On 16 March 2020, Victorian Premier Daniel Andrews declared a State of Emergency across Victoria due to the ongoing serious risk to public health from COVID-19. 

A declaration of a State of Emergency allows the Chief Health Officer to authorise the use of Emergency Powers under the Public Health and Wellbeing Act 2008 (Vic) (”Public Health and Wellbeing Act”) to eliminate or reduce a serious risk to public health. 

This declaration has been extended a number of times, most recently on 16 August 2020 and remains in force until 11:59 pm on 13 September 2020. The Public Health and Wellbeing Act limits the extension of a State of Emergency declaration to a period of no more than 6 months after it is initially declared.

Extension to the State of Emergency Declaration Powers 

On 8 September 2020, the Victorian Governor assented to the Public Health and Wellbeing Amendment (State of Emergency Extension and Other Matters) Act 2020 ⁱ (“Extension Act”) which extends the total period for which a State of Emergency declaration may continue in Victoria.  

The extension allows the Chief Health Officer to issue further health directives after 13 September 2020 and the Premier to declare additional extensions to the current State of Emergency in four-week periods up to an additional 6 months in total.  

Additionally, the Extension Act amends the Public Health and Wellbeing Act to: 

• alter the circumstances in which the Chief Health Officer may appoint Authorised Officers; 
• clarify the power of the Chief Health Officer in respect of directions;  
• clarify the application of the definition of serious risk to public health; and 
• enhance reporting requirements when a State of Emergency declaration is extended beyond 6 months due to the COVID-19 pandemic. 

What are Emergency Powers? 

The Emergency Powers are broad powers to be exercised only by Authorised Officers appointed by the Chief Health Office for the purpose of eliminating or reducing a serious risk to public health across Victoria, including the power to:ⁱⁱ 

• detain any person or group for as long as reasonably necessary; 
• restrict the movement of any person within Victoria; 
• prevent entry to Victoria; and 
• give any other direction that the officer considers reasonably necessary to protect public health.

Authorised Officers may be assisted by Victoria Police when exercising Emergency Powers.

The ‘stay at home’ directives are made under Public Health risk powers to investigate, eliminate, reduce, or prevent a risk to public health in accordance with the declared State of Emergency. Under these powers, the Chief Health Officer can authorise the following directions:ⁱⁱⁱ 

• close any premises for a period of time; 
• direct a person or group, not to enter, remain at, or leave, any particular premises; 
• enter any premises without a warrant and search for and seize anything; 
• require a person to provide information including their name and address; 
• inspect any premises where the risk to public health may be spread; 
• require the cleaning or disinfection of any premises; 
• require the destruction or disposal of anything necessary; 
• direct the owner or occupier of any premises to take any action necessary; and 
• direct any other person to take any other action that the Authorised Officer considers is necessary. 

Practical Impacts: 

It is important to note that before exercising these powers, the Authorised Officer must (unless not practicable to do so) briefly explain the reason why it is necessary to exercise the power and warn the person that a refusal or failure to comply without a reasonable excuse is an offence.^iv 

Under these powers, an Authorised Officer may only enter any premises without a warrant where that officer reasonably believes that there may be an immediate risk to public health and entry is necessary to enable the officer to investigate, eliminate or reduce the risk.^v  

Before requiring a person to provide information, an Authorised Officer must inform the person that they may refuse or fail to provide the information if providing the information would tend to incriminate them.^vi 

Where a person is being detained, the Authorised Officer must briefly explain the reason why it is necessary before doing so, unless not practicable, in which case they must then do so as soon as practicable.^vii 

 

Footnotes

i Victoria, Gazette: Special, No S 452, 8 September 2020. 

ii Public Health and Wellbeing Act 2008 (Vic) s 200(1). 

iii Public Health and Wellbeing Act 2008 (Vic) s 190(1). 

iv Public Health and Wellbeing Act 2008 (Vic) ss 190 (2) to (3) and 200(4). 

v Public Health and Wellbeing Act 2008 (Vic) s 190(7). 

vi Public Health and Wellbeing Act 2008 (Vic) s 190(8). 

vii Public Health and Wellbeing Act 2008 (Vic) ss 200(2) to (3). 

