemptions in order to change
to $982 million at 30 June 2010                                                                             Report hides some worrying                             the “lump sum culture” which was
and an increase in the funding                        Participants in the Scheme                            factors.                                               blamed by WorkCover for the
ratio to 61.5%. The Annual                                                                                                                                         deterioration in the Scheme over
Report confirmed the intention to                     Towards the end of last year,                         Unfunded Liability – although                          the last 10 years. It is interesting
reduce the average levy rate from                     decisions were taken by the                           the unfunded liability fell from                       to note, therefore, that in 2008/9
3% to 2.75% for the 2010/11                           WorkCover Board in relation to                        $1.059 billion to $982 million,                        total redemption payments made
financial year. On its face a                         contracts for claims management                       the turnaround largely came as                         were $147 million (an average
positive result – but more of that                    and the provision of legal                            a result of a positive return on                       of $83,000.00 per payment)
later.                                                services. In each case the                            investment. Investments grew to                        and in the 2009/10 year total
                                                      incumbents remain in place until                      12.3% and delivered a return of                        redemption payments were
Legislative Change                                    31 December 2012, ensuring                            $138 million, but there are some                       $123 million with an average
                                                      a period of stability, at least, in                   worrying signs. There was an                           amount of $95,000.00 per
The Honourable Paul Holloway                          relation to claims management                         underwriting loss of $18 million!                      redemption. The “savings” on
foreshadowed a draft Bill to                          and the provision of legal                                “The generally positive                            claims liability in the last two years
reform WorkCover’s dispute                            services.                                                                                                    and the reduction in the number
                                                                                                                    commentary by
resolution processes to “create                                                                                                                                    of long term claims seems to have
a more equitable process with
                                                                                                                WorkCover around the                               come about as a consequence
speedier outcomes for injured
                                                                                                                 release of the Annual                             of a significant increase in total
workers, without undermining                                                                                      Report hides some                                redemption payments over recent
the financial strength of the                                                                                      worrying factors”.                              years ($76.6 million in 2007/8
WorkCover Scheme”. The                                                                                                                                             and only $34 million in 2006/7).
                                                                                                            The underwriting loss is the
draft Bill sets out a wide range
                                                                                                            shortfall between levy collected
of amendments which will                                                                                                                                           The actuarial review which
                                                                                                            from registered employers and
significantly impact the dispute                                                                                                                                   accompanies the Annual Report
                                   Levy Rate                                                                the cost of claims. In contrast the
resolution process and are heavily                                                                                                                                 refers to the reduction in liability
                                                                                                            previous year delivered a positive
reliant upon effective Medical                                                                                                                                     of $81 million and tells us that
                                   When the government committed                                            result to the tune of $107 million.
Panel processes – more of this                                                                                                                                     “this favourable movement arises
                                   to the reform package which led                                          During the 2009/10 year there
later.                                                                                                                                                             from continued execution of the
                                   to legislative change in 2008,                                           was a $109 million increase in
                                                                                                                                                                   tail redemption strategy, as well
                                   one of the objectives was that                                           the cost of claims!
WorkCover Performance                                                                                                                                              as some favourable experience
                                   the average employer levy rate                                           The Chairman’s Statement,
Review                                                                                                                                                             for the 2005/06 accident
                                   be reduced to a range of 2.25%                                           however, highlights a claims
                                                                                                                                                                   year (where some claims had
                                   to 2.75% by 1 July 2009. The                                             liability saving, rather than the
In March 2007 the government                                                                                                                                       been managed under the tail
                                   Global Financial Crisis took care                                        underwriting loss. The claims
revealed that the WorkCover                                                                                                                                        claim management strategy,
                                   of that but it is still proposed                                         liability result reflects the
Board had proposed radical                                                                                                                                         and some managed toward
                                   that the average levy rate will                                          difference between the projected
amendments to the WorkCover                                                                                                                                        a WCR outcome under the
                                                                                                            liability at the start of the period,
                                                                                                                                                                   new legislative provisions)”. It
                                                                                                            the actual liability at the end of the
 “...many in the union movement feel that the reforms                                                                                                              must be questioned whether
                                                                                                            period and the payments made in
 have not achieved the aim of increasing the return to                                                      the period. He describes claims
                                                                                                                                                                   a reduction in the liability of
 work rate and reducing the unfunded liability but they                                                     management as the core business
                                                                                                                                                                   $81 million is a good result
  have unfairly penalised injured workers. They may                                                                                                                when it has been achieved by
                                                                                                            that WorkCover is responsible
                     well be right.”                                                                                                                               a payment of $123 million as a

