In this latest edition of our AI and the Law mini-guide series, we explore the intersection of deepfake technology and defamation law, examining the legal complexities that arise when AI-generated content damages a person’s reputation.

This guide covers:

• What deepfakes are and how they are created.

• The legal framework governing defamation in the context of AI-generated content.

• The challenges of identifying and holding creators and distributors accountable.

• Recent legislative developments addressing deepfake-related harm.

As artificial intelligence continues to reshape digital content, the law must evolve to provide appropriate safeguards. Understanding your rights and the legal avenues available is essential in navigating this emerging landscape.

Download the full guide here to learn more about the legal implications of deepfakes.

Set to take full effect by late 2025, this legislation places the onus on platforms to enforce stricter age verification measures or face fines of up to AUD $50 million. While the move is aimed at protecting young Australians from online harms, it raises a host of legal, practical, and ethical concerns for businesses, parents, and digital rights advocates alike.

Law vs. Likes

The reforms amend the Online Safety Act 2021 (Cth), granting the eSafety Commissioner greater enforcement powers to ensure compliance. Social media platforms such as TikTok, Instagram, Snapchat, Facebook, and X (formerly Twitter) will be required to implement robust age verification mechanisms to prevent access by users under 16.

Organisations failing to take reasonable steps to uphold these restrictions could face substantial penalties, signalling the government’s firm stance on digital accountability. However, the law exempts platforms that serve predominantly educational or health-related purposes, such as Google Classroom and Kids Helpline.

While protecting young users from cyberbullying, predatory behaviour, and inappropriate content is a valid policy goal, critics argue that enforcement will be fraught with technical and privacy challenges.

From Rules to Reality – Can the Social Media Ban Be Enforced?

Age verification remains a contentious issue, with no universal method that is both secure and privacy-compliant. Many platforms currently rely on self-declaration, which has proven ineffective. More stringent alternatives—such as requiring government ID or facial recognition—pose significant data privacy risks and could exclude marginalised communities who lack formal identification.

Moreover, a blanket ban does not eliminate risk—it may merely push young users towards less regulated platforms or incentivise the use of VPNs and fake accounts, making online safety harder to monitor.

Monica Allen, Special Counsel, highlights the practical implications:

“The law’s intent is commendable, but its execution remains uncertain. The enforcement burden on platforms is significant, and compliance measures must carefully balance child protection with privacy concerns. Otherwise, we risk creating an environment where underage users simply shift to less accountable digital spaces.”

The law requires social media platforms to prevent users under 16 from accessing their services, but it does not specify exactly how this should be enforced. Without clear, standardised guidelines for age verification, platforms are left to determine a users age with their own methods—whether through ID checks, AI verification, or other measures. This creates uncertainty, as businesses may face legal consequences if their chosen approach is later deemed inadequate. Instead of achieving a straightforward solution, the lack of clear direction could result in companies carrying the legal risk while young users find ways to bypass restrictions.

Legal Risks, Business Blows, and Unintended Consequences

The consequences of this legislation extend beyond platform liability. Businesses relying on youth engagement in digital marketing, influencer partnerships, or social media-driven advertising will likely need to revise their strategies.

For employers, social media policies may require updating to ensure compliance with evolving regulations. Additionally, content creators and influencers targeting youth demographics may face reduced audience reach, impacting commercial viability.

Regulators will need to clarify how enforcement will work across international platforms—a complex jurisdictional challenge given the global nature of digital interactions.

A Fine Line Between Protection and Overregulation

Online Safety Amendment (Social Media Minimum Age) Act 2024 reflects a growing international trend towards tighter online regulation, aligning Australia with countries like the UK, which has child safety-by-design laws. However, its long-term success will depend on how effectively it is implemented.

For legal practitioners and businesses navigating defamation, privacy, and regulatory compliance, this law adds yet another layer of legal complexity. The challenge will be striking a balance between child safety, privacy rights, and digital access, ensuring that regulation does not become an exercise in overreach.

As digital regulation evolves, the enforcement of social media age restrictions will be closely watched. How effectively platforms implement these measures—and whether the law achieves its intended purpose without unintended consequences—remains to be seen. Businesses, legal professionals, and policymakers alike will need to navigate this shifting landscape carefully, ensuring compliance while monitoring the broader impact on digital access, privacy, and online engagement.

ABOUT THE AUTHOR

Julie Mehrdawi is a passionate and dedicated member of our team, excelling in Commercial Litigation, Corporate Law and Regulatory Advice, Employment Law and Defamation Law. Julie’s commitment to staying at the forefront of legal advancements in our clients' industries ensures she is able to successfully identify and mitigate legal risks, safeguarding our clients interests.

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Julie’s takes great pride in her approachable nature, which allows her to collaborate closely with clients and provide tailored, expert legal advice and representation that allows her clients to succeed.

Julie is able to leverage her diverse background and think outside the box to deliver comprehensive, pragmatic, and holistic solutions for her clients in every area of law.

The answer is quite a lot – according to a recent Fair Work Commission (FWC) decision. In the case of Paul James McAllister v Ahoy Club Fleet Management Pty Ltd [2024] FWC 2651, the FWC found that employers are entitled to holding senior employees to higher standards of conduct, particularly regarding loyalty, trustworthiness and honesty.

This decision centered around the termination of the employment of Paul James McAllister (the Applicant), who was employed by Ahoy Club Fleet Management Pty Ltd (the Respondent) and who was the Master on a charter yacht with twelve guests and seven crew members on board at the time of its collision.

The Applicant lodged an unfair dismissal application with the FWC to challenging the termination of his employment and seeking a remedy for unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (Cth).

Ultimately, the FWC found that the Applicant’s dismissal was not harsh, unjust or unreasonable, and the matter was dismissed. However, this matter provides some key insights in respect of the expectations employers can have of senior employees to model exemplary behaviour, adhere to workplace policies, and maintain professional integrity in their roles.

Facts of the case

During its voyage, the yacht collided with the outer Hayman Island Port Channel Marker, causing $150,000 worth of damage to the yacht. Video evidence of the collision revealed a deck hand narrowly avoiding being crushed between the yacht and the channel marker.

Video evidence also captured the Applicant at the helm of the vessel distracted by his phone and a vape, a clear breach of his responsibilities. Additionally, the Applicant failed to follow safety procedures by allowing a guest to remain unsupervised on the bridge, switching off the radar as the vessel entered Hayman Island waters, leaving the bridge without appointing a helmsman after the collision, and failing to comply with the emergency plan post-collision, including sounding the alarm and checking on the crew and guests.

When the Yacht Manager conducted an investigation into the accident, the Applicant attributed the collision to several contributing factors, including the nighttime darkness, distraction by a guest, fatigue and wind or logistical conditions.

Ultimately, the Applicant’s actions in the collision were deemed serious misconduct pursuant to regulation 1.07 of the Fair Work Regulations 2009 (Cth) and his employment was terminated.

The Respondent argued that the Applicant’s employment was lawfully terminated due to substantial and willful breaches of both the employment contract and company policies, asserting that these breaches constituted valid grounds for dismissal, particularly given the Applicant’s failure to provide sufficient explanations to mitigate serious safety breaches.

Employer’s expectations

Notably, in the FWC’s decision, Deputy President Cross made it clear that employers are entitled to hold employees in senior positions to higher standards. Having higher expectations of senior employees was deemed “uncontroversial”.

In this matter, the Applicant’s employment contract outlined the considerations of loyalty, trustworthiness and honesty. The Applicant’s employment contract also provided that the Applicant’s duties would be set out in the Safety Management System Manual and further, the Applicant was bound by the International Regulations for Preventing Collisions at Sea, which includes collection procedures.

Deputy President Cross stated that the employer was entitled to expect these considerations from the Applicant, even in the event these considerations were not explicitly outlined in the Applicant’s employment contract.

Termination procedure

After the collision, the Respondent told the Applicant that his employment would not be terminated and that an investigation would commence. The Applicant was offered a chance to provide a statement in respect of the collision.

Subsequently, when the Applicant phoned the Yacht Manager to enquire about upcoming work, the Yacht Manager advised the Applicant by phone that his employment was being terminated effective immediately due to safety breaches, failure to implement the safety management system, and gross negligence associated with the collision.

Between the provision of the Applicant’s statement and the termination of the Applicant’s employment, the Applicant was not given any opportunity to respond to the allegations that led to the termination of his employment.

Deputy President Cross reinforced a previous finding of the Full Bench of the FWC that procedural faults must be considered in light of the following questions:

“(a) Did the seriousness of the misconduct outweigh any procedural faults?; and

(b) Would the procedural faults have affected or altered the ultimate outcome of the dismissal?”

The FWC held that despite there being a procedural defect in the termination procedure, that the termination was still lawful due to the “severity and sound basis of the reasons for his dismissal” and the fact that the Applicant’s response would not have affected the Respondent’s decision to terminate the Applicant’s employment. In making this determination, the FWC considered the small size of the Respondent’s business and the lack of access to dedicated human resource managers.

Takeaways

Ultimately, this case makes it clear that senior employees, which could include senior managers, executives, and recently promoted individuals, are held to a markedly higher standard of behaviour than that of more junior employees. The case reinforces the importance of maintaining high standards of conduct and professional integrity, especially for those in leadership roles.

Further, this case makes it clear that despite a procedure in a dismissal process being insufficient, this is not enough to make the dismissal unfair.

The legal team at BlackBay Lawyers can provide specialised and detailed advice in respect of unfair dismissal matters and the application of the Fair Work Act 2009 (Cth) for both employers and employees. If you require legal advice, please feel free to contact our team for a confidential discussion with one of our solicitors.

The content in this Article is intended only to provide a summary and general overview on matters of interest. It is not intended to be comprehensive nor does it constitute legal advice. It should not be relied upon as such. You should seek legal or other professional advice before acting or relying on any of the content.

ABOUT THE AUTHOR

Naomi Shivaraman  has been an award winning journalist and producer for 25 years. She joined BlackBay as the team’s Legal Affairs Strategist, a role created to utilise her combined legal and media strategy skills, helping clients and stakeholders navigate the court of public opinion.

