Under the intended legislation, people who inflict serious injury on an emergency worker will attract an automatic additional twelve-month imprisonment, in addition to whatever sentence would otherwise apply. Attackers who inflict less serious injuries will be sentenced to at least six months imprisonment, and those convicted of murdering an emergency worker will face an additional five years in jail.

The Government’s effort to support emergency workers is to be commended. However, while it has stated that some exceptions will be created such as for those with serious mental illness, we do have reservations that a wholesale enforcement may create undeserving victims. These exceptions will need to be very carefully and thoughtfully crafted so as to ensure that some of the most vulnerable of society are not unreasonably affected.

The Government plans to introduce the proposed legislation to Parliament as soon as possible.

However, in addition to the treatment being available locally, it needs to receive Medical Services Advisory Committee (MSAC) approval before it can be claimed under Medicare by cancer sufferers with limited resources of their own.

Hutchinson Legal clients Keith and Jenny Slater are organising a petition to the Federal House of Representatives calling for the MSAC to hasten approval of Cyberknife technologies for the purposes of Medicare rebates and thereby assist thousands of cancer sufferers in Australia. Hutchinson Legal is proud to assist them in their efforts.

If you would like to, please stop by our Ringwood office to sign the petition.

Topics in in this issue include:
- Securing Against Customer Insolvency
- What Happens To Facebook When you Die
- New Business Names Register
- Buying A House
- When The Chips Are Down…

Click here to read the full issue!

When young American soldier Justin Ellsworth was tragically killed by a roadside bomb in Iraq in 2004, his family were forced to begin the painful process of wrapping up his estate. Their problems multiplied, however, when they tried to deal with his email account, only to discover that Yahoo refused to give them access. After a months-long struggle, the family eventually obtained copies of the messages – but only by taking Yahoo to court.

What happens to your email when you die? Do your Facebook and Twitter profiles remain active forever? Is there anyone who can close your online accounts? These are important questions to answer because an on-going online presence has the potential to cause a lot of pain and suffering for loved ones. Imagine, for example:

• Your profile continues to appear in Facebook messages, causing on-going emotional distress to your friends and relatives
• The funds in your Paypal or online trading account are overlooked by the Executor of your Will, placing unnecessary financial burden on your family
• Emails in your personal account are irretrievable, leaving your business partner without vital customer and vendor information
• Photos you stored on an online photo-sharing website are lost to your family
• Your small business’ website domain name expires, allowing a competitor to purchase it, severely impacting the viability of the business
• Contacts post inappropriate messages to your social-networking pages, causing additional grief and turmoil for your family

This was the situation faced by Justin Ellsworth’s family, and they discovered through painful experience that although requesting access to email accounts, social networking sites, and online financial services after the death of a relative is generally possible, it’s a long and tedious process because each company has its own policies and procedures. Furthermore, some companies blanketly refuse to give access to anyone except the user, meaning that certain information may be lost permanently.

Fortunately, some simple preparation can make the entire process much less difficult. Along with planning for the distribution of your physical assets after you die, it’s a good idea to give a thought to what will happen to your “digital assets”.

Many sites stipulate in their terms and conditions that users do not have any property rights as a result of operating an online account. If there is any property arising, it should be dealt with in a person’s will.

In other cases, you can try to ease the burden for your family by leaving login details for your online accounts with someone you trust. There are a number of ways of doing this, from subscription-based online services which act as electronic “vaults” of your login information, to simply writing a list and giving it to a friend. However, whatever means you choose, it needs to be:

• Secure – trusting the wrong person could bring disastrous consequences
• Reliable – if you keep your list in the bottom of a box of books, chances are that it won’t be found until long after it’s needed
• Easy to update – because if it’s not easy to modify, you are less likely to record changes to your usernames, passwords and new accounts

To assist you in compiling your digital assets, we have prepared this complimentary information sheet. Click here to download!

If you buy or sell goods on credit, or rent or lease equipment, are your rights actually secured?

The new Personal Property Securities Act 2009 is impacting the way businesses protect themselves against the potential insolvency of those with whom they trade. Coming into effect on 30 January 2012, the Personal Property Securities Act has changed the way creditors secure their interests, and will affect many businesses.

What Is It?

The Act created the Commonwealth Personal Property Securities Register (PPSR), an online register of all personal property that has security interests registered against the property. This means that any motor vehicle, stock, plant equipment, boat or other property that is collateral to a secured loan or is subject to a retention-of-title clause will be quickly and easily identified on one central database. In order for the creditor’s interest to be secured, the property must be “perfected”, or registered on the PPSR, with the goal of providing one simple, transparent system to administer all secured interests.

The benefit for businesses is that the PPSR allows you to quickly identify pre-existing secured interests or secure your interest in stock, leased equipment and collateral, protecting you in the event of customer insolvency.

How Does It Work?
The website www.ppsr.gov.au provides a detailed explanation as to how the PPSR works. Users can search for specific property to find out whether it is already subject to a secured interest like a bank mortgage or finance agreement, and the website provides for simple registration of new interests such as suppliers’ retention-of-title clauses. Once perfected, the registered party’s rights in the relevant property have priority over subsequently registered interests.

If I Don’t.
Failure to register your security interests on the new Personal Property Securities Register can be a costly mistake, because if you do not have a registered interest and your customer becomes insolvent, you will be barred from claiming a secured interest in the specific property. Instead, you will join the list of other unsecured creditors with only the prospect of receiving a fraction of the debt.

In short, if your property is in the possession of someone else, you should consider registering your interest – or risk losing it entirely.

What Should I Do?
Changing the way you do business with the PPSR doesn’t need to be a big task, but it is something you should make a priority:
· Identify any existing security interests which should be registered on the PPSR
· Update standard trading terms and retention-of-title clauses in your sales and lease contracts
· Establish a PPSR registration procedure
· Follow it!