Disclaimer: DWReports are short summaries of topics of interest. They are not intended as advice or to be comprehensive and must not be relied upon without obtaining appropriate professional advice.
                                                                                                                                                          DWREPORT | SUMMER 2011 | PAGE 11

                                                                        “If the return to work rate continues to deteriorate and the 2008
                                                                          amendments and the Medical Panel do not, together, remove
                                                                       claimants from the Scheme and there is no ability to redeem long
                                                                        term claimants, it can be expected that the unfunded liability will
                                                                                continue to grow and the funding ratio deteriorate”.
result of “continued execution of                     when times are tough, as is often                     reduce the unfunded liability have of complexity to the process
the tail redemption strategy”. It                     believed. There are a range of                        not been achieved, yet workers     and are heavily reliant upon the
also poses a serious challenge                        factors said to be responsible.                       have suffered enormously”.         ability of Medical Panels SA to
to the viability of the Scheme                        As business confidence rises                                                             deliver opinions upon medical
when legislative change severely                      hiring activity increases and                         Whilst the unfunded liability at   questions referred to the Panel.
restricts WorkCover’s ability to                      often the average age is lower                        30 June 2010 has reduced, the      Current experience suggests
use a redemption strategy as the                      as experienced and highly                             underlying fundamentals raise      that it is unlikely in the extreme
main lever to reduce the number                       paid workers are replaced with                        concerns. The Annual Report        that Medical Panels SA will be
of long term claims. The clear                        younger and less experienced                          showed that its performance        able to deliver opinions within the
intent is to replace a redemption                     workers. There is a higher risk                       worsened in the six months to      timeframe (14 days) proposed.
strategy with one that utilises                       of injury with less experienced                       June 2010 and if that trend has    In addition, I have no doubt that
the effect of the amendments                          workers. An increase in                               continued it can be expected that jurisdictional issues will need to
and the role of the Medical Panel                     production can also mean longer                       currently the “real ” unfunded     be dealt with by the Supreme
to reduce the number of long                          hours and overtime which places                       liability is back in excess of     Court.
term claims. The effectiveness                        workers under additional physical                     $1 billion. Coupled with the
of the amendments and the                             and mental stress, both of which                      underwriting loss, the worsening Once again it appears that the
Medical Panel in achieving                            have the potential to lead to a                       of the performance of the Scheme government has elected to
the Government’s aim is                               claim.                                                has the potential to affect the    introduce complex process by
questionable.                                                                                               state’s AAA rating.                legislation to address a perceived
                                                      Scheme Review
An analysis of the reported return
                                                                                                                      “The political pressure will be intense. The
to work rate also gives cause for                     The review conducted by Bill                                     government will not be able to satisfy the
concern. Despite the high cost                        Cossey comes at an interesting                                 unions (who will seek fundamental change to
of rehabilitation, South Australia                    political time for the Government                             restore benefits to injured workers), the ratings
has consistently performed poorly                     with generational change in the                                 agencies or employers, who will be keen to
against the national average                          parliamentary party taking a lot                              see WorkCover deliver upon its stated intent to
in the return to work rate. In                        of focus and an increasingly                                                reduce the levy rate”.
the 2008/09 year there was a                          confident and stable Opposition
marked improvement from 75%                           looking to take advantage of                          The political pressure will be                         problem which could have
to 82% (the national average at                       disunity in Labor ranks.                              intense. The government will not                       been addressed by the simple
the time was 83%) but the gap                         Unions SA is understood to                            be able to satisfy the unions (who                     expedient of introducing an
is widening again with the return                                                                           will seek fundamental change                           automatic 28 day restoration of
to work rate for South Australia                                                                            to restore benefits to injured                         income maintenance payments
decreasing to 80% and the                                                                                   workers), the ratings agencies or                      in circumstances where the
national average trending up to                                                                             employers, who will be keen to                         Compensating Authority seeks
85%. If the return to work rate                                                                             see WorkCover deliver upon its                         to discontinue or reduce weekly
continues to deteriorate and                                                                                stated intent to reduce the levy                       payments.
the 2008 amendments and the                                                                                 rate.
                                                                                                                                                                   Employer Payment System
Medical Panel do not, together,
remove claimants from the                                                                                   Legislative Reform
                                                                                                       Most employers will be familiar
Scheme and there is no ability
to redeem long term claimants,                                      Minister Holloway has flagged his with WorkCover’s Bonus
                                  have prepared a consolidated      intention to introduce legislation Penalty Scheme which was
it can be expected that the       submission on behalf of all                                          first introduced in 1990. That
unfunded liability will continue                                    to simplify WorkCover’s dispute
                                  unions calling for major reforms. resolution processes, “to          Scheme ceased to operate
to grow and the funding ratio     Unions SA Secretary Janet                                            on 30 June 2010 and now all
deteriorate.                                                        deliver faster results for injured
                                  Giles, who resigned from the      workers”. He asserts that, “the    registered employers pay a levy
                                  WorkCover Board in protest        proposed changes will create       calculated on the basis of the
As the economy recovers from      over the reforms, was quoted as a more equitable process with        relevant industry rate multiplied
the Global Financial Crisis there saying that: “Our submission will speedier outcomes for injured      by employer remuneration. It is
is a risk that claim numbers will show injured workers have been workers, without undermining          likely that the new
increase. A recent Australian     the innocent victims of a failed                                     system will require legislative
study has found that worker’s                                       the financial strength of the
compensation “claims activity”
                                  experiment by Mike Rann and       WorkCover Scheme”. The timing amendments and its expressed
                                  Kevin Foley – the aim to increase of the announcement towards        aim is to balance “user pays”
tends to increase during an       the return to work rate and
economic recovery, and not                                          the end of November 2010 is        continued on page 12
                                                                    puzzling, coming as it does as
     “Our submission will show injured workers have                 a review of the Scheme is in
   been the innocent victims of a failed experiment by process. Without going into
    Mike Rann and Kevin Foley – the aim to increase                 detail in relation to the proposed
     the return to work rate and reduce the unfunded                changes it is sufficient to say
                                                                    that rather than simplifying the
    liability have not been achieved, yet workers have              dispute resolution process, taken
                       suffered enormously”.                        as a whole, they add a layer

