We’re excited to be back in 2020 (in what is our 10th year) to continue providing exceptional, commercially focused legal services to our clients in the following areas:

• M&A (including buying and selling companies and businesses).
• Shareholder transactions (including shareholder agreements and joint ventures, private equity transactions and IPOs).
• Corporate advisory (including Corporations Act and ASX Listing Rules advice).
• Commercial law (including customer and supplier contracts, IT and IP licences, outsourcing contracts and finance arrangements).

If you are thinking about engaging in a corporate/commercial transaction in the next 12 – 18 months, please do not hesitate to get in touch with one of the Sierra Legal team (https://www.sierralegal.com.au/team) as it is never too early to have an initial discussion.  

For further information on us, our experience and some of the innovate products we offer, please also see:

• https://www.sierralegal.com.au/what-we-do and https://www.sierralegal.com.au/experience for further details on our legal services, flexible fee arrangements/products and our experience; and
• https://www.sierralegal.com.au/arreis on our innovative legal automation platform, Arreis Automation.

We look forward to working with you in 2020!

We are delighted to have partnered with leading eLearning business training provider, Vocam, to produce the content for a series of Australian workplace legal compliance eLearning training courses, as part of Vocam’s “Business Training-TV” platform.

These training courses are a vital component of workplace training for all organisations, and help create ethical workplaces that follow relevant laws, regulations and standards.

Please see https://www.businesstraining-tv.com/australia-workplace-legal-compliance-elearning-training-courses/ for further information on the legal training courses, or https://www.businesstraining-tv.com/ for other courses offered by Vocam.

Sierra Legal is very pleased to have been accepted as a member of the Asia-Pacific Legal Innovation and Technology Association.  We are looking forward to collaborating with other members and sharing our ideas for innovation in the legal sector.

We’re delighted to have Kate Save and Be Fit Food on board and thanks for the great review!

“This software from Sierra Legal is a game-changer for seamlessly creating documents which you need to use regularly without all the hassles of version control, manual editing and avoidable human errors.  At Be Fit Food, we use this software for contracts and NDAs to name a few, and their customer support is incredible too!”

Kate Save – Founder and Managing Director of Be Fit Food

Some interesting commentary on vendor due diligence and virtual data rooms in the latest Mergermarket publication on “Sell-side success”.  Please click here to obtain a copy of the report.

We recommend that if you are proposing to sell your business, proper planning and preparation before entering into any discussions with potential buyer(s) will assist you in obtaining the best possible price for your business, limit delays and reduce exposure to risks.  Such preparation can include a vendor undertaking their own due diligence by considering and collating the documents/information that a potential buyer will want to see when conducting its due diligence.

It is important to get everything in order before entering into discussions with a potential buyer to determine whether there are any gaps or errors in the information (or documentation which can be corrected before due diligence commences).  If you are able to give a potential buyer correct and up-to-date due diligence documents, this is likely to help give the potential buyer comfort, enhance value and lessen the severity of warranties and indemnities that may need to be agreed with the ultimate buyer.  Missing documents (or gaps in information) can have the reverse effect.

Please get in touch with one of the Sierra Legal team if you need any assistance with vendor due diligence.  We also have a template checklist of documents that a potential buyer is likely to want to review during due diligence that can assist you with the process.  Please get in touch with us to obtain a copy.

By 1 January 2020, public companies, large proprietary companies and proprietary companies that are trustees of a registrable superannuation entity must have a whistleblower policy.  It will be a criminal offence if a company that must have a whistleblower policy does not have one. 

To assist companies comply with their obligations with respect to whistleblower policies, ASIC have just released Regulatory Guide 270 which is available on ASIC’s website - please click here to access a copy of the Regulatory Guide.

For further information on the requirement to have a whistleblower policy, please see our August 2019 article - Sierra Legal Article, or ASIC’s recent media release with respect to regulatory guide 270 - ASIC Media Release.

If you need any assistance preparing a whistleblower policy by 1 January 2020 please do not hesitate to contact a member of the Sierra Legal team - https://www.sierralegal.com.au/team.

Who should be aware of this?

If your business supplies goods or services (or both goods and services) to consumers and gives a warranty against defects for those goods/services, then it’s crucial that you’re aware of some changes to the law that took effect on 9 June 2019.

