It’s a form of swift reasoning, cool logic, effortless problem-solving skills and precision analysis that many non-lawyers wished they possessed in heated exchanges between partners, friends or colleagues. It’s the kind of calculated mental weaponry that shields you from unhelpful, inflammatory emotions while actively disarming your opponent with one slash of your sharp verbal blade.

Sounds enviable, right?

Here’s the good part: the ability to use legal reasoning in everyday life is not a skill confined to the legal profession. Like learning a new language, thinking like a lawyer is a technique that can be developed with time, patience, practice, and a willingness to sometimes sound pretentious.

Time to get brain training.

Step 1: Become a word merchant

Lawyers are inherently competitive. They enjoy peppering everyday conversations with big words and thinly veiled insults.

It’s a strategy used to spice things up with colleagues during casual office banter and to gain an unfair advantage in everyday communications with family members or friends.

How to think like a lawyer

If you want to persuade people with your silver-tongued trial lawyer rhetoric, then you need to brush up on your grammar and vocabulary.

Invest some time thumbing through the thesaurus or dictionary and craft a ready-to-go bank of insults you can draw on in a pinch.

Step 2: Forecast the future and scenario plan

Thinking like a lawyer means preparation, planning and predicting (insofar as possible) the future. This means doing risk assessments before making a big decision, considering all your options, and planning for all possible potentialities.

Like a game of chess, it’s a form of deliberate and methodical thinking that factors in the motivations, agendas and likely next move of your opponent. This habit of thinking before acting is part of the reason why lawyers are often considered to be wholly risk-averse.

The upshot of developing this style of thinking, however, is that you will rarely be surprised by unforeseen negative outcomes of your decisions in personal or professional contexts.

How to think like a lawyer

Before taking a course of action, spend some quiet time considering what could potentially go right and what could possibly wrong as well as what the negative or positive consequences might be.

Try to minimise the number of impulse decisions you make and always have a solid backup plan.

Step 3: Develop analytical and problem-solving skills

Analytical skills are central to the way lawyers solve problems and evaluate issues.

Analytical thinking allows you to visualise, articulate, conceptualise and solve simple and complex problems by making educated decisions and taking calculated risks given available information.

Think like a lawyer

Lawyers are able to pick out salient points from any given problem.

Try not to get bogged down in irrelevant details but focus on the most relevant and critical information. Lawyers analyse the issue and look for the material facts, and evidence that supports those facts. They then look for what conclusions they can draw from known facts, justified with sound reasons.

Step 4: Remain objective

Lawyers are masters at removing emotion from everyday interactions.

Submitting to your feelings leaves you vulnerable, clouds judgement and prevents you from making the best decision in the circumstances.

The ability to tease the emotion out of every situation, including inflamed personal conflicts, is one of the many reasons why lawyers are often described as robotic a-holes.

Think like a lawyer

In any escalating confrontation, stop and take a beat.

Taking your time to respond is a strategy lawyers use to drive their opponents crazy! Use this time to remove yourself emotionally from the immediate drama of the situation. Lawyers don’t allow themselves to be drawn in by cheap insults and other schoolyard tactics, although many will engage in it themselves.

Stay calm and put yourself in your opponent’s shoes. What is the meaning behind their words and actions? This requires a degree of emotional intelligence that, if used correctly, can diffuse any situation.

At the end of the day

Lawyers are just people who have been trained in problem-solving techniques and effective communication.

The ability to think like a lawyer simply means developing your lawyer lips, engaging in verbal sparring in appropriate circumstances, moderating emotion and other subjective influences from everyday scenarios, and always applying critical reasoning, logic and sound judgement.

What lawyerly strategies do you use day-to-day? Let us know in the comments!

More on BucketOrange Magazine

Laws Of Conversation: How To Argue Like A Lawyer

Laws Of Conversation: How To Argue Like A Lawyer (Vol. 2)

It’s 11 PM on a Monday night and you’re headed to McDonald’s for a late night study snack. Just when you are about to cross the road the pedestrian light turns red, and a single car passes through the traffic lights.

With no other vehicles on the road, you decide to cross on a red light. Little did you know that this single act could land you on the receiving end of a not insignificant fine.

In recent years, police crackdowns on “jaywalking” in high-risk areas have seen thousands of pedestrians in Sydney and Melbourne CBDs receive up to a $70 on-the-spot fine. The aim has been to reduce the incidence of pedestrian deaths and injuries.

So what does, and does not, constitute a pedestrian offence in Australia?

‘Jaywalking’ and the law

There is no specific “jaywalking” offence in Australia. It is more commonly used as a colloquial term to describe pedestrian offences for crossing the road illegally in each state and territory.

Pedestrian rules are aimed at reducing your risk of injury and the risk of injury to other road users.

Pedestrian laws vary depending on the state or territory and any related fines also vary by council area.

These rules are not strictly enforced, especially when compared with speeding fines and red light cameras. Generally, for a pedestrian to receive a traffic infraction you will have to be clearly disregarding road rules and recklessly placing yourself or drivers in danger.

What pedestrian behaviour may attract a fine?

Some of the most common “jaywalking” offences in Australia include:

• Pedestrians who cross the road by ignoring red pedestrian lights, particularly in cities such as the ACT and Melbourne where light rail vehicles pose an increased risk to pedestrian safety
• Crossing the road diagonally where you aren’t permitted to do so
• Crossing the road on a green light
• Not using a zebra crossing within 20 metres of your location
• Walking in the middle of a breakdown lane

If there are no pedestrian signs, signals, lights or crossings, you must take the shortest and safest route across the road.

Interestingly, it is not an offence to use a mobile phone, listen to music or text while crossing a road unless police can prove that you caused a traffic hazard or obstructed a pedestrian or driver.

Keep walking

Like other road rules, the purpose of pedestrian laws is to ensure public safety.

So the next time you decide to make a quick dash across the road while running late for work, think about the impact of your actions on your own safety, the safety of other road users … and your wallet!

There are two major changes introduced by the new Bill.

Statutory benefits now available to any injured party

The first major change is that statutory benefits are now available to any injured party involved in an accident, regardless of who is at fault. Statutory benefits may cover wage loss, medical treatment and funeral expenses. Previously entitlements were mostly dependent on who was at fault and primarily covered the injured parties who weren’t at fault.

Exclusions do apply, however, for example, in cases where the at-fault driver’s vehicle is uninsured, or the injured person commits a serious driving offence, or workers’ compensation is payable instead, or if the injured person is residing outside Australia (in some circumstances).

What types of statutory benefits can you claim?

There are very particular rules around the types of statutory benefits you can claim, as well as the length of time you are entitled to receive them. For example, to claim for loss of earnings, you first need to meet specific employment criteria to qualify as an “earner”. Your entitlement is then calculated as a percentage of the difference between your weekly earnings prior to the accident, and your weekly earnings after the accident.