Disclaimer: DWReports are short summaries of topics of interest. They are not intended as advice or to be comprehensive and must not be relied upon without obtaining appropriate professional advice.
DWREPORT | SUMMER 2011 | PAGE 12

     “...there are some worrying signs that WorkCover is seeking to exercise greater influence directly with
 individual Self Insurers by restricting consultation with SISA, the organisation which represents this important
   group of stakeholders. Quite why WorkCover has chosen this potentially confrontational approach with a
                        group of employers which out performs the Scheme is a mystery”.
WorkCover 2011                                        “front end ” claims and ensuring    December and judgment has                                                Court of Appeal which ruled that
continued from page 11                                effective rehabilitation and care   been reserved. In that case                                              a Medical Panel’s finding would
                                                      after an injury will be critical in the rejection of the worker’s                                            bind the jury hearing the case in
and “insurance protection”.                           maintaining their position and      claim for various disabilities saw                                       the County Court. The County
WorkCover’s new CEO, Rob                              injured workers will benefit from   medical questions relevant to the                                        Court had made a preliminary
Thompson, returned to South                           EML’s motivation to improve injury  subsequent dispute referred to                                           ruling prohibiting the employer
Australia from New South Wales                        and case management outcomes        the Medical Panel by EML. The                                            from leading evidence contrary
where he was General Manager                          over the next two years.            worker in question refused to                                            to the Panel’s findings about the
of the Workers Compensation                                                               attend the medical examination                                           former employee’s psychiatric
Division of WorkCover NSW and                         Judicial Intervention               with the Panel and the question                                          state.
he is “keen to have a system that                                                         before the Supreme Court is
focuses on employers preventing                       The key amendments to the                                                                                    Uncertainty
                                                                                          whether EML’s referral of the
injuries and encourages them                          Scheme introduced in 2008 were medical question to the Panel
                                                                                                                                                                   The latest actuarial review is
to keep their workers at work,                        those that provided:                was valid in circumstances where                                         heavily qualified, and properly
or if time off is required, to                                                            the dispute in question had been                                         so. The actuary quite reasonably
support their workers to return to                    •	 The ability to discontinue
                                                                                          referred to the Tribunal for judicial                                    points out that “we expect it to
work”. It would be reasonable to                         weekly payments of income
                                                                                          determination. The question of                                           be a number of years until the
assume that whatever scheme is                           maintenance at 130 weeks
                                                                                          law raises a constitutional issue,                                       financial impact of the reforms
introduced will closely resemble                         post-injury for partially
                                                                                          namely whether a decision of                                             can be confidently determined”
that which operates in NSW,                              incapacitated workers who
                                                                                          the Medical Panel can bind the                                           but, “judicial interpretation of the
where small employers are                                were not working to their
                                                                                          Worker’s Compensation Tribunal                                           legislative changes continues
industry rated, medium and large                         maximum capacity in suitable
                                                                                          in its determination of a dispute                                        to be a source of uncertainty in
employers experience rated and                           employment; and
                                                                                          which has been properly referred                                         estimating the Scheme liability ”.
large employers given the option                      •	 The introduction of Medical
                                                                                          to the Tribunal.
of retro paid loss.                                      Panels to determine questions                                                                             2011 is shaping up to be an
                                                         that are wide ranging in nature    “The constitutional issue                                              interesting year for Self Insurers
WorkCover is currently engaged                           and deal with issues of fact and    of the binding nature of                                              as well. Although largely
in a consultation process with                           law.                               a Medical Panel decision                                               unaffected operationally by the