Not only does she assist the team in a paralegal capacity on complex litigation matters, but she also provides reputational, media and communications counsel. For the past few years, Naomi has combined her law studies with a full-time career. Naomi will finish her Bachelor of Laws degree at Macquarie University next year.

Power imbalances between the franchisor and franchisee are not uncommon. Recent national scandals involving companies like 7-Eleven, Laser Clinics, Pizza Hut, and Domino’s have highlighted issues such as wage theft, employee abuse, and franchisees being financially exploited. Consequently, many franchisees have faced significant personal hardship due to insufficient understanding of their commitments when entering into an agreement.

Wanting to become a franchisee? Here are 10 essential factors to understand before entering into a franchise agreement:

Ensure a Disclosure Document is in Place

A disclosure document is a critical resource designed to provide potential franchisees with detailed information about the franchisor and the franchise system. It typically includes key details such as the franchisor's business history, litigation or insolvency history, fees payable by the franchisee, training and support offered, and any restrictions on operations. The document also outlines potential risks, earning projections (if provided), and the terms of the franchise agreement. This transparency ensures that prospective franchisees have a clear understanding of their obligations and the overall business model before making a binding commitment or financial investment. This document must be provided to the prospective franchisee at least 14 days before the prospective franchisee enters into the agreement or makes a non-refundable payment.

Pre-agreement Documents

Prior to any agreement, a potential franchisee must receive from the franchisor an information statement explaining franchising, a copy of the franchise agreement, a disclosure document, a key facts sheet explaining the disclosure document and a copy of the Franchising Code of Conduct.

Franchisees Must Abide by Workplace Laws

Franchisee owners employing staff must abide by the same workplace laws and regulations as other employers. Like with any other company or business, meticulous financial record-keeping and pay slips are a must.

Financial Risk

The financial risk of the business rests solely with the franchisee. If the business is unsuccessful, the franchisee not only risks earning no income but may also struggle to cover the basic operating costs of the business. If a franchisor becomes insolvent, the franchisee may lose the right to the brand, products and the premises.

Upfront Costs

Franchisors need to be aware there are significant upfront costs incurred to establish the business. Many are not aware of the hidden fees and payments involved. Engaging a lawyer early in the process can empower potential franchisees by providing them with a clear understanding of what to expect from the outset.

Supplier and Product Restrictions

A franchise agreement will restrict the suppliers a franchisee can use. Uniformity with logos and products is also another requirement. A franchisee cannot amend the business’s look and design as it goes against the franchise’s image and brand. Owning a franchise is not a space for creativity or design innovation as the various businesses part of the chain take on the legacy of the brand.

Marketing Funds

Franchisees will often have to pay fees towards the marketing fund operated by the franchisor. Franchise businesses run strong advertising and brand awareness campaigns with their logos well-recognised by consumers. Despite a franchisee paying a marketing fund, it does not necessarily mean that an individual’s business will be promoted through the funding. The onus is on the franchisor to comply with the Franchising Code of Conduct rules which oversee who pays into the fund, how the money is used and notifying franchisees about how the money was collected and spent every financial year. Franchisees must also be provided with an annual marketing fund statement.

Lease Contracts

Running a bricks and mortar franchise store, gym, retail space or food outlet requires a lease agreement. The lease arrangement may either be with the franchisor or a separate landlord. Importantly, the lease term should align with the initial term of the franchise agreement to avoid potential conflicts or disruptions. The lease contract is a separate document to the franchise agreement so a professional legal review of the lease is strongly advised.

Breach of Franchise Agreement

If a franchisee breaches an agreement for example by not using the required supplier or failing to pay the franchisor, the franchisor can issue a formal breach notice. Clause 27 of the Franchising Code of Conduct provides that franchisors must give reasonable written notice to the franchisee about proposed agreement termination due to the breach, offer a remedy and allow reasonable time for the franchisee to remedy the breach.  

No Obligation to Renew Franchise

The agreement between the franchisor and franchisee operates for a set period as outlined in the franchise agreement. However, regardless of the loyalty, goodwill, or clientele relationships built by the franchisee during this period, the franchisor is under no legal obligation to renew or extend the agreement once the tenure concludes. This lack of guaranteed renewal can leave franchisees in a vulnerable position, especially if their business has become deeply embedded in the community or if they have made significant financial or personal investments in the franchise.

Additionally, franchisees may suffer financial loss if the agreement ends sooner than anticipated, whether due to non-renewal, termination, or unforeseen circumstances such as a breach of contract or franchisor insolvency. This could result in the franchisee losing not only their income source but also any unrecovered investment in equipment, marketing, or lease agreements tied to the franchise. For this reason, it is crucial for franchisees to fully understand the terms of their agreement, including renewal rights and termination clauses, and seek legal advice to mitigate the risks associated with the end of the contract.

Conclusion

Franchise agreements are complex and often favor the franchisor, making it essential for potential franchisees to proceed with caution. Understanding the terms, risks, and obligations of these agreements is critical to making an informed decision. At BlackBay Lawyers, we specialise in guiding franchisees through the legal intricacies to protect their investments and ensure a strong foundation for success. If you’re considering entering into a franchise agreement, reach out to us for expert advice tailored to your needs.

ABOUT THE AUTHOR

Naomi Shivaraman has been an award winning journalist and producer for 25 years. She joined BlackBay as the team’s Legal Affairs Strategist, a role created to utilise her combined legal and media strategy skills, helping clients and stakeholders navigate the court of public opinion.

Not only does she assist the team in a paralegal capacity on complex litigation matters, but she also provides reputational, media and communications counsel. For the past few years, Naomi has combined her law studies with a full-time career. Naomi will finish her Bachelor of Laws degree at Macquarie University next year.

Grounds for Contesting a Will:

Interested parties may challenge a will either before or after probate if they believe the will is not legally valid. In determining whether a will is valid, the Court may consider whether:

a.       The Testator had testamentary capacity to make the will;

b.       The will was indeed the last will made by the Testator or alternatively, whether it was altered after it was executed; or

c.       There was any undue influence applied to the Testator at the time of execution.

Lack of Testamentary Capacity:

The Testator must have had the mental capacity to understand the nature and effect of their will. A will may be challenged if evidence can be adduced demonstrating that the deceased, at the time of executing their will, lacked the requisite mental capacity and was thereby unfit to create the will.

Undue Influence:

The will must not have been made under any pressure or manipulation from another person. Significantly, if a person who has assisted the Testator in making the will stands to benefit greatly from its provisions, that person may be required to prove to the Court that there was no trickery, pressure, force or fear involved in the making of the will. In these instances, a court will only overturn a will on the grounds of undue influence where it is satisfied that the Testator’s mind was coerced to such an extent that the resulting will was contrary to the Testator’s instructions.

Fraud or Forgery:

The will is suspected to be fraudulent or forged. Fraud can often arise where an individual prepares a will which contains clauses that provide a benefit to the individual and arranges for the Testator to execute the will without the Testator completely understanding the content of the will. Fraud is distinct from undue influence as it is the result of misleading or deceptive conduct which results in the Testator executing a will they didn’t truly understand.

Family Provision Claims:

In addition, eligible persons may apply for a Family Provision Claim under the Succession Act 2006 (NSW) requesting a larger portion of the estate of the Testator for maintenance, education, or advancement of life. This application is able to be made whether or not the eligible person has been left entirely out of the will or if they just believe they have not received assets they are entitled to.

Who is eligible to make a Family Provision Claim?

An individual can apply for a Family Provision Claim if:

• They fall under the definition of an eligible person pursuant to section 57(1) of the Succession Act 2006 (NSW), these being:

o   The spouse of the Testator.

o   Person living with the Testator in a de facto relationship.

o   Child of the Testator.

o   Former spouse of the Testator.

o   Person who was wholly or partly dependent on the Testator and a member of the same household.

o   Grandchild who was wholly or partly dependent on the Testator.

o   Person who was living in a close personal relationship with the Testator.

Under the Succession Act 2006 (NSW) a close personal relationship is defined as a close personal relationship (other than marriage or de facto) between two adult persons, whether or not related by family, who are living together, one of each of whom provides the other with domestic support and personal care. This care must not be provided for a fee or reward or on behalf of another person or an organisation.

Notably, section 60(2) of the Succession Act 2006 (NSW) sets out 16 matters which the court is able to consider when making its decision, which include:

• Any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship.

• The financial resources and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate.

• The age of the applicant when the application is being considered.

• The financial circumstances of the other person.

  
  

Time Limits on Contesting a Will

Under section 58 of the Succession Act 2006 (NSW) a will can be contested within 12 months of the Testator’s death and whether or not the administration of the estate of the deceased has been granted. If an application is not filed within 12 months and the other party does not consent to the late application, then leave will need to be sought from the Court to bring an ‘out of time’ application.

Considerations for Contesting a Will

When considering contesting a will, it is important to:

• Seek legal advice from a qualified lawyer.

• Gather evidence to support your claim, including financial records or documentation of your relationship with the deceased.

• Consider the size of the estate and the potential impact on other beneficiaries.

• Consider the emotional and financial impacts associated with contesting a will.

Contesting a will can be a complex and emotionally challenging process. It is essential seek professional advice at the outset of your dispute to understand your options and be guided through the process.

ABOUT THE AUTHOR

Isabella Tziolis assists as a paralegal in commercial, defamation, employment and general matters and is committed to supporting BlackBay Lawyers mission of delivering exceptional legal services. Her work focuses on assisting in providing comprehensive legal support, conducting extensive research, and offering strategic guidance to clients.

Isabella is currently studying a Bachelor of Laws and a Bachelor of Arts, majoring in Politics and International Relations at the University of New South Wales. Her academic and professional experience has fostered her high attention to detail and strong analytical skills which allows her to efficiently handle high-pressure situations and contribute to effective legal strategies.