There are also different entitlement periods that impact on the amount you will receive, depending on factors such as your level of incapacity and ability to work, how serious your injuries are and whether you were at fault in causing the accident or were contributorily negligent.

Claiming damages as compensation for losses due to injuries

The second major change to the motor accident laws is a reduction in what you can claim damages for if another person was at fault, or if it was a blameless accident which may have occurred as a result of a driver suffering a medical emergency, or an unexplained mechanical failure, for example.

“Damages” is a sum of money claimed as compensation for losses arising from injuries sustained in an accident. You can claim for economic loss – the financial loss suffered because of injuries sustained in the accident – and for non-economic loss, which is an amount of money to represent the pain, disability, loss of enjoyment of life, disfigurement or associated circumstances suffered because of your injuries.

Importance of adhering to timeframes when making claims

Claims can be made for either statutory benefits or damages, or both, but they must be lodged separately. There are important timeframes that must be adhered to for both types of claims.

For statutory benefits, there are verification requirements – such as notifying the police of the accident within a specified timeframe – and lodging a “notice of claim” with the relevant insurer.

Ideally, the claim should be submitted to the relevant insurer within 28 days of the accident, although you can submit up to three months after the accident. If you lodged after three months, you have to meet certain criteria and have a good reason why the claim was lodged late.

Giving notice of the claim to the insurer when claiming damages

When claiming damages, you first need to give notice of the claim to the insurer, separately to your claim for statutory benefits. The timelines for damages are also very specific. You need to wait 20 months from the date of the accident before you are able to claim for damages, unless the claim is for the death of a person, or your whole person impairment is greater than 10%. The claim can also not be settled until two years after the accident unless one of the two exceptions noted previously is met.

Further, the damages claim must be made within three years of the date of the accident. Claiming outside of that period will mean having to provide a full and satisfactory explanation for the delay, and may mean losing the right to claim altogether.

After the claim has been made for damages and as soon as practicable, you should submit “relevant particulars”, which detail the accident, the nature of injuries and disabilities, and the details of all losses. This may include, for example, an accident report (referred to as an “Event Report” by police), an injury report, and record of economic and non-economic losses.

What happens if you disagree with the insurer’s offer?

If you disagree with the insurer’s offer, the first step is to try to resolve it with the insurer. In the case of statutory benefits, you may request an internal review, which the insurer must conduct within 14 days. If you are unable to resolve the dispute with the insurer, you can refer the matter to the Dispute Resolution Service for claims for both statutory benefits and damages.

In the case of damages, you may be exempt from this step if, for example, the insurer wholly disputes liability for your claim. Regardless of whether you are taking the matter to the Dispute Resolution Service, or going directly to court proceedings, it is imperative that you seek legal advice at this time.

Information to be gathered at the scene of an accident

If you are involved in a motor vehicle accident, no matter how minor, you should ensure you collect the contact details of the other driver(s) involved, including their insurer, as well as witness contact details.

It is important to record vehicle details, such as the make, model, colour and licence plate of the vehicle, and details of the accident itself, including the time and date and the exact location. If possible, take photos of the accident and vehicle damage. Ensuring these details are captured from the outset will make compiling claims at a later date significantly easier, and the chances of making a successful claim higher.

Further Information

More details about changes to the law can be found here: Changes to NSW motor accident laws – your definitive guide.

What’s likely to happen in Parliament over the next few months?

To become Australian law, the proposed Bill will need to pass through the Senate and the House of Representatives with only nine Parliamentary sitting days remaining this year. It’s likely that there will be several amendments to the Bill before it is passed which, Attorney General George Brandis, believes will happen by December 7, if not earlier.

The vote deciding whether the Bill passes will be a “free vote” or a “conscience vote.”

This means that there will be no direction by the leader of each parliamentary party to Members or Senators to vote in any way on the Bill. It will be a matter entirely for each Member or Senator to decide the way that they wish to vote and to deal with the politics of the way they voted. As there will be no formal sanction, Members and Senators from the same political party may be voting differently from some of their colleagues.

Once the bill has passed Parliament, it will go to the Governor-General, Peter Cosgrove, for the Royal Assent. The commencement date of the Bill remains unclear, however, the legislation must commence within 28 days of Royal Assent.

President of The Law Society of NSW, Pauline Wright, says that the Law Society will scrutinise any proposed legislation and forward its recommendations to the Law Council of Australia to be included in a submission from the national body of the legal profession. Ms Wright said the Law Society has consistently supported the introduction of laws to enable same-sex marriage since 2012 to address discrimination against same-sex couples.

All Australians are entitled to be free from discrimination, to be subject to the same laws and to be treated equally before the law,” Ms Wright said.

Reform is appropriate where there are laws which discriminate against people on the basis of inherent characteristics, such as their sexual orientation or gender identity.

At the same time, it is appropriate that any proposed legislation be scrutinised to ensure that it does not erode other traditional rights and liberties that we presently enjoy.”

Quick recap of the proposed amendments

The proposed Bill has been drafted to:

• redefine marriage as ‘a union of two people’
• introduce non-gendered language so that the requirements of the Act apply equally to all marriages
• enable same-sex marriages that have been, or will be, solemnised under the law of a foreign country to be recognised in Australia
• amend the definition of ‘authorised celebrant’ to include new categories of religious marriage celebrants and certain Australian Defence Force officers
• enable ministers of religion, religious marriage celebrants, chaplains and bodies established for religious purposes to refuse to solemnise or provide facilities, goods and services for marriages on religious grounds; and
• make amendments contingent on the commencement of the proposed Civil Law and Justice Legislation Amendment Act 2017; and Sex Discrimination Act 1984 to provide that a refusal by a minister of religion, religious marriage celebrant or chaplain to solemnise marriage in prescribed circumstances does not constitute unlawful discrimination.

Where to from here?

It’s going to be an interesting few months in Parliament. Malcolm Turnbull and many others in government are eager for same-sex marriage to be legalised prior to Christmas, which means that the first weddings could be taking place as soon as mid-January 2018.

More on BucketOrange Magazine

It’s not just because lawyers can always identify the appropriate moment to combine
mind-bending reasoning and logic with rapid-fire silver-tongued rhetoric in a way that consistently obliterates the opposition in an argument (although that’s a big part of it).

It’s because lawyers also know that with great power comes great responsibility. Sometimes in an argument – like Aesop’s Fable, The Wind & The Sun – choosing a moderate and persuasive approach can often get you further than force.

The key to a lawyer’s coveted communication arsenal, then, is an acute awareness of personal and professional scenarios with the potential to quickly escalate out of control, and the unique ability to make a snap assessment about the best course of action.

While lawyers intuitively know when to cool their jets by offering considered and conciliatory responses in a negotiation, they also recognise that sometimes not giving any ground and adding an accelerant to an already inflamed situation is unavoidable.

It’s a little-known fact that the ability to argue like a lawyer has little to do with formal legal training and a lot to do with a few key courtroom hacks you can apply to your personal and professional life today.