stakeholders, whilst no doubt                                                                                  may also be the subject                             2008 legislative amendments
                                                      It was intended that many of
working on the mechanics of
                                                      the functions of the Worker’s
                                                                                                               of consideration by the                             there are some worrying signs
its preferred premium payment                                                                                       High Court”.                                   that WorkCover is seeking to
system. It will require legislative                   Compensation Tribunal would be                                                                               exercise greater influence directly
change which is normally a long                       undertaken by the Medical Panel                       If the Supreme Court determines                        with individual Self Insurers by
process and one which will                            whose decisions would be final                        that the Medical Panel cannot                          restricting consultation with
likely be affected by the current                     and conclusive. Importantly the                       bind the Tribunal and/or it                            SISA, the organisation which
review of the Scheme. It would                        role of the Medical Panel and the                     concludes that a dispute having                        represents this important group of
seem optimistic to expect the                         binding nature of its decisions                       been referred to the Tribunal                          stakeholders.
new system to be agreed upon                          was intended to underpin the                          for judicial determination, the
                                                      “work capacity reviews” and                           compensating authority cannot                          Quite why WorkCover
and legislation passed to allow
                                                      ensure the ongoing removal of                         refer a medical question to the                        has chosen this potentially
implementation for the 2011/12
                                                      long term claimants from the                          Panel of its own motion, it will                       confrontational approach with
financial year, but it will be
                                                      Scheme. A recent decision of                          have significant ramifications                         a group of employers which
most interesting to see how the
                                                      the Full Bench of the Worker’s                        and significantly reduce the                           out performs the Scheme is a
initiative is pursued.
                                                      Compensation Tribunal in the                          effectiveness of “work capacity                        mystery.
EML & the Legal Panel                                 matter of Davey reinforces the                        reviews” to remove claimants                           2011 is the year of the Rabbit
                                                      need for procedural fairness in                       from the Scheme. It necessarily                        in the Chinese Lunar Calendar
The Board’s decision to                               making work capacity decisions                        follows from this result that                          but so far as WorkCover is
effectively extend EML’s claims                       and its effect will impede the                        claims costs will increase                             concerned it is better termed the
management contract to 2012                           ability of EML to carry out work                      and the tail will grow, as will                        Year of Uncertainty.
and do the same with their                            capacity reviews and implement                        outstanding claim liabilities
legal panel will at least provide                     them in a timely fashion.                             and the unfunded liability. The
                                                                                                                                                                   MORE INFO:
a degree of stability in claims                       WorkCover is considering an                           ability of the government to
management and it can be                              appeal to the Supreme Court and                       deliver the reduction in the levy
expected that EML will work very                      so uncertainty will remain until a                    rate promised for the state’s
hard to improve its performance                       definitive decision is made at that                   employers will be in question.
so that it is well placed to                          level. Of even more significance
continue as the outsourced                            is the decision of the Supreme                        The constitutional issue of the
claims manager for WorkCover                          Court in the matter of Yaghoubi.                      binding nature of a Medical Panel
beyond December 2012. The                             The matter proceeded to hearing                       decision may also be the subject
performance of EML in managing                        in the Supreme Court in early                         of consideration by the High
                                                                                                            Court.
  “It was intended that many of the functions of the
Worker’s Compensation Tribunal would be undertaken                                                          A Victorian employer has                                John Walsh Managing Partner
by the Medical Panel whose decisions would be final                                                         launched a High Court Appeal                            direct +618 8229 0930
                  and conclusive”.                                                                          against a decision of the Victorian                     JWalsh@dwlaw.com.au

