Westpac's 23m breaches could be the tip of the iceberg

It all makes sense now. I had to transfer some money to a Spanish law firm which is doing some work for me. Westpac immediately cancelled the transaction and I had to spend over an hour on the phone explaining to them that it was a legitimate transaction and that I was not being scammed. They finally agreed to put the transaction through.

I was also advised by Westpac that Spain is on the red list and that apparently Spanish lawyers are not to be trusted, which sounded a bit rich coming from an Australian bank!

https://www.smh.com.au/business/banking-and-finance/westpac-s-23m-breaches-could-be-the-tip-of-the-iceberg-20191122-p53da7.html

Australian Business Law Review Vol 47 Pt 4

Volume 47, Part 4 of the ABLR has just come out. Four excellent articles, two Section Notes and a Book Review:

* “Why Not Litigate?” – The Royal Commission, ASIC and the Future of the Enforcement Pyramid – Michael Legg and Stephen Speirs

* The Lawfulness of the Dismissal/Termination of an Employee Who Has Expressed “Unwelcome” Religious Views – Anthony Gray

* Online Auctions and Consumer Protection in the United Kingdom and Australia: The Value of Transparency – Jodi Gardner and Kanchana Kariyawasam

* The Legal Implications of E-commerce for the Australian Franchise Sector – Zhanna Kremez, Kanchana Kariyawasam and Lorelle Frazer

* Penalising the Inclusion of Unfair Terms in Standard Form Small Business Contracts – A Critical Analysis – Mark Lewis

* Small Business and Unfair Dismissal: A Review of the Australian Small Business and Family Enterprise Ombudsman’s Proposed Reforms – Victoria Lambropoulos

* The Legitimacy and Responsiveness of Industry Rule-making, by Karen Lee – Reviewed by Rob Nicholls

Plenty of fascinating reading on a wide variety of legal issues. Hope you enjoy reading this edition as much as I enjoyed putting it together.

Judge warns that VW fine will be 'multiples' of $75m imposed by ACCC

It seems to me, reading between the lines, that unless VW admit their contraventions Judge Foster is going to ramp the fine up well beyond $75 million.

I think Foster is saying that $75 million is the appropriate penalty if VW demonstrates contrition and it can only demonstrate contrition by making admissions.

I also agree that the ACCC should not be accepting a no admission settlement. It seems pretty clear VW is trying to buy its way out of having to say sorry to Australian consumers.

Interestingly, as VW has not made any admissions (yet) it is not a case of them saying that they will withdraw their admissions if the judge does not agree to signing off on the $75 million penalty.

https://www.smh.com.au/business/consumer-affairs/judge-warns-that-vw-fine-will-be-multiples-of-75m-imposed-by-accc-20191016-p531be.html

New Energy Tech Consumer Code

I lodged a submission to the ACCC on behalf two clients in relation to the New Energy Tech Consumer Code. The Clean Energy Council (CEC) didn't seem to like my submission very much describing it variously (and quite repetitively) as:

* generalised (twice)
* unsubstantiated (three times)
* argumentative (twice)
* anonymous (three times)
* making insinuations
* very serious
* potentially vexatious and scandalous
* vague

I am glad to see that, despite the invective, the CEC appears to have agreed with two of my proposals ie to introduce an appeal mechanism for membership applications and to include a requirement that the Administrator observe the rules of natural justice when making decisions.

I wonder if the ACCC will pick up a few more of my other recommendations in the final decision?

https://www.accc.gov.au/system/files/public-registers/documents/AA1000439%20-%20New%20Energy%20Tech%20Consumer%20Code%20-%20Submission%20by%20Applicant%20-%2005.09.19%20-%20PR_0.pdf

Franchising Taskforce Issues Paper

Helped prepare the SME Committee of the Law Council of Australia's submission in response to the Franchising Taskforce Issues Paper.

Unfortunately, the submission is not publicly available as the Taskforce has somewhat surprisingly decided not to publish the submissions received.

https://www.employment.gov.au/franchising-taskforce

Record $26.5m penalty and $56m repayment ordered against training college Empower Institute

While this is a good outcome (admittedly against a company which won't pay a cent of the penalty due to it being in liquidation), I still wonder why the ACCC did not take action against the companies providing the agency services to these VET providers - ie the companies which sent out the sales persons who actually engaged in the misleading and deceptive conduct.

Many of these agents made vast sums of commissions on these sales but have not been held to account for their conduct. Unfortunately, it make be too late for the ACCC to pursue these companies now.

https://www.accc.gov.au/media-release/record-265m-penalty-and-56m-repayment-ordered-against-training-college-empower-institute

Charges dropped against executives in corporate kickback scandal

R v Carter and R v Georgiou - talk about a disaster of a case!

The Crown no billed a 13 week criminal trial in the first week after it came out in evidence from one of the lead detectives that the Police:

(1) had not disclosed the existence of a registered informant to the defence;
(2) had thrown away an original, signed witness statement that differed from the final witness statement filed with the brief of evidence; and
(3) relied on Orix's lawyers, Clayton Utz, to review and forward relevant evidence to them.

While I can kind of understand (2) and (3) happening, I just can't understand why you would not disclose the existence of registered informant to the defence.

https://www.smh.com.au/national/nsw/charges-dropped-against-executives-in-corporate-kickback-scandal-20190916-p52rsb.html