Arguing a point vs effective communication

Arguing is about point scoring.

At its most cutthroat, arguments can be an ugly excuse to take out the day’s frustrations, air past grievances, jealousies, hurts or regrets by verbally attacking your opponent and, in some instances, leaving them reeling for hours, or even days, after the interaction.

If you want your opponent to accept your point of view, you need to start thinking about your interactions as less of an ‘argument’ and more of an ‘art’ form.

1. The art of persuasion

Lawyers are experts at analysing a lot of information, distilling evidence and getting straight to the heart of an issue.

In a professional setting, there is much to be gained by arguing a point effectively such as credibility, respect, and maybe even a promotion. Personal settings are generally more about compromise.

Most of us don’t respond well to insults or being told that we are wrong. So if your ultimate goal is to convince your opponent that your point of view is correct, aim to be persuasive rather than incendiary.

Lawyer it

Avoid the temptation to jump head first into a no-holds-barred shouting match to let off some steam.

Convincing someone to adopt your point of view is an exercise in patience, persuasion and suggestion. To win someone to your point of view, they must almost believe that they came up with the idea themselves.

Lawyers avoid descending into shouting matches because it’s an opportunity for your opponent to glean potentially sensitive information from you which could be used to your detriment at a later stage.

2. Know your subject matter

A common trap many of us fall into, especially when arguing about something we are passionate about, is to defend our position using every shred of evidence, even irrelevant material and subjective opinions.

These sorts of debates invariably descend into irrational and fruitless arguments that draw on an array of unrelated issues and that leave both people feeling frustrated and in no better position than when they originally started.

Lawyer it

If you want to consistently win arguments like a lawyer, make sure that you prepare.

Law is lyfe.

Wherever possible, good lawyers avoid asking a question in court unless they already know the answer to it. This eliminates the possibility of being surprised by a response that could compromise your case. 

The same logic applies to everyday scenarios.

If you understand your opponent through meticulous preparation, it is possible to anticipate their arguments and apply tactical pressure to win.

This is one of the reasons that lawyers are highly skilled at presenting an effective argument. They consider issues from multiple angles and forecast their opponent’s next move. 

3. Choose your words carefully

Word choice in arguments is more important than most of us realise.

If you want to win a point, wherever possible, avoid unnecessary ‘fluff’ words that carry no real weight or meaning.

Hesitation = annihilation.

This is a red flag to your opponent that you are wavering, unsure of yourself, and that your thoughts are unstructured – something that they can easily use to their advantage.

Lawyer it

Words are like currency for lawyers, so spend yours wisely.

Keep your argument clear and simple, and make your point quickly.

4. Steer clear of your feelings

Emotion is subjective and clouds your judgement which is why lawyers leave it at the door when entering the courtroom. 

They say that about lawyers too :'(

A strong emotional response makes it difficult to present a convincing argument and is also the quickest way to lose an argument. Becoming angry or displaying other visible signs of distress such as flushing, tearing up, waving hands in the air or becoming aggressive are red hot cues to your opponent that you have lost your way and that your arguments have become irrational and implausible. 

Becoming emotional advertises your weaknesses to your opponent, effectively handing them the ammunition needed to focus their strategy and distract you from your core objective. 

Lawyer it

If you have an issue that needs resolving, never start the conversation when you’re tired, cold or hungry. It’s a surefire way to start a conflict, to say something that you regret, or to irreparably destroy a relationship.

Lawyers stay in control by sticking to the facts.

This ability to remain calm, focused, objective and in control of an escalating situation is a unique type of emotional intelligence that comes from years of legal training. It’s also one of the reasons why lawyers are able to navigate high-conflict personal or professional situations with relative ease. 

Try to remove yourself mentally from a situation and stick with the facts, not how you feel about the facts.

Understanding yourself, your unconscious biases and knowing which issues are likely to trigger an emotional response in you is critical. This way you can develop strategies to harness those emotions in a positive way.

At the end of the day

It is the mark of an intelligent mind to be able to entertain a thought without accepting it.” – Aristotle

Some of the best arguments are not actually arguments at all but heated debates in which both people openly share opposing views, and walk away intellectually stimulated having learnt something new.

Lawyers are highly successful communicators because they know when to toe the line by respectfully listening to their opponents and when to bring down the hammer. Wherever possible, avoid emotion, stick to the point and foster a constructive discussion rather than a critical argument. This way, both you and your opponent walk away winners.

What strategies do you use when an inevitable disagreement surfaces in your personal or professional life? Let us know in the comments!

More on BucketOrange Magazine

• Laws Of Conversation: How To Argue Like A Lawyer Vol. 1
• How To Think Like A Lawyer (Even When You Don’t Have A Law Degree)
• WATCH: Our Editor-in-Chief, Sarah Lynch, discuss “Arguing Like A Lawyer” on Today Extra

In an Australian-first for the legal assistance sector, Moonee Valley Legal Service recently launched FineFixer – a new website that provides personalised legal information to help Victorians understand their legal rights and how to tackle fines.

More than 5 million fines are issued each year in Victoria alone. This, coupled with a lack of understanding of the tools and services available to help manage payments, has led to Victoria Legal Aid and community legal centres being inundated with requests for assistance.

FineFixer has been developed to help Victorians understand their rights and to pay fines using a quick and easy process. The platform not only enables early action that avoids the accumulation of costs and penalties but also frees up valuable time for community legal centres and Legal Aid.

FineFixer was designed by students at RMIT’s Fastrack Innovation Program, which tackles society-level problems using a design-driven approach to innovation. The program brings together outstanding students from diverse programs and backgrounds, with subject matter experts from industry to conceive, test and develop innovative solutions to real-world challenges.

Winning the program’s ‘Most Viable Solution Award’ in 2015, FineFixer gained strong support from the legal sector, with Moonee Valley Legal Service receiving a grant from Victoria Law Foundation to help bring the concept to fruition. PaperGiant – a research-led design and development studio – were responsible for website’s design and development.

Brendan Lacota, Principal Lawyer at Moonee Valley Legal Service, sees much potential for emerging technologies in supporting legal services:

Smart tools like FineFixer are essential for meeting the growing need for legal services. FineFixer offers a free and fast way for people with fines to identify and understand their options, and gives them the tools they need to take action without getting further into debt.”

The Victorian Council of Social Services (VCOSS) has also recognised the importance of FineFixer. Speaking at FineFixer’s launch last week, VCOSS CEO Emma King highlighted its value:

By helping people at the start of the process to know their rights and navigate the bureaucracy, FineFixer will help thousands of Victorians keep their lives – and their finances – on track.”

Further Information

For more information visit FineFixer.

FineFixer received a grant from Victoria Law Foundation. Do you have an idea for a project that will help Victorians to better understand the law like FineFixer has? Applications for Victoria Law Foundation’s 2017-18 General Grants are now open and close on 28 August 2017. Visit Victoria Law Foundation for more information.