Disclaimer: DWReports are short summaries of topics of interest. They are not intended as advice or to be comprehensive and must not be relied upon without obtaining appropriate professional advice.
                                                                                                                                                          DWREPORT | SUMMER 2011 | PAGE 13
INSIGHT | Sandy Donaldson

Love Me (Legal) Tender
The Many Ways of Making Payment
There are now many ways of making payment for the price of goods or
services, or other debts obligations. These include:
•	    Cash (notes and coins);                                                                                Must a Tender be Made in Cash?
•	    Cheques or other negotiable instruments;                         If a payment is offered (or tendered) in cash (subject to the limits
•	    Credit cards;                                                    relating to coins), it should be accepted in payment of a debt unless
•	    Electronic funds transfer (e.g. B-Pay).                          a contract specifies another form of payment. If not accepted, the
Issues sometimes arise as to the appropriateness, or effectiveness, of refusal to accept the tender is not illegal, but the party to whom the
a method of payment, such as to whether:                               payment is due may not later be able to effectively sue for a payment
                                                                       of the amount that has been tendered.
•	 a trader can be required to accept a particular form of payment;
•	 a payment made in a particular manner is an effective discharge     A trader is not, however, obliged to accept payment by cash
     of a debt;                                                        if it is made known in the terms of contract, or before the offer
•	 an offer of payment by a particular mode is a “legal tender”.       and acceptance for a contract is complete, that cash will not be
                                                                       accepted. So, an automatic check-out machine in a supermarket
What is Legal Tender?                                                  which will only accept notes, not coins, or vice versa, or a
                                                                       requirement that a trader will only accept payment by credit card, if
There is no statutory definition of what constitutes “legal tender”,   this is made known up-front, will preclude an effective legal tender by
although this expression is used in some Acts. The Reserve Bank of cash or other modes of payment.
Australia, on its website (www.rba.gov.au/banknotes/legal-framework)
refers to the Concise Oxford Dictionary definition of legal tender as  Currency for Payment
“currency that cannot legally be refused in payment of debt (usually
up to a limited amount for baser coins, etc)”.                         Unless another form of currency is specified, the currency for
                                                                       payment in Australia will be the Australian dollar, which is the
Section 36 of the Reserve Bank Act 1959 stipulates that Australian     monetary unit, or unit of currency, of Australia (Currency Act Sections
notes are a legal tender throughout Australia. The Currency Act 1965 8 and 11).
specifies in clause 16 that:
  “(1) A tender of payment of monies is a legal tender if it is made in                                      Acceptance of Cheques or Negotiable Instruments
   coins that are made and issued under this Act and are of current      If a cheque or other negotiable instrument is accepted then (subject
                              weight…”                                   to any terms of a contract) this will discharge a payment for which
There are, however, limits for a tender made in coins, so that coins are it is tendered. If the cheque or other negotiable instrument is
only legal tender where the amount:                                      subsequently dishonoured, then there may be no right to sue for the
                                                                         debt, but the party accepting the cheque or other instrument may
•	 does not exceed 20 cents if in 1 cent or 2 cent coins (which have have an action for its dishonour.
     now been withdrawn, but are still legal tender);
•	 does not exceed $5.00 if any of 5 cent, 10 cent, 20 cent or 50        Payments by EFT
     cent coins are tendered;
•	 does not exceed ten times the face value if coins in the range of Most electronic funds payments, such as B-Pay, will be expressly
     50 cents to $10.00 (if they exist) are offered; and                 permitted (often encouraged) and accepted by traders as good legal
•	 is up to any value if coins of a value greater than $10.00 (if they   tender and discharge of obligations. If electronic funds transfer is not
     exist) are offered.                                                 specified as a mode of payment in a contract, it is hard to imagine
                                                                         that a party that receives an effective funds transfer would not accept
A coin may not be of current weight if it has become diminished by       this but, theoretically, it may not be an effective payment under the
wear or otherwise to be less than the prescribed weight (Section         terms of a particular contract.
16(2)).
The references to coins up to or over $10.00 may seem strange.           Terms of Trade
Currently the $2.00 coin is the highest value coin in circulation.                                           Currently traders should be reviewing terms of trade and contracts
However, the Royal Australian Mint has issued quite a few gold                                               to take account of the requirements of the new Australian Consumer
and silver $10.00 coins. Notable among them are Gold Proof coins                                             Law and the introduction of new rules for security for payments under
described as:                                                                                                the Personal Property Securities Act 2009, when this comes into
•	    2007 Kangaroo Gold Proof- Rolf Harris,                                                                 effect in May 2011, and it would be wise also to review provisions
•	    2007 The Pig Lunar Gold Proof; and                                                                     relating to modes of payment to ensure that these are appropriate.
•	    2008 Year of the Rat.
If you have these, however, it is not likely that you will be tendering
them at the local supermarket at face value for the weekly groceries.

