Australian businesses prepare for the new privacy regime
From preschool and postgraduate educators to government departments and agencies, Minter Ellison provides comprehensive legal advice to education sector clients. We advise governing bodies, vice chancellors and other senior executives, senior government officials and principals on matters ranging from high-level strategic issues through to the day-by-day challenges of running education systems, universities, private higher education providers and schools.
Governance, protection of valuable intellectual property, termination of employment for poor performance or misconduct, building disputes, OHS issues, industrial relations and strategy, defence of discrimination claims, insurance and risk management, PPP and other funding mechanisms, and teacher/academic and student discipline are all areas where we have significant experience.
In Australia, our advice to primary and secondary schools spans government and non-government systems and individual schools.
Our higher education group has advised universities and other educational institutions since the early 1930s. Through this experience, we have developed a thorough knowledge of the enabling and associated legislation governing universities and the wider education sector. We routinely advise on: strategic advice on funding, intellectual property and research arrangements, information technology and telecommunications, regulatory, legislative and compliance, human resources and industrial relations, dispute resolution, property, planning and environment, construction, and taxation matters. We also advise on overseas arrangements and students.
As the policy debate rages on the future direction of tertiary education and its institutions, Australian universities are grappling with a raft of regulatory changes that will materially affect their day to day operations.
This article explores the question of who a consumer is in relation to some of the services typically provided by universities, whether these services are provided in 'trade or commerce', the extent to which certain ACL protections and consumer guarantees apply to those services and suggests some ways that universities can ensure compliance with various requirements of the ACL.
Recent changes to the Privacy Act make it timely to revisit the how privacy law in Australia applies to research. We consider the compliance requirements for Australian universities and their research institutions, jurisdictional differences, and we summarise other recent developments in privacy law that are particularly relevant to the tertiary education sector.
All enterprise awards that are currently in place in Australian universities will cease operating on 31 December 2013 – unless they have been modernised or terminated prior to that date. We examine the potential consequences and outline the action that universities can take now to prepare for the new arrangements.
New Australian privacy laws mean that universities will need to determine whether their hosting, managed services and data management adequately protects personal information that may be shared between or retrieved from virtual storage locations within Australia or beyond.
In February 2013 the Australian Government announced a raft of measures to regulate workplace bullying. The most significant part of the announcements was the creation of a new employee right of action – making a complaint to the Fair Work Commission about bullying. We outline the new right of action and recommend ways to manage a university's response to bullying.
In this edition of Higher Education Focus we look at:
The Australian Consumer Law – another compliance obligation for universities?
The proposed statutory codification of the definition of 'charity' and the inclusion of a statutory 'public benefit' test may impact professional organisations currently endorsed as charities. Clients within these entities should consider their current constitutional documents in light of the proposed changes.
A report commissioned by the Fair Work Ombudsman (FWO) has found that a significant number of workers in Australia, particularly young and migrant workers - are performing unpaid work, often in breach of employment and migration laws.
On 31 December 2012, the China International Economic and Trade Arbitration Commission (CIETAC), a foreign-related arbitration commission set up by the China Council for the Promotion of International Trade (also known as the China Chamber of International Commerce) (CCPIT), released its Announcement on Issues Concerning CIETAC Shanghai Sub-Commission and CIETAC South China Sub-Commission" (the Latest Announcement). This is the latest development in a dispute, which has been on foot since April 2012, between CIETAC, the Shanghai Sub-Commission of CIETAC (CIETAC Shanghai), and the Shenzhen Court of International Arbitration (SCIA) (the CIETAC Dispute). SCIA was known as the South China Sub-Commission of CIETAC before 22 October 2012.
The Biosecurity Bill 2012 was introduced into Parliament on 28 November 2012 and will soon become law. When it does it will replace the Quarantine Act as the primary legislative means for the Australian Government to manage the risk of pests and diseases entering Australian territory. It will also impose a raft of new requirements and obligations on researchers and the executive bodies of research institutions.
The Not-for-profit Sector Tax Concession Working Group has released a discussion paper on tax concessions for the not-for-profit sector, 'Fairer, simpler and more effective tax concessions for the not-for-profit sector'. Its stated purpose is to stimulate debate and feedback on federal tax concessions available to not-for-profit entities, but it is not intended as a position paper and does not make any recommendations to government.
On 24 October, the Education Legislation (Amendment) Bill 2012 (the Bill) was second read in Victorian Parliament. If passed, the Bill will result in the abolition of the Victorian Skills Commission; modify contract law regarding VET funding contracts for the delivery of publically funded education, establish additional governance provisions for TAFE and adult education institutions, and introduce new governance arrangements for Victorian public universities.
In this edition of Higher Education Focus, we look at:
The Defence Trade Controls Bill 2011, which now seems only a few weeks from adoption, presents specific challenges for the higher education sector. We discuss those challenges how higher education providers will need to significantly augment their compliance and risk management systems in order to mitigate exposure to serious criminal liability.