Law Week is an opportunity for the legal industry to celebrate and promote a better understanding of the law and legal processes to the general public. But it’s not a unique activity, as similar celebrations centred on the promotion of the rule of law also take place internationally in May.

Celebrated each year on 1 May in the United States (today for Australia), Law Day is a day in the legal calendar set aside exclusively to celebrate and recognise law as the glue of American society as well as its fundamental role in maintaining law and order and providing a solid foundation for the United States to become a powerful world leader.

First recognised by President Eisenhower on 5 February 1958, the first day in May each year has since been celebrated as Law Day. Eisenhower said:

In a very real sense, the world no longer has a choice between force and law. If civilization is to survive it must choose the rule of law. On this Law Day, then, we honor not only the principle of the rule of law, but also those judges, legislators, lawyers and law-abiding citizens who actively work to preserve our liberties under law.”

Local bar associations and legal education organisations in the United States now use Law Day to promote legal education for students.

Each year in Australia, every State and Territory’s Law Society and the Law Council of Australia actively promotes the law and legal education during Law Week. It is celebrated across Australia to further an understanding of the law and its role in society as well as to raise awareness in the community about how to access legal services and advice.

A broad understanding of the law, Australia’s Constitution, the role of government, the parliament and the court system is critical to an appreciation and respect of Australian law and its role in protecting our democratic way of life.

Although it is not an official government holiday, isn’t it about time that the Australian government started strongly supporting initiatives like Law Week which nationally recognise the rule of law, advance access to justice and educate the public about the law’s pivotal role not only in Australia’s history of Federation but also our current legal system? Dedicated national legal education days, like Law Week, are an important tool for raising public interest and awareness around the law and legal issues.

Naturally, since we love love love love (LOVE!) the law, we’re 100% behind Law Week. It’s why we’re in the business of social impact legal publishing – to entertain, empower and inspire young non-lawyers about their everyday legal rights – not just for one day, or one week, but 365 days each calendar year.

So let’s help non-lawyers to see the law, less like an arbitrary and unattainable set of principles available only to a privileged few, and more like an easily intelligible part of everyday life that’s accessible to everyone.

Will you be participating in Law Week 2017? Let us know in the comments!

Further Information

To see a full list of Law Week 2017 activities (15-21 May 2017) happening in your State or Territory visit:

• ACT Law Society – Law Week
• Law Society of NSW – Law Week
• Victoria Law Foundation – Law Week
• Queensland Law Society – Law Week
• Northern Territory Law Society
• Law Society of South Australia
• Law Society of Western Australia – Law Week
• Tasmania Law Society

This comes amid a review by Airbus into its dealings with third-party consultants, prompted by investigations into the organisation’s relationship with an Indonesian middleman who was contracted to win aircraft sales on Airbus’s behalf. The man in question is now the focus of British investigators and Indonesia’s Corruption Eradication Commission.

This case highlights the need for organisations to carry out thorough due diligence when entering new markets and that this process is fraught with risks.

In order to mitigate the risks, it is essential to carry out properly documented due diligence. This should occur whenever an organisation appoints or renews an agreement with a third-party agent, or whenever the organisation suspects that it has been exposed to bribery or corruption. The goal of this process is to ensure that the third party can be trusted to represent the organisation while acting on its behalf.

Key steps that organisations should take include:

1. Gathering information on the prospective agent or intermediary, such as their background, qualifications, reputation and whether they stand to benefit from any related transactions
2. Responding to any red flags. For example, if the organisation finds out that the prospective agent or intermediary has a personal, family or business relationship with a public official, it should conduct further reviews or choose not to engage that agent
3. Engaging independent investigators, such as external counsel or providers of specialist due diligence services, if the organisation faces significant third-party risk
4. Confirming that the roles and activities to be carried out by the agent or intermediary are legal under all applicable laws

When entering new markets, organisations may face a greater risk as they lack their normal capacity to oversee activities and may have no contact with the end user, creating a dependence on agents and intermediaries. It is, therefore, paramount to actively look out for indicators that agents or intermediaries may be engaged in bribery or corruption.

Indicators may include:

• Excessive fees in the form of commissions, discounts to distributors, or ‘consulting agreements’ for vaguely described services
• Payments to consultants for work in areas in which they have not been engaged to provide services
• Third parties who are related to, closely associated with, or have become involved in the transaction at the express request of, a foreign official
• The third party is merely a shell company incorporated in an offshore jurisdiction
• Third-party requests for payments to offshore bank accounts

When dealing with third parties, the organisation’s anti-bribery and corruption policy must be communicated to the individual through the terms of engagement, which must also clearly state how the agent will be remunerated. The organisation should also keep records of payments to agents and middlemen, alongside evidence of services engaged, to protect the organisation from risk.

As with the case of Airbus, organisations that fail to act upon bribery and corruption risks may be exposed to criminal liability and may face sanctions such as fines and imprisonment. Organisations may also suffer reputational damage and a loss of shareholder value.

By implementing and carrying out thorough due diligence, the risks associated with entering new markets can be mitigated and future operations and reputation safeguarded.

A person accused of committing a crime and who is being held in custody is generally entitled to be granted bail unless a Court refuses bail under section 4(1) of the Bail Act 1977 (Vic) on the basis that there is an ‘unacceptable risk’ that the accused person, if released on bail, would:

• fail to surrender himself/herself into custody and answer bail
• commit an offence while on bail
• endanger the safety or welfare of members of the public; or
• interfere with witnesses or otherwise obstruct the course of justice.

The court assesses (under s 4(3)) all relevant circumstances and may impose bail conditions if bail is granted.

The following factors are also considered:

• nature and seriousness of the offence that was committed
• accused’s character, prior convictions, home environment and background
• history of previous grants of bail
• how strong the police evidence is against him/her
• the attitude of the victim(s) to bail being granted
• any conditions imposed to address unacceptable risk.

The current market is flooded with graduates with only 68.8% of young Australians able to secure full-time work within four months of completing formal study. Youth unemployment currently stands at 12.9%, three times higher than the national average.

In this climate, being offered an interview is an exciting prospect. But when selection panels are overloaded with hundreds of carbon copy applicants all with similar skills and experience, unconscious bias can sometimes creep into hiring decisions by influencing the judgement of decision-makers. In some instances, this can lead to unfair or discriminatory questions posed to job seekers at interview.

Contrary to what you might think, the power balance at interview does not rest solely with your potential employer. You are not required to answer every question an interview panel asks you simply because you seek the ultimate goal of employment with that company or firm.

Some interview questions – particularly ones that canvass your personal circumstances, age or cultural background – are inappropriate and irrelevant and may even be unlawful under Australian employment and anti-discrimination laws.

Questions your potential employer should not be asking you 

Australian employment law (section 351 of the Fair Work Act 2009) prohibits employers from discriminating against both employees and prospective employees on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

It is also against the law for an employer to treat you unfairly or harass you because of your age, disability, homosexuality, marital or domestic status, race, sex or transgender status of any relative, friend or colleague of yours, whether you are an applicant or an employee.

