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Procurement (enforceable procurement provisions) direction 2019 - NSW - “Clayton’s” protection for SME’s?

This NSW provision hangs off the state “version” of the legislation the Commonwealth required New South Wales to enter into pursuant to the Trans-Pacific Partnership Agreement as incorporated into the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (TPP-11)) with the USA and others.

It is to do with, amongst other things, giving tenderers some recourse in the event of inappropriate procurement activity by NSW Government agencies. It is very differently based to that the Commonwealth introduced.

Granted it was drawn before COVID 19 changed things, but it seem, now, a bit odd to me to have provisions so intent on aiding overseas suppliers. However, that is a policy issue, distinct from legal concerns.

In some ways the Direction just seems to repeat the long standing provisions about the need to go to market in an open, transparent and open competition way.

What I find concerning, from the perspective of potential suppliers to NSW government agencies, is that the Direction has a number of “sleeper” provisions which could operate to exclude particular providers and/or exempt whole types of procurement.

 

“Sleeper Provisions”

Whilst I don’t see that as the intention, I draw attention to the following: –

1.     Schedule 1 lists all the government agencies to which it is applied;

2.     Oddly, the Privacy Commissioner is exempt but not the Privacy Commission [schedule 1];

3.     It is important to note that by virtue of clause 6 (4), the threshold for the Enforceable Procurement Principles (EPPs) becoming “enforceable” is $9,247,000 for “construction services” and $657,000 for goods “or any other services” [“services” not being defined];

4.     Whilst, by virtue of definitions, it is clearly to apply to “construction services” and “goods”, it would appear less certain how well it will apply to “services”;

5.     Clause 4 renders a whole string of things to be “enforceable” but, in a sense, they are nothing different to what has been seen for years and I note that, by virtue of clause 5, they override any other policies;

6.     Making general procurement policies “enforceable” does not apply, by virtue of clause 6 (2) (a), to excluded procurements listed in Schedule 2 and that includes part of procurement that is a preference measure, as set out in schedule 3;

7.     Clause 10 allows government agencies effectively to outsource procurement functions but obliges the private sector operator to comply with the legislation;

8.     Clause 12 allows government agencies to exclude suppliers on certain grounds which include “insolvency” which might technically but inadvertently exclude a lot of people during this COVID-19 recovery period and I note that “supplier” is defined in a way to include directors and managers of the “supplier”;

9.     Clause 15 deals with circumstances in which limited tendering is permitted.  The provisions are not all that unusual, though the width of the terms and breadth of exemptions are such that I fear there will be potential for the system to provide none of the suppliers envisaged by the Free trade Agreement.;

10.  I note that much of what Transport does is exempt;

11.  Given the width and loose wording of many of the items set out in Schedule 2, I fear it will be open to “interpretation”. For instance:-

      I.        Does not 5, facilitate “grants”, skirt procurement requirements?

     II.        Does not 6, by allowing staff to be employed from “labour hire” companies, create problems from an industrial law and recruitment policy perspective?;

   III.        The words “health and welfare services” and “education services” are potentially so wide for the purposes of paragraph 9 and 10 as to undo any protection the Direction would otherwise afford;

   IV.        Oddly and in something of an historical throwback, paragraph 18 excludes engagements of  an “expert” on context of litigation, such as  “counsel or barristers”, but does not refer to solicitors who are often referred to as “counsel”;

    V.        The width of paragraph 20, in allowing more “grant” arrangements to skirt procurement procedures is interesting and possibly concerning; This is an issue which has been of concern to me for many years as involving potential avoidance of the procurement rules;

12.  Schedule 3 lists exempt measures, including preferences and paragraph 3 is interesting suggesting that a preference to benefit “small and medium enterprise” will be exempt will not be in breach of free trade

13.  It’s also interesting that contracts to do with storage and hosting of sensitive government information are exempt. Whilst one can see some reason for that, care will have to be taken to ensure compliance with archive legislation.

 

Time will tell whether the protections envisage actually manifest.

The above was prepared for and is intended to provide a broad general overview of issues. It is not intended, and must not be relied upon, as definitive legal advice.

 

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Director Identification Numbers (‘DIN’) – Sounding with Creditors – Will it Kill the Phoenix? Summary

  • New legislation, which is expected to commence within the next two years,[1] will require all directors of a body corporate registered under the Corporations Act and Corporations (Aboriginal and Torres Strait Islander) Act to register for a Director Identification Number (‘DIN). The DIN is a unique identifier, issued to the Director upon verification of their identity. A DIN applies for life.

