Introduction to Family Trusts: Part 1

A trust is a mechanism that is widely used for investment, business planning and the management of the financial affairs of families. A trust can also be effective in structuring family assets or businesses for protection against liability as well as to share income for tax benefits.

What must a trust contain?

There are several trust structures, each being specific for a given purposes. However, each trust must contain the following:

  1. A Trustee – the legal entity (person or company) that holds the trust property for the benefit of the beneficiaries. Under trust law, trustees are:

    -Personally liable for the debts of the trusts they administer; and

    -Entitled to be indemnified out of the trust property for liabilities incurred in the proper exercise of the trustee’s powers.

Under tax law, the trustee is responsible for managing the trust’s tax affairs.

2. A Beneficiary or Beneficiaries – the person/s that are the ultimate owner/s of the trust property and for whom the trust property is held.

3. Trust Property – for example real estate, shares, money, intellectual property.

When are trusts used?

A family trust is a discretionary trust that is generally established by a family member for the benefit of members of the family group. A family trust can be made:

  • where there is a family business;

  • to hold family assets;

  • to pass family assets to future generations;

  • for tax purposes;

  • to protect assets; and

  • to avoid challenges to a family member’s Will.

How are family trusts established?

A family trust is established by a Trust Deed. This deed will contain specifics of the trust, its purpose, and its terms and conditions under which the family trust will be maintained.

Once the trust deed is prepared, the family trust property must be settled by a ‘settlor’ signing the trust deed. The settlor’s function is to give the assets to the trustee to hold for the benefit of the trust’s beneficiaries on the terms and conditions set out in the trust deed. This process is a formality after which the settlor has no further involvement in the trust. 

After the trust deed is signed by the settlor, the trustee must hold a meeting agreeing to their appointment as trustee of the trust and to be bound by the terms and conditions of the trust deed.

Once the trust deed is signed, it is then submitted to the relevant State’s revenue office for payment of applicable stamp duty and stamping. Although, stamping is not required in certain States in Australia, it is required in States such as New South Wales and Victoria. Stamping will need to be done within the relevant time limits and penalties apply for late stamping.

The above are some basic steps involved in setting up and registering a family trust.

In following articles, we will discuss concessions available to family trusts and how Family Trust Elections (FTEs) are made.

By Oguzhan Sheriff.
Director at RSG Lawyers and Associates.

Email: oguzhan@rsglaw.com.au
Ph: 03 9350 4440

Footnotes available on request.

5 Tips for Self Representation at AAT

It is best to be represented by a legal practitioner at the Administrative Appeals Tribunal (AAT). However, it is understandable that not every review applicant will be able to afford representation.

In my years of experience, here are some tips for self represented applicants who may soon appear at the AAT:

1) Provide documents on time.

The AAT will request you provide certain documents usually 28 days prior to the hearing. Some of the documents and or information that the AAT may request include:

a) evidence that you intend on relying on in support of your application;

b) names of any witnesses you wish to call to give oral evidence or to cross examine in form of a hearing certificate; and

c) whether you require an interpreter which is also specified in a hearing certificate.

If you provide such documents late or do not provide them at all, it will result in the Member or President not having enough time to consider the main issues in your application prior to the hearing, crucial evidence being left out in your hearing or a chance that an interpreter is not organised resulting in a delay in the hearing.

Note: A Member, President or Deputy President are the decision makers at the AAT who will consider and make a determination on your application. The President and Deputy Presidents can exercise powers in any of the AAT’s divisions. Senior Members and Members may only exercise powers in the division or divisions to which they have been assigned.

2) Answer the question.

The Member will ask you specific questions relating to your application. While it is understandable that you may want to say many things related to your case, you need to answer the question rather than to talk about issues that the Member has not raised.

3) Speaking when you have not been requested to speak.

As a matter of etiquette, do not speak over the Member or to other people in the room that may be accompanying you. Other people cannot answer questions on your behalf and cannot speak unless they have been asked to by the Member.

4) Bring two copies of evidence.

There have been occasions where the Member has not received some of the documents that have been filed with the AAT. To avoid such a scenario, it is always best to bring a copy of the documents you wish to rely on so that you may tender such documents to the Member if he or she does not seem to have all of the evidence that you have filed with AAT.

5) Be well prepared and transparent.

