Issue 29 - June 2006

• Revenue changes arising from the 2006 NSW budget
• Divorcing parent traps
• Fitness-to-work certificates and WorkChoices
• Australasian Identity Crime Policing Strategy
• Defamation - a new national model law 
• Dates for future abolition of duties confirmed Revenue changes arising from the 2006 NSW budget

The 2006 NSW budget has heralded some welcome relief in the area of duties and some further changes to land tax for the 2007 land tax year.

Duties
The budget has confirmed the abolition dates for the following NSW duties:
Hire of goods - effective from 1 July 2007
Leases - effective from 1 January 2008
Unlisted marketable securities - effective from 1 January 2009
Mortgages and loan securities - rate halved from 1 January 2010 and abolished from 1 January 2011
Transfer of business assets other than land - effective from 1 July 2012

Land tax
Averaging of land values
For the 2007 land tax year (that is, in relation to all land owned on 31 December 2006) the taxable value of each parcel of land will generally be the average of the land value applying for the current tax year and the two land values that applied for the previous two tax years.

Averaging of land tax threshold
For the 2007 and future land tax years the land tax threshold will be the average of the indexed amount for the new tax year and the previous two land tax years.

As the land tax threshold was abolished for the 2005 land tax year, a ‘notional’ threshold of $342,000 will be used for that year. The threshold cannot fall below that of the previous year and where the average threshold is less than the previous year's threshold, then the previous year's threshold will continue to apply.

Concessions for unit trusts
The budget has also re-introduced the tax free threshold for family unit trusts and has included concessions to enable the restructure of fixed trusts in order to obtain the benefit of the re-introduction of the threshold.

If you would like any further information in relation to the duty and land tax changes announced in the budget, please telephone Rebecca Flynn or email rebecca@wmdlaw.com.au.

Recent survey identifies the biggest mistakes made by divorcing couples Divorcing parent traps

The following appeared recently in an American publication called “Divorce Magazine”. We reproduce part of the article because it has application to Australian couples who are encountering parenting problems as a result of separation.

The American Academy of Matrimonial Lawyers recently surveyed its membership to try to ascertain what are the biggest mistakes divorcing couples with children make.

In order of frequency, the biggest mistakes parents make are:
Denigrating the other spouse;
Using the child as a messenger;
Interfering with visitation rights;
Sharing intimate details of the other spouses infidelity, behaviour etc…
Failing to pay support or not adequately supporting the children;
Immediately introducing the children to the parent’s new love interest;
Moving the child as far away as possible from the other parent;
Listening to the child’s conversations with the other parent;
Having the child read the legal pleadings or having the child present in discussions with the lawyer;
Having the child request money from the other spouse.
In our experience, falling into the trap of committing one or more of the above mistakes not only has adverse consequences for the children but adverse consequences for both parents who will find it more difficult to be effective parents once the authority or standing of the other parent has been eroded by these measures.

If you need any assistance in relation to a family law parenting or property settlement matter, please telephone Greg Dickson or email greg@wmdlaw.com.au.

Does an employer have to accept a certificate written by any health practitioner? Fitness-to-work certificates and WorkChoices

The Workplace Relations Act 1996 as amended by the WorkChoices reforms provide Australian employees who are covered by the Act with a minimum entitlement to “personal leave”. Personal leave comprises paid sick leave, paid carer’s leave, unpaid carer’s leave and paid compassionate leave. All permanent employees covered by the Act are entitled to personal leave, while casual employees are entitled to unpaid carer’s leave only.

An employee must provide their employer with documentary evidence of the requirement to take leave. For an employee to be granted a period of carer’s leave they must produce a medical certificate from a “registered health practitioner” stating that his or her immediate family member or household member had, has or will have a personal illness or injury. Where it is not reasonably practicable to obtain a certificate, a statutory declaration must be provided.

An employee who is temporarily absent from work because of illness or injury must also provide a medical certificate from a “registered health practitioner”. The broad definition of “registered medical practitioner” potentially means an employer may have to accept a medical certificate from a large class of practitioners, including all physical and mental health professionals, such as chiropractors, dentists, medical practitioners, nurses and physiotherapists. The broad scope of the term has been criticised by the Australian Medical Association who are concerned that the term can cover osteopaths, chiropractors, Traditional Chinese Medicine practitioners, chemists, optometrists, optical dispensers and podiatrists.

The implications for employers is that they should always consider the area of expertise of the practitioner providing a medical certificate and if the reason the employee is unfit for work is outside the ambit of the area of practice, employers may deny the validity of the certificate.

For more information relating to the recent changes to workplace relations laws, please telephone Dean Groundwater or Kevin Dwyer, or email dean@wmdlaw.com.au or kevin@wmdlaw.com.au.

Further protection of the identity security of Australians Australasian Identity Crime Policing Strategy

The Federal Government has recently announced further protection of the identity security of Australians with the implementation of the Australasian Identity Crime Policing Strategy including the rollout of what is what is known as the national Document Verification Service (DVS) and the establishment of 3 Australian Federal Police-led Identity Security Strike Teams.

Identity theft and fraud is estimated to cost the community $1 Billion each year and there are indications that it is being targeted by organised crime and potential terrorists. A national DVS is to be rolled out with funding allocated in the recent Budget, building on the prototype service trialled over the past 12 months.

This service is to allow authorised government agencies to check key identity documents (such as Australian passports, Australian citizenship certificates, birth certificates and drivers’ licences issued in Australia) presented by individuals applying for high value benefits and services. The DVS will allow on-line and real-time verification with a cross checking function to assist in the detection of stolen or fraudulent documents.

It is understood that Australian Federal Police investigations have revealed instances of the sale of complete identity packages of drivers' licences, Medicare cards, passports and birth certificates, which offer criminals multiple means to shield their activities and potentially evade detection and arrest.

The strike teams are to be located in Melbourne, Brisbane and Perth and will comprise staff from the Australian Federal Police, the Australian Crime Commission, the Customs Service and the Immigration Department. For further information regarding identity fraud, please telephone Craig Pryor or email craig@wmdlaw.com.au.

8 jurisdictions merge into 1 Defamation - a new national model law

Recently, the New South Wales Government introduced new laws capping compensation for defamation at $250,000 despite awards of that size being a rarity. The ‘cap’ can be overcome however, if the court awards aggravated damages for particularly malicious attacks.

The defamation laws in place now are part of a unified model of laws across all 8 States and Territories and are designed to simplify the law of defamation. The new laws require any actions to be commenced within 12 months of the offending publication although the limitation can be extended for up to 3 years if it was not reasonable to have commenced proceedings within 12 months.

The rights of corporations to protect their corporate reputations have been reduced by the new laws such that apart from not-for-profit organisations and small companies with 10 employees or less, defamation actions cannot be commenced unless the defamatory conduct is seen as injurious falsehood, which requires the extremely difficult task of proving malice.

The model laws also appear to allow publishers and broadcasters of defamatory statements to lessen the compensation likely to be awarded against them by publishing an appropriate apology, with such apologies are not necessarily being seen as an admission of liability.

The defence of innocent dissemination is also available to printers, libraries, newsagents and internet service providers as they usually have no control over content although that defence is only available if they neither knew nor ought to have known of the defamatory content. Accordingly, notification of defamatory content with inaction on their part would wipe out that defence.

For further information regarding slander or defamation or in relation to protection of reputation and intellectual property, please telephone Craig Pryor or email craig@wmdlaw.com.au.

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