If you have been procrastinating when it comes to making or updating your Will or ‘just too busy’ to worry about it, have you stopped to think about what might happen when you die?  

Prioritising the management of your estate is an important step to planning your affairs during times of risk and uncertainty.  

What is a Will? 

A Will is a legal document that sets out your wishes when you die. Making a Will is a positive step you can take to provide for the people you care about.  

In your Will, you can appoint a guardian for minor children, leave particular items to certain people, leave wishes or instructions about your funeral arrangements, make gifts to charities or churches and provide for spouses, partners, friends and people who are not related to you.  

You can also give away company shares that you own, and you may be able to exercise powers of appointment of a family trust.   

After your death, your property and belongings are referred to as your estate. 

Who can make a Will? 

Anyone over 18 can make a Will as long as they have mental capacity. A person with a mild intellectual disability or in the early stages of dementia may still be able to make a Will if they have capacity at the time the Will is made. 

Who should I appoint as my executor? 

The executor is the person named in your Will who will be responsible for carrying out the instructions in your Will and dealing with your estate after you die. This should be someone over 18 years old whom you trust and would be prepared to take on this responsibility.  

You can appoint a professional, such as the State Trustees or a solicitor, however fees apply.  

Why should I make a Will? 

If you die without a Will, you do not have a say about how your estate is to be distributed. Your estate will be distributed to your relatives according to a legal formula (called the ‘intestacy rules’) which could be very different from what you wanted or intended to happen.  

How long will my Will last? 

Wills should be reviewed when there are significant changes in your assets, or changes to your beneficiaries.  

Your Will lasts until you die, unless you change it, make a new one or revoke (cancel) it. A marriage will also revoke a Will unless the Will was made anticipating that marriage. If you plan to marry or divorce you may need to review your Will and update, as necessary. 

Can I change my Will if I change my mind? 

You can change your Will at any time as long as you have mental capacity. You cannot change your Will by crossing out something and initialing it or writing something different in its place as there are formal requirements that must be followed.  

How do I make a Will during COVID-19? 

We are continuing to assist our clients with the preparation of their estate planning documents during the current COVID-19 restrictions. At first instance, we encourage all clients to provide instructions by telephone or videoconference.  

Contact us today to find out more about how we can help you with your estate planning needs and provide advice and assistance related to making a Will during the COVID-19 pandemic. 

What is HomeBuilder?

The Federal Government recently announced HomeBuilder as a limited-time grant to help the recovery of the residential construction market in the wake of the COVID-19 pandemic.

HomeBuilder provides eligible owner-occupiers with a grant of $25,000 to put towards the construction of a new home, or the substantial renovation of an existing home, where a contract is signed between 4 June 2020 and 31 December 2020.

Who is eligible for HomeBuilder?

To qualify for HomeBuilder, you must:

• be an owner-occupier (i.e. not an investor); and
• be a natural person (not a company or a trust); and
• be aged 18 years or older; and
• have an income based on your 2018-19 or later tax return of either:
• $125,000 per annum or less for an individual applicant; or
• $200,000 per annum or less for couples; and
• enter into a building contract between 4 June 2020 and 31 December 2020 to either:
• build a new home as a principal place of residence, where the combined value of the house and land does not exceed $750,000; or
• substantially renovate your existing home as a principal place of residence, where the renovation contract is between $150,000 and $750,000, and the value of your existing house and land does not exceed $1.5 million; and
• commence construction within 3 months of the contract date.

Can other grants and schemes be used together with HomeBuilder?

Yes! You can qualify for HomeBuilder in conjunction with any other Federal and State schemes and grants you are eligible for.

Eligible first home buyers can qualify for Federal schemes such as the First Home Loan Deposit Scheme (FHLDS) and First Home Owner Super Saver Scheme (FHSSS), as well as State schemes such as the First Home Owner’s Grant and First Home Buyer Duty Concession/Exemption.