The Fabric of Fashion Law

At its core, fashion law in Australia is a patchwork of various intellectual property rights, each designed to protect different aspects of a designer’s creative output. Legally enforceable rights are essential for protecting designers’ innovation and encouraging artistic expression in fashion and design. In Australia there are multiple avenues for designers to protect their works through. These being:

Trade marks

Section 17 of the Trade Marks Act 1995 (Cth) defines a trade mark as “a sign used, or intended to be used, to be used, to distinguish goods or services dealt with or provided in the course of trade by a person from goods or services so dealt with or provided by any other person”. Notably, under section 41(1) the trade mark must be capable of distinguishing the applicant’s goods or services in respect of which the trade mark is sought to be registered. In the design world, trade marks serve to set one creator’s work apart from another’s. Registering a trade mark in this industry grants its owner exclusive legal rights to use that distinctive element for the goods it covers.

One standout example is Christian Louboutin who trade marked the signature red of their shoes (Pantone 18.1663TP). Louboutin secured this trade mark by providing compelling market evidence showing that customer’s instantly associate the red soles with their brand – proving the powerful connection between design and consumer recognition.

Importantly, a trade mark registration lasts for 10 years from its filing date and can be renewed indefinitely. Further, an Australian trade mark provides protection only in Australia. If one wishes to attain trade mark protection overseas, they may file a single international application to World Intellectual Property Organisation or directly to each foreign country.

Copyright

Copyright is a bundle of rights governed by the Copyright Act 1968 (Cth) which protects subject matter, like artistic works/designs, from being reproduced, published, or communicated to the public without the owner’s permission. In Australia this type of protection is automatic and for artistic works the protection lasts for the life of the owner, plus 70 years. Artistic works can include sketches, patterns, paintings and works of artistic craftmanship.

For example, the pattern used on a skirt may be subject to copyright protection and using the pattern for a top may be an infringement of copyright to reproduce it. In 2014 Seafolly successfully sued City Beach for copyright infringement in relation to several fabric designs used in their bikini’s. Seafolly was awarded $250,333.06 in damages as evidence presented in court showed striking similarities between Seafolly’s original fabric designs and those used by City Beach designers (Seafolly Pty Limited v Fewstone Pty Ltd [2014] FCA 321).

Significantly, in Australia copyright protection is lost once a three-dimensional design embodying the design is mass-produced, or a design right is filed.

Patents

Patents in Australia are protected under the Patents Act 1990 (Cth) and provide the owner with the exclusive right to sell the design for a set period of time. Patents give protection to new products, methods or processes but they do not apply to artistic creations. As such patents play a limited yet important role in design by protecting functional innovation but not aesthetic design.

Notably, Australian patents are only applicable in Australia. To seek patent protection overseas one must either file an international application through the Patent Cooperation Treaty application process or directly to the foreign countries.

Design Rights

If an aspect or the whole of a design is unique it can be registered under the Design Acts 2003 (Cth), thereby giving the designer protection for the visual appearance of the design. In Australia designers must undertake a two-step process to secure design right protection – registration and certification.

For a registration to be certified it must be new and distinctive compared to other designs in the world. When applying for certification, visual representations of the design are required to be produced.

It is important to note that registration initially protects designs for 5 years from the date the application was filed. After that period, you can renew the design registration for a further year. If registration is not renewed it will cease and will pass into the public domain where others are free to use it. Additionally, Australian design rights do not give protection outside of Australia. If you wish for protection in another country, then within 6 months of filing an Australian application an application can be made under the International Convention for the Protection of Industrial Property.

The Catwalk of Compliance

Not complying with intellectual property laws in the fashion industry can have serious consequences. Here, designers risk facing lawsuits for copyright infringement, trade mark violations, or design infringement. This can result in costly and protracted legal matters and potential damages. On the other hand, a lack of intellectual property protection may cause designers to lose a unique market position as competitors can freely copy their designs. Additionally, being publicly accused of copying or infringing on another’s design can place a designer into significant disrepute in the fashion industry.

Recently, in Killer Queen, LLC v Taylor [2024] FCAFC 149, the Full Court of the Federal Court held that local loungewear designer ‘Katie Perry’s’ trade mark was not valid as at the time of its registration in 2008, Katy Perry was already a “nationally and internationally famous pop star”. Because of this the trade mark was likely to deceive or cause confusion and thus amounted to trade mark infringement.

The Future of Fashion IP

As the industry evolves, so too does the legal landscape. One of the key developments reshaping the landscape is the amendment to section 17(1) of the Designs Act 2023 (Cth), which came into effect on 30 August 2021. This change introduced a 12-month grace period for filing design registration applications, allowing designers to test their creations in the market before committing to registration. This flexibility is a game-changer, especially for innovators looking to gauge public interest and commercial viability without prematurely locking in designs.

Adding to the transformation is the introduction of the Australian Fashion™ certification, a pioneering initiative aimed at revitalizing Australia’s local fashion economy. This new trade mark sets rigorous standards for fashion brands, requiring them to demonstrate their contribution to local jobs, economic growth, and sustainability. To qualify, brands must meet specific criteria: products must be Australian made and owned, employ a majority Australian workforce, and ensure their tax domicile is within the country. By encouraging designers to bring offshore manufacturing back home, the Australian Fashion™ certification serves as a badge of credibility and pride, fostering trust with consumers and boosting the local industry’s global standing.

These developments highlight the growing intersection of creativity and commerce in Australia’s design and fashion sectors. Designers now face an increasingly nuanced market, where success hinges on innovation, sustainability, and strategic planning.

In this landscape, your intellectual property strategy is more than just a protective measure—it’s a cornerstone of business growth. Seeking professional legal advice ensures your designs and business are protected, enabling designers to focus on their creativity.

As the industry evolves, staying ahead of these legal and market changes could mean the difference between blending in or standing out in the competitive world of design.

ABOUT THE AUTHOR

Isabella Tziolis assists as a paralegal in commercial, defamation, employment and general matters and is committed to supporting BlackBay Lawyers mission of delivering exceptional legal services. Her work focuses on assisting in providing comprehensive legal support, conducting extensive research, and offering strategic guidance to clients.

Isabella is currently studying a Bachelor of Laws and a Bachelor of Arts, majoring in Politics and International Relations at the University of New South Wales. Her academic and professional experience has fostered her high attention to detail and strong analytical skills which allows her to efficiently handle high-pressure situations and contribute to effective legal strategies.

In this guide, we examine the growing risk of defamation arising from AI-generated content. As tools like ChatGPT become more widely used, questions around liability, reputational harm, and the legal challenges of pursuing claims against AI platforms are increasingly relevant.

The guide provides insights into:

• When AI-generated content might be considered defamatory.

• Who is liable for harmful statements made by chatbots.

• The challenges of pursuing legal action against international AI companies.

Download the guide below:

Key Features of the ‘Same Job, Same Pay’ laws:

Equal Work = Equal Pay

The legislation provides for a host employer or its employees, labour hire workers or a union to make an application to the Fair Work Commission (Commission) for a regulated labour hire arrangement. A regulated labour arrangement order operates to compel labour hire entities to pay their workers the same “full rate of pay” at which the employees would be paid under the host employer’s enterprise agreement (or any other workplace instrument) if they were directly employed by the host employer. The “full rate of pay” is inclusive of incentive-based payments and loadings, monetary allowances and overtime or penalty rates. For the Commission to issue the order, it must be satisfied that:

• The labour hire entity supplies its employees and labour hire workers to perform work for another company (the host employer). Notably, in Application by the Mining and Energy Union [2024] FWCB 299, the Full Bench confirmed that the requirement for the performance of work for the host employer is still satisfied if “the work is performed wholly or principally for the benefit of” the host employer or a related entity of the host employer.

• An employment instrument (Enterprise Agreement, Union Agreement, etc) applies to the host employer and would apply to the labour hire workers if they were directly employed by the host employer.

Notably, as reported by the Canberra Times on 28 October 2024, “the first pay agreements to be approved by the Fair Work Commission under the changes will include wage rises for more than 2,000 cabin crew on airlines, about 200 meat workers and more than 250 miners”.

Applicability and Exceptions

The legislation applies to businesses with 15 or more employees that are covered by an enterprise agreement and use labour hire workers.

However, the legislation does not apply to small businesses, circumstances where labour hire workers provide a service rather than a labour, cases where an order would not be “fair and reasonable” (here, the Commission considers pay arrangements and the history of industrial arrangements only if parties raise them in submissions), and where the labour hire workers are covered by a training arrangement or are only working for the host company for a short period (typically three months or less).

Implications for Employers

Increased Wage Payments

Unions have demonstrated a significant propensity to capitalise on the new ‘Same Job, Same Pay’ laws with the Mining and Energy Union already making 46 applications to life the wages of an estimated 4,306 workers at 24 coal mine sites in NSW and QLD.

However, as reported by a new ACTU analysis the cost of the ‘Same Job, Same Pay’ changes to the Australian mining sector amounted to only 0.016 percent of annual profits.

Payroll Management and Audits

Employers are encouraged to conduct equal pay audits of their payroll systems to identify and rectify any discrepancies in remuneration among labour hire workers and permanent employees.

Compliance and Transparency

Notably, under the ‘Same Job, Same Pay’ laws, the host employer must provide relevant wage and pay information where they are potentially subject to a labour hire order so that the labour hire entity is able to comply with the order by providing the accurate rate of pay.

A host employer or labour hire entity which attempts to abrogate or avoid their obligations under the new laws will face anti-avoidance measures.

Looking Ahead

1 November 2024 represented a significant shift in labour hire practises across Australia. By addressing wage disparities and promoting equitable treatment, the ‘Same Job, Same Pay’ have the potential to reshape the Australian labour market, fostering a more inclusive and fair work environment.

ABOUT THE AUTHOR

Isabella Tziolis assists as a paralegal in commercial, defamation, employment and general matters and is committed to supporting BlackBay Lawyers mission of delivering exceptional legal services. Her work focuses on assisting in providing comprehensive legal support, conducting extensive research, and offering strategic guidance to clients.

Isabella is currently studying a Bachelor of Laws and a Bachelor of Arts, majoring in Politics and International Relations at the University of New South Wales. Her academic and professional experience has fostered her high attention to detail and strong analytical skills which allows her to efficiently handle high-pressure situations and contribute to effective legal strategies.

