The Productivity Commission will shortly commence a 12 month wholesale review of Australia’s intellectual property regime.  The Government has recognised that with a rapidly changing global economy and new technologies, there is a need to ensure that there is an appropriate balance between intellectual property protection and competition.  The review was recommended in the extensive Harper Report on Competition Policy, which noted that excessive intellectual property protection can ‘not only discourage adoption of new technologies but also stifle innovation’.

New powers of attorneys will come into effect in Victoria from 1 September 2015.

Legislation was introduced into Federal Parliament recently which, if passed, will significantly change the rules regarding foreign investment in Australia, particularly in relation to the acquisition of properties by foreign entities.

For some time now, the Productivity Commission (Commission) has been undertaking a public inquiry to examine the performance of the workplace relations framework in Australia and to identify improvements to it.

Today, the Commission released its hotly anticipated draft inquiry report. The report outlines the key issues identified so far during the inquiry, discusses some of the draft recommendations and findings, and outlines how stakeholders will be able to provide feedback.

The 2015/16 new financial year commencing this Wednesday will also bring into effect new minimum pay rates and thresholds.

According to the Fair Work Commission (FWC), from 1 July 2015, the following changes will take effect

The Government has released the Tax and Superannuation Laws Amendment (2015 Measures No. 2) Bill 2015 which, if passed in its current form, will provide for “look through” tax treatment for trusts set up for limited recourse borrowing arrangements (LRBA).

In effect, this means that, from a tax law perspective (except for certain limited exceptions), the asset of the LRBA trust will be deemed to be held by the super fund and the actions of the trustee of the LRBA trust in relation to the asset will be deemed to be the actions of the trustee of the super fund. This will reduce adverse tax consequences (eg capital gains tax on collapsing the trust, losses being trapped in the trust and difficulties of passing franking credits) and result in a reduction to tax administration (eg the trust will not require a TFN or be required to prepare a tax return). It also means that, from a tax law perspective, super funds no longer need a bare trust for a LRBA in order to achieve a look through approach.

The New South Wales Court of Appeal adopted a traditional and technical approach to the interpretation of the terms of a trust deed when dismissing an appeal in the decision in Segelov v Ernst & Young Services Pty Ltd.

Yesterday, the Fair Work Commission handed down its Annual Wage Review decision.

From 1 July 2015, the national minimum wage will be increased by 2.5% (equating to an increase of $16 per week) and the new weekly minimum wage will be $656.90 (or $17.29 an hour) .

Modern award rates will also be increased by 2.5%  from 1 July.

Safe Work Australia has released key statistics on work-related injuries, diseases and fatalities. While the report shows a downward trend in both worker fatalities and in the rates of serious injury over the period 2003 to 2013, the total number of serious workers’ compensation claims (117,815 in 2012-13) and worker fatalities (196 in 2013) are significant.

Digitally stored information, including records, communications, photographs and other details which are held with various internet-based organisations can be difficult to deal with when the account holder dies. Many organisations are grappling with methods of dealing with the problem or simply ignoring it.

Facebook is giving users more control over their social networking afterlives with a “Legacy Contact” setting. This allows account holders to have their account deleted after they die or alternatively appoint a Legacy Contact to manage the account.

The Federal Court, in the decision of Elecnet (Aust) Pty Ltd v FCOT, has ruled that a trust established to pay out redundancy benefits for employees of the electricity industry was a unit trust for the purposes of the public trading trust rules.  This was held notwithstanding that the employees’ interest in the trust is not unitised but rather operates in a way that is akin to a superannuation fund. In coming to this conclusion, the Court found, for the purposes of the public trading trust rules, that the employees have a beneficial interest in the property of the trust.

On 23 April 2015, the Supreme Court ordered a party who lodged a caveat without proper grounds to pay the other party’s costs on an indemnity basis.  The defendant lodged a caveat on the title of a property claiming an interest pursuant to a purchaser’s contract. 

