Corporate & Commercial

Corporate & Commerical

Jun 202018

Since 25 May 2018, Australian businesses which distribute goods and services to persons in the EU are now bound by strict data protection laws which are more onerous than Australian Privacy Principles.

Under the General Data Protection Regulation (GDPR), personal data can only be processed if there is consent by the individual, or if there are contractual obligations to do so. Therefore it is paramount that all businesses with EU customers or suppliers update their customer terms and subcontracts with those that involve access to personal information.

The European Commission does not recognise Australia as having adequate privacy laws. As a result Australian companies contracting with EU parties will have to ensure that they have additional safeguards in place to protect personal data transferred to Australia. In Australia, businesses commonly rely on implied consent, however this is inadequate under the new rules imposed by the GDPR, where express consent is required either by statement or clear affirmative action. 

The reach of the GDPR is significant enough to affect many Australian businesses, especially those who operate in the digital economy. Agreements that concern the processing of data should be reviewed immediately to ensure compliance with the GDPR.


Big Players and compliance: Google

Google encounters over 2 trillion searches per year, where results are categorised based on data collected by individuals. This information is also separately used for targeted advertising. In response to the GDPR, Google has taken the controversial approach of passing the burden of consent onto the publishers who provide them with targeted advertising. Commentators allege that Google’s approach is innately non-complaint and inevitably the GDPR will be tested against their interpretation. Determinations under these new laws may change privacy law obligations in relation to cross-boarder interactions. This may also impact the way we draft data security and privacy legislation in Australia. Stay tuned.


For advice on how to ensure compliance with the GDPR, contact Peter McNamara today. 

May 182017

Franchisors and Parent Companies Feeling Vulnerable to Super Fines The Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017, is designed to protect vulnerable workers from exploitation by employers.  The Bill is expected to pass through the Senate without much trouble. It is the Coalition’s response to the systematic underpayment of workers by franchisees in the […]

Apr 042016

From 12 November 2016 the unfair contracts provisions of the consumer law will be extended to cover standard form contracts involving small businesses. The Treasury Legislation Amendment (Small Business and Unfair Contract Terms) Act 2015 recognises the disparity in bargaining power between small businesses and their larger cousins and extends to them the protections currently […]

Feb 262016

Even where you operate your business through a company, you can, as a director, be personally liable for claims arising out of the company’s activities. The corporate shield has long been split asunder both by judge-made law and a myriad of statutes. So, apart from taking out insurance for obvious risks (such as for personal […]

Nov 102015

Established companies have many legal and commercial weapons at their disposal to protect their position. The financial power of large corporations with established supply agreements can make it almost impossible for newcomers to gain a foothold. Allegations of intellectual property infringement can be levelled at any competitor, regardless of their size. Preliminary discovery is the […]

Oct 162015

Usually, an expert’s determination expressed to be binding and non-appealable is just that – final. However, the New South Wales Court of Appeal declared an expert’s determination not binding because the expert did not follow the contract. The Court remitted the determination to the expert with directions about the proper construction of the contract. Background […]

Jun 032015

UPDATE: The information in this article has been superseded by amendments to the legislation since publication. You can find our more recent article on this subject here.  States and territories across Australia have confirmed their support for legislation to extend unfair contract protections for small businesses.  This support was garnered after a 10 week consultation […]