A number of enterprise agreements in the higher education sector have recently come to the end of their nominal term or will do so shortly – which means it will soon be time to negotiate a second enterprise agreement under the Fair Work Act 2009. In this context, we provide a timely update on some of the procedural traps in the Act which arise during bargaining and approval of enterprise agreements.
In this second of two articles on managing student grievances that arise in student misconduct matters we consider how a university may respond when the student has a legitimate grievance, and when the student does not have a legitimate grievance and is using court proceedings vexatiously to agitate his/her complaint.
While it is not contentious that members of a university's governing body owe a duty to act in the best interests of the university, the practical application of that duty is more complex. In this article we consider some of those complexities - Whose interests are considered? What are those interests and how are they identified? In what circumstances could the duty lead a councillor to vote against a proposal by the senior executive team?
This morning, the High Court handed down its decision in Bendigo Regional Institute of TAFE v Barclay  HCA 32 – its first major decision considering the adverse action provisions since the Patricks dispute in 1998.
On 23 August 2012, the Government introduced into the House of Representatives the Australian Charities and Not-For-Profits Commission Bill 2012 to establish the Australian Charities and Not-For-Profits Commission (ACNC) as a regulator of charities registered with it from 1 October 2012. The ACNC's regulatory powers are expected to be expanded over time to regulate other not-for-profit entities.
To be entitled to income tax exemption (ITE) and deductible gift recipient (DGR) status, most entities (other than specifically endorsed DGRs and ITE entities prescribed as exempt under regulations) need to satisfy special 'in Australia' conditions - including having a physical presence, making governing decisions and expending certain funds in Australia, and being a not-for-profit entity.
The Senate Committee on Foreign Affairs, Defence and Trade Legislation has tabled a preliminary report on the Defence Trade Controls Bill 2011 (Bill). The report recommended that the Senate delay consideration of the Bill until later in the year, with the Committee's final report anticipated on 31 October 2012.
On Wednesday 15 August 2012 the House of Representatives Standing Committee on Economics released a report on draft legislation to establish the Australian Charities and Not-for-Profits Commission (ACNC). The report recommends that the draft legislation be passed subject to a number of amendments being made. Therefore, at this stage, the ACNC is expected to commence operations on 1 October 2012.
The Australian Government has launched another inquiry into the compulsory licensing provisions in the Patents Act 1990 (Cth). This alert outlines the scope of the inquiry by the Productivity Commission, and how you can make a submission.
In response to increasing electricity prices and a desire to lead the community in the use of cleaner and more efficient energy sources, Australian universities and tertiary colleges are looking to cogeneration and trigeneration facilities. These facilities may be used to satisfy campus-wide demands for electricity, thermal energy (for heating) and chilled water (for cooling). They follow the lead of a large number of American and Canadian universities in recent years.
In this edition of Higher Education Focus, we look at:
Since 29 January 2012, higher education providers have been obliged to comply with the standards-based framework established under the Tertiary Education Quality and Standards Agency Act 2011 (Cth) (Act).
Public universities in Australia are generally entitled to endorsement as charitable institutions and deductible gift recipients (DGRs). Many of their subsidiaries and related entities are also structured as not-for-profit (NFP) entities and/or charities. Each of these NFP entities operating within the higher education sphere will be affected by the reforms to the NFP sector and should take proactive steps to be ready for legislative implementation of the reforms.
On 15 April 2012 the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 (Cth) (Raising the Bar Act) received Royal Assent. The Raising the Bar Act introduces, among other things, an exemption from patent infringement for experimental activities and is aimed at giving researchers "greater certainty about where they have freedom to operate around patented technology". The exemption came into force on 16 April 2012, exempting experimental activities done on or after that date.
The Federal Government had intended that all jurisdictions in Australia would be operating under the model work health and safety (WHS) legislation from 1 January 2012. That model legislation was developed as part of the push to harmonise health and safety legislation across the country.
With a view to improve the protection of workers' rights and interests and better regulate the labour dispatch regime, on 6 July 2012, the Standing Committee of the National People's Congress of China released the Draft Amendments to PRC Labour Contract Law. This Alert outlines the five primary modifications to the labour dispatch regime contained in the draft amendments.
Yesterday the High Court delved into how the Australian Government should go about spending public funds to support its policies. The legal implications for future government policy implementation are unlikely to be significant but the practical implications are perhaps more interesting.
On 1 October 2012 the Australian Charities and Not-for-Profit Commission will assume responsibility for determining charitable status from the Australian Taxation Office. We summarise the key findings of the progress report issued by the ACNC Implementation Taskforce arising from the community consultations and public submissions.
All universities have procedures for handling complaints of student misconduct which, generally, are intended to provide a final determination of the complaint within the university. But, if the student is dissatisfied with the outcome they can pursue the matter in the courts and anti-discrimination commissions and/or refer the matter to a state ombudsman. In this first of two articles on managing student grievances that arise from student misconduct matters, we examine how a complaint of student misconduct might be handled by a university, the potential risks involved and how to minimise those risks.