The plaintiff landowner stated that he did not enter into any contract with the defendant and moreover had never met the defendant or had any dealings with the defendant.  The Court ordered that the defendant pay the plaintiff’s costs on an indemnity basis because the Court inferred that the defendant, at no time, had any valid basis upon which he could claim a caveat over the property. 

The President of the Victorian Civil Administrative Tribunal (VCAT) issued an advisory opinion on 1 May 2015, responding to the Victorian Small Business Commissioner’s request as to whether a landlord of commercial premises can pass on the costs of Essential Safety Measures (ESM) and certain repair and maintenance obligations for retail premises to tenants.  Measures prescribed by building law for safety and fire protection are covered by the ESM.

On 1 May 2015 a unanimous judgement was handed down by the Full Court of the Federal Court, stating that in deciding the outcome of a case, the court would no longer receive or act upon any agreement as to penalties previously agreed to between parties.

This followed a recent High Court judgement, which held that the regular practice in Victoria of permitting the prosecution to make submissions on the available sentence range or outcome in criminal cases should cease. The High Court held that such submissions by a prosecutor were inadmissible on the basis that they were a statement of opinion not a submission of law.

The Commissioner of Taxation has concluded, in ATO ID 2015/10, that using a self managed superannuation fund (SMSF) to hold a life insurance policy for the purpose of a buy sell agreement breaches the sole purpose test and the prohibition against providing a member (or a relative) financial assistance.

So does this mean that superannuation funds cannot be used to hold insurance in buy-sell arrangements? Not necessarily. The position of the Commissioner would appear not to apply to insurance held in public offer superannuation funds and potentially does not apply to SMSFs that don’t have any formal buy sell arrangements.

The Administrative Appeals Tribunal (AAT) has held that the existence of a dividend access share (DAS) arrangement did not affect the taxpayer’s ability to apply the capital gains tax (CGT) small business concessions to a capital gain arising from the disposal of ordinary shares in the applicant company.

The primary issue considered in this case was whether the existence of the DAS caused the required small business participation percentage (SBPP) of 90% to be failed.

Charities have a number of ongoing reporting obligations, including the requirement to submit an Annual Information Statement (AIS) and annual financial report to the Australian Charities and Not-for-profits Commission (ACNC).

The reporting requirements depend on the size of the charity:

• A small charity (which has annual revenue of less than $250,000) must submit an AIS and can choose to submit a financial report.
• A medium charity (which has annual revenue of $250,000 or more, but less than $1 million) must submit an AIS and a financial report that is either reviewed or audited.
• A large charity (which has annual revenue of $1 million or more) must submit an AIS and an audited financial report.

In the decision of Australian Annuities v Rowley Super, the Victorian Court of Appeal has held that over $1.6 million of super contributions made by a discretionary trust and members to a self managed superannuation fund (SMSF) could be clawed back to a liquidator on the basis that the director of the corporate trustee breached his fiduciary duties to the corporate trustee.

The recent Federal Court case of Krok v Commissioner of Taxation has provided a reminder that a taxpayer may impliedly waive their right to legal professional privilege by disclosing documents which refer to the purpose and reasoning of legal advice. As a result of the implied waiver, the taxpayer may be required to discover documents that would otherwise have been protected by legal professional privilege.

The Australian Taxation Office (ATO) has set out its view in ATO Interpretative Decisions, ATO ID 2015/2 and ATO ID 2015/3 that the superannuation laws and tax laws prohibit superannuation death benefits from being paid by mere journal entries.

In the ATO IDs, the taxpayer/beneficiary and self managed superannuation fund (SMSF) trustee wished to effect the death benefit to the beneficiary by the transfer of money from the deceased member's account, to the beneficiary's own account in the SMSF by way of journal entry (to save on transactions costs). The ATO noted that set offs can occur in a superannuation context, but that there needs to be “mutual liabilities between the taxpayer and the SMSF and there is an agreement between those parties to set-off the liabilities”. Here, the ATO found there was “not a mutual liability in this case as the taxpayer does not have a liability to the SMSF”.