What are “warranties against defects”?

Under the Australian Consumer Law (ACL), if a supplier or manufacturer of goods or services chooses to provide a “warranty against defects” to “consumers”, then that warranty must be in a document (Warranty Document), and that Warranty Document must comply with specific requirements.  The ACL is part of the Competition and Consumer Act 2010 (Cth) (Act).

A “warranty against defects” is a representation (e.g. a promise) given to a consumer that, if the goods or services (or part of them) are defective, then the supplier or manufacturer will:

• repair or replace goods (or part of them); or
• resupply or fix a problem with services (or part of them); or
• provide compensation to the consumer.

Such a representation will only be a warranty against defects if it is made at or around the time that the goods or services are supplied.

An example of a “warranty against defects” for the supply of services could be a statement by a bicycle shop that an old bike they have repaired for a consumer will not have any mechanical issues for a period of 12 months after the repair was completed.

“Who is a consumer”?

Under the Act, a person will be considered a “consumer” if they purchase:

• goods or services that cost less than $40,000; or
• goods or services that cost more than $40,000, but are of a kind ordinarily acquired for domestic, household or personal use or consumption; or
• a vehicle or trailer primarily used to transport goods on public roads.

A purchaser will not be considered a consumer if the relevant goods are purchased to be resold or to be transformed into a product that is then sold.

What are the requirements for warranties against defects?

The Competition and Consumer Law Regulations 2010 (Cth) (Regulations) specify requirements relating to the “form and content” of warranties against defects.  One of these requirements is that the Warranty Document must specify the period within which the relevant warranty against defects relates, as well as certain details of the person providing the warranty.

The Regulations also require that a Warranty Document relating to the supply of goods must contain the following mandatory text:

Mandatory text for the supply of goods:

“Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage.  You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.”

Following changes to the Regulations which came into effect on 9 June 2019, the Regulations now also require that a Warranty Document relating to the supply of services, or to the supply of goods and services, must contain the following mandatory text:

Mandatory text for the supply of services:

“Our services come with guarantees that cannot be excluded under the Australian Consumer Law.  For major failures with the service, you are entitled:

• to cancel your service contract with us; and
• to a refund for the unused portion, or to compensation for its reduced value.

You are also entitled to be compensated for any other reasonably foreseeable loss or damage.

If the failure does not amount to a major failure, you are entitled to have problems with the service rectified in a reasonable time and, if this is not done, to cancel your contract and obtain a refund for the unused portion of the contract.”

Mandatory text for the supply of goods and services:

“Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law.  For major failures with the service, you are entitled:

• to cancel your service contract with us; and
• to a refund for the unused portion, or to compensation for its reduced value.

You are also entitled to choose a refund or replacement for major failures with goods.  If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time.  If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.”

Can suppliers and manufacturers include additional information in Warranty Documents?

Suppliers and manufacturers are free to include extra information in Warranty Documents to explain how the consumer rights in the ACL apply.  However, they must ensure that such extra information does not limit or negate the mandatory text.

What are the consequences for failing to comply with the requirements for warranties against defects?

Fines of up to $50,000 (or $10,000 for individuals) can be imposed for failing to comply with the requirements in the ACL and the Regulations relating to warranties against defects.

In addition, a failure to comply with these requirements can lead to breaches of other parts of the ACL, which can have much harsher penalties.  As an example, if such a failure to comply is found to involve a false or misleading representation concerning the existence, exclusion or effect of a condition, warranty, guarantee, right or remedy, then the applicable penalties could include:

• for an individual – a fine of up to $500,000; or
• for a company, the greater of:
• $10,000,000; or
• 3 times the value of the benefit obtained from the contravention; or
• if the value of the benefit cannot be determined, 10% of the annual turnover of the company.

Click here for further details on warranties against defects as published by the Australian Competition and Consumer Commission.

For more information on the requirements for warranties against defects, and for general advice on compliance with the Australian Consumer Law, please contact:

• Ken Gitahi, Senior Associate, on +61 (0)401 450 220 or at kgitahi@sierralegal.com.au
• Mike Jeffery, Director, on +61 (0)402 745 054 or at mjeffery@sierralegal.com.au
• Craig Sanford, Director, on +61 (0)416 052 115 or at csanford@sierralegal.com.au

We were delighted to present to the legal teams of Medibank and WEX on “Practical tips for increasing productivity and efficiency”, including a demonstration of our new document automation platform, Arreis Automation.