As Australian universities continue to look offshore for development opportunities, they must be mindful of legislation prohibiting the provision of benefits to foreign public officials. Depending on the institution's scope of operations it may need to comply not only with Australian legislation, but also with US and UK anti-bribery regimes, which have wide-ranging extra-territorial effect.
Recent and pending reforms in export controls, sanctions and anti-bribery, have brought into focus a range of obligations for the higher education sector. A variety of activities that universities commonly engage in raise potential areas of risk and exposure under these regimes. Adequate and up to date compliance measures will be increasingly important in managing these risks.
Creative Commons licences can facilitate open access to copyright materials while allowing the copyright owner to expressly reserve some rights. We explain what is meant by 'Creative Commons', why it is important, its potential value to the higher education sector and some of the issues that may arise in using 'Creative Commons' licenses.
On Tuesday, 29 November 2011, as part of its Mid-Year Economic and Fiscal Outlook 2011-12, the Federal Government announced a package of changes intended to raise A$11.5 billion in new revenue and savings.
The exposure of the higher education sector to Australia's international sanctions was highlighted in mid-2010 when a student determined to be the daughter of a Burmese general was deported. Although, in that case, the university itself bore little responsibility under the Australian sanctions in place at that time, the case brings into focus a range of obligations for universities in this area.
The NSW Government has made good on one of its election promises by repealing Part 3A of the Environmental Planning and Assessment Act 1979 (Planning Act) and introducing two new planning approval regimes for state significant development (SSD) and state significant infrastructure (SSI). The legislation commenced on 1 October 2011 and a summary of the new approval process for building projects is outlined below.
Higher Education institutions sometimes find themselves in the difficult position of having to manage situations where the actions of former or current students cause existing employees or students to fear physical or mental harm.
Public universities in Australia are endorsed as charitable institutions, and many of their subsidiaries and other related entities (such as incorporated co-operative research centres) are also structured as not for profit entities and/or charities. All of these entities will be affected by legislative reforms to the not for profit and charitable sector which the federal government announced earlier this year.
In what is a major policy shift, the House of Representatives has passed a Bill to deregulate the allocation of undergraduate student places at universities. The Higher Education Support Amendment (Demand Driven Funding System & Other Measures) Bill 2011 (the Bill) was introduced into the Senate and read for a second time on 4 July 2011
Reputation is critical to a university's success. Attacks on reputation can come from a range of sources. The rise of social media and mobile networks can expose universities to serious reputational risk and undermine the public's perception of them as places of serious research and education.
Following the introduction of the Tertiary Education Quality and Standards Agency Bill 2011 (Bill) and the Tertiary Education Quality and Standards Agency (Consequential Amendments and Transitional Provisions) Bill 2011 (Transitional Bill) into the Commonwealth Parliament (as reported in our news alert of 23 March 2011), the Senate referred the Bill and the Transitional Bill to the Senate Education, Employment and Workplace Relations Legislation Committee (Committee).
On 1 January 2011, the Trade Practices Act 1974 (TPA) was consigned to history and replaced by the Competition and Consumer Act 2010 (CCA). Other than the Competition and Consumer (Australian Consumer Law) Amendment Regulations 2010 coming in to force in the same form as released in draft, 1 January 2011 came and went without the world of consumer protection law going into meltdown.
On 22 June 2011 the Intellectual Property Laws Amendment (Raising the Bar) Bill 2011 (Cth) (Bill) was introduced into the Australian Senate. The Bill introduces an exemption from patent infringement for experimental activities and is aimed at giving researchers "greater certainty about where they have freedom to operate around patented technology".
As you will be aware, 1 January 2012 is the go live date for OHS harmonisation. A new OHS Act, Regulation and Codes of Practice will commence in the Commonwealth and in each State and Territory at this time. The new package of OHS legislation will be based on model legislation, so will be substantially similar in each jurisdiction.
Jackie Mortensen and Joanna Green examine the impact upon suppliers and consumers of the largest changes to the Trade Practices Act since its inception.
Tertiary institutions will have to adapt to recent changes in pre-litigation proceedings and dispute resolution requirements, according to Michelle Power and Philip Stefanovski.
The grounds for grievance disputes have been redefined by the new Fair Work Act, culminating in a rise of 'adverse action' claims. Gareth Jolly, Harriet Eager and Jessica Fletcher explain how such claims are likely to affect universities.
If universities want to ensure that they own inventions developed by academic staff in the course of their employment, they need to review their IP arrangements and take immediate steps to ensure that they have properly secured those rights.
More than six months after the transfer of business laws commenced under the Fair Work Act 2009 (Cth), it is clear that the new laws may affect universities' industrial instrument coverage.
The Victorian Parliament has enacted legislation to rationalise and modernise university governance.
Academics are often called to give evidence as expert witnesses and use the name of their employer institution in doing so. This article demonstrates that an expert's role is not necessarily straightforward.
In 2009 the Queensland Parliament enacted new legislation regarding access to information and privacy. The new legislation applies to public higher education institutions in Queensland.