The Court’s Ruling

On 21 October 2024, Justice Michael Lee ruled that Qantas would be required to pay compensation to illegally sacked workers on varying degrees based on individual circumstances, specifically the hardship and distress caused by Qantas’ unlawful termination. The ruling underscores the significance of compensating workers not only for economic losses but also for the broader impacts of Qantas' actions on their livelihoods. Here, it was held that the compensation is to be limited to twelve months following the outsourcing decision, and that non-economic compensation amounts would be based on each of the test cases of $30,000, $40,000 and $100,000.

“I consider that the … amounts of compensation for non-economic loss reflect the harm sustained by each of the three individuals in a way that is appropriate, just and rational”, Justice Lee said.

Justice Michael Lee has also encouraged Transport Workers Union and Qantas to resolve any outstanding issues of compensation stating, “it may be a triumph of hope over expectation, but my desire is for the Court to move quickly to resolve any penalty and the balance of compensation issues”.

Background of the Case

This decision comes after a protracted legal battle stemming from Qantas’ decision to outsource ground handling operations between November 2020 and March 2021 (during COVID-19), effectively terminating the employment of almost 1,700 workers at eleven airports. Although Qantas justified the terminations due to cost-cutting measures necessitated by COVID-19 flight restrictions, Qantas did not replace the employee’s once the restrictions had ceased and instead continued to outsource ground handlers. In 2023, the High Court ruled in Qantas Airways Limited & Anor v Transport Workers Union of Australia [2023] HCA 27 that this conduct was illegal.

Qantas Response

On 21 October 2024, in accepting the Federal Court’s decision, Qantas released a public statement apologising to the affected former employees. Qantas Group Chief Executive Officer Vanessa Hudson stated, “We sincerely apologise to our former employees who were Impacted by this decision, and we know that the onus is on Qantas to learn from this”. Qantas has sought assistance from Transport Workers Union to expedite the compensation and has commenced undertaking an actuarial review to develop an estimate of the total compensation amount payable.

Notably, in its 2024 financial year results, released in August 2024, Qantas reported a full-year profit of $1.25 billion and had allocated $230 million in customer-restoration initiatives and provisions for penalties for the illegal sacking of ground handlers. Transport Workers Union has estimated the potential total compensation payout to be at around $100 million.

Broader Implications

The decision sends a strong message to corporate Australia about the consequences of unlawful employee termination. It highlights that adhering to labour laws, even during challenging economic times is of upmost importance and its abrogation incurs significant financial penalties.

What’s Next?

The Federal Court has ordered both parties to enter mediation and to use the three ‘test cases’ as a guide for determining compensation for all affected former employees. A separate hearing will be held at a later date to determine penalties, potentially bringing closure to a protracted legal dispute which has lasted over four years.

Justice Lee’s judgement not only vindicates the affected former employees, but also importantly underscores the power of collective action in protecting employee rights. As the aviation industry continues to recover from the impact of COVDI-19, this case will likely influence future labour relations and corporate decision making in Australia.

ABOUT THE AUTHOR

Isabella Tziolis assists as a paralegal in commercial, defamation, employment and general matters and is committed to supporting BlackBay Lawyers mission of delivering exceptional legal services. Her work focuses on assisting in providing comprehensive legal support, conducting extensive research, and offering strategic guidance to clients.

Isabella is currently studying a Bachelor of Laws and a Bachelor of Arts, majoring in Politics and International Relations at the University of New South Wales. Her academic and professional experience has fostered her high attention to detail and strong analytical skills which allows her to efficiently handle high-pressure situations and contribute to effective legal strategies.

The Rise of Shareholder Activism in the Digital Age

The prevalence of social media and online platforms has provided shareholder activists with unprecedented tools to influence corporate decision making and challenge the status quo. FTI Consulting Study (2024) found that 80% of investors believe shareholder activists will increasingly leverage social media to target companies and that only 11% are confident that companies are adequately prepared to defend themselves on social media platforms.

In Australia, online platforms like Hot Copper have been utilised by shareholder activists to launch powerful political ‘fact moshing’ campaigns designed to damage the reputation of corporations, their executives and board members on a public platform. The public nature and accessibility of many of these forums facilitates the spread of defamatory publications and the ability to criticise, which therefore increases the risk of reputational damage to the corporation and even that of its officers, employees or agents.

So, what is political shareholder fact moshing? Dragan Gasic of our office colourfully describes it as:

“Well, what do you do when you have a nugget of truth about a company that you want to twist for your anti director shareholder agenda? All you have to do is toss it into an online platform, add a heap of nonsense, season generously with exaggeration, decorate with outrage to catch audience attention, and don’t forget to add a pinch of panic for flavour. Stir vigorously and let it marinate online just long enough for it to seep into those public echo chambers, and voila – you have just created for your audience a steaming pile of disinformation dressed up as a delectable chocolate custard cake. It might stink to high heaven, but boy, will it look tempting!”

Interestingly, in Canada anti-SLAPP (Strategic Litigation Against Public Participation) legislation has been adopted to prevent the use of defamatory tactics. This legislation developed to prevent certain interest groups from weaponising strategic lawsuits to silence their critics for damaging communications made in the public interest, can be used by shareholder activists to challenge the defamation claims.

The Defamation Dilemma

Australia’s strict defamation laws pose a formidable challenge for activists who must carefully navigate the line between legitimate criticism and potentially defamatory statements.

On the other hand, companies whose officers, employees or agents have been specifically ‘defamed’ are, subject to having the requisite standing, able to use defamation laws as a potential shield or remedy against aggressive activist campaigns designed to obliterate reputation.

However, legal proceedings can result in the need to produce and reveal internal company information, and this can carry risk, result in the disclosure of sensitive information and potentially increase reputational damage. Additionally, pursuing claims can be construed as an attempt to silence legitimate criticism, thus damaging the company’s public image as open and responsive to shareholder concerns. It is also important to understand that defamation proceedings are a costly and time intensive process.

Key Considerations of the Defamation Act 2005 (NSW)

Truth as a Defence

In New South Wales, pursuant to section 25 of the Defamation Act 2005 (NSW), truth is a complete defence against defamation claims. This means that if a shareholder activist circulates substantially truthful statements about a director’s or boards conduct or decisions, even if these statements are reputationally damaging and have incurred serious harm, they can overcome claims of defamation.

Qualified Privilege

Section 30 of the Defamation Act 2005 (NSW) provides a defence of qualified privilege for the provision of certain information. This is relevant as communications made in certain contexts, such as during shareholder meetings or in documents filed with federal or state regulatory authorities, may be protected by the privilege. This defence provides a limited protection for statements made reasonably and without malice, even if the substance of the communication is false.

Limitations for Companies

In New South Wales, companies with more than 10 employees cannot sue for defamation. This limits the ability of corporations to use defamation claims to silence criticism. This does not however prevent an officer or employee suing for defamation if that individual is identified in the publication and defamed and meets the requirements for a claim under the Defamation Act 2005 (NSW).

Other potential actions for corporations can include claims for misleading and deceptive conduct in trade or commerce under Australian Consumer Law, or an action for injurious falsehood.

The Way Forward

The increasing intersection of shareholder activism and defamation law necessitates a thorough understanding of the legal landscape for both corporations and activists. As this arena evolves, particularly given defamation laws are not uniform across Australian states and territories, it becomes crucial for all parties to remain well-versed in the latest legal developments.

In this dynamic environment, seeking expert legal advice before engaging in or responding to activist campaigns has become more important than ever. By adopting a well-informed and anticipatory approach, corporations and activists can play a pivotal role in fostering corporate transparency and accountability. Doing so not only advances their respective goals but importantly assists in mitigating legal risk. This diligence contributes to a more robust and responsible corporate environment, where constructive engagement can thrive within the bounds of legal propriety.

ABOUT THE AUTHOR

Isabella Tziolis assists as a paralegal in commercial, defamation, employment and general matters and is committed to supporting BlackBay Lawyers mission of delivering exceptional legal services. Her work focuses on assisting in providing comprehensive legal support, conducting extensive research, and offering strategic guidance to clients.

Isabella is currently studying a Bachelor of Laws and a Bachelor of Arts, majoring in Politics and International Relations at the University of New South Wales. Her academic and professional experience has fostered her high attention to detail and strong analytical skills which allows her to efficiently handle high-pressure situations and contribute to effective legal strategies.

AI Discrimination and Bias: A Major Legal Risk 

One of the most significant concerns with using AI in recruitment is the potential for unlawful discrimination. Australian laws like the Racial Discrimination Act 1975 (Cth), Sex Discrimination Act 1984 (Cth), and Age Discrimination Act 2004 (Cth) prohibit discrimination based on attributes such as race, gender, or age. These regulations apply to AI systems just as they do to human decision-makers. If an AI tool inadvertently discriminates against a candidate based on a protected attribute, the employer can be held liable, even if the discrimination was unintentional. 

The risk often arises from the AI system’s training data. If the data used to build the AI model reflects past hiring biases—such as a preference for male candidates in senior roles—the AI may replicate these biases in future decisions, disadvantaging female candidates. A prominent example is Amazon’s AI recruitment tool, which was discontinued after it was found to favour male applicants because it had been trained on a data set that skewed heavily towards men. 

To mitigate this risk, employers should conduct regular audits of their AI systems to identify and correct any discriminatory patterns. Retraining AI models using balanced data and implementing human oversight in key decisions are also critical strategies to prevent biased outcomes. 

The "Black Box" of Transparency and Accountability 

AI systems, particularly those using complex machine learning algorithms, can function like a “black box,” making it difficult for even the developers to understand how decisions are made. This lack of transparency becomes a serious legal issue if a candidate challenges a hiring decision or lodges a complaint of discrimination. 

Under the Fair Work Act 2009 (Cth) and various anti-discrimination laws, candidates are entitled to understand the reasons behind employment decisions that impact them, especially if they believe they were treated unfairly. If an employer cannot provide a clear, understandable explanation for why a candidate was rejected—because the AI’s decision-making process is too opaque—they could be held liable. A lack of transparency not only complicates compliance but also undermines trust in the business. 