As a business owner, in-house legal counsel or professional services firm, if you would like to book a free 20 minute demonstration to see how Arreis Automation could benefit your business, please use the link at https://www.sierralegal.com.au/arreis.

As part of the Dynamic Business "Let's Talk" series, Sierra Legal Special Counsel Jenny Lau shares her thoughts on the importance of 'face-to-face' networking:

"In this digital age, a lot of our relationships can be managed through a screen (think social media, email and Skype).

For this reason, I think face-to-face business networking is extremely important. Face-to-face meetings can humanise the business relationship. There is so much information to be gained about a person, their personal and business preferences, and their challenges from their facial expressions and body language. Similarly, I can show understanding, appreciation and compassion much better face-to-face. This can help me to build rapport and trust, which is very important in our role as trusted legal advisers. I’m no longer just some advice on a screen, I’m a person with whom you can confide/consult and collaborate."

Read more of the discussion from business owners and entrepreneurs here - https://dynamicbusiness.com.au/featured/lets-talk-networking-2.html

The Consumer Data Right regime and Open Banking commenced in Australia in August 2019.

The Consumer Data Right regime is intended to, among other things, give consumers greater choice and control over how data about them held by businesses and service providers in various sectors is used and disclosed.  This, in turn, allows consumers to more easily compare and switch between products and services.  Banking is the first sector in Australia to be impacted by the Consumer Data Right.  The energy and telecommunications sectors are expected to follow next.

Some brief background - in August 2019, the Competition and Consumer Act 2010 (Cth) was amended to introduce a new Part IVD relating to the Consumer Data Right regime.  This introduced some new concepts such as CDR Data, CDR Consumer as well as various privacy safeguards that set out certain standards, rights and obligations in relation to collecting, using, disclosing and correcting CDR Data when there are one or more consumers.  Under the Consumer Data Right regime, consumers can be either entities or individuals and therefore, the privacy safeguards apply to a wider set of persons (and data) within the relevant sector, and they are generally stricter, than the Australian Privacy Principles.  Further background to the introduction of the Consumer Data Right regime can be read in our previous article - https://www.sierralegal.com.au/news/2019/9/3/consumer-data-right-update

Recent updates - in the latest instalment of CDR-related releases this year, the Office of the Australian Information Commissioner (OAIC) released for consultation earlier this month, draft Privacy Safeguard Guidelines for the Consumer Data Right regime (CDR Privacy Safeguard Guidelines).  The CDR Privacy Safeguard Guidelines will guide entities covered by the CDR regime on how to avoid acts or practices that may breach the privacy safeguards.

The privacy safeguards and the CDR Privacy Safeguard Guidelines will apply to entities who are authorised or required to collect, use or disclose CDR Data for which there is at least 1 consumer.  However, for some of these entities, there may be a requirement to comply with both the privacy safeguards and the Australian Privacy Principles.

For other entities that are not caught by the CDR regime but are already covered by the Australian Privacy Principles, those principles will continue to apply (i.e. the privacy safeguards and CDR Privacy Safeguard Guidelines only impact upon entities that will be authorised or required to collect, use or disclose data under the CDR regime).

There are 13 privacy safeguards and the draft CDR Privacy Safeguard Guidelines include a summary of how each privacy safeguard interacts with the Australian Privacy Principles.

The OAIC is currently consulting on the draft CDR Privacy Safeguard Guidelines and is taking written submissions on these guidelines until 20 November 2019.  The final CDR Privacy Safeguard Guidelines are expected to be published on 16 December 2019.

You can access further information on the draft CDR Privacy Safeguard Guidelines through this link: https://www.oaic.gov.au/updates/news-and-media/oaic-commences-consultation-on-draft-cdr-privacy-safeguard-guidelines/

For more information on the Consumer Data Right regime, please contact:

Samantha Khoo, Senior Associate, on M: +61 (0)422 190 433 or E: skhoo@sierralegal.com.au

Mike Jeffery, Director, on M: +61 (0)402 745 054 or E: mjeffery@sierralegal.com.au

As part of the Dynamic Business “Let’s Talk” series, Sierra Legal Director Mike Jeffery shares his thoughts on “How you can successfully implement new tech”:

“For a business to successfully roll-out new technology (for internal use by the business), the utilisation of that technology (and ultimately, the success of that project) requires “buy-in” from staff.  Staff need to understand how the particular technology will improve processes within the business.  More importantly, staff need to appreciate how the technology will benefit them (e.g. saving them time, personally).  New technology that adds an extra layer of complexity for staff (no matter how beneficial to the business) is less likely to be widely adopted.