Other Forms of Payment
No forms of payment other than cash (notes or coins) are specified in
legislation as legal tender, but a contract between parties, which may
be express or which could be evidenced by their conduct or trade
practices, may require or allow other forms of tender and payment.
                                                                                                            Alastair Donaldson Partner
A contract can expressly specify the required form of payment, or                                           direct +618 8229 0916
effectively define what will be “legal tender” for that contract.                                           SDonaldson@dwlaw.com.au

Disclaimer: DWReports are short summaries of topics of interest. They are not intended as advice or to be comprehensive and must not be relied upon without obtaining appropriate professional advice.
DWREPORT | SUMMER 2011 | PAGE 14


CASE IN POINT | Josh Richards


The Spam Act
Virgin Blue Fined for Sending Unwanted Marketing Emails
Virgin Blue Airlines (“Virgin which led to some previously     “The Act contains three main rules that
Blue”) has been fined         unsubscribe consumers         message senders must comply with – consent,
$110,000.00 by the Australian continuing to receive emails.
                                                              identification and unsubscribe facilities”.
Communications and Media
Authority (“ACMA”) and will                           ACMA accepted an enforceable                          mobile phone messaging) of a        that because you have an existing
overhaul its email marketing after                    undertaking from Virgin Blue,                         commercial nature. The ACMA         relationship, you would be
consumers complained that they                        which commits the airline                             enforces the Act and accepts        interested in receiving electronic
were unable to unsubscribe from                       to a thorough overhaul and                            complaints, reports and enquiries   messages about similar products
the airline’s mailing list.                           independent assessment of its                         about Spam in Australia.            and services. For further detail on
                                                      email marketing practices. Virgin                                                         ‘consent’, see Schedule 2 of the
                                                      Blue will engage an independent                       Section 6 of the Act provides that Act.
                                                      third party to thoroughly assess                      Spam relates to messages sent to
                                                      its email marketing processes and                     Australians by email, SMS, MMS Identity
                                                      to implement any recommended                          or instant messages that:
                                                      changes. The airline will also                                                            All commercial electronic
                                                      provide training to relevant                          •	 Offer, advertise or promote
                                                                                                                                                messages must include clear
                                                      employees, establish a complaints                           the supply of goods,
                                                                                                                                                and accurate identification of
                                                      handling policy, and audit 10                               services, land or business or
                                                                                                                                                the sender of the message and
                                                      per cent of its email marketing                             investment opportunities;
                                                                                                                                                information on how you can
                                                      campaigns monthly for a year. All                     •	 Advertise or promote a
                                                                                                                                                contact the sender.
Virgin Blue contravened the                           of this will prove to be extremely                          supplier of goods, services,
Spam Act 2003 (Cth) when                              costly for the airline.                                     land or business or
the company continued to send                                                                                     investment opportunities;     Unsubscribe Facility
commercial emails despite                                                                                   •	 Assist a person to
recipients’ multiple attempts to                          “...the Act prohibits the                               dishonestly obtain property,  All commercial electronic
unsubscribe from its mailing list.                                                                                commercial advantage or       messages must contain an
                                                          sending of unsolicited                                                                unsubscribe facility. This means
During the ACMA investigation,                                                                                    other gain from another
Virgin Blue acknowledged that
                                                          commercial electronic                                   person.                       that there must be a way in which
it had experienced problems                                messages known as                                                                    you can opt out of receiving
                                                                                                            The Act contains three main         messages, regardless of you
with its email marketing systems,                                  ‘Spam’.”                                 rules that message senders          having consented to receiving
                                                      ACMA Chairman, Chris                                  must comply with – consent,         commercial electronic messages.
                                                      Chapman, stated, ‘Businesses                          identification and unsubscribe
                                                      which market by email need to                         facilities.
                                                      regularly test that the unsubscribe
                                                      function in their messages is                         Consent
                                                      working properly’. ‘The Spam
                                                      Act requires that a request from  Commercial electronic messages
                                                      a consumer to be unsubscribed     sent to Australians must be
                                                      from commercial emails be         sent with your consent. The Act
                                                      addressed.’                       provides for two types of consent
                                                                                        – express and implied.              A message sender has five
                                                      The Spam Act
                                                                                                                            working days to act on an
                                                      The Spam Act (“the Act”) is not Express consent being that you        unsubscribe request.
                                                      legislation dealing with ‘Spiced  have deliberately and intentionally
                                                      Ham’, or canned precooked meat opted-in to receiving electronic       Comments
                                                      product known as ‘Spam’.          messages from the message
                                                                                        sender.                             The ACMA does investigate and
                                                      Rather the Act prohibits the                                          will penalise contraventions of the
                                                      sending of unsolicited commercial Inferred consent relies on a        Act. Companies in Australia need
                                                      electronic messages known as      relationship that you may have      to regularly test the unsubscribe
                                                      ‘Spam’.                           with the sender. The Act provides function in the electronic
                                                                                        that consent can be inferred from messages that they send,
                                                      The Act covers, emails, instant   your conduct or relationship that otherwise they risk significant
                                                      messaging, SMS (text messages) a message sender has with you.         penalties and sanctions being
                                                      and MMS (image-based              The message sender may decide imposed by ACMA.