  • The legislation is intended to lessen corporate phoenix activity – the process of continuing business activity of a company that has been liquidated to avoid its debts. The DIN scheme increases accountability by making directors traceable.

  • Compulsory DINs may be especially beneficial to creditors. A DIN will contain details of a director’s previous and concurrent appointments. Creditors will be able to ascertain whether they are dealing with a director who was appointed to act for liquidated companies.

 
The Legislation

Originally announced in September of 2017, legislation for the DIN received assent on 22 June 2020. Schedule 2 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Act 2019 (Cth) (‘TLA Act) amends the Corporations Act 2001 (Cth) (‘Corps Act’) and Corporations (Aboriginal and Torres Strait Islander) Act 2001 (Cth) (‘CATSI Act’).

The TLA Act introduces the requirement to apply for a DIN as well as associated penalties for noncompliance. The legislative package which was passed alongside with TLA Act introduces the role of ‘Commonwealth Registrar’ (‘Registrar), to whom applications for a DIN will be made.

Prior to the TLA Act, the Australian Securities and Investments Commission (‘ASIC) required the personal details of directors to be lodged as an aspect of registration of a body corporate. These personal details however were not verified by an independent body and may hide the true details of directors.

 

1.    Elements of the DIN regime are as follows:-directors of a body corporate governed by the Corps Act or CATSI Act must apply for DIN;

2.    a DIN issued in respect of the person will apply permanently;

3.    a person may not have more than one DIN;[2];

4.    Directors will be required to verify their identity with the Registrar to be issued with a DIN; and

5.    there are severe penalties for failure to register


The TLA Act will commence by proclamation, which must be made within 24 months of its assent, being 22 June 2020. While there is no date set officially, the Australian Financial Review has suggested that the TLA Act will commence mid-2021.

 

Comment

The TLA Act is silent on the documentary requirements. In fact, the TLA Act refers to the “satisfaction of the Registrar” to impose requirements to verify Directors’ identities. It will be interesting to see whether the Registrar requires the industry standard ‘100 point identification’, as is required when opening a bank account[3]or applying for official government identification documents.

This alone would capture the simpler instances of directors with more than one name, such as registering for multiple separate body corporates with variations on the spelling of one’s name (and or ‘anglicisations’ of names). In the 2015 Economics Reference Committee report on insolvency in the construction industry,[4]evidence was tendered of one such example.- Mr Frank Nadinic had registered himself as director of over 30 companies under the names Frane Nadinic and Frank Nadimic.[5]Whilst this was not done with any improper intent, implementation of the ‘100 point identification’ method, ASIC as well as creditors, would have plainly identified Mr Nadininc and his range of names as the same person.

The introduction of DINs offers creditors another safety measure. As above, the DIN will include the details of the director’s current name andany former given and family name.[6]For creditors who deal with directors trading concurrently with an anglicised and legal name, proper records should avoid confusion as to a director’s true identity.

It remains uncertain whether directors’ residential addresses will be included in the DIN register. It is possible the Registrar may implement the registration of a director’s personal service or correspondence address, as suggested by the Australian Institute of Company Directors in 2018.[7] This would streamline the process of commencing proceedings against directors personally. ASIC’s records pertaining to directors’ personal information are presently unverified. For creditors, access to a service or correspondence address could simplify service of court documents and may provide an alternative means of effecting service of a statutory demand, assuming section 109X of the Corps Act is accordingly amended. Whether the measures will be that strict remains to be seen but TAL Act is promising.

Moving forward, the introduction of the DIN will possibly give more weight to personal guarantees signed by directors. Where credit facilities are provided to corporations guaranteed by directors, it may be prudent that loan application paperwork require provision of director DINs as another layer of protection for credit provider. The verified personal information registered as part of the DIN may aid in support of the lodgement of a caveat pursuant to an apt charging clause, or even in the service of documents.

Ultimately, it remains to be seen how the Commonwealth Registrar will administer its powers to mandate what personal information will be required of directors for the purposes of their DIN.

The introduction of the DIN may have been a long time coming but its introduction should dampen corporate phoenix-ing and grant some reassurance to creditors.