For customer facing technology, a similar philosophy applies. To achieve positive customer utilisation rates, simplicity and ease of use are critical. Customers take only seconds to judge new technology, so a slick and well-designed user interface is critical.”

Sierra Legal has recently launched its own tech - Arreis Automation.  See https://www.sierralegal.com.au/arreis for further details on how the Arreis Automation contract automation platform can benefit your business.

Read more of the Dynamic Business discussion here - https://dynamicbusiness.com.au/featured/lets-talk-new-tech.html

As part of the Dynamic Business “Let’s Talk” series, Sierra Legal Founder and Director Craig Sanford shares his thoughts on maintaining great work culture in a period of business growth - https://dynamicbusiness.com.au/featured/lets-talk-culture-2.html

Sierra Legal maintains a true “team” philosophy as part of our culture which promotes greater cohesion, efficiency and overall wellness within the team, which in turn assists us in providing clients with exceptional legal advice and service.

Are you a business that:

• has contracts for multiple types of arrangements?
• sometimes discovers mistakes (or hangovers from previous deals) in your contracts?
• requires efficiency when preparing contracts?
• enters into commercial transactions without contracts - because you don’t have time to properly document the arrangement?
• can’t justify the cost of having a lawyer assist you with all of your contracts?

If the answer to any of the above questions is YES, then Arreis Automation could be of benefit to you. 

Sierra Legal’s new division (Arreis Automation) assists businesses to develop their own template documents, and then builds and hosts bespoke web apps for those businesses – enabling businesses to quickly and easily generate their own contracts and other documents themselves from an online platform.

To find out how Arreis Automation can benefit your business and to see a demo, please visit - https://www.sierralegal.com.au/arreis. Otherwise follow us on LinkedIn to stay up-to-date on legal developments.

Some interesting data from Merrill Corporation on the Australian M&A market for the first half of 2019, including:

• Outbound deal values from Australia exceeded combined inbound and domestic deal values.
• For inbound M&A deals, the top 3 buyer geographies were Canada, Japan and Hong Kong.
• For outbound M&A deals, the top 3 target geographies were USA, the UK and the Czech Republic.
• The key sectors for both inbound and outbound deals have been the energy, services and industrials sectors.

You can sign-up to get the full report via this link: https://www.merrillcorp.com/us/en/insights/reports/ma-market-briefing-australia.html?utm_medium=affiliate&utm_source=mergermarket&utm_content=mergermarket_email&utm_campaign=7010h000001B7F1AAK&dm_i=1D5J,6HT44,PJRLP5,PS5R7,1

If you have any questions on, or need any legal assistance with a merger and acquisition please get in touch with one of the specialists at Sierra Legal.

Customer loyalty schemes is one of the ACCC’s focus areas for 2019.  The ACCC has undertaken a review of customer loyalty schemes in Australia, released a draft report on its findings and proposed recommendations, and is inviting comments on the draft report by 3 October 2019.  Issues raised in the draft report include clear communication of terms and conditions, unfair contract terms, privacy and use of consumer data.  Watch this space for further updates!

https://www.accc.gov.au/media-release/significant-concerns-with-customer-loyalty-schemes

https://www.accc.gov.au/focus-areas/market-studies/customer-loyalty-schemes-review/draft-report-for-consultation

We’re delighted to have Dean Cherny and Marketing Melodies on board and thanks for the great review!

“Arreis Automation used their amazing software and coding skills to automate our template supply contract.  Now, whenever my team needs to produce a supply contract for a new customer, we just open up the link that Arreis has created for Marketing Melodies (complete with our branding!), answer the 30 or so tailored questions that appear at the link, click "submit", and then the completed Word document is automatically emailed to us from the Arreis Automation system ready to go!  This whole process takes us less than 10 minutes, and a high quality document that is correctly worded and formatted is produced every time without any need to involve our lawyers … a massive time and cost saving for us.  Thank you Arreis Automation!!!”