How do I apply for HomeBuilder?

In Victoria, HomeBuilder will be implemented, and the grants provided by, the State Revenue Office. Applications for HomeBuilder are not yet open but will commence once the State Government signs a National Partnership Agreement with the Commonwealth Government to implement HomeBuilder.

Acceptance of applications will be backdated to contracts signed from 4 June 2020.

As of 29 June 2020, no state governments in Australia have entered into a National Partnership Agreement with the Commonwealth.

Where can I find more information?

Please contact us for further information on the HomeBuilder grant and how it may apply to you.

 

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This article is up to date as at 28 April 2020.  

On 16 March 2020, Premier Daniel Andrews and Minister for Health Jenny Mikakos announced a State of Emergency for Victoria to combat COVID-19 (Coronavirus) and assist with measures designed to ‘flatten the curve and give our health system the best chance of managing the virus’.  

Earlier this month the Premier further announced that the State of Emergency would be extended until midnight 11 May 2020.   

On 21 March 2020, the Andrews Government announced a $1.7 billion economic survival and jobs package to help Victorian businesses and workers survive the devastating impacts of the Coronavirus pandemic. 

An overview of the $1.7 billion economic survival package is as follows: 

Payroll Tax 

The Government will provide payroll tax refunds and waivers for the 2019 – 2020 financial year to small and medium-sized businesses with annual taxable wages up to $3 million. The State Revenue Office will contact eligible businesses directly to reimburse them for payroll tax already paid in the current financial year. Eligible businesses can also defer payroll tax for the first quarter of the 2020 – 2021 financial year. 

For more information about the administration of payroll tax refunds visit: SRO – Coronavirus 

Land Tax Deferral 

Landowners that hold at least one non-residential property (commercial, industrial and non-residential vacant land) and a total taxable landholdings below $1 million are eligible to apply for a deferral of their 2020 land tax payment. The payment can be deferred until after 31 December 2020 but will need to be paid in full by the first quarter of the 2021 financial year.  

Landowners who have already paid their 2020 land tax may request a return of the tax paid however the tax will need to be paid in full by 31 March 2020. 

For more information on taxpayers eligibility for land tax deferrals visit: SRO – Coronavirus 

Land Tax Relief for Landlords 

Landlords with an annual turnover of up to $50 million who provide rent relief to tenants impacted by COVID-19 may be able to apply for a 25% reduction of land tax per property (residential or commercial), and choose to defer the balance of the assessment until 31 March 2021. Landowners that are unable to secure a tenant because of COVID-19 with all or part of the property currently available for lease may also apply for this relief. 

The State Revenue Office has noted residential and commercial landlords need to at least pass on the equivalent amount of the 25% land tax reduction in rent relief to their tenant to get the 25% land tax reduction. 

Commercial tenants must have an annual turnover of up to $50 million, and be eligible for the Commonwealth Government’s JobKeeper Payment.  

For more information on eligibility for landlords visit: SRO – Coronavirus 

Rent Relief – Government Buildings 

During the economic survival and jobs package announcement, the Andrews Government also announced support for commercial tenants in government buildings who may now apply for rent relief.  

The Federal Government introduced a Mandatory Code of Conduct on 7 April 2020 which will apply to commercial leases of certain eligible small to medium enterprise however in the meantime, commercial tenants leasing government buildings are advised to call the Business Support Hotline on 13 22 15 or visit Coronavirus Business Support. 

Business Support Fund 

A $500 million Business Support Fund has been established to support small business employers (with a turnover of more than $75,000 and a payroll of less than $650,000) that have been highly impacted or subject to closure by the increased non-essential activity lockdown measures. 

Eligible businesses must have held an Australian Business Number (ABN) at 16 March 2020 and engaged in carrying out the operation of the business in Victoria on 16 March 2020 when the State of Emergency was declared.  

Impacted businesses can apply for a one-off grant of $10,000 to be used towards business operating expenses including rent, utilities and salaries, and assisting the businesses to sustain future continuity planning. 