Privacy and Data Protection Concerns 

AI recruitment tools often require large amounts of candidate data to operate effectively, which can raise privacy and data protection issues. Under Australia’s Privacy Act 1988 (Cth), employers must collect only the data necessary for recruitment, store it securely, and use it for legitimate purposes as outlined in the Australian Privacy Principles (APPs). 

But how does AI get this information?

Many systems go beyond basic resume data by gathering information from various online sources. For example, AI tools can automatically pull data from social media profiles like LinkedIn, professional websites, or other public databases. In some cases, AI may collect insights from candidates’ social media posts or blogs, including topics related to their interests, experiences, or community activities. 

More sophisticated AI tools can even make inferences about personal attributes, including health, by analysing language patterns or detecting mentions of health-related topics in public posts. For instance, if a candidate has shared articles on mental health or participated in charity events for specific illnesses, the AI might flag these as potential indicators. This ability to piece together information from different sources means that, even if employers don’t intentionally seek out sensitive data, AI may inadvertently collect or infer it. 

To prevent privacy breaches, businesses must inform candidates clearly about what data is being collected, obtain their consent where needed, and ensure that both their own AI tools and any third-party providers fully comply with Australia’s privacy regulations. 

The Future of AI Regulation in Employment 

As AI continues to develop, regulators are placing more scrutiny on its use in hiring. The European Union’s proposed AI Act classifies employment-related AI tools as “high risk,” enforcing stringent compliance requirements. Australia may implement similar regulations, potentially reshaping how businesses can use AI in recruitment. 

To stay ahead, employers should establish strong compliance frameworks, keep up with legislative changes, and follow best practices to mitigate potential liabilities as the regulatory environment evolves. 

ABOUT THE AUTHOR

Julie Mehrdawi is a passionate and dedicated member of our team, excelling in Commercial Litigation, Corporate Law and Regulatory Advice, Employment Law and Defamation Law. Julie’s commitment to staying at the forefront of legal advancements in our clients' industries ensures she is able to successfully identify and mitigate legal risks, safeguarding our clients interests.

​

Julie’s takes great pride in her approachable nature, which allows her to collaborate closely with clients and provide tailored, expert legal advice and representation that allows her clients to succeed.

Julie is able to leverage her diverse background and think outside the box to deliver comprehensive, pragmatic, and holistic solutions for her clients in every area of law.

According to the ACCC, Woolworths and Coles raised prices on various products by at least 15%, before relabeling them with promotional slogans such as ‘prices dropped’ (Woolworths) and ‘Down Down’ (Coles). These slogans, which typically imply a lasting reduction in prices, were allegedly misleading, as the so-called promotional prices were the same or higher than the previous regular price.

The ACCC stated that they identified this conduct through social media monitoring and consumer feedback, which led to a comprehensive investigation leveraging compulsory powers. It found that 266 Woolworths products over a 20 month period and 245 Coles products over 15 months were included in this pricing strategy. Products affected included everyday household brands like Kellogg's Cereal, Arnott’s Tim Tam biscuits, Palmolive dishwashing liquid and Sprite soft drink. The ACCC estimates that Coles and Woolworths sold tens of millions of products using this method and generated significant profits.

The proceedings brought by the ACCC serves as notice to other retailers that such conduct will not be tolerated. In 2022, the maximum penalty for breaches of the ACL was increased, whereby companies can face a penalty greater of $50 million or three times the value derived from the relevant breach. If the value derived from the breach cannot be determined, the penalty is 30% of the company’s turnover during the period it the conduct occurred.

As consumers unknowingly continue to pay the same or even higher prices under the guise of discounts, their confidence in retail pricing is eroded, and fair market competition is distorted, prompting the need for an investigation into these practices.

For more details, read the full ACCC media release here:

ACCC Takes Woolworths and Coles to Court

ABOUT THE AUTHOR

Olivia Chen handles commercial, defamation, employment, and general matters. Her work focuses on providing comprehensive legal support, conducting in-depth research, and offering strategic guidance to clients. As a paralegal, she is essential in making sure everything is well and ensuring seamless operations for our clients. Additionally, she plays a key role in our marketing efforts, using her legal expertise to craft engaging content and promote our firm's services to a wider audience.

The Stage 2 amendments introduced in Victoria align with those implemented on 1 July 2024 by NSW and ACT. You can read BlackBay Lawyers’ explanation of the 1 July 2024 implementation here.

Tasmania appears to be the next to follow suit, having tabled the draft legislation to parliament on 17 September 2024, which mirrors the amendments made in NSW, VIC and ACT. At the time of writing, South Australia and Queensland are yet to introduce draft legislation. The South Australian Attorney-General Kyam Maher said in parliament in May 2024 that the reforms were progressing, however indicated “we are not implementing all the reforms that deal with other things to do with internet publishing and technical and complicated areas.” We haven’t heard much from Queensland since Stage 2 closed for submissions in October 2022.

Notably, Western Australia and the Northern Territory have seen no changes to their defamation laws since their enactment in 2006.  This means no mandatory concerns notices, serious harm threshold, public interest defence, or cap on damages for non-economic loss apply in those jurisdictions.

A foreseeable risk arising from the current lack of uniformity in the laws across the States and territories is prospective plaintiff’s ‘jurisdiction shopping’ so as to avail themselves of any tactical advantages that arise in that jurisdiction. Understandably this is likely to arise where the publication of concern is accessible to be viewed or downloaded Australia-wide and where serious harm might not be able to be proved as readily in the jurisdiction to which the prospective plaintiff is connected or has some nexus. However, one uniform provision in Australian defamation laws is s 11 ‘Choice of law for defamation proceedings’. Effectively, where a defamatory matter is published in more than one Australian jurisdiction, the applicable law is where the harm caused by the publication has its closest connection.

A lesson for ‘jurisdiction shoppers’ flows from Bartlett v Roffey [2023] WASC 3. Mr Bartlett did not serve a Concerns Notice prior to commencing defamation proceedings in Western Australia against the directors of a Melbourne football club,. Before serving a Defence, the defendants sought to transfer the proceedings to Victoria, submitting that Victoria was the correct venue and presented the correct choice of law. The Court agreed, noting that the events and publications overwhelmingly occurred in Victoria, as did the location of witnesses. In its decision to transfer the proceedings, the Court expected the substantive law of Victoria would apply.

The State by State disparity in the defamation laws will continue to pose interesting jurisdictional considerations particularly whilst the remaining States and Territories remain slow in adopting even the Stage 1 reforms. Because of the lack of uniformity, complainants or prospective plaintiffs and those needing to response to a claim of defamation being made against them should seek legal advice to understand precisely which laws apply within the relevant jurisdictions and act accordingly.

For insights into the Defamation Law Reforms following recent high profile cases such as Ben Roberts-Smith and Bruce Lehrmann, read our earlier article ‘Reflections on Landmark Defamation Cases and Legal Reforms’.

ABOUT THE AUTHOR

Sally Westlake is a commercial generalist with an impressive record across litigation, transactional and advisory matters.

She has niche expertise in copyright gained from her in-house career at APRA AMCOS and is experienced in the negotiation and drafting of agreements. Since moving to private practice she’s focused on commercial disputes and litigation, having appeared in the District and Supreme Courts of New South Wales, advised high-profile individuals in defamation matters, directors in insolvency litigation, and assisted the defence of a large corporation in a class action lawsuit.

Empathetic yet competitively driven, she is a fierce advocate for her clients and is committed to achieving their best outcomes.

This is Part 1 of an ongoing series dedicated to unpacking the intricacies of International Commercial Arbitration.

As a member state of the international arbitration community, with a demonstrated pro-recognition and enforcement jurisdiction, Australia’s Federal Court is an attractive setting to resolve cross-border International Commercial Arbitration disputes.

International Commercial Arbitration is defined by the Attorney-General’s Department to be a private dispute resolution process in which parties from different countries choose to have their disputes decided by one or more arbitrators, without the involvement of the courts of a particular country.

Governing Legislation

Australian courts involvement in International Commercial Arbitration is governed by the International Arbitration Act 1974 (Cth) (IAA) which designates UNCITRAL Model law as the preferred procedural law and outlines the mandatory procedures for all International Commercial Arbitration proceedings in Australia.

The IAA additionally implements Australia’s obligations under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the Convention on the Settlement of Investment Disputes between States and Nationals of Other States.

Defining Features of International Arbitration

Choice: Arbitration allows both parties to appoint specialist arbitrators to meet their needs and allows the parties to choose the governing law of the contract, the venue of the arbitration and the language of the arbitration.

Confidential: Arbitration is primarily a confidential process (with exceptions) with the decisions of tribunals, including the award, not often being published or made public. However, it is important to note that there is no implied obligation of confidentiality in arbitrations in Australia.

Consensual: Arbitration is a consensual and voluntary process. An Arbitral Tribunal only has jurisdiction if all the parties to the dispute have agreed to submit their dispute to arbitration. This agreement is typically done through the insertion of an arbitration clause into their agreement.

Enforceability: In theory, an arbitration award can be enforced against the 172 signatories of the New York Convention. In comparison, when engaging in litigation there is no equivalent of the New York Convention and parties instead must rely upon reciprocal agreements in place.

Finality: An award in arbitration is equivalent to a judgement in litigation. It is ‘final and binding’ and generally cannot be challenged except in very limited circumstances.

Australia’s Stance on International Arbitration

Australian courts typically demonstrate a pro-arbitration approach to the interpretation of arbitration clauses. In Rinehart v Hancock Prospecting Pty Ltd [2019] HCA 13, it was held that arbitration clauses are to be construed widely, taking into account the language used, surrounding circumstances and the contracts’ purpose.

Although Australia has a liberal approach in interpreting arbitration agreement, parties still must ensure care when drafting arbitration agreements. Please contact our team if you would like assistance.