If you need help reviewing the way you do business under the PPSR, feel free to contact one of Hutchinson Legal’s business experts on 03 9870 9870.

The new national register will remove the cost and inconvenience of separate registration by creating one central depository of information. All the existing state registers will be incorporated into the Business Names Register administered by ASIC, and because it will be online, it will also allow for convenient registration of new names, updating of business details and searching of existing businesses.

The new Business Names Register is proposed to come into effect on 28 May 2012, pending all States and Territories passing the relevant legislation. If your business name is on a state register on that date, you do not need to do anything to be included.

If your business name is already registered in more than one state or territory, all your existing business names will be transferred to the Business Names Register, but you may choose to keep just one of the records and cancel the others at no cost. Keeping only one business name will reduce your administrative burden and enable customers to more easily identify your organization on the register.

Although the new Register will make administration simpler in the long term, there will possibly be many disputes over duplicate or similar names during the early phase. If your name reflects that of a large company, especially if its business is in the same field as yours, you may face legal action. Therefore we advise that you take adequate steps to protect your organization by ensuring that your trademarks and business names are registered, your trading history is well documented and you are complying with all ASIC and State government requirements.

The cost of flood disasters can be devastating, not only because of personal tragedy and loss, but also in terms of property damage. Last year’s Queensland floods cost almost $1.5 billion. The recent NSW and Victoria floods will cost hundreds of millions of dollars. Many of the families whose homes, farms and businesses have been damaged and destroyed are discovering that they now face huge losses that won’t be covered by their insurance policies.

Home insurance policies frequently do not include any kind of flood protection, and even the ones that do are often less than satisfactory. Many flood victims have discovered that they are not covered by their insurance companies because of different definitions of “flooding”. Some contracts differentiate between water that enters through the doors or over the walls of a house. Other technicalities include whether policies cover flash flooding, riverine flooding, tidal flooding or flooding without rain in the immediate area.

In response to the 2011 Natural Disaster Insurance Review, the Federal Government has proposed the Insurance Contracts Amendment Bill 2011, currently under consideration by Parliament. Most significantly, the Bill provides for a standardized “flood” definition across the industry, providing a greater degree of certainty surrounding flood coverage. This is a much-needed reform for which the Government is to be commended.

Until such regulations are made, however, there is no standardized definition of “flood coverage”, and you should read the terms and conditions carefully before choosing your insurance provider. Insurance contracts are very exact in their scope, and if the flood protection you seek is not in the contract, do not presume that common sense definitions will apply. Your insurer is under no legal obligation to cover you unless the contract says so, so make sure you understand the definitions your insurer is using before entering into an agreement.

A highlight of the breakfast was Jason and Simon’s video presentation. Have a look below to see what the boys have been up to! The Legal Health Highlighter Checklist is available here.

Selling

Anyone selling a dog or cat is required to ensure that the advertisement includes the animal’s unique microchip registration number. While not necessary if the pet is being offered for free, failure to include the registration number when advertising a dog or cat for sale can result in penalties of $610.70.

Breeding

Under the amendments to the Domestic Animals Act 1994, anyone who has three or more fertile female cats or dogs and sells cats or dogs (whether or not for profit) needs to be registered as a domestic animal business.  However, when a breeder belongs to an applicable breeding organization, the threshold is raised to ten or more fertile cats or dogs.

To make sure that you are complying with these new laws, visit the Department of Primary Industries’ website at http://www.dpi.vic.gov.au/pets/about-pets/legislation-and-regulation/domestic-animal-businesses2, or contact us at Hutchinson Legal on (03) 9870 9870.

Australia’s ‘territorial sea’ is defined as extending ‘12 nautical miles from the territorial sea baseline’.   A nautical mile is expressed as 1,852 metres.  UNCLOS states that the ‘sovereignty of a coastal State extends, beyond its land territory and internal waters and in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea described as the territorial sea’.  The ‘contiguous zone’ lies adjacent to Australia’s territorial sea and extends up to ‘24 nautical miles from its territorial sea baseline’.  Inside that zone, Australia is able to exercise the control necessary to prevent or punish infringements of its customs, fiscal, immigration or sanitary laws and regulations.

Australia’s ‘continental shelf’ is defined as an area of seabed and subsoil which extends beyond the territorial sea for up to 200 nautical miles from the baseline and beyond that distance to the outer edge of the continental margin.  Australia has sovereign rights over the continental shelf for the purposes of exploring and exploiting the mineral and other non-living resources of the seabed and subsoil, together with sedentary organisms.  Australia also has jurisdiction with regard to marine scientific research.

Australia’s ‘exclusive economic zone’ lies on the outer edge of the territorial sea and up to 200 nautical miles from the territorial sea baseline.  Australia has the sovereign right to explore and exploit, conserve and manage the natural resources of the waters, seabed and subsoil.  In the case of the three Australians who boarded a Japanese ship in Australia’s exclusive economic zone, jurisdictional issues are prevalent.  Article 56 of UNCLOS states that the coastal State has ‘sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds’.  Arguably, the three men may have been trying to ‘conserve’ the ‘natural resources whether living or non-living’.

Article 59 of UNCLOS states that ‘in cases where [the] Convention does not attribute rights or jurisdiction to the coastal State or to other States within the exclusive economic zone, and a conflict arises between the interests of the coastal State and any other State or States, the conflict should be resolved on the basis of equity and in the light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole’.  Arguably Australia has universal jurisdiction over the three men as they committed an offence on board a ship of another nationality.  The incident occurred outside Australian territorial waters, however, but still within Australia’s exclusive economic zone.  This would indicate that the conflict must be resolved using equitable principles, proving to be a complex jurisdictional issue.