                                                         “Companies in Australia need to regularly test the                                                        MORE INFO:
                                                        unsubscribe function in the electronic messages that
                                                                                                                                                                   Josh Richards Solicitor
                                                         they send, otherwise they risk significant penalties                                                      direct +618 8229 0949
                                                              and sanctions being imposed by ACMA”.                                                                JRichards@dwlaw.com.au
Josh Richards Solicitor

Disclaimer: DWReports are short summaries of topics of interest. They are not intended as advice or to be comprehensive and must not be relied upon without obtaining appropriate professional advice.
                                                                                                                                                            DWREPORT | SUMMER 2011 | PAGE 15


INSIGHT | Alan Branch


International Franchising
Report on 2011 IFA Convention in Las Vegas
This year the International Franchise Association (IFA) held its                                            As there is parity with the $USD, any Australian looking to acquire the
Convention in Las Vegas Nevada. Alan Branch, head of Donaldson                                              Australian master rights to a US brand will get good value. However
Walsh Lawyers Franchise team attended as part of the Australian                                             the acquisition price is only a short term issue.
delegation and 2700 other registrants and 500 exhibitors.                                                   To acquire international rights you need a solid understanding of the
                                                                                                            differences between USA and Australian business, financial and labor
                                                                                                            styles and costs.

                                                                                                            You also need a level of stubbornness to ensure that the USA firm
                                                                                                            appreciates that though Australians look the same, we are not the
                                                                                                            same as them. Just think of how much turkey meat is sold in the USA
                                                                                                            compared to here, while wage rates, rents and customer tipping in
                                                                                                            the USA also contribute to major differences.

                                                                                                            Interested in seeking a business opportunity?

                                                                                                            People thinking about acquiring overseas franchise systems for
                                                                                                            Australia will need guidance, benchmarking and insight into the
                                                                                                            trends within global franchising.

                                                                                                            Donaldson Walsh is delighted that, as confirmed by our franchise
                                                                                                            team’s numerous Awards, businesses can have confidence to know
 The conference mood was positive and looking to regain the lost                                            we at Donaldson Walsh have the right answers and can be trusted
 ground from the last 2 years of the GFC. As well as covering                                               to deliver the contacts, experience and skills needed to complete the
 international expansion, economic and government issues, Alan                                              deal.
 attended fascinating topics about dealing with successful sports
 stars entering franchising after their NFL careers, tough times dealing For assistance and advice on International Franchising, please
 with independent Franchisee Associations and talking with major         contact DW’s multi-award winning team.
 brands wanting to come into Australia looking for partners.

 Many were aware of the proposed SA and WA franchise legislation
 and passed on that Iowa tried this and ruined their franchise sector
 until the laws were revoked.

 It is encouraging that even the WA Government Small Business
 Corporation submitted a 14 page condemnation of the proposed
 WA laws and concluded the proposed WA Bill would create an
 uneven playing field and a regulatory quicksand that business across
 the country will be forced to navigate through and would create      Alan Branch Partner
 significant potential risks, costs and unintended consequences       direct +618 8229 0972
 associated with the proposed Bill, which may leave small franchisors ABranch@dwlaw.com.au
 and franchisees in WA worse off.