At the start of the hearing, you will be required to take an oath or an affirmation to tell the truth to the AAT. It is imperative that you are well prepared prior to your hearing and also important that you are transparent in your answers to the AAT. Should the Member infer from your answers that you are not being truthful or transparent, it may indicate to the AAT that your claims are not well founded or lack credibility.

Conclusion

Ultimately, preparation is everything when appearing at the AAT. If you are unprepared and have not filed all the evidence you wish to rely upon, it is likely that you will not give yourself the best chance for success in your merits review application.

By Farhan Rehman

Farhan is a director at RSG Lawyers and Associates. He appears at the AAT in the general and migration/refugee divisions.

Contact
Ph: 03 9350 4440
Email: farhan@rsglaw.com.au
http://www.rsglaw.com.au

Franchising changes in 2021 – What you need to know.

2020 has been a year in which we have seen the introduction of several new legislation together with amendments to existing ones. Towards the end of 2020, the Australian Government released an exposure draft where it proposes changes to the Franchising Code of Conduct. This comes in wake of the Fairness in Franchising Report and is the Government’s response to the Report.

What does this mean for Franchisees and Franchisors?

The proposed changes aim to increase the disclosure requirements from franchisors while also improving the rights of franchisees to “balance” the rights of the parties.

What are some of the key changes proposed?

  • Changes to dispute resolution with new conciliation and voluntary binding arbitration provisions making dispute resolution a more affordable option for the franchising sector, while also delegating the franchising dispute resolution advisor functions to the Australian Small Business and Family Enterprise Ombudsman (ASBFEO). 
  • Requirement to provide a ‘Key Fact Sheet’ that will highlight the most critical information contained in the disclosure document.
  • The disclosure of significant capital expenditure, rebate arrangements, arbitration of disputes, early termination of franchise agreements, rights relating to goodwill, earnings information, and further disclosure of lease information.
  • Increasing the cooling off period from seven (7) to fourteen (14) days.
  • Restriction on Franchisors requiring franchisees to pay legal costs of the franchisor preparing the franchise agreement and ancillary documents.
  • Doubling the penalties for breach of the Code from 300 penalty units to 600 penalty units, which would make it over $100,000.
  • Ability for franchisees to negotiate an early termination.
  • Restraint of trade clause to not have effect unless franchisee is in “serious breach” of the agreement.

Most of these proposed changes are set to come into effect from 1 July 2021, while the civil penalty provisions are expected to come into effect once the amendments to the Competition and Consumer Act 2010 (Cth) passes parliament.

Franchise operators will therefore need to examine their contracts and practices to ensure they are prepared for the upcoming changes.

Written by Oguzhan Sheriff
Director at RSG Lawyers and Associates.

Footnotes available on request.

Why is the Federal Circuit Court Overburdened by Migration Applications?

Immigration law is in a state of flux. This characteristic is typical to the immigration law system of many countries as the movement of people through borders is inevitably linked to politics, economy, trade and globalisation. However, in Australia, immigration has been continuously used as political hyperbole which has seemingly lead a movement towards uncompromising immigration policies. 

In my experience, Australia’s immigration system is focussed on preventing people from coming to Australia. I know that such a statement may seem like a fallacy as Australia is well promoted to be a “migrant nation”, however in the background the policies that the Department of Home Affairs implements unnecessarily makes it difficult for migrants that should otherwise be eligible to remain in the Country. 

The consequences of such immigration policies is that temporary visa holders appeal decisions made by the Department of Home Affairs all the way to the the Federal Circuit Court (FCC). In my experience, a number of such applications can take up to 2 years, or even more, for a final hearing at the FCC. 

In 2018, the principal registrar Stewart Fenwick told the committee that “migration appeals has blown out to 7607 pending and it is continuing to fall behind”. The FCC’s own Annual Report, released on October 2020, reveals stark concerns that the “FCC is simply unable to cope with its increasing workload, putting vulnerable children, Australian families and Judges at significant risk”. The FCC’s pending migration law caseload spiked by 58 percent, up from 7,674 applications in 2017–18 to 12,158 applications in 2019-20. If current filing rates continue, the Report concludes that without further resources the “pending migration caseload will overtake the pending family law caseload in less than two years”.