(Dean Cherny, Founder and CEO, Marketing Melodies)

Sierra Legal’s new Arreis Automation system has arrived!

It represents a new and exciting business arm for us, which draws on and complements our growing legal business. If you have a type of contract, letter or other document that you regularly use in your business, Arreis Automation could be for you.

The key benefits and features of Arreis Automation include:

• Documents are generated quickly and efficiently, saving you time and money.
• Designed for use with customised documents, including where complex decision trees, conditional logic and human input would normally be required.
• Automatic completion of mathematical calculations within your documents.
• The ability for multiple documents (or packages of documents) to be created simultaneously using the same data.
• Improved quality control by reducing the risk of human error associated with incorrect data entry, using the wrong base document or unintended “hang overs” from the last time a base document was used.
• Documents are generated in standard Microsoft Word (docx) format, allowing for easy editing and subsequent negotiation.
• The existing document formatting and style used in your business can be consistently applied to the documents as they are created.

Get in touch with one of the Sierra Legal team if you have any questions on Arreis Automation.

Over the last 10 years, one of Sierra Legal’s core service offerings has been helping clients with the development of bespoke template documents for their businesses, including contracts, company secretarial documents, engagement letters and a broad range of other legal documents.

After a couple of years of intense research, development and testing, we are excited to announce that we are close to extending this service to include the coding and hosting of bespoke web apps for our clients. This will enable our clients to automatically generate their own contracts and other documents themselves from Sierra Legal’s online software platform. An official launch and announcement is coming soon.

Watch this space!!

Follow us on LinkedIn or Facebook to stay up-to-date on the launch of this exciting product.

ASX has recently published an updated version of ASX Listing Rules Guidance Note 9 Disclosure of Corporate Governance Practices (Guidance Note 9).  The updates to Guidance Note 9 are due to come into effect on 1 January 2020, which is the same date that the fourth edition of the Corporate Governance Principles and Recommendations (Principles and Recommendations) comes into effect.

Guidance Note 9 provides new and updated guidance on:

• disclosure of corporate governance policies, including the requirement (in conjunction with the Principles and Recommendations) for a listed entity to have and disclose (in full) a diversity policy, code of conduct, whistleblower policy, anti-bribery and corruption policy, and continuous disclosure policy; and
• the ASX Corporate Governance Council’s recommendations on:
• diversity;
• the process to verify integrity of periodic corporate reports;
• investor and analyst presentations;
• environmental and social risks; and
• policy on hedging equity incentive schemes.

The updated Guidance Note 9 can be accessed by the link: https://www.asx.com.au/documents/regulation/asx-gn-9-fourth-edition.pdf and the Principles and Recommendations can be accessed by the link: https://www.asx.com.au/documents/asx-compliance/cgc-principles-and-recommendations-fourth-edn.pdf  

Please get in touch with one of the Sierra Legal team if you need any assistance with:

• compliance with the new Principles and Recommendations;
• preparing any new, or reviewing any existing policies to ensure compliance with the new Principles and Recommendations; or
• any other corporate governance matters during the up-coming reporting season, including the preparation of notice of meetings.

The Treasury Laws Amendment (Consumer Data Right) Act 2019 (CDR Act) became law in Australia on 13 August 2019. 

The CDR Act stems from a 2017 Australian Government Productivity Commission inquiry into:

• the recent growth in data generation (by some estimates, the amount of digital data generated globally in 2002 (five terabytes) is now generated every two days, with 90% of the world’s information generated in just the past two years)[1];
• the collection of data through everyday activities, transactions, the Internet and technologies such as mobile devices, sensors and cameras; and
• how better access to and use of data can benefit consumers, the community, business and government.

Given some of the outcomes and recommendations of the inquiry, the CDR Act implements new laws relating to rights associated to consumer data, which the CDR Act refers to as the ‘Consumer Data Right’.  The Consumer Data Right regime is intended to, among other things, give individuals a right to efficiently and conveniently access specified data about them held by businesses and service providers in various sectors (Data Holders).  This is so that individuals can direct how their data is shared with others, for example by choosing how they share their data with certain accredited data recipients (Accredited Data Recipients) in order to find more competitive products or services based on data on existing products or services they use.