Australian courts also demonstrate a pro-enforcement jurisdiction as highlighted in Guoao Holding Group Co Ltd v Xue (No 2) [2022] FCA 1584. Here, the court reaffirmed the high threshold requirement for Australian courts to refuse to enforce a foreign award on public policy grounds being that ‘the award must be so fundamentally offensive to that jurisdiction’s notions of justice that, despite its being a party to the Convention, it cannot reasonably be expected to overlook the objection’. However, where there is an established ground for doing so Australian courts will refuse to recognise and enforce an award. For example, the enforcement of the arbitration award was refused in Hub Street Equipment Pty Ltd v Energy City Qatar Holding Company [2021] FCAFC 11 as the arbitral tribunal was not appointed in accordance with the agreement of the parties.

Why is International Arbitration Relevant?

Foreign companies negotiating terms of contracts for their overseas operations often use International Commercial Arbitration as an alternative to court litigation when  disputes arise. This is because arbitration is a favoured method for resolving International Commercial Disputes as it enables both parties to agree that when a dispute arises, a neutral and respected third party will be appointed to resolve their dispute in a desired venue, with a particular set of laws to give the arbitration its legal basis and a separate set of laws with which the dispute will be resolved.

The significance of International Commercial Arbitration is demonstrated in the ACICA report ‘Reflections on the Last Decade of Activity at ACICA’ (2022) which highlighted that between 2011 and 2021:

• ACICA has been involved in arbitrations concerning $24 billion;

• Of the $24 billion, energy and resource disputes accounted for $18.8 billion;

• 39% of ACICA cases had at least one party not based in Australia; and

• Between 2017-2019 there were 223 active arbitrations with an ‘Australian connection’ for a combined value in excess of $35 billion.

I Need Advice on International Commercial Arbitration

If you find yourself in a position requiring advice on International Commercial Arbitration, please contact our team.

ABOUT THE AUTHOR

Isabella Tziolis assists as a paralegal in commercial, defamation, employment and general matters and is committed to supporting BlackBay Lawyers mission of delivering exceptional legal services. Her work focuses on assisting in providing comprehensive legal support, conducting extensive research, and offering strategic guidance to clients.

Isabella is currently studying a Bachelor of Laws and a Bachelor of Arts, majoring in Politics and International Relations at the University of New South Wales. Her academic and professional experience has fostered her high attention to detail and strong analytical skills which allows her to efficiently handle high-pressure situations and contribute to effective legal strategies.

This detailed resource covers the recent updates to the Privacy Act, from new doxxing penalties to stronger data protection measures. Ensure you’re up to date with the latest legal changes in privacy law.

A common question among consumers is whether you can get a refund for a product that doesn't meet your expectations or is faulty.

This article breaks down your rights, the steps to take, and tips to ensure you are protected in 2024.

Understanding Your Rights Under ACL

The ACL provides robust protections for consumers, ensuring that businesses cannot evade their responsibilities when it comes to the quality and suitability of their products and services. Here's what you need to know:

When Are You Entitled to a Refund?

Under the ACL, you are entitled to a refund if the product you purchased:

• Is faulty or has a serious defect: If the product is significantly different from what was described or expected, it is considered to have a major fault. For example, a smartphone that fails to turn on after charging would have a major fault.

  
  

• Does not do what it is supposed to do: This applies where the product does not fulfill the purpose for which it was bought, such as a printer that consistently jams and cannot print documents.

  
  

• Is unsafe: If the product poses a safety risk, like an electric kettle that sparks when turned on, it is considered faulty.

  
  

• Is not as described: If the product does not match its description, such as a silk dress that is manufactured from cotton, you can claim a refund.

  
  

• Does not fit the intended purpose: If you specifically communicated your need for a product to function as represented to the seller, and it fails to meet that need (i.e, buying a waterproof jacket that turns out to be water-resistant), you are entitled to a refund.

  
  

• Does not last a reasonable length of time: A product must function or last for a reasonable length of time. For example, if you purchase shoes that fall apart within the first few days of wear, these are considered to be faulty.

  
  

These rights are provided for under sections 54-59 of the ACL, which is contained within Schedule 2 of the Competition and Consumer Act 2010 (Cth).

Situations Where a Refund May Not Be Available

There are situations where you might not be entitled to a refund:

• Change of mind: If you simply change your mind about a purchase, businesses are not legally required to provide a refund unless refunds are provided for as part of their return policies.

  
  

• Damage due to misuse: If the product was damaged due to misuse or failure to follow the care instructions, you may not be entitled to a refund.

  
  

• Minor faults: If the issue with the product is minor, the seller can opt to repair the product instead of offering a refund.

  
  

What Are Your Options?

If you are entitled to a remedy under the ACL, you can request:

1. A refund: A full return of the purchase price.

2. A replacement: A new product of the same type.

3. A repair: Fixing the product to bring it up to the expected standard.

   
   

The choice of remedy often depends on the nature of the fault. For major faults, you can choose between a refund, replacement, or repair. For minor faults, the seller can choose to repair the product first.

Steps to Take If You Need a Refund

If you believe you are entitled to a refund, follow these steps:

Step 1: Gather Evidence

Before approaching the seller, gather all necessary evidence, including receipts, bank statements, photographs of the fault, and any correspondence with the seller. This documentation will support your claim.

Step 2: Contact the Seller

Start by contacting the business directly, either in person, by phone, or via email. Clearly state the problem, your rights under the ACL, and the remedy you are seeking (refund, replacement, or repair).

Step 3: Lodge a Complaint if Necessary

If the seller refuses to acknowledge your rights, you can lodge a complaint with your State or Territory’s consumer protection agency, such as NSW Fair Trading or Consumer Affairs Victoria.

Step 4: Consider Escalation

If the issue remains unresolved, consider escalating the matter to the Australian Competition and Consumer Commission (ACCC) or taking legal action through the appropriate small claims tribunal. The ACCC is responsible for enforcing the ACL and can provide guidance on how to proceed.

Tips for Ensuring Your Rights Are Protected

Tip 1: Know the Return Policy

While the ACL provides certain protections, businesses may offer return policies that extend beyond the minimum statutory requirements. Always check the store’s return policy before making a purchase, especially for items on sale or clearance.

Tip 2: Act Quickly

If you notice a fault, act quickly. The sooner you address the issue, the better your chances of securing a favourable outcome.

Tip 3: Be Informed

Stay informed about your rights under the ACL. The ACCC’s website is an excellent resource for up-to-date information and guidance. Visit the ACCC’s Consumer Rights & Guarantees page for more details.

Tip 4: Keep Records

Always keep your receipts and any correspondences with the seller. These records are crucial if you need to escalate your claim.

Common Myths About Refunds

Myth 1: You Need the Original Packaging

There is a common misconception that a refund can only be granted if you return the item in its original packaging. This is not true. While original packaging can be helpful, it is not required under the ACL.

Myth 2: You Must Accept a Store Credit

Businesses cannot force you to accept a store credit instead of a refund when you are entitled to one. You have the right to request a full refund in the original form of payment.

Myth 3: Sale Items Are Exempt from Refunds

Even if a product is purchased on sale or discounted, you still have the same statutory rights under the ACL. Faulty goods must be refunded or replaced, regardless of whether they were bought on sale, unless the defect was expressly identified by the seller as the reason for the sale or discount.

Conclusion

Understanding your rights under the Australian Consumer Law is essential to ensuring that you are protected when making purchases. Whether dealing with a faulty product or an item that doesn’t meet its description, knowing when you are entitled to a refund, replacement, or repair empowers you to act confidently and assertively. By following the steps outlined above and staying informed, you can navigate the refund process smoothly and protect your consumer rights.

Remember, while businesses have obligations under the law, it is up to you to be proactive in asserting your rights. If ever in doubt, don’t hesitate to seek advice or escalate the matter to the appropriate authorities.

ABOUT THE AUTHOR

Julie Mehrdawi is a passionate and dedicated member of our team, excelling in Commercial Litigation, Corporate Law and Regulatory Advice, Employment Law and Defamation Law. Julie’s commitment to staying at the forefront of legal advancements in our clients' industries ensures she is able to successfully identify and mitigate legal risks, safeguarding our clients interests.

​

Julie’s takes great pride in her approachable nature, which allows her to collaborate closely with clients and provide tailored, expert legal advice and representation that allows her clients to succeed.

Julie is able to leverage her diverse background and think outside the box to deliver comprehensive, pragmatic, and holistic solutions for her clients in every area of law.

The prevalence of allegations of workplace bullying, including applications to the Fair Work Commission (the FWC) to make orders to stop bullying, underscores the need for employers to maintain effective mechanisms to address bullying, and allegations of bullying, in the workplace.

A recent decision delivered by the FWC on a case of alleged workplace bullying sheds light on the legal framework surrounding workplace bullying in Australia and provides valuable insights into addressing and preventing bullying in the workplace.

Case Summary

In a recent case brought before the FWC, Kristy-Lee Brinkworth (Ms Brinkworth) made an application under s 789FC of the Fair Work Act 2009 (Cth) (the FW Act) for anti-bullying orders to be made against her employer, Neighbourhood Retail Pty Ltd (the Company), within the South Bunbury Marketplace. Ms Brinkworth joined two of her colleagues to her application; Teresa Jackway (Ms Jackway), the Produce Manager, and Rae Whitford (Ms Whitford), the Office Manager. The Company, Ms Jackway and Ms Whitford will be collectively referred to as the Respondents in this article.

In short, Ms Brinkworth asserted that she was subjected to bullying behaviour in the workplace and the Company submitted that bullying had not occurred and that it had taken steps to ensure that bullying did not occur in its workplace. For example, the Company implemented internal policies in respect of bullying and required all management staff to undergo related training.

The FWC conducted an investigation and a determinative conference which found that Ms Brinkworth was not bullied at work and ultimately, Ms Brinkworth’s application was dismissed. However, the decision is significant as the FWC considered the ambit of sections 789FC, 789FD and 789 FF of the FW Act, undertaking a detailed analysis of the submissions and evidence of each party in applying the relevant provisions of the FW Act.