A number of such FCC applications do not necessarily have a proper basis however desperate, unrepresented migrants in Australia may have tendency to use the appeal process as a mechanism to prolong their bridging visa which is resulting in the FCC facing an astronomical backlog. While I am against applications lodged without basis, from a view of equity, I do not entirely blame the migrants that have made such baseless claims in the courts. In my view it is a broken immigration system that continues to employ stricter and stricter approaches in dealing with migrants that has a part to play in the FCC overburden. 

To deal with this issue would not mean to get through FCC applications quicker, to increase FCC application fees, which has been recently proposed, or to increase judicial appointments to the FCC. It requires an overall ease in immigration policies to allow for softer rules especially to those that have obtained qualifications in Australia and or those that have been sponsored by an Australian business. By softening such rules, it will result in removing such baseless FCC applications that have been lodged by tired and frustrated migrants. 

By Farhan Rehman.
Director at RSG Lawyers and Associates. 

Footnotes available upon request. 

Subclass 188 B Investor Stream – Period and Timing of the Investment

For the purposes of the 188 B Investor Stream, a designated investment is an investment in a security specified by legislative instrument.

The relevant legislative instrument specifies government securities:

•      in primary stock

•      with maturity of not less than 4 years

•      with repayment of principal explicitly guaranteed on maturity and

•      that do not expose the Commonwealth Government to any financial liability.

Period of Investment

The period of investment must be for 4 (four) years.

As also stated in Department of Home Affairs (Department) policy, for an applicant’s investment to be a designated investment the terms of the investment must be for not less than 4 years.

In practice, the investment terms should not be for less than 4 years and will be for no more than 4 years and 30 days.

Timing of Investment

The applicant is required to make the investment before the visa is granted.

The Department will request for the investment to be made within 70 days from the date of the request letter and the request letter will generally specify that the applicant provide evidence of:

•      the transfer of funds to the relevant State/Territory

•      what assets have been liquidated:

•      if the assets used to fund the investment were those originally nominated and that these assets have been liquidated to fund the designated investment or

•      if a different source of funds was used to make the investment, that those funds were personally and legally owned by the applicant and/or their spouse or de facto partner, were unencumbered and derived from qualifying business and/or eligible investment activities.

Once the investment has been made by the applicant, the Treasury Corporation will complete relevant documentation and return it to the Department.

Treasury Corporation Conditions

Each State Treasury Corporation will have conditions on the investment made.

The following conditions will (generally) apply to an applicant’s investment when transferred to the relevant Treasury Corporation:

  1. the investment cannot be processed if the full investment amount is not received into the relevant Treasury Corporations bank account;
  2. any fees relating to the bank transfer must be paid separately;
  1. the paying bank must not deduct any charges from the investment amount;
  2. the bank account(s) used to transfer funds to the Treasury Corporation bank account must match the bank account name and account number details provided on the applicant’s application form;
  3. the Treasury Corporation may request certified evidence of the applicant’s funds transfer;
  4. the total investment amount must not be transferred in more than 5 separate transactions;


By Farhan Rehman
Director at RSG Lawyers and Associates

Footnotes are available upon request.

Contact:
03 9350 4440
Farhan@rsglaw.com.au
http://www.rsglaw.com.au

Personal Identifiers (Biometrics) Waiver

Under the Migration Act, a citizen or a non-citizen may be required to provide personal identifiers (Biometrics) to the Department of Home Affairs.

For the purposes of the Migration Act and the Australian Citizenship Act, a ‘personal identifier’ is defined to mean any of the following (including any of the following in digital form):

• “fingerprints or handprints of a person (including those taken
using paper and ink or digital live scanning technologies);
• a measurement of a person’s height and weight;

• a photograph or other image of a person’s face and
shoulders;

• an audio or a video recording of a person (Migration Act
only);

• an iris scan;

• a person’s signature;

• any other identifier prescribed by the Migration Regulations
1994 or the Australian Citizenship Regulations 2007
(whichever is relevant), other than an identifier the obtaining
of which would involve the carrying out of an intimate
forensic procedure within the meaning of section 23WA of
the Crimes Act 1914 (provided it meets the description of an
image, measurement or recording of an external part of the
body).”

Throughout the pandemic, our office successfully waived the Biometrics requirement for a number of our clients. Further, after overcoming the Biometrics requirement, we were able to obtain priority processing for certain visa applicants and obtain travel exemptions so visa holders could travel to Australia.