Some States and Territories also have anti-discrimination legislation in place which protects applicants against discrimination based on trade union activity, political opinion and criminal records. Employers must adhere to both Federal and State laws.

Commonwealth anti-discrimination legislation prohibits discriminatory behaviour by employers towards current or prospective job applicants based on age, race, disability and sex, which includes sexual orientation, gender identity, intersex status, marital status, pregnancy or family responsibilities.

Certain jobs may require an employer to inquire at interview about your personal circumstances or opinions, current conduct, or past action or behaviour which can be very intrusive. A government national security position, for example, requires very high levels of security clearance. The majority of jobs in the private or public sectors, however, would not require such knowledge.

Below are some examples of questions that are inappropriate, irrelevant, offensive or unlawful. For most positions, you should never be asked these questions at interview:

1. “Do you have a partner?”
2. “What is your marital status?”
3. “Do you intend to start a family or are you currently pregnant?”
4. “What is your cultural background?”
5. “How old are you?”
6. “Are you religious?”
7. “How many religious holidays do you observe each year?”
8. “Have you ever been arrested?”
9. “Are you heterosexual or homosexual?”
10. “Do you have friends or family who are homosexual?”
11. “Do you have any health conditions?”
12. “Can you provide us with your social media usernames and passwords?”

But what does this mean?

It is unlawful for an employer to ask you these questions since your response may unfairly prejudice their decision to hire you.

Be wary of employers who begin a line of indirect questioning designed to extract this information from you without directly posing the question. This also contravenes anti-discrimination legislation.

Put simply, employers cannot ask you questions about the above issues and use your answers to disadvantage you or negatively inform their decision regarding your employment with their company or firm. They also cannot ask questions designed to obtain information about the above issues.

Employers are limited to asking questions which relate to the “inherent requirements” of the position, such as your skills and experience.

Some common practical scenarios:

• In most circumstances, an employer cannot ask your age. If you are applying for a job in a bar, however, your employer is entitled to ask whether you are over 18 years of age as this goes to the inherent requirements of the role.
• An employer is prohibited from asking “Have have ever been arrested?” but is free to ask “Have you ever been convicted of a crime?” For certain roles, this information will be critical in making an assessment regarding your suitability for the position. If you have previously been convicted of money laundering and are applying for an accounting position at a financial services firm, this information is relevant and not considered to be unlawful.
• An employer is prohibited from asking “Are you are married?” because it not only reveals how much time you are willing to dedicate to the job (which may detrimentally impact a decision to hire you) but also indirectly discloses your sexual orientation.

• An employer may not ask “Is English your second language” but they may ask whether you are able to speak any other languages.
• Equally, an employer may not ask “Do you have children?” but they may ask “What hours are you available to work?” or “Do you have any commitments that would prevent you from travelling with work?” In a situation where you apply for a retail position and your employer asks whether you have children and then relies on the information you provide when deciding not to offer you the job, you can make a complaint to the Australian Human Rights Commission for discrimination based on family responsibilities.
• An employer may only ask you about certain health conditions if this will impact your ability to do the job.

What about requests for my social media passwords?

While the practice of requesting social media passwords from job applicants is widespread in the United States, some U.S States have now developed social media privacy laws which prevent employers from requesting this information from current and prospective employees. In Australia, there are currently no protections in place to prevent employers from requesting your social media usernames and passwords at interview.

In March 2012, Australian Privacy Commissioner, Timothy Pilgrim said:

I’m not aware of this practice occurring in Australia. However, I am very concerned by overseas reports of employers demanding social networking passwords. Requests of this kind are extremely privacy invasive, and I would suggest, very difficult to justify. At this stage, we have not received any complaints about this issue but I would strongly advise employers against making such demands. Social media profiles have privacy controls for a reason and generally, if a person wishes to keep their online interactions private they should be able to do so. Again, I remind people to be thoughtful about what they are posting online and limit the amount of personal information they are sharing.”

Although Australian social media law is underdeveloped, anti-discrimination legislation does offer some useful protections where your refusal to provide a password negatively impacts a hiring manager’s decision to employ you.

Discrimination in practice

Katie* has felt the effects of discrimination directly. In an interview for an internship, her interviewer asked for examples of leadership experience outside of the Jewish organisations she participated in.

He was very frank and spoke about him knowing a Jewish partner at the law firm I used to work at and so claimed to know a lot about ‘how the Jewish community work.’ He also said the point of the interview was for them to try and find people who were ‘the right fit’ for their firm and how their firm was all about finding people who value diversity and global mindsets (basically insinuating that because I was Jewish I didn’t value these things).” Katie said.

Katie answered the question by detailing the parts of her life which were not connected to the Jewish community, to which the interviewer responded, “Wow that’s impressive.”

[It] made me feel sick because it felt like he was happy I wasn’t really in the Jewish community, I then followed up by saying that I was actually really proud of my Jewish background and … didn’t think that it was relevant to me doing a clerkship at the firm” Katie said. 

A few days following the interview Katie called the company’s human resources representative, who was also present at her interview, to explain how uncomfortable the question regarding her cultural background had made her feel. Her comments were met with defensiveness from human resources and the comment “What do you want me to do about it?”

After receiving an offer for a second interview, Katie decided to withdraw her application from the selection process.

What can you do when faced with a discriminatory interview question?

Employers are under an obligation to avoid discriminating against current or prospective employees.

Job interviews are a platform to impress and to show off your skills and experience so declining to answer a question can seem very difficult and overwhelming, particularly if you believe it will jeopardise your employment prospects. It is critical to remember, however, that you are entitled to do so.

Importantly, if your refusal to answer a discriminatory question influences an employer’s decision not to employ you, this is also considered to be discriminatory behaviour by an employer.

When faced with inappropriate questions, you may wish to politely decline to answer by saying:

I am not comfortable with that question and would prefer not to answer it.”

You may also wish to go on the front foot by saying:

How is this question relevant?” 

This response will force a hiring manager to either justify the reason for their question or realise the error and quickly move on to the next question.

If you believe that you have not been offered a position due to an answer you did provide at an interview, which was discriminatory in nature, you have several options such as:

• First speaking calmly with the person or organisation that treated you unfairly. Explain why you believe that you have been treated unfairly and that you believe this is unlawful. The company or firm may have a grievance process that you can follow.

• Making a complaint to the Anti-Discrimination Board of NSW

• Making a complaint to the Australian Human Rights Commission – they will help you to resolve the issue. The complaint must be referred to the President, who must inquire and conciliate the complaint. If the President decides that the conduct was not unlawful discrimination, you have the option of pursuing your complaint through the Federal Court of Australia. The court can order that you are employed or awarded damages.

• Making a complaint to the Fair Work Ombudsman, who may commence litigation against an employer under the Fair Work Act 2009. Employers can face fines of up to $10,800 for discriminatory behaviour towards prospective employees.