The Consumer Data Right regime will apply to sectors of the Australian economy that have been designated in accordance with the CDR Act.  The Government has indicated that the banking sector will be the first sector to which the Consumer Data Right will apply (also known as Open Banking).  The big 4 Australian Banks (i.e. ANZ, CBA, NAB and Westpac, with other banking institutions to follow in due course) must provide individuals with access to their data that is held in respect of their credit and debit cards, deposit accounts and transaction accounts.  Over the next 2 years banks will also be required to provide access to data on other financial product data.   

Please refer to the Treasury’s webpage on the Consumer Data Right for further details on the proposed timetable for implementing the Consumer Data Right regime and Open Banking in Australia:  https://treasury.gov.au/consumer-data-right/

The Government has indicated that the energy and telecommunications sectors will be the next sectors to follow and, eventually, the Government intends that the Consumer Data Right regime will be rolled out to other sectors in the Australian economy.

Who regulates the Consumer Data Right regime?

The Australian Competition and Consumer Commission (ACCC) and the Office of the Australian Information Commissioner (OAIC) will work together to regulate conduct under the Consumer Data Right regime. 

The ACCC will mainly be responsible for matters such as the designation of new sectors to which the Consumer Data Right will apply, the establishment of the Consumer Data Right Rules (CDR Rules), accreditation of Accredited Data Recipients and the creation and maintenance of a register of Accredited Data Recipients and Data Holders.  The ACCC published the CDR assurance strategy for the banking sector on 29 August 2019.  This assurance strategy provides a summary of the ACCC’s testing and assurance scope and approach for ensuring a safe environment for sharing consumer data by consent and ensuring that consumer data rights are protected: https://www.accc.gov.au/focus-areas/consumer-data-right-cdr-0/cdr-assurance-strategy-banking

The CDR Rules will also govern the implementation of the Consumer Data Right in a sector.  The ACCC published a “lock down” version of the CDR Rules for the banking sector on 2 September 2019, which will be provided to the Treasurer for consent: https://www.accc.gov.au/focus-areas/consumer-data-right-cdr-0/cdr-rules-banking

The OAIC will lead on matters relating to the privacy implications of the Consumer Data Right regime, including compliance with new “Privacy Safeguards” under the regime, which will have stricter requirements than the Australian Privacy Principles under the Privacy Act 1988 (Cth).

A data standards body will also be established to assist with making data standards, which will set out the format and process by which data will need to be provided to consumers and Accredited Data Recipients within the Consumer Data Right regime.  Data61 (part of the CSIRO) is currently undertaking this data standards role.

Updates to legislation

The CDR Act implements the news laws by amending legislation that is currently in force in Australia.  A high-level summary of these amendments is as follows:

1. The Competition and Consumer Act 2010 (Cth) is amended to include a new Part IVD relating to the Consumer Data Right, and consequential amendments relating to the Consumer Data Right concepts generally. 
2.  The Australian Information Commissioner Act 2010 (Cth) is amended to:
3. ensure that the OAIC and the Information Commissioner’s privacy functions extend to the Consumer Data Right regime; and
4. ensure that the OAIC is able to disclose information to and advise the body that will be responsible for accrediting Accredited Data Recipients. 
5. The Privacy Act 1988 (Cth) is amended to provide a mechanism for accessing a broader range of information within the designated sectors compared to what is provided for in Australian Privacy Principle 12 (which allows individuals to access personal information about themselves).  The Consumer Data Right applies to data that relates to individual consumers as well as business consumers, and provides access to information that relates to products.

For more information on the CDR Act and Consumer Data Right, please contact:

Mike Jeffery, Director, on M: +61 (0)402 745 054 or E: mjeffery@sierralegal.com.au

Samantha Khoo, Senior Associate, on M:+61 (0)422 190 433 or E: skhoo@sierralegal.com.au

[1] Australian Government Productivity Commission Inquiry Report, ‘Data Availability and Use - Overview and Recommendations’ No. 82, 31 March 2017 (page 4) https://www.pc.gov.au/inquiries/completed/data-access/report/data-access-overview.pdf

Sierra Legal is proud to have advised Medibank Private Limited on the Medibank Live Better loyalty program.