When can you waive Biometrics?

Under Section 40(3) or Section 46 (2A) of the Migration Act 1958 an applicant may be required to provide Biometrics.

A Delegate can consider waiving the operation of s 40 (3) or s 46 (2A) if a visa applicant requests for a waiver or even if no request for waiver is made by a visa applicant.

As a matter of Department policy, requests to waive the requirement to provide Biometrics must be made in writing (by letter, fax or email).

If a request is received, officers may request further information from the applicant in order to ascertain the circumstances preventing the applicant from being able to comply with the requirement to provide personal identifiers.

Under Department policy, the five grounds for waiver of Biometrics are:

  •       operational reason to retract the requirement;
  •       emergency and/or compassionate situations;
  •       compelling circumstances affecting the interest of Australia;
  •       in-country crisis situations; and
  •    representations from other Commonwealth agencies or host government.


Written by Amy Khan, Clerk at RSG Lawyers and Associates.
Reviewed and approved by Farhan Rehman.

RSG Lawyers and Associates
http://www.rsglaw.com.au
Footnotes available upon request.

Can the law exclude procedural fairness?

In previous publications, I have touched on the importance of procedural fairness in administrative decision making. Today, I will briefly discuss whether the requirement for such a decision maker to accord by the rules of procedural fairness can be excluded by statute.

There will always be a duty for an administrative decision maker to accord to the rules of procedural fairness unless there is “clear and contrary legislative intention“. Procedural fairness may be excluded through statutory construction however the courts in Australia increasingly view legislation in a way that implies that a duty to afford procedural fairness exists on the decision maker even where legislation may ambiguously limit such a common law right.

This implied judicial view seems to have been adhered to since the judgement by the High Court in Saeed v Minister for Immigration and Citizenship 2010 (Saeed) where Gleeson CJ stated that procedural fairness is “protected by the principle of legality“.

Gleeson CJ’s statement in Saeed has been interpreted by some academic commentators as “the Court having accorded constitutional status on the principle“.

The principle of legality governs the relationship between Parliament, the Executive and the Courts. It is often associated with the “presumption that Parliament does not intend to interfere with the fundamental common law rights, freedoms and liberties of its citizens“. Procedural fairness can be seen as one of those fundamental “common law rights” as was stated by Gleeson CJ in Saeed.

In Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3, Heydon J said:

“The ‘principle of legality’ holds that in the absence of clear words or necessary implication the courts will not interpret legislation as abrogating or contracting fundamental rights or freedoms. For that principle, there are many authorities, ancient and modern, Australian and non-Australian”.

In conclusion, the legislature could limit the application of procedural fairness. However, procedural fairness is a common law right that is the cornerstone to fair administrative decision making and the courts are not, on the face, willing to forgo this fundamental right especially where legislation is not abundantly clear on the limitation of procedural fairness.

Written by Farhan Rehman.
Director, RSG Lawyers and Associates. 
www.rsglaw.com.au

Footnotes available upon request. 

Lawfulness of Australia’s Travel Ban

Article 12 of the International Covenant on Civil and Political Rights makes it clear “that everyone shall be free to leave any country including his own… No one shall be arbitrarily deprived of the right to enter his own country”. While international instruments, such as article 12 of the ICCPR, cannot be used to override clear and valid provisions of Australian federal law, where legislation is not clear or ambiguous, the courts may favor a construction that accords with Australia’s international law obligations.

The Australian Constitution has application however there is no direct reference to “citizenship” in the Australian Constitution. Therefore, we are left with Australian case law for answers to whether there exists a right to entry for Australians at common law. 

Air Caledonie International v The Commonwealth [1988] HCA 61; 165 CLR 462; 82 ALR 385

The Air Caledonie International judgement was concerned with the constitutional validity of what was known as the ‘immigration tax’.

The Migration Amendment Act 1987 (Cth) (Act) claimed to amend the Migration Act 1958 (Cth) and imposed a ‘fee for immigration clearance’. All persons, other than prescribed passengers, arriving in Australia by airline were required to pay a prescribed fee. By provision of the Act, airline operators were then obliged to pay the fees to the Commonwealth on behalf of all of its passengers and would collect the said fee from passengers entering Australia.