 What do American’s want?

 Major American franchise systems want expansion. USA locations
 are still slow and so growth needs to be on an international level.



                                                                                                                                             FCA Excellence in
                                                                                                                                             Franchising Awards

                                                                                                                                             Donaldson Walsh Lawyers
                                                                                                                                             2010 Franchise Supplier of the Year




                                             Las Vegas

Disclaimer: DWReports are short summaries of topics of interest. They are not intended as advice or to be comprehensive and must not be relied upon without obtaining appropriate professional advice.
                                                                                                  www.donaldsonwalsh.com.au
SUITS OFF | Staff Profile


Head of the Family
Christian Munt, Special Counsel
The Head of our Commercial Disputes & Insolvency team is
used to leading by example. In the 2010 edition of Doyle's
Guide to the Australian Legal Profession, Christian was named
as one of the country's Top 20 Rising Stars in both Commercial
Litigation and Insolvency & Reconstruction. But as the father of
two energetic young boys, the greatest test of his leadership
may well be at home. And it's a challenge he's relishing.                   fits into any social situation, although he's still "prone to the odd turn",
                                                                            like any four year old.
Christian's never been one to back down. Since he began practicing
law in 1997 he's consistently put his hand up no matter how difficult       "He also displays a knack for slapstick comedy," says Christian.
the task, and this instinctive tenacity has played no small part in his     "We're starting to think he might be the next Jim Carey."
rise to national prominence.
                                                                            Richie, on the other hand, is much more circumspect and
As you'd expect of someone in his position, he's also remarkably well       "intellectual", is very strong-willed and has quite a mischievous side.
organised and knowledgeable in his chosen field. In 2006, however,
he entered a new field that has pushed all these qualities to the limit,    A recent event summed up their differences perfectly, says Christian.
just as it has for billions of others before him; parenthood.
                                                                            "The boys had a sleepover with their grandparents a few weeks back,
When Christian and his wife Liz's first-born, Max, entered the world        and when we picked them up there was a story for each.
their lives were irreversibly changed.
                                                                            "They'd gone to the park and Max had rapidly befriended a bunch of
                                             "It fundamentally              complete strangers who were having a party, and ended up sitting at
                                             altered the focus of our       their table. Richie, meanwhile, stuck with Gran' and dug in his heels
                                             thoughts," says Christian.     when she asked him to use his manners to request a drink of apple
                                             "It really did put things in   juice.
                                             perspective as to what's
                                             most important in life.        "He held out for over an hour, during which
                                                                            time the subject was revisited on a number of
                                             "The intermittent              occasions, before he grudgingly let out a tortured
                                             exhaustion makes it            'pleeeease'."
hard to maintain that perspective at times," he adds with a grin, "but
the depth of love and joy we felt then, and will always feel, is quite      With healthy growing children and a
incredible."                                                                healthy growing professional profile,
                                                                            things are clearly "on track" for Christian
That depth was added to in 2008 with the arrival of a second son,           at the moment. But if there's one thing
Richie, instantly doubling their joy and, of course, their workload.        fatherhood has taught him it's that
                                                                            nothing can ever be taken for granted.
"It probably won't come as a surprise to anyone who knows me
that I've occasionally been described as 'very particular'," Christian      "Life's like a Showdown, really" says the
laughs. "I like to keep things in order. But organising two children is     committed Adelaide Football Club fan.
a different thing altogether.
                                                                            "It's nice when my team wins, but as
"I can't say the transition from courtroom to kid's room has always         much as I'd enjoy letting our Power-mad
been smooth for me!" He pauses for a second, then adds: "My                 Managing Partner John Walsh know
negotiation skills, however, have proven handy when resolving toy-          about it, I know that unless the boys keep
related disputes."                                                          their heads down the tables could easily
                                                                            be turned next time 'round.
According to Christian the boys adore each other, but are very much
carving out their own identities. Max is outgoing, very physical and        "So I'm keeping mine down, don't worry
                                                                            about that!"




   LIKE TO TALK?
   Donaldson Walsh Lawyers

   Kings Chambers
   320 King William Street
   Adelaide SA 5000

   phone : +618 8410 2555
   fax   : +618 8410 2322
   info@dwlaw.com.au

				
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