Evidence and Findings

Ms Brinkworth gave extensive evidence alleging the bullying that she faced at work and similarly, the Respondents gave extensive evidence disputing this. The evidence is summarised as follows:

FWC’s power

The FWC has the power to make any order, excluding an order requiring payment of a pecuniary amount, to stop the worker from being bullied at work. To do so, the FWC must find that the three criteria in section 789FF of the FW Act are satisfied, as follows.

1.                Application made

Pursuant to section 789FF(1)(a), a worker must have made the application under section 789FC of the FW Act.

The meaning of ‘worker’ in the Work Health and Safety Act 2011 applies. The FWC did not contest that Ms Brinkworth was a ‘worker’.

Further, section 789FC allows a worker who ‘reasonably believes’ that they have been bullied at work to make an application for an order to stop bullying. The FWC did not contest that Ms Brinkworth reasonably believed that she had been bullied at work. The FWC found that Ms Brinkworth’s belief that she was bullied at work was evident as there were clear workplace tensions between Ms Brinkworth and management at the Company, and that the relationship between Ms Brinkworth and Ms Jackway had deteriorated.

2.                Bullying at work

The FWC must be satisfied that the worker has been bullied at work, pursuant to section 789FF(1)(b)(i) of the FW Act. The definition of being ‘bullied at work’ is laid out in section 789FD of the FW Act.

Section 789FD of the FW Act provides the definition for workplace bullying that the FWC must consider. Section 789FD provides that a worker is considered to have been bullied at work if, while they are at work in a constitutionally covered business, they experience repeated and unreasonable behaviours from an individual or group of employees, and those behaviours create a risk to the health and safety of that worker (our emphasis).

Reasonable management action carried out in a reasonable manner is expressly excluded from the ambit of s 789FD.

In deciding Ms Brinkworth’s application, the FWC found that although each witnesses’ recollections of conversations differed, they each generally agreed about the events that occurred and they each spoke genuinely about their perspectives and frustrations.

The FWC referred to Deputy President Easton’s decision in the case of Application by Mr Matthew Egan [2023] FWC 3299, highlighting that “tone and context is everything” and that the FWC is often required to determine whether “words and messages sent and received at work were innocent, innocuous, offensive, destructive, and so on”. “Innocent or innocuous” words can convey “offensive or destructive” messages depending on context and tone and vice versa, offensive or destructive messages can be “coated in innocuous or innocent words” or “delivered in the most pleasant or professional of tones”. Accordingly, the FWC must apply an objective test: “behaviour is unreasonable if a reasonable person, having regard to all the circumstances, may consider it to be unreasonable”.

In Ms Brinkworth’s application, the FWC found that many of the differences in the interactions between the witnesses arose from their differing perceptions of interactions. Ultimately, in its consideration of the evidence and all the circumstances, the FWC found that the Respondents had not engaged in bullying behaviour.

3.                Continuing bullying

The FWC must be satisfied that there is a risk that the bullying at work will continue, pursuant to section 789FF(1)(b)(ii) of the FW Act.

The FWC emphasised that it can only intervene and make anti-bullying orders if it determines that there is a risk of future bullying. Without such a risk, the FWC is not empowered to issue orders aimed at improving or repairing relationships in the workplace.

In this case, even if it had been established that Ms Brinkworth experienced bullying at the Company’s workplace, the FWC would not have found, at the date of its decision, that there was a current risk of ongoing bullying. Ms Brinkworth had been absent from work for several months and was only recently certified as fit to return to work. Additionally, the Company had implemented new training for managers and updated its bullying and grievance policies. In light of these factors, the FWC did not find that there was a risk of future bullying.

Orders sought

Although the criteria in section 789FF of the FW Act was not met, the FWC provided an analysis on the orders sought and the orders that could have been made if the criteria in section 789FF of the FW Act had been met.

Ms Brinkworth sought the following orders:

(a)    An overhaul of the Company’s policies to include a clearly stated procedure for how complaints of bullying and harassment in the workplace will be acted on.

(b)   All management staff to receive training on how to act on complaints of bullying and harassment in the workplace.

(c)    To be compensated for the loss of income that has resulted from her being removed from the produce and plants sections.

(d)   To be re-instated to her former hours and position in the produce and plants sections.

(e)    A written apology from Ms Jackway, Ms Whitford and David Howlett, the Store Manager.

(f)     All communication between the Company and herself to be conducted by email going forward.

(g)    That for all meetings the Company allow Ms Brinkworth to have a support person present.

The Company contended it had already complied with (a) and (b) and would comply with (f) and (g) moving forward.

The FWC reiterated that it could not make orders in respect of (c) as this was beyond the scope of the power given to it in section 789FF of the FW Act.

The FWC determined that even if the jurisdictional prerequisites of s 789FF of the FW Act were satisfied, the FWC would have declined to make an order to re-instate Ms Brinkworth to her position. Due to the breakdown in the relationship between Ms Brinkworth and Ms Jackway, the FWC stated that such an order would not have been appropriate or helpful.

The FWC did not comment on (e).

Key Takeaways

The FWC acknowledged the genuineness of Ms Brinkworth’s distress, however, the FWC determined that this did not necessarily amount to bullying. Ultimately, the jurisdictional prerequisites of s 789FF of the FW Act were not satisfied and Ms Brinkworth’s application was dismissed.

This decision underscores the significance of addressing workplace bullying with proactive and robust measures. Specifically, employers should be mindful of:

• Intentions: The case highlights the difficulty in discerning between actions perceived as bullying and those that are legitimate management actions or misunderstandings between colleagues.

• Communication: Effective communication and conflict resolution strategies are essential in any workplace to prevent and manage tensions in the workplace. In turn, this can prevent the need for employees to lodge applications with the FWC, and the need for employers to defend such applications.

• Prevention: The Company's response to allegations of bullying is critical. In this case, the proactive implementation of steps to address the bullying allegations was considered favourably by the FWC, despite the FWC noting that the allegations were handled clumsily. Those steps included training for management staff and the implementation of workplace policies.

By understanding the nuances of such cases, employers can better address and manage workplace conflicts to prevent bullying claims from arising, and to address allegations of bullying in the workplace before they escalate.

The legal team at BlackBay Lawyers can provide specialised and detailed advice pertaining to applications for orders to stop bullying. If you represent a company requiring advice in respect of measures to address bullying in the workplace, or if you are an employee wishing to make an application to the Fair Work Commission, please feel free to contact BlackBay Lawyers on (02) 9100 0889 or via www.blackbaylawyers.com.au for a confidential discussion with one of our solicitors.

The content in this Article is intended only to provide a summary and general overview on matters of interest. It is not intended to be comprehensive nor does it constitute legal advice. It should not be relied upon as such. You should seek legal or other professional advice before acting or relying on any of the content.

ABOUT THE AUTHOR

Julie Mehrdawi is a passionate and dedicated member of our team, excelling in Commercial Litigation, Corporate Law and Regulatory Advice, Employment Law and Defamation Law. Julie’s commitment to staying at the forefront of legal advancements in our clients' industries ensures she is able to successfully identify and mitigate legal risks, safeguarding our clients interests.

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Julie’s takes great pride in her approachable nature, which allows her to collaborate closely with clients and provide tailored, expert legal advice and representation that allows her clients to succeed.

Julie is able to leverage her diverse background and think outside the box to deliver comprehensive, pragmatic, and holistic solutions for her clients in every area of law.

The changes that come into effect today will, amongst other things:

1. Protect administrators of Facebook pages and other online forums against defamation claims arising from the publication of defamatory posts by other users;

2. Exempt search engines such as Google from liability for defamation arising from non-sponsored links to websites they did not create; and

3. Provide greater protections to people making reports to police, including sexual assault complainants.

New defence for Facebook administrators

To avail themselves of the new defence under s.31A of the Act, Facebook administrators and other “digital intermediaries” must have in place an accessible complaints mechanism for the plaintiff to use and take steps within 7 days to prevent access to the defamatory post. The defence can only be defeated if a plaintiff can show that the digital intermediary “was actuated by malice in establishing or providing the online service by means of which the digital matter was published” (s.31A(4) of the Act). The new defence is a response to the High Court’s decision in Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller [2021] HCA 27 (Voller). In Voller, the High Court rejected the argument made by the media company appellants that they should not be liable for defamatory posts made by third parties on Facebook pages that they controlled.

Exemption for search engines providers

In Google LLC v Defteros [2022] HCA 27, the High Court found by a majority that Google was not liable as a publisher for including within its search results a hyperlink to a defamatory article. But if a search result or hyperlink contains material which would direct, entice, or encourage someone to click on the link, such as a “sponsored link”, the company providing such a link may be deemed to be a publisher of that underlying material.

In Duffy v Google [2023] SASC 13 the Supreme Court of South Australia confirmed that search engines and other online publishers of third-party material can be liable as secondary publishers of defamatory content when they are put on notice and fail to remove defamatory material such as snippets, hyperlinks or defamatory extracts.

The new exemption is intended to cover both search engine results that simply link to defamatory material and those which contain defamatory content in the search result. However, the exemption, according to NSW Solicitor-General Michael Sexton SC:

“is limited to situations where the search engine provider has provided an automated process for the user to generate the result or the hyperlink to the defamatory material. So, it would not cover, for example, defamatory content that is provided by the search engine provider to the user through an autocomplete suggested search term, or if the digital intermediary promotes or prioritises the search result or hyperlink because of a payment or other benefit derived from that action”.

Extension of the defence of absolute privilege to defamatory publications made to police

Complaints made to police were previously protected by the defence of qualified privilege. It is referred to as “qualified” because it is only protected if the publisher is not actuated by malice and does not use the occasion for an improper purpose. Although the defence offered broad protection to defendants from liability in defamation in respect of publications made to police, in one case in the District Court of Queensland in 2022, a defendant was found liable for defamation after complaining to a police officer about the conduct of a former lover towards her, which included unsolicited phone calls and text messages; interfering with her employment; and threatening to interfere with her university admission unless she responded to his calls and text messages. The defendant was ordered to pay $10,000 in damages but more than $500,000 in costs, bankrupting her in the process.