 


[1] The Australian Financial Review has reported the Treasury Laws Amendment (Registries Modernisation and Other Measures) Act 2019 (Cth) will commence in mid-2021 (source: https://www.afr.com/politics/federal/directors-to-get-id-number-for-life-to-thwart-phoenixing-20200612-p55218).[2] Except in rare circumstances, such as in defects in records, see Explanatory Memorandum, Commonwealth Registers Bill 2019 Treasury Laws Amendment (Registries Modernisation And Other Measures) Bill 2019; Business Names Registration (Fees) Amendment (Registries Modernisation) Bill
[3] Productivity Commission (PC), Business set-up, transfer and closure, Inquiry report, 75, PC, Canberra, 30 September 2015, p. 28.
[4] Senate Economics References Committee, Parliament of Australia, ‘I just want to be to be paid’: Insolvency in the Australian Construction Industry (2015)
[5] Senate Economics References Committee, Parliament of Australia, ‘I just want to be to be paid’: Insolvency in the Australian Construction Industry (2015) [12.31]
[6] Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019 (Cth) Schedule 2, 4 Subsection 304-5(4).
[7] Australian Institute of Company Directors, Submission to the Commonwealth Treasury (17 August, 2018) url:<https://aicd.companydirectors.com.au/-/media/cd2/resources/advocacy/policy/pdf/2018/subm-2018-modernising-business-registers-final.ashx>.

 

The above was prepared for and is intended to provide a broad general overview of issues only.  29.6.20

.It is not intended, and must not be relied upon, as definitive legal advice.

The writer acknowledges the contribution of Owen Smith, paralegal at Eakin McCaffery Cox, to the content of this paper

If you have any queries, please feel free to contact Greg Ross (This email address is being protected from spambots. You need JavaScript enabled to view it.) or your usual Eakin McCaffery Cox contact.

Telephone: (02) 9265 3000

Protection of Intellectual Property for
Small Business

 

North Shore Wednesday Group

19 June 2019

Greg Ross

Partner

 



What is the pudding here for?


Deezert: Guest Post: Is Christmas pudding - pudding?

 

What is “Intellectual Property”?

  • Type of property right that covers intangible creations of the human intellect, as opposed to things like land or goods
  • String of different laws and rules mostly limited territorially in effect makes overseas protection expensive - WIPO
  • Best initially explained by some examples to be touched upon today:
  • Copyright
  • Trademark
  • Patent
  • Registered Design
  • Trade Secrets
  • Confidentiality obligations



What “Intellectual Property” Laws
don’t do

  • An “idea” is not protectable “at law” as intellectual property
  • Protecting an idea is problematic but not impossible
  • Often need action / registration
  • Our laws only apply onshore, overseas local law (with some exceptions)
  • No guarantee of making money from IP


 

Common Law v Statutory

  • Protecting an idea is problematic
  • We don’t have an equivalent of the USA’s Defend Trade Secrets Act of 2016
  • Statutory protections quicker and easier to enforce than general law things like passing off or deceptive an misleading conduct

Account of profits available for breach of some statutory IP rights

 

Problems with Common Law Protections

  • Protecting an idea is problematic
  • Contracts
  • Types of action to enforce / defend
  • Cadbury Schweppes v Pub Squash

.

  • Unlike some forms of statutory IP right, no worldwide enforcement system

 

Benefits of Statutory Protection for some types of Intellectual Property

Overseas registration can be of help but it costs

Formal “account for profit” remedies for patent and trademark infringement

 

 Copyright Symbols | Copyright all rights reserved symbols Copright

 

  • Nature

Length of copyright

  • Literary, artistic, music and dramatic works
  • “Mickey Mouse” Amendments following signing of US Free Trade agreement - 80 years from creation
  • Also photographs, cinematograph films, sound recordings, performances and broadcasts
  • Came into effect 1 January 2005
  • Copyright Act
  • Extends length of copyright in works still in copyright
  • Computer code
 
  • Protects an expression not an idea
 

 

Moral Rights

  • Separate to Copyright
  • Three types of moral rights
  • Right to be attributed as author
  • Right not to be falsely attributed as authority
  • Right of integrity
  • Art Gallery Canberra

 

  • Original author retains moral rights even if employee
  • Cannot be assigned or waived must obtain specific consent

 

Trademark

Common law and statutory

Can’t own common, location or mere descriptive words

Statutory much better protection

Local Registration but can apply to extend overseas (for a cost)

Word, style of word (font), logo,

Attaches to a business of some sort and protection relates to classes of goods and or services

The symbols to the right are more American than Australian but can demonstrate a claim
Trademark | Patents and Registered Designs Patents and Registered Designs

 

 

 

 

 

Patents and Registered Designs


Patents are grantedto protect any device, substance, method or process that is new, inventive and useful

Innovation (formerly petty) patents – granted up to 8 years

Very complex area

Standard patents – granted up to 20 years



Registered design protect the unique visual appearance of a product

 

Confidentiality (Non-Disclosure) Agreements

Best way to protect trade secrets – know how

  • Restaurant client examples
  • Recipes KFC - Coca Cola

 

  • Business negotiations
  • Franchise – operations manuals

 

Employees and Contractors

Who owns what?