For more eligibility criteria and application guidelines visit: Business.vic.gov – Support your business 

Working for Victoria Fund 

An additional $500 million Working for Victoria Fund has been established as a further initiative to assist displaced Victorian workers find new work opportunities. The Andrews Government opened the initiative to workers who have recently lost their jobs and casuals who no longer have shifts.  

Employers and businesses can register available job opportunities and requirements online and connect with candidates who meet their business needs.  

Visit Working for Victoria for further information for jobseekers or employers.  

Liquor Licence Fees 

The Andrews Government will also provide support for the Victorian hospitality sector by waiving renewable liquor license fees for 2020 for affected venues and small businesses.  

For more information on the administration of reimbursements visit: SRO – Coronavirus 

For more information or advise in relation to any of the above, please contact us. Our team of solicitors can assist you if you are having trouble accessing any of the above resources and support you with up-to-date information that may affect your business during COVID-19.   

Sources:  

Coronavirus Business Support 

Tax Relief Measures 

www.business.vic.gov.au 

www.premier.vic.gov.au 

www.sro.vic.gov.au

 

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This article is up to date as at 13 April 2020. 

The Federal Government has introduced a range of stimulus measures available to assist Australian businesses in response to the devastating effects COVID-19 (Coronavirus) has brought to the community and economy.  

Economic Response to Coronavirus:  

On 12 March 2020 the Australian Federal Government announced it’s first economic response to Coronavirus with the initial stimulus package comprising of $17.6 billion. A second economic stimulus package followed on 22 March 2020 announcing a total $189 billion being injected into the economy.  

Visit Economic Response to the Coronavirus for up-to-date information on financial assistance, eligibility and timing for support to Australian Businesses.  

A summary of the economic response is outlined below:  

JobKeeper Payment 

A wage subsidy program introduced to support businesses significantly impacted by the Coronavirus to continue paying their employees. Eligible businesses (including sole traders) will receive $1,500 per fortnight per eligible employee for a maximum of 26 weeks.  

Businesses will need to prove revenue has declined or will likely decline by 30% for businesses with an aggregated turnover under $1 billion or a decline or likely decline of 50% or more for businesses with an aggregated turnover of $1 billion or more.  

For more eligibility requirements visit: Treasury – JobKeeper 

Boosting Cash Flow for Employers 

The government is supporting small, medium and not for profit businesses to continue operating, employing staff, paying their rent, utilities and other bills and retain employees through two sets of cash flow boosts. Eligible businesses will receive tax-free cash flow boosts of between $20,000 and $100,000 through credits in the activity statement system.  

Basic eligibility includes businesses with an aggregated annual turnover of less than $50 million that made eligible withholding payments and held an ABN on 12 March 2020 which continues to be active. 

For more details on eligible businesses and payments visit: Treasury – Businesses / Cash Flow 

Temporary relief for financially distressed businesses 

To assist viable businesses that now face the threat of financial distress and insolvency, the Government has introduced measures that temporarily affect statutory demands, bankruptcy proceedings, personal liability for trading while insolvent and relief and flexibility from provisions of the Corporations Act 2001 (Cth). 

Statutory Demands: 

The temporary higher threshold at which creditors can issue a statutory demand on a company has increased from $2,000 to $20,000. The statutory timeframe companies have to respond to statutory demands will also be extended temporarily from 21 days to six months.  

Bankruptcy:  

The threshold for a creditor to initiate bankruptcy proceedings against a debtor regulated by the Bankruptcy Act 1966 (Cth), will temporary increase from $5,000 to $20,000 for a period of six months. To allow the debtor more time before being forced into bankruptcy, the timeframe a debtor has to respond to a bankruptcy notice will be extended from 21 days to six months. 

The period of protections where unsecured creditors cannot take further action against a debtor to recover debts when a debtor has declared an intention to enter voluntary bankruptcy has also been temporarily extended from 21 days to six months.  