In November last year, BlackBay Lawyers represented the defendant’s trustee in bankruptcy in the Queensland Court of Appeal: Bill Karageozis as trustee for the bankrupt estate of Siobhan Lamb v Sherman [2023] QCA 258.

Judgment was delivered in our client’s favour on 15 December 2023. The Court of Appeal found that the defendant’s complaint was protected by common law qualified privilege and that she had not been malicious with the result that the trial result was overturned and costs were ordered in her favour.  

S. 27(2)(b1) of the Act now provides a complete immunity from lawsuits brought in respect of defamatory publications made to police, regardless of whether the publisher was unreasonable in their conduct or was actuated by malice. This is a significant change and means that a person who makes a knowingly false complaint to police for the sole purpose of defaming someone will be protected from liability in defamation. Penalties for making false reports to the police remain in place (see e.g. s 307B of the Crimes Act 1900 (NSW)). Proponents of the change argued that extending the defence of absolute privilege to complaints to police would remove a barrier to reporting.

For further information about the legislative updates to the Act, or for general advice about defamation, please do not hesitate to contact BlackBay Lawyers.

While your strategy will need to vary on a country-by-country basis, use these general strategies to avoid or mitigate international legal disputes:

Draft clear and comprehensive contracts

A well-drafted, clear and thorough contract is the bedrock of any successful business relationship.

Here’s what to include:

• Specific terms: Clearly outline the terms and conditions of the agreement. Avoid vague language to prevent misunderstandings.

• Jurisdiction and governing law: Specify which country’s laws will govern the contract and which courts will have jurisdiction in case of a dispute. If possible, designate Australia as the applicable law and jurisdiction, for familiarity and predictability.

• Dispute resolution clauses: Include provisions for arbitration or mediation as alternatives to litigation. These methods are faster and less expensive.

• Force Majeure clause: Incorporate a Force Majeure clause to cover unforeseen events like natural disasters, political instability, or pandemics that could interrupt contract performance.

Understand local customs

Do not underestimate the significance of local customs. Cultural differences can lead to misunderstandings and conflicts if not properly managed.

Use these strategies to manage cultural differences:

• Cultural training: Provide your team with training on the cultural norms and practices of the countries you’re operating in. This includes etiquette, communication styles, and business protocols.

• Respect for traditions: Show respect for local traditions and customs. This can help build strong relationships and trust with your international partners.

• Adaptation and flexibility: Be willing to adapt your business practices to align with local customs. Flexibility can prevent cultural missteps that might lead to disputes.

Understand local laws and regulations

Each country has its own set of laws and regulations governing business operations that will inevitably affect your business relationships.

Here’s what you can do:

• Hire local experts: Engage local legal and financial experts to ensure compliance with local laws and regulations.

• Stay updated Keep abreast of any changes in the legal landscape that could affect your business. Regular updates from local experts can be invaluable.

• Employee training Train your team on the legal and regulatory requirements of the countries you’re operating in.

Conduct thorough due diligence

Ensure to conduct due diligence on your potential business partners.

This includes:

• Background checks: Investigate the company’s history and financial stability. Look for any red flags, such as past litigation or financial issues.

• Legal compliance Ensure that your partner complies with local laws and regulations. Non-compliance can lead to legal issues that could affect your business.

Build strong relationships

Strong, trust-based relationships with your international partners can prevent many disputes.

Foster these relationships through:

• Open communication Maintain regular and transparent communication. Address any concerns promptly and clarify misunderstandings early.

• Mutual respect Show respect for foreign business practices and cultural norms. This helps build trust and goodwill.

• Regular check-ins Schedule regular meetings to discuss the progress of your business relationship and address any potential issues before they escalate.

Plan for alternate dispute resolution

Despite your best efforts, disputes may still arise. Planning for alternate dispute resolution can save time and money.

These strategies include:

• Negotiation: Generally, the first step in resolving an international business dispute should be to directly negotiate with your international business partners. This requires good faith efforts and clear communication. While not involving formal institutions, negotiation often benefits from the guidance of experienced legal counsel or advisers who can facilitate the process.

• Arbitration and Mediation In the event of a dispute, international arbitration and mediation are less adversarial than litigation and often lead to much faster and cheaper resolutions.

a.      Arbitration: International arbitration institutions review disputes and make binding decisions with confidence and speed. The key institutions are the International Chamber of Commerce, the London Court of International Arbitration and the Singapore International Arbitration Centre.

b.     Mediation: Mediation uses a neutral ‘mediator’ to help the parties reach a mutually acceptable agreement. It is less formal and allows for more flexible solutions. The key international mediation institutions are the International Centre for Dispute Resolution and the Centre for Effective Dispute Resolution.

Conclusion

Avoiding legal disputes when doing business overseas requires a proactive approach. By drafting clear contracts, understanding local customs, laws and regulations, conducting due diligence, building strong relationships and planning for alternate dispute resolution, you can significantly reduce the risk of conflicts and the time and money spent resolving them. These steps not only protect your business but also foster long-lasting and successful international partnerships.

For specific legal concerns, consulting with a qualified lawyer is recommended. BlackBay Lawyers are equipped to provide tailored guidance to address the unique challenges of international business.

ABOUT THE AUTHOR

Yianni Van Gelder is an accomplished member of the team, excelling in handling complex litigation cases particularly commercial, employment and defamation law. His practice primarily focuses on providing representation and legal guidance to clients involved in intricate legal disputes. 

With a strong commitment to fostering enduring relationships with his clients, Yianni employs his experience to deliver both strategic advisory services and efficient dispute resolution in court. Through meticulous attention to detail and staying abreast of the latest developments in his areas of expertise, Yianni is dedicated to shielding his clients' interests and empowering them to navigate their legal challenges with confidence and assurance.

The expansion of the unfair contract term regime (UCT) in November 2023 was a highly anticipated update to the Australian Consumer Law (ACL). The scope was expanded, penalties introduced and judicial powers enhanced, bringing greater protection to consumers and small businesses in situations of contracts with a significant power imbalance.

These recent and upcoming changes signify a pivotal shift towards fairer contractual practices in Australia. As these changes take effect, businesses must review and adjust their standard form contracts as necessary to ensure compliance with the updated UCT provisions.

To briefly recap, a contract term is unfair if it:

• causes a significant imbalance in the parties’ rights and obligations;

• is not reasonably necessary to protect the legitimate interests of the party who would be advantaged by such a term; and

• would cause detriment to a party if the term were to be applied or relied on.

and a standard form contract is:

• prepared by a business;

• contains a set of generic terms and conditions;

• not negotiated between parties; and

• presented on a 'take it or leave it' basis.

As a result of the changes a contract may now be considered a standard form contract despite:

• an opportunity to negotiate changes to minor or insubstantial terms of the contract;

• the ability to select a term from a range of options determined by the party that prepared the contract; or

• the party that prepared the contract letting a third party negotiate the terms of a different contract.

As consumers, we often enter into standard form contracts, such as for mobile phones, gym memberships, insurance, home loans, and utilities.

For small business operators, any standard form contracts made or entered into must not contain unfair contract terms if the other party is a consumer or another small business. The regime also applies to small businesses entering into standard form contracts for financial products, or the supply/possible supply of financial products or services.

By the recent changes, the definition of a ‘small business’ has expanded to include any businesses that:

• has fewer than 100 employees (previously 20); or

• makes less than $10 million in annual turnover.

Changes to the ACL and the Australian Securities and Investments Commission Act 2001 (ASIC Act) mean that UCTs now contravene these legislations. In addition to the existing factors, a court will also now consider whether and how many times the party that prepared the contract has also similar contracts with unfair terms.  

The amending legislation introduced financial penalties for businesses including or relying on an unfair contract term and granted courts greater flexibility in ordering remedies. It is now an offence to enter into a standard form consumer or small business contract that contains or seeks to rely on an unfair term.

Commenting on the reforms back in September 2023, ACCC Deputy Chair Mick Keogh said:

“The test for whether a contract term is unfair has not changed. However, businesses now could potentially face substantial penalties for contravening the law. This will better protect consumers and small businesses who have limited bargaining power, expertise, and ability to negotiate or assess standard form contracts.”

"There was previously little motivation for businesses to comply with the law, despite the ACCC’s compliance and enforcement actions. We strongly urge businesses to review their contracts now to ensure they comply."

Upcoming Fair Work jurisdiction  

In changes are set to commence 26 August 2024, amendments to the Fair Work Act 2009 will establish a new jurisdiction in the Fair Work Commission (Commission) for UCTs. The Commission will have jurisdiction to hear and resolve disputes from independent contractors earning below a high income threshold regarding the terms of their services contract. 

If the Commission is satisfied that one or more unfair contract terms exist in a services contract, an order may be made to either:

• set aside all or part of a services contract; or

• amend or vary the terms of a services contract.

In determining whether a services contract is unfair, the Commission may consider:

• the relative bargaining power of the parties;

• whether the services contract as a whole displays a significant imbalance between the rights and obligations of the parties;

• whether the contract term under consideration is reasonably necessary to protect the legitimate interests of a party to the contract;

• whether the contract term under consideration imposes a harsh, unjust or unreasonable requirement on a party to the contract;

• whether the services contract as a whole provides for total remuneration for performing work that is less than that of comparable employees or independent contractors;

• any other matters the Fair Work Commission considers relevant.

Independent contractors who earn above the contractor high income threshold will continue to have access to remedies for unfair or harsh contract terms under the Independent Contractors Act 2006.

ABOUT THE AUTHOR

Sally Westlake is a commercial generalist with an impressive record across litigation, transactional and advisory matters.

She has niche expertise in copyright gained from her in-house career at APRA AMCOS and is experienced in the negotiation and drafting of agreements. Since moving to private practice she’s focused on commercial disputes and litigation, having appeared in the District and Supreme Courts of New South Wales, advised high-profile individuals in defamation matters, directors in insolvency litigation, and assisted the defence of a large corporation in a class action lawsuit.

Empathetic yet competitively driven, she is a fierce advocate for her clients and is committed to achieving their best outcomes.