• Seeking legal advice and commencing a civil action under State or Territory legislation.

Generally, you have 12-months from the time you experienced the discriminatory behaviour in which to make a complaint. Despite the above options, however, it is rare for such cases to go to court due to a lack of evidence. Discrimination is often “invisible” as many employers do not provide a reason for failing to employ a specific candidate who may be the subject of discriminatory behaviour.

While it pays to know your personal rights, proactively protecting these rights when seeking employment in the current market can often seem unrealistic. Most of us need that job, and therefore believe that the costs of objecting to discriminatory behaviour by a potential employer are outweighed by the need to secure a regular income.

Making a complaint may seem like an extreme response, but many companies will continue to engage in discriminatory practices until candidates take a stand.

*Names have been changed as source wishes to remain anonymous.

Further Information

Resources for employees:

If you, or someone you know, has experienced discrimination at interview contact:

• Fair Work Infoline on 13 13 94; or visit
• Fair Work Australia website
• Australian Human Rights Commission (online complaint form)

To make a complaint in your State or Territory visit:

• Anti-Discrimination Board of NSW: Process for making a complaint and tips for writing a complaint letter
• ACT Human Rights Commission
• Northern Territory Anti-Discrimination Commission
• Anti-Discrimination Commission Queensland
• Equal Opportunity Commission of South Australia
• Equal Opportunity Tasmania
• Victorian Equal Opportunity and Human Rights Commission
• Victoria Legal Aid Guide to making a discrimination complaint
• Western Australia Equal Opportunity Commission

For more information on discrimination visit:

• Quick guide to anti-discrimination laws
• ACT Human Rights Commission Education and Publications
• Fair Work Australia Protection from Discrimination at Work factsheet

Resources for employers:

• Australian Human Rights Commission Guide to Preventing Discrimination in Recruitment
• Diversity and discrimination online course (free) – learn how to promote diversity, prevent discrimination and handle complaints.
• Guide to managing employees on religious holidays
• Managing underperformance best practice guide – information about how to take reasonable management action to make sure employees are doing their job properly. Disciplinary action carried out by a manager in a reasonable, lawful way is not discrimination.
• Workshop: Practical guide to pay equity
• Workplace discrimination fact sheet
• Gender pay equity best practice guide
• Protections at work
• Bullying and harassment

Have you, or anyone you know, ever been faced with discriminatory interview questions? How did you handle it? Let us know in the comments! 

Hashtags have proven to be very valuable tools for businesses, with Facebook, Twitter and Instagram posts that include hashtags returning twice the engagement rate of those without one. While hashtags are too short to be afforded copyright protection (they hardly constitute ‘literary works’, now, do they?) and don’t qualify for patent protection because they are not an invention, it is possible to register a hashtag as a trade mark for your business.

#MakeItYourOwn: Hashtags As Intellectual Property (IP)

Trade marks help with brand recognition and differentiating your business from your competitors.

To qualify for trade mark protection, a hashtag must be something most consumers consider to be synonymous with your business (a brand identifier) and not merely a social media tool. In other words, if most people in the general public associate a hashtag with your product or service, it likely qualifies for trade mark registration. Think #sayitwithpepsi, which was registered as a trade mark by PEPSICO last year, or Twisties’ #lifesprettystraight hashtag.

In most cases, the “#” symbol itself is not considered the registerable part of the trade mark, rather, what follows the hashtag (for example, the unique word or phrase) that is checked against the requirements for trade mark protection.

What Is A Trade Mark And How Do I Get One?

Put simply, a trade mark is a unique descriptor – a logo, word, phrase, sound, smell, shape, picture, movement, aspect of packaging, letter, number, or a combination of these – that helps consumers distinguish between your goods and services and those of other businesses.

Unlike copyright protection, a trade mark does not automatically protect your intellectual property. Trade marks need to be registered with the relevant government authority, IP Australia.

Successfully registering your hashtag as a trade mark gives you exclusive rights to that trade mark for 10 years. If another business infringes those rights by using your hashtag without your permission, you can sue them for damages.

Trade mark protection is, however, subject to some qualifications. You must continue to use your trade mark (if you cease using it for three years you risk having it taken from the register), and it must continue to be regarded as a trade mark. This means that if your hashtag becomes a common name to describe goods or services, it is possible for someone else to seek to have your trade mark cancelled through the courts.

What Value Can A Hashtag Provide Your Business?

As a powerful content indexing tool, hashtags are incredibly valuable particularly given their potential to go viral.

Hashtags are recognised by brands as a low-cost marketing technique that, when used correctly, can be a fast, highly-effective and lucrative way to #jointheconversation and drastically increase audience engagement and sales. When used in conjunction with social media influencer marketing, the potential for growth is enormous.

Some of the most popular campaigns in recent memory have even gained traction with mainstream media outlets, leading to even more market exposure (think about the #MyCalvins campaign).

Increasingly businesses are seeking to not only stake their claim on their plot of digital real estate but also to protect themselves against other businesses who seek to cash in on their popularity. For example, where a competing enterprise piggybacks on the success of your social media stream by using a hashtag you created to promote their marketing agenda.

As the digital landscape becomes more and more crowded, businesses are looking to add value to their social media marketing strategy in more novel and distinctive ways. It seems that trade marking hashtags is a growing trend that is likely to gain much more momentum in the future as it becomes an integral part of brand strategy.

So, how will you differentiate your business from the rest of the digital crowd in 2017?

Further Information

For more guidance on the status of hashtags under trade mark provisions in Australia visit:

• IP Australia – What do hashtags mean for trade marks

To make an application to register your hashtag for trade mark protection visit:

• IP Australia – Hot to apply for a trade mark

Gone are the days of a job for life, and thank God, how boring. Today we must all be ready to adapt and embrace change. The only certainty in our professional and personal life is that things will change whether we are ready or not. So instead of fighting it, make it happen the way you want. Consider the benefits of slash careers, write your own story and don’t be limited by the scepticism and fears of those around you. And remember, even when you feel lost and uncertain and second-guess yourself, don’t worry, it’s normal, we’ve all been there. Just hold strong and have faith in yourself and if all of that is too hard, then just pretend until your ego catches up to your success!

I wanted to be a famous actress

For me, the attributes of embracing change, remaining adaptable and having a love and understanding of language have all been integral to my career. These attributes were incubated in the performing arts. Yes, I wanted to be a famous actress. I know, not the most common starting point for a lawyer.

Or … maybe a lawyer

After studying performing arts at UWS Theatre Nepean and taking up acting, I then found myself
teaching … something I had never planned on doing. Then, with the intervention of a good friend, I decided to take the leap and study law.

I remember being terrified because I really didn’t think I had the brainpower. I was always the fun, bubbly, arty one … not the serious lawyer. Thankfully, my brain cells managed to multiply and I ended up practising law for about nine years before moving from the legal arm at one of the big four banks to the frontline as a bank manager.

