Bowen Buchbinder Vilensky

Archive for January, 2015

You Don’t Have to Wait Till Divorce to Sort Out Your Financial Arrangements
Wednesday, January 28th, 2015

Damien Bowen

By Damien Bowen, Director at Bowen Buchbinder Vilensky Lawyers

28 January 2015

When a married couple decides to part ways, they cannot apply for a Divorce until they have been separated for twelve months.

Some people mistakenly believe this means that important decisions about property and money and children must be left in limbo for the year that they are separated. But this is not the case.

They do not need to be divorced, or separated for 12 months, before they can conclude a financial settlement or formalise arrangements for their children. If they are not able to agree on these issues, they can commence proceedings in the Family Court.

Whether the separating couple have been married or have lived in a de facto relationship, or are straight or gay, they can negotiate and record a settlement agreement about property, spouse maintenance, arrangements for the children and child maintenance.

Agreements can be recorded in two ways.

The most usual way is to formalise settlement agreements by consent orders. Consent orders are obtained by the couple making a joint application to the Family Court for orders in terms of what they have agreed. The documentation lodged at Court contains information which enables a Family Court Judge or Magistrate to approve the orders. It is advisable for the parties to each obtain their own independent legal advice in relation to the agreement and the orders they are asking the court to make.  While legal advice is not an essential requirement, there is the potential for exploitation or manipulation when one of the couple is in a weaker position than the other and has no one to protect his or her interests.

The second way to formalise settlement agreements (but for financial matters only – not children) is with a Binding Financial Agreement (BFA). A BFA must be signed by both parties; each party must have independent legal advice about how the agreement affects their rights and whether it is in their interest to sign the agreement. There is no Court oversight of a BFA.

For couples wanting to go their separate ways and get on with their lives, consent orders or a BFA provides the basis on which they can do this. In the case of married couples, they can achieve a settlement even though they may not yet be legally divorced.

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Key Amendments to the Privacy Act: How They Affect your Business
Friday, January 16th, 2015

lesb

By Les Buchbinder, Director at Bowen Buchbinder Vilensky

16 January 2015

Amendments to the Privacy Act were made in March 2014.  Even though some time has passed since then, I am still often approached by client companies and their advisers asking what the amendments mean to them.

If your organisation has a turnover of $3 million or more, or is a Government agency, it is an Australian Privacy Principle entity (APP) to which the amendments apply

I hope you find the following summary of key amendments helpful.

Storage

Personal information must be handled in an open and transparent way.  Your organisation must have an up to date policy outlining management of personal information such as the kinds of information you collect and hold; how you hold it; what you use it for; how an individual may access Personal Identifying Information; and other such matters.

You must provide individuals with the option of dealing with your organisation anonymously or using a pseudonym.

Sensitive information must only be collected with an individual’s consent and if the collection is reasonably necessary for one or more of your organisation’s functions or activities.  Examples of sensitive information are: race or ethnic origin; political opinions; religious beliefs or affiliations; sexual orientation; health record; biometric information; and others.

Personal Identifying Information cannot be used or disclosed for any purpose other than the reason for which it was gathered, without the consent of the individual.  A company cannot, for example, gather information purportedly for a health survey, then use it to market products to people.

Process

APP entities must notify individuals about the access, correction and complaints processes in their privacy policies.  These must include an opt-out mechanism in relation to direct marketing.

Individuals must be granted access to the personal information an organisation holds on them.  Where such information is incorrect, they should take reasonable steps to ensure it is accurate, up to date, complete, relevant and not misleading.

Protection

Organisations must take ‘reasonable steps’ to protect Personal Identifying Information from misuse, interference and loss and unauthorised access, modification or disclosure.  What are ‘reasonable steps’?  The kinds of issues that would be reviewed include how the information is stored (hard copy or electronically); the likely harm to the data subject if a breach occurred; and the size of an organisation.

Cloud computing

The increasing use of storage via cloud computing, often using providers based in foreign jurisdictions, also has implications for APP entities.  This is an important and highly relevant subject on which I’ve already published a blog earlier this week addressing this.

Summary

Changes to the Privacy Act have important implications for all Australian organisations which store personal information, and which have turnovers of more than $3 million, or  are Government agencies.  The information is this blog is necessarily general in nature.  For specific advice on how these amendments may affect your organisation, it is best to seek advice from a lawyer with specialist experience in this practice area.

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Cloud Storage – What is the Legal Position in Australia?
Tuesday, January 13th, 2015

lesb

By Leslie Buchbinder, Director at Bowen Buchbinder Vilensky Lawyers

13 January 2015

Many of us use cloud storage routinely these days as a quick and inexpensive way to keep and share photos and documents.  Increasingly, private and public sector organisations are using cloud storage too.  But it’s important to know that there are legal implications in the way that organisations store personal information.

Changes to the Privacy Act made in March 2014 are directly relevant to all Australian organisations with a turnover of $3 million or more, or which are Government agencies.  Such an organisation can be described as an Australian Privacy Principle  (APP) entity, to which the Privacy Act applies to the way that the organisation gathers, stores and uses personal information.

On the specific subject of using cloud facilities to store information, organisations should be aware of the following.

The Privacy Act applies to Cloud service providers whether they are located in Australia or overseas.  For example, a Cloud provider must give users access to their personal information upon request, must take reasonable steps to secure personal information from mis-use, interference  or unauthorised access, and must delete information that is no longer needed for the purpose for which it was originally collected.

People may be concerned that the offshore locations where data is stored may not have privacy laws similar to those in Australia.  Organisations who use such Cloud servers should be aware of amendment APP8 which regulates the disclosure or transfer of personal information to a different entity (including a parent entity) offshore.  APP8 requires that before disclosing personal information to an overseas recipient, an Australian organisation must:

  • Take reasonable steps to make sure that the overseas recipient will not breach the APPs and the Australian organisation will be accountable for such a breach; or
  • Make it known to the relevant individual(s) that his or her information will not be protected by APPs after the disclosure to the overseas recipient and obtain the individual’s consent to the disclosure OR form a reasonable belief that the overseas recipient is subject to laws substantially similar to the APPs.

What is a ‘reasonable belief’?  The obtaining of independent legal advice by an organisation in regards to foreign privacy protections will provide a strong basis for a ‘reasonable belief.’

Summary

If your organisation is an APP entity and you are thinking of using a cloud storage provider, be aware that you are responsible  for ensuring compliance with Australia’s Privacy Act.  If the cloud provider in question is based off-shore, you would be well-advised to seek legal advice to ensure that the provider is subject to laws substantially similar to those which operate in Australia.

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