Employees
If work produced in pursuance of employment contract, then employer usually owns copyright
Examples – lecture notes in universities


Students
Generally own what they create
Cannot use their work or reproduce it without written assignment or permission
Encouragement to attribute quotes etc


Contractors
Deal with it in the contract

 

Internet pitfalls – Copyright Especially

Need to educate people about

• Cutting and pasting from works from internet


• Attributing works to authors


• Illegal downloads especially music/video files


• Need to attribute when using extracts

 

Who, what, when, where and why [e.g. in contracts]

Who owns what IP - wise?

Who owns the product?

Identify all property involved – consider a schedule or register

IP – Copyright - processes - confidentiality – staff versus contractor impact on ownership

Can Contractor use it? License it ? Royalties?

Moral rights – the issue of consent – changes

Foreground and Background IP

Reflect your policy in contracts

 

Tips & Questions

  • In a business, do an inventory of the types of Intellectual Property used, what is owned and what is licensed;
  • Decide what need protection (and where)
  • Have apt T&Cs to protect IP when dealing with customers and contractors;
  • Where necessary deal with IP in employment contractsTo Conclude

 

The Pudding Story

Unlike KFC and Coca Cola which has over 1100 TMs registered

 







 

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It is with great pleasure, Eakin McCaffery Cox announces the promotion of
Peter Aked to the role of Equity Partner, effective 1 April 2016.
 
Peter joined the firm, in the role of Associate, in June 2008.
 
Peter was promoted to Salaried Partner in March 2012.
 
Peter practises in the Corporate – Commercial Group and has significant expertise in relation to securities and PPSA and in acting for mortgagees in both transactional and recovery contexts.
 
 

AMB crackdown on doctors providing Alternative Medicine


Introduction

The Australian Medical Board (AMB) is considering options for “clearer regulation of medical practitioners who provide complementary and unconventional medicine and emerging treatments”, and has issued a Consultation Paper on its proposals and called for submissions.

AMB proposals have potential to restrict and prohibit some currently available medical treatments and methodologies, particularly in the area of proactive and preventive care.

Submissions can be made until 30 June 2019. The discussion paper and draft proposals are available for download at the AMB’s site.



Increased Regulation Complementary and Unconventional Medicine

AMB acknowledges that there “is not yet widely agreed definition of complementary and unconventional medicine and emerging treatments” and presents two options in support of its proposal:-

“Option 1 – Retain the status quo of providing general guidance about the Board’s expectations of medical practitioners who provide complementary and unconventional medicine and emerging treatments via the Board’s approved code of conduct.

Option 2 – Strengthen current guidance for medical practitioners who provide complementary and unconventional medicine and emerging treatments through practice-specific guidelines that clearly articulate the Board’s expectations of all medical practitioners and supplement the Board’s Good medical practice: A code of conduct for doctors in Australia.”

To me, both are unnecessary as discriminatory and, the second is potentially prejudicial to patients. Maintaining standards in the interests of patient safety goes without saying.

However, I have issues with overreach, whether intended or not, and unintended consequences for patients of the proposals.



Inhibiting Prudent, Proactive Preventive Health Care

The proposals have real potential to inhibit the right of the public to undertake prudent, proactive preventive health care under the supervision of professionally trained integrative and or functional medical practitioners.

The cost savings and benefits of proper proactive care are inestimable.



Overreach – Hammer to Crack a Walnut?

Australia’s broader medical services now include views and methodologies from a range of cultures, not simply medical science from some traditional narrow sense.

I fear the current proposals have potential, if not intent, to threaten integrative and or functional medicine and so prejudicing the ability of medical practitioners providing that care to service the existing and developing needs of patients in a dynamic way.

The very concept of the regulation in the manner proposed seems to me to be a potential reversion to old-style trade union “closed shop” attitudes.