Now I am thankful for the skills I’ve picked up along the way because they enhance my client-centric focus in my current role at Nexus.

Opportunity doesn’t knock, it whispers!

To me, life is like reading a book. You don’t turn to the last page to find out how it pans out. You want to see how it develops.

If someone pointed me out to you in the theatre while portraying Hermia in Shakespeare’s A Midsummer Night’s Dream and said, “Wow… she’d make a great general manager for a bank in 20 years’ time”, you’d laugh. For me, this is the most exciting thing about my career to date. I never saw any of it coming.

As my father once said to me, “opportunity doesn’t knock, it whispers, and you have to be listening.”

My journey into the law was amazing and a turning point for how I saw myself and my potential. Can you believe it? I was awarded first-class honours! And while I loved law and its practice, I didn’t like the way the traditional firms operated so, embracing change yet again, I moved to Hobart and began a PhD in bioprospecting.

Eventually, I came back to Sydney and worked in a couple of law firms including Truman Hoyle, which embraced my non-traditional lawyer personality. The more I practised law the more I became interested in what my clients did. I used to call it the “so-what” factor.

The law books say you can’t do it, but so what?

Really … a banker?

I contemplated work in business and ended up as legal counsel at Westpac. My inquisitive nature is never quelled and I started looking on the bank’s intranet to better understand its business. I thought the frontline sales team could do with some co-ordinated support, so I put together a proposal for a new job for myself. It coincided perfectly with Gail Kelly’s move to create a customer-centric culture. A series of secondments upskilled me to the extent I was then appointed as the bank manager at Hurstville, one of the top four branches in the country.

It was amazing. I loved it. Again I could feel my brain cells multiplying. It was a completely different skill set. Everything I had learnt as a lawyer actually hindered me. I had to learn to retrain a lot of things, even just simple communication.

I realised that legal language is terrible. After my experience as a bank manager, I now approach it differently. I can appreciate the mindset you get into as a lawyer, it is challenging, but it doesn’t work for everyday Australians, and that is who we are servicing. Communication fascinates me and I learnt that bankers are very good communicators because they are sellers. Lawyers traditionally aren’t.

And back to law … but no longer a “handbrake!”

Now back working as a lawyer I appreciate just how difficult it is to run a business unit. It’s a completely different skill set and I have huge respect for my clients and the work they do. What we do as lawyers is such a tiny facet of their business. It’s not everything, not the be all and end all. When you’re in a law firm you can trick yourself into thinking it’s a really important thing. It’s not, and for business it’s a headache and they don’t even want to think about the headache. No one wants to know about it.

The challenge is to be seen as part of the solution, not part of the problem.

When I was moving into the business arm of Westpac, the people who gave me a shot were more interested in my performing arts background. That’s what gave me the edge. My legal background was a concern to them. A lawyer in their minds was a handbrake. But a lawyer can be part of the solution.

What people think they need isn’t necessarily what they do need, and that’s where the skill set of the lawyer and the skill set of the banker come in. The theatrical background and love of teaching were integral to my success in the national manager role at Westpac, especially upskilling regional bank managers. Everything is simply a problem to be solved.

Many businesses and legal firms talk the talk when it comes to collaboration and collective wisdom, but few walk the walk. They baulk at bringing in people with different skill sets. That’s not the case at Nexus. It’s all about complete collaboration and striving for success. It’s all client-centric. Law is the only industry that thinks it doesn’t have to concentrate on customer service. My skill set from Westpac is a perfect fit – for me, the client is at the centre of everything.

Good business structure involves flexibility and strength. Those attributes apply to a good lawyer and a good law firm.

So remember … enjoy the journey, own your path and don’t apologise for taking a different route. Often it’s the choices that fill us with the most fear and make the least sense that end up defining our success and happiness.

What do you think about the prospect of sticking with one career for your entire professional life? Is the diversity and constant interest of a slash career something that interests and excites you? Let us know in the comments!

These are all valid questions and, in a perfect world, they would be resolved before anyone we care about falls off their perch. But it’s a morbid subject, meaning that most of us don’t like thinking about it let alone raising it for discussion – and by the time we do have the answers it’s too late to ask why.

So what can you do if you find yourself in a situation where your expectations have not been met? What are your options if your inheritance is smaller than expected or, worse still, there is no mention of yours truly in the Will?

The good news? You do have options. The bad news? These vary from state to state across Australia, so your options invariably depend on the state or territory where your family member lived when they died.

The Situation

Let’s say your father (we’ll call him John) lived in South Australia and passed away recently. All of a sudden, you become aware that you been left out of his Will, or the inheritance that he left you is significantly less than what you expected.

Effectively you have three choices:

1. Try to have the Will declared invalid;
2. Try to convince all interested parties to enter into a Deed of Family Arrangement; or
3. Make a claim for provision under the Inheritance (Family Provision) Act 1972 (SA).

Having A Will Declared Invalid

This is the avenue to pursue if you have serious concerns about the validity of a Will.

For example, if you have concerns:

• about John’s mental capacity at the time of signing his Will (this is known as lack of testamentary capacity);
• that John may have been forced or coerced into signing the Will;
• that there is a more recent Will other than the one presented; or
• about the Will being fraudulent then this is the option you would take.

In these situations, the only way to contest the Will is to ask a court determine its validity.

If you have doubts about the validity of a Will it is critical to flag your concerns as early as possible, as time is of the essence.

To have a court determine the validity of John’s Will, your first port of call is to contact the solicitors for the executor and advise them of your position, let them know that you think the Will may be invalid and the reasons why. If it seems a bit scary, you can get a lawyer to do it for you.

Your next step is to lodge a caveat on the estate. What this does is ensure that you are notified before probate is granted, meaning that you have the opportunity to raise your concerns regarding the validity of John’s Will before his estate is distributed.

Once your claim has been considered, the court will make a determination regarding the validity of John’s Will.

If John’s Will is deemed to be invalid, the most recent Will that he created prior to the invalid Will comes into effect. If John has not made a previous Will then his estate will be considered intestate and his assets will be distributed in accordance with the laws of intestacy.

Entering Into A Deed Of Family Arrangement 

What about a situation where the Will is valid, but circumstances have changed so much since it was made that you believe that you should be entitled to a bigger slice of the estate?

Maybe you deserve a bigger slice of the action

Suppose that John drafted his Will 10 years ago when you were lucky to see each other once a week. However, as the years pass and John’s health deteriorates he becomes reliant on you to help him with his day-to-day living.

John’s Will does not take into consideration this significant change in circumstances but how do you go about addressing something like this?

The best option is to enter into a Deed of Family Arrangement. This is an agreement to change the terms of a deceased person’s Will. It is not exactly straight forward, however, as it requires all interested parties to come to an agreement. This means the executors, the beneficiaries and even the creditors. During a period of high stress and grief, this can be a monumental task.