The Medibank Live Better loyalty program, which was launched this week, will be available to Medibank’s 2.8 million customers through the new Medibank Live Better app.  In an industry first, Medibank customers with eligible hospital or extras cover will be able to earn Live Better points and use these points towards a gift card or premium payment, or to get more on their extras like a remedial massage or physio service, simply by taking a broad range of healthy actions. 

Sierra Legal advised Medibank on a range of matters relating to the Medibank Live Better loyalty program, including the preparation and negotiation of agreements with various Medibank Live Better partners and the development of the program terms and conditions.

We congratulate Medibank on the launch of the Medibank Live Better loyalty program and look forward to following the progress of this program in improving health and lifestyle choices.

Thanks to our friends at eBroker for the opportunity to share our top legal tips when selling a business. The article can be found on the website of eBroker - https://www.ebroker.com.au/News/top-7-legal-tips-when-selling-a-business

If you need any legal advice on either selling or buying a business, please get in touch with one of the Sierra Legal team.

We are excited to announce that Sierra Legal has been successfully reappointed to Medibank’s panel of preferred law firms.  We were first appointed to the Medibank panel 3 years ago, and have really enjoyed assisting Medibank with a broad range of commercial legal matters.  We look forward to continuing to support and work with Medibank over the coming years!

On 1 July 2019, new provisions of the Corporations Act 2001 and the Taxation Administration Act 1953 came into effect to improve “whistleblower” protection in Australia, including the requirement for some companies to have a whistleblower policy.

A “whistleblower”, in relation to a company, includes:

• an individual who is, or has been, an officer or employee of that company and any relative or dependant of that person; and
• an individual who supplies goods or services to that company.

Whistleblower Policy

By 1 January 2020, public companies, large proprietary companies and proprietary companies that are trustees of a registrable superannuation entity must have a whistleblower policy.  It will be a criminal offence if a company that must have a whistleblower policy does not have one. 

The whistleblower policy for such a company must include information about:  

• the protections available to whistleblowers under the legislation (such as maintaining the confidentiality of the whistleblower, protection for whistleblowers against legal action, and protection for whistleblowers from detriment);
• to whom disclosures that qualify for protection may be made (e.g. ASIC, APRA and eligible recipients, being an officer, auditor or actuary of the relevant company), and how disclosure may be made;
• how the company will support whistleblowers and protect them from detriment;
• how the company will investigate disclosures that qualify for protection;
• how the company will ensure fair treatment of employees of the company who are mentioned in disclosures that qualify for protection, or to whom such disclosures relate;
• how the policy is to be made available to officers and employees of the company; and
• any other matters prescribed by regulations.

While only public companies, large proprietary companies and proprietary companies that are trustees of a registrable superannuation entity must have a whistleblower policy, the whistleblower regime under the Corporations Act applies in respect of all companies (regardless of size), while the regime under the Taxation Administration Act is broader and applies in respect of companies, individuals, partnerships, trusts and unincorporated associations. 

As such, even if you are not required to have a whistleblower policy, you must ensure that you are aware of and comply with the relevant whistleblower regime.

ASX Recommendations

For public companies that are listed on the ASX, Recommendation 3.3 of the ASX Corporate Governance Principles and Recommendations (4th Edition) also provides suggested content for whistleblower policies which should be considered.

Recommendations

If you are a company that must have a whistleblower policy, we recommend that you start preparing your policy (if you don’t have one), or start reviewing your current policy (if you do), to ensure it meets the new requirements.  We also suggest that all companies and businesses consider their internal policies, procedures, guidelines and training to ensure they are compliant with the new laws, and that relevant officers and employees understand their obligations.

If you have any questions on the new whistleblower protections or need any assistance preparing a whistleblower policy or internal polices or guidelines, please do not hesitate to contact:

Troy Mossley, Senior Associate, on M: +61 (0) 403 212 939 or E: tmossley@sierralegal.com.au

Ken Gitahi, Senior Associate, on M: +61 (0) 401 450 220 or E: kgitahi@sierralegal.com.au

Congratulations to Chris Keay and Landscape Plus on the completion of the sale of a majority stake in Landscape Plus to Outside Ideas. It was a pleasure working with Chris and his team, and we wish the newly formed JV every success!