Air Caledonie International, the plaintiff in the case, submitted as follows:

a) s.34A of the Act was a tax, and was thus invalidated by virtue s. 55 of the Commonwealth Constitution; alternately

b) the imposition of the charge could not be characterised as a law under any of the designated heads of Commonwealth Parliamentary power.

The High Court found in this case that a charge for a ‘privilege’ or a ‘service’ would be a tax where the government was in fact providing a ‘right’ rather than a ‘privilege’. A charge cannot be rationalised as a fee for service where the ‘service’ is in fact the provision of a ‘right’.

The High Court said that “[t]he right of the Australian Citizen to enter the country is not qualified by any law imposing a need to obtain a licence or “clearance” from the Executive.” Important to the question I am writing about today, the Court found that the provision of immigration clearance (or entry) to an Australian citizen was a common law right rather than a government service.

There are other cases that provide guidance on the freedom of movement out and in of Australia that I hope to expand on in future publications.

The pandemic will result in various applications some of which may use common law rights, like those referred to in the Air Caledonie case, as a basis to argue against the actions undertaken by the Government during the pandemic.

While the health of Australian’s is important, any actions undertaken by the Government must be within the scope of the authority it has to do so. It seems then that the travel ban could have grounds for a challenge if tested in the courts.

Footnotes available upon request.

Written by Farhan Rehman.

Partner, RSG Lawyers and Associates.
http://www.rsglaw.com.au

COVID-19 – Update On RSG Operations

RSG Lawyers and Associates will continue to operate during the COVID-19 event.
While our team will be operating remotely, our reception will remain open to take calls only. Consultations will be available by telephone or video link.
Should you have any queries, you are welcome to contact our reception on (03) 9350 4440. If you wish to contact our Wagga Wagga reception, please call (02) 6922 7758.
The COVID-19 event will not disrupt any of our clients matters and our office has a plan and is well resourced to be able to work through a mandatory national quarantine should it be implemented by the Australian Government.
We take this opportunity to inform the public to follow any Department of Health directions, to stay well informed and to never panic.
Yours sincerely,
The Team at RSG Lawyers and Associates.

Must a decision-maker provide a statement of reasons?

I act on behalf of clients who have received a decision by an Australian government department or a public official. The power given to such departments or public officials to make such decisions are by legislation.

Such decisions are reviewable by:

-reconsideration by the original decision maker;

-merits review at the relevant Tribunal (ie AAT, VCAT);

-judicial review on the basis of an error of law; or

-complaint to the Ombudsman.

When a decision notice is given to an Applicant, it must generally be accompanied by a document that pronounces the reason for the decision made. This document is commonly known as the “statement of reasons”.

I will briefly summarise in what circumstances a decision-maker may have an obligation to provide a statement of reasons.

There is no particular duty at common law for the decision-maker to provide a statement of reasons. If there is a duty to provide a statement of reasons, it will be due to the governing legislation of a decision.

Generally, the decision-maker will have a duty to provide a statement of reasons where:

  • The decision is reviewable at the Administrative Appeals Tribunal. For example, under Section 28 of the Administrative Appeal Tribunal Act 1975 it states:

“Person affected by decision may obtain reasons for decision

Request for statement of reasons

             (1)  Subject to subsection (1AAA), if a person makes a decision in respect of which an application may be made to the Tribunal for a review, any person (in this section referred to as the applicant ) who is entitled to apply to the Tribunal for a review of the decision may, by notice in writing given to the person who made the decision, request that person to give to the applicant a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision, and the person who made the decision shall, as soon as practicable but in any case within 28 days after receiving the request, prepare, and give to the applicant, such a statement.”

  • The decision can be judicially reviewed at Federal Court; or 
  • the legislation that gives the decision maker the power to make the decision also obliges the decision-maker to set out a statement of reasons. 

Once you receive Statement of Reasons

Once you obtain a statement of reasons, it is important you carefully consider whether the decision-maker has provided any inadequate reasons for the decision.

If you find a mistake or error in the decision-makers reasons you may review the decision.

There are strict time-lines for reviews of a decision and in some circumstances those time-lines are not extendable.

By Farhan Rehman
Partner at RSG Lawyers.
Tel: (03) 9350 4440
Email: farhan@rsglaw.com.au

Footnotes are available upon request.