A Problem with Proposed Definition

The proposals involve a new definition, such as: –

Complementary and unconventional medicine and emerging treatments include any assessment, diagnostic technique or procedure, diagnosis, practice, medicine, therapy or treatment that is not usually considered to be part of conventional medicine, whether used in addition to, or instead of, conventional medicine. This includes unconventional use of approved medical devices and therapies”

The Code has no corresponding definition of “conventional medicine”.

The problem with the proposed definition is its laxity. In the absence of a corresponding definition of “conventional medicine, it just creates uncertainty. Potentially, anything not main stream (whatever that might be) could be excluded and rendered unlawful.

Medical practitioners, including those presently providing integrative and or functional medical care services, could be excluded from providing a range of types of diagnoses, services, treatments and/or from practice.

Most importantly, welfare of patients and members of the public who choose to take prudent, proactive, preventive steps to maximise their long term health and functionality, could be put at risk by too narrow a view taken by “traditional medicine”.

The proposal being considered by AMB is, in my view as a legal wordsmith, highly flawed legally.



Who does it protect? What does it do for patients?

With the Mayo Clinic acknowledging the benefits of “integrative care”, the AMB should be reconsider the tenor, tone, nature and wording of its current proposals. They lend themselves to the suggestion that AMB seeks more to protect the status quo, than the needs of patients.

The AMB proposals seem to me to lack proper respect to the medical needs of the many “patients” who have been and continue to be let down by “conventional medicine and treatments” and conventional medical practice.

Do not the AMB proposals demonstrate that it is unable or unwilling to maintain pace with current trends and practices in the dynamic field of medical diagnosis and proactive and preventative care, so increasingly important to so many patients?

In my view, AMB has no right, by means of these inappropriately drafted proposals, to prevent a person from taking proper proactive and preventative care under the guidance of a medical practitioner having training in the field. This is especially so when being paid for outside the Medicare system, as is now available from “integrative” medicine.



Alternatives can be beneficial

An example within my knowledge is patients let down by “traditional” medical practice who are at risk of dementia being denied access to integrative medical practitioners who can and do treat those with or at risk of developing dementia with diet and vitamins with measurable success.

This potential prohibition of proactive and preventive care that supports both people with or at risk of suffering various types of dementia puts patients and their carers or families at undue risk and trauma

The terminology set out in the discussion paper and its persistent references to cost issues suggest, to me, an intent to better preserve the traditional status quo – and, query the relevance of the fee regime under Medicare – rather than an objective view of safe medical practices based on scientifically supported diagnostics.

Australian medical practitioners have, for many years, challenged traditional medical thinking. Had they not, there may not have been medical progress. Some might be seen as going back to basics and treating a patient, rather than treating the patient’s symptom by reference to a 10 minute consultation with a general practitioner.

Many who have found traditional medical practice has failed them, have found relief, cure and/or benefit by resort to various forms of complementary and unconventional medicine.



Submissions can be made

If you, or a member of your family, is a person who has found benefit in alternative therapies, you may find it prudent to make submissions to the AMB with a view to withdrawing the proposal. Submissions should not mention particular doctors.

Submissions could address one’s beneficial personal experience of “Complementary and Unconventional Medicine” and/or address the 11 particular points raised by AMB at pages 3 and 4 of its Discussion Paper.
 

Disclaimer: The text of the paper is only a summary and discussion of particular facts and principles. It is not to be taken as legal, medical or commercial advice as to any particular factual circumstances. Visit the author’s blog for the long version of this article.
 

Gregory Ross, LLB, has been a Partner at Eakin McCaffery Cox Lawyers since 2010 and was Special Counsel at the firm between 2001 and 2008. Prior to his return as Partner he was Special Counsel at Shaw Reynolds Bowen & Gerathy and has had a part-time appointment with the Independent Commission Against Corruption. Gregory’s legal practice reflects his many years of legal, commercial, policy and probity experience in NSW and beyond. As an Accredited Specialist in Government and Administrative Law, Gregory advises government bodies to develop legislation, contracting and process arrangements. He also leads the firm’s Intellectual Property practice, advising on issues including copyright, licensing, trademarks and confidentiality agreements. He advises on contracts with entities and enforcement of IP rights in India. Contact Gregory at This email address is being protected from spambots. You need JavaScript enabled to view it. or connect via LinkedIn and Twitter .

You can also connect with Eakin McCaffery Cox Lawyers via LinkedIn .

 

Originally Published 09.05.19 by Legalwise

Source: https://legalwiseseminars.com.au/amb-crackdown-on-doctors-providing-alternative-medicine/