Trading While Insolvent: 

Directors will be temporarily relieved from personal liability for trading while insolvent for debts incurred in the ordinary course of the company’s business for a period of six months. Debts incurred by the company will still be payable by the company and criminal penalties will apply where egregious cases of dishonesty and fraud occur. 

Complying with the Corporations Act 2001 (Cth): 

Individual requests can be made to ASIC for companies that require relief and flexibility from some provisions of the Corporations Act 2001 (Cth) where they cannot comply due to unforeseen events that arise as a result of the Coronavirus. Companies are still accountable and could be subject to potential legal action from shareholders and creditors. 

For further information on the temporary relief available to businesses visit:  Treasury – Businesses / Financial Distress 

Increasing the instant asset write-off: 

Increasing the instant asset write-off threshold from $30,000 to $150,000 is another measure that the Federal Government has implemented to back businesses in making investments to support economic growth. Access to this package has also been expanded to include all businesses with an aggregated annual turnover of less than $500 million until 30 June 2020.  

The threshold includes eligible purchases of new or second-hand assets first used or installed ready for use within specific time periods and applies on a per asset basis. 

For more threshold eligibility visit: Treasury – Businesses / Asset Write Off 

Backing business investment: 

This incentive has been introduced as a time limited (15 month) investment to support business investment and economic growth by accelerating depreciation deductions. The incentive provides businesses purchasing certain new depreciable assets with an aggregated turnover below $500 million a deduction of 50% of the cost of an eligible asset on installation (with existing depreciation rules applying to the balance of the asset’s cost).   

For more information on eligible assets and timing visit: Treasury – Business / Business Investment 

Supporting apprentices and trainees 

Small businesses employing fewer than 20 employees can apply for a wage subsidy to support the business’ retainment of apprentices and trainees. Eligible employers can apply for a subsidy of 50% of the eligible apprentice’s or trainee’s wage paid during 9 months from 1 January 2020 to 30 September 2020. A maximum of $21,000 will be reimbursed to employers for each eligible apprentice or trainee ($7,000 per quarter).  

For more information on timing to register for the subsidy visit: Treasury – Business / Apprentices 

Support for Coronavirus affected regions and communities 

The Government has announced an initial $1 billion to be set aside for use in supporting communities and industries such as tourism, agriculture and education that have been disproportionately affected by the economic impacts of the Coronavirus.  

Further support available to Coronavirus-affected regions, communities and industries is available at: Treasury – Business / Affected Regions 

For more information please contact us. Our team of solicitors can assist you if you are having trouble accessing any of the above resources and support you with up-to-date information that may affect your business during COVID-19.   

Sources:  

Australian Treasury 

Australian Taxation Office 

Business.gov.au 

 

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PROTECTING YOUR BUSINESS’ ONLINE PRESENCE

In 2017 an online presence for your business is no longer an optional convenience but a commercial necessity. The rapid spread of connected technology has caught many lawmakers off guard as the internet has not only connected people on a local scale, but provided businesses and consumers alike access to global markets as well.

While it is not legally mandated that you have Terms and Conditions (T’s & C’s) which set out the agreement between your business and your website users, it is a recommended practice. However, a Privacy Policy is required by law if you collect personal data from your users such as names, addresses, telephone numbers, bank account details, etc.

The World Wide Web is accessible by billions of people and when you offer a product or service on the internet, it is important that you have a set of T’s & C’s that will govern the relationship between the end-users and the website operator in connection with the website and its various offerings. Let’s not forget the lessons learned from the Smokeball Case[1] in making unilateral contracts without setting terms and conditions.

A clear set of T’s & C’s will establish the ownership rights to the website, its content, and the offerings featured on the website. It could also help limit the liability of the owner and establish payment terms.

ISSUES TO CONSIDER

So what are some of the key issues to consider when selling goods or services on a website?