If you are lucky to have a family who get-along well and can have an open dialogue where everyone agrees to the change, the Deed itself will act as an amendment to the Will.

If an agreement cannot be reached then this fails to be a viable option.

Having a family meeting

A few things to be aware of if you are considering entering into a Deed of Family Arrangement:

• The Deed does not prevent further claims being made on the estate because it does not bind those who are not a party to the agreement
• Since the Deed changes the way assets pass to beneficiaries, there is a risk that you could be hit with stamp duty, capital gains tax or other tax penalties.

Making An Inheritance Claim Under The Inheritance (Family Provision) Act 1972 (SA) For Inadequate Provision

Under the freedom of testation principle, a person is free to give their estate to anyone they wish.

In some situations, the law recognises that this can be unfair, especially if you are a dependent and suffer hardship as a result of a parent’s eccentric desire to leave all of their money or property, say, to a pet.

If you decide to pursue this avenue, you must make your claim within 6 months of the grant of probate or letters of administration.

Make a claim within 6 months

In our scenario, you must also be able to prove that John had some kind of connection with the state. It will usually be sufficient to prove that he lived or owned a house in a particular state. Where you physically live has no bearing on your ability to make a claim. The important factor in our example is that John lived in South Australia and had assets there.

To make a successful claim there are several hurdles to overcome:

• The first hurdle is to prove that you are eligible to make a claim.

You must have a specified type of relationship. As John was your father in our scenario, this will satisfy the first requirement. To make a claim you need to prove that you are either the spouse, divorced spouse, domestic partner, former domestic partner, child, step-child, grandchild, parent or sibling of the deceased person.

• The second hurdle is a favourable assessment by a court.

In assessing your claim the court will consider, among other things, the nature of your relationship with John prior to his death. This includes the extent to which John financially or otherwise supported you or the extent to which you cared for, or contributed to, his maintenance during his lifetime.

The court will want to know, for example, the details and extent that John relied on you for assistance with his day-to-day life.

• The third hurdle is your age, health and financial status.

The court looks at your age, health and financial status as well as the dynamics of your relationship with John prior to his death. All this information is weighed before the court decides whether, in all the circumstances, John failed to adequately provide for your proper maintenance, education or advancement in life in his Will.

The court takes a number of factors into consideration

If the court believes that you have been inadequately provided for, then an order of the court, as with the Deed of Family Arrangement, will act as an addendum to the Will.

The Wrap-Up

In a nutshell, as far as the law in South Australia goes, these are your options if someone leaves you out of their Will.

Obviously, the path you choose to pursue will depend on your individual circumstances but the important thing to remember is that you do have options.

*This article is based on South Australian legislation.

Have you been left out in the cold when a family member didn’t include you in their Will? Let us know your experiences in the comments below!

There are multiple factors that impact the success or failure of a startup.

In Australia, entrepreneurs are being put out of business by more than just underdeveloped planning and poor sales. The grim reality is that over 95% of new startups are destined to fail. Many of these are sunk by preventable legal pitfalls that new business owners did not foresee or did nothing to protect themselves against. When you have solid foundations in place to protect yourself and your business against unnecessary risk, you can devote your energy full time towards making your startup dream a success.

Below are some strategies to deal with avoidable legal issues in business early and effectively.

Have A Clear Ownership Structure

The common legal structures for businesses include sole trader, company, partnership and trust.

Choosing the right legal structure for your business from the outset is important as some structures provide protection against personal liability for debts and legal disputes. It also impacts your tax obligations and expenses and makes it easier to sell your business in the future, if you wish.

A Shareholders’ Agreement

Even if your partners are your parents or your best mates, a shareholders’ agreement is an important and necessary document that clearly sets out the rights and responsibilities of each shareholder in your company.

Without such an agreement in place, in the case of a legal dispute, it will be up to a court to decide the outcome.

There is no ‘one size fits all’ shareholders’ agreement. Each agreement must be drafted according to your unique set of circumstances and the outcome the shareholders wish to achieve in relation to shareholder funding or contributions, director appointments, how the company should be managed, dividends and financing, transfers of shares or an exit strategy.

Depending on how much of the company certain shareholders own, for example, the agreement may also stipulate that minority shareholders cannot be forced out of decision-making by majority shareholders.

You can start by downloading a basic shareholders’ agreement template and supplement basic clauses according to your needs by speaking with a legal professional.

A Commercial Lease You Understand

Commercial leases can be complex documents which spell out the rights and responsibilities of both landlord and tenant.

If you don’t understand the lease document, you could end up being liable for costs you didn’t anticipate such as utilities, repairs, taxes and the cost of documentation regarding the lease.

You may also have difficulty renewing the lease. Fighting a lease dispute can be expensive and losing such a dispute could mean that your company loses its space.

Make sure you fully understand the legal implications of your commercial lease agreement before signing.

Have Proper Warehouse Safety Equipment

If your business has warehouse space for storage, it is critical to have proper equipment and procedures in place that comply with Work Health and Safety legislation to protect your staff from preventable injuries.

Loads falling onto forklift operators and other workers account for a high percentage of Australian workplace injuries and fatalities. Forklift safety cages and large goods cages, for example, protect operators and everyone else working in the immediate area from physical injuries and protect your startup from potential workers compensation claims.

Mandatory Sexual Harassment & Bullying Education

No doubt you agree that this behaviour has no place in your workplace, but do your employees understand exactly what is defined as sexual harassment or bullying?

As a business owner, if you don’t dedicate the time and resources to train your employees in appropriate workplace conduct, you could leave yourself open to large fines for breaching workplace health and safety legislation. The resulting financial drain on your startup could quickly put you out of business.

Understand relevant legislation surrounding workplace health and safety, bullying and sexual harassment and have each employee complete the necessary compliance training.

Maintain Detailed Record Keeping

A commitment to detailed record keeping is necessary for many reasons including invoicing and accounts receivable, tax compliance and payroll.

If your company is not large enough to hire a full-time accountant or business manager, record keeping is a task that you can adequately perform yourself by using accounting and online bookkeeping software like Xero. If you don’t have time to maintain your own records, it is worthwhile contacting an accounting firm in your area.

Yes, outsourcing this work is an ongoing overhead expense, however, failure to keep accurate records can lead to serious problems for your business, the consequences of which can doom your startup before it starts.

Compliance With The Privacy Act

Depending on the nature of your business, you may be collecting data about current customers and potential customers.

As a business owner, it is critical that you comply with your obligations under the Australian Privacy Principles to avoid breaching the Privacy Act in the way that you collect, store, use and disclose private information about your customers.

Mishandling or misusing private information can lead to serious fines and penalties.

Conclusion

These are some of the main legal risks faced by Australian startup owners.

Understanding your rights and obligations, and building your business on a rock-solid platform, places you in a strong position to avoid any unforeseen obstacles that may impede your startup success.

What unanticipated difficulties have you encountered on your startup journey? Let us know in the comments below!