While specific issues may vary with particular business types, examples may include:

1. Is it clear what products or services you will be providing?
2. What is the ordering procedure?
3. Do you include a price list and if so does it include GST/VAT?
4. What are the payment terms?
5. Have you considered international customers?
6. What terms can be implied into the sale and do some terms need to be made explicit?
7. Do you reserve the right to amend the terms and conditions?
8. Do you need to protect any intellectual property on the website such as logos and other trademarks?
9. Can you embellish on the description of goods?
10. Do you need to disclaim responsibility in certain circumstances for sales that don’t complete?
11. Do you seek full disclaimer of liability?
12. Beside your usual disclaimer are there specific warnings which you may need to highlight?
13. Do you reserve the right to terminate any service agreement?
14. What are the governing laws for the interpretation of the terms and conditions?

Your website T’s & C’s are often the only agreement in place between your business and your online customers. It is vital that they set out and consider as many as possible of the contingencies that can arise from the underlying commercial relationship.

YOUR WEBSITE IS UNIQUE

One size does not fit all.

It is important to make sure your T’s & C’s are specifically written for your business, the content and offerings featured on your website, so that the underlying commercial relationship between your business and the end user is clearly defined. Consult a lawyer and avoid the temptation to copy someone else’s T’s & C’s as their business and circumstances may be different from yours.

For more information, please contact us.

[1] Carlill v Carbolic Smoke Ball Company [1892] EWCA Civ 1

 

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What is it?

From 1 July 2016 new legislative changes will take effect in relation to capital gains by foreign residents disposing of certain taxable Australian property. This is a brief guide on the new legislation and how it affects you.

The government is introducing a measure whereby 10% of the purchase price of a property is withheld from a foreign resident vendor of certain Australian property. This amount is remitted by the purchaser directly to the Australian Taxation Office (ATO) as a non-final withholding tax. This ensures that foreign resident vendors who would not otherwise lodge a tax return will not be able to avoid their taxation obligations in Australia.

Who does it affect?

Although the measure is targeted towards foreign resident vendors, in practice ALL vendors as well as purchasers of the relevant types of property will be affected, regardless of whether the vendor is a foreign resident or not.

What type of property does it affect?

The measure applies to both direct and indirect property holdings in Australia, and includes:

• Taxable Australian real property with a market value of $2 million or more;
  • This includes vacant land, buildings, residential and commercial property;
• Mining, quarrying or prospecting rights where the material is situated in Australia;
• Lease premiums paid for the grant of a lease over real property in Australia;
• Indirect real property interests in Australian entities whose majority of assets consists of the above asset types; and
• Options or rights to acquire any of the above asset types.

The majority of residential property sales would not be affected as they do not meet the $2 million threshold. Other exclusions also apply to certain types of assets and transactions. Please contact us for further advice on these assets and transactions.

How is it implemented?

For real property transactions with a market value of $2 million or above, the purchaser MUST withhold 10% of the purchase price unless the vendor provides the purchaser with a clearance certificate from the ATO. The certificate can be provided to the purchaser at or before settlement. If the vendor fails to provide the certificate by settlement, the purchaser would be required to withhold 10% of the purchase price and pay this to the ATO.

Clearance Certificates

Australian resident vendors will need to apply for a clearance certificate and provide this to the purchaser before settlement to ensure no funds are withheld from the sale proceeds. Only Australian residents for tax purposes will be able to obtain a clearance certificate.

The vendor can apply for this certificate at any time they are considering the disposal of real property, including before the property is listed for sale. The certificate is valid for 12 months and must be provided to the purchaser before settlement to avoid the 10% withholding.

Is the vendor a foreign resident?

A foreign resident in the context of this measure refers to an individual or company that is not an Australian resident for taxation purposes. There is a range of criteria for determining whether you are a foreign resident, including but not limited to whether your ordinary place of residence is in Australia. If the vendor provides a valid clearance certificate, the purchaser is entitled to rely on that and does not need to question the vendor’s residency.

When does it need to be paid?

The purchaser must pay the amount withheld directly to the ATO at or before settlement. Failure to do so will incur penalties for the purchaser.

What happens to the withholding payment?

For ATO’s treatment of the withholding payment, please refer to the ATO’s website.

Further Information

For further information about how the new measures affect you, please contact us.

 

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