The Federal Government of Australia wage subsidy scheme – Job Keeper Allowance 30 March 2020

corona virus covid 19

The Federal Government of Australia wage subsidy scheme

30 March 2020

On 30 March 2020, the Australian Federal Cabinet met to announce its next tranche of financial stimulus in response to the Coronavirus pandemic. The key topic being the announcement of the Australian Job Keeper Allowance.

The Job Keeper Allowance has been developed by the Federal Government to help Australian businesses keep their Australian employees in their jobs, working. Under the scheme, eligible employees will receive Government support through their employers of $1,500 per fortnight. This is a flat payment scheme and is not means tested against the employee’s regular wage (as we have seen with similar schemes in other countries such as the UK).

To be eligible for the scheme, businesses will have to show that they have suffered a minimum reduction in revenue of 30%. This means a business has experienced a 30% decline in:

  • Actual revenue; or
  • Predicted revenue (e.g. for businesses who have seen a reduction in bookings such as accommodation providers).

The business decline can be demonstrated from 1 March 2020. We are yet to get details on how to determine the decline in revenue under the Australian scheme. We can however look to the New Zealand system which was announced on 26 March 2020 for guidance. Under that system: 

  • For businesses who have operated for more than a year:

The business should assess their revenue by comparing one month’s revenue against the same month the previous year (example February 2020 compared to February 2019). The revenue of the month in the affected period must be at least 30% less than it was in the month it was compared against.

  • For businesses who have operated for less than a year:

The business must compare their revenue against a previous month that gives the best estimation of the revenue decline related to COVID-19 (Coronavirus).

The system will be administered through the ATO’s one touch payroll system. The credits for payment will be provided to the employer starting 1 May 2020. Until that time, employers should now assess their staff for eligibility under the scheme and make the proper elections to ensure credit will be provided on time. It is not up to the employee to sign up for the scheme, although it is recommended that employees speak with their employer about eligibility.

The Job Keeper allowance is not available to former employees of the company, if they were let go prior to 1 March 2020. If an employer wishes to re-hire an employee that they recently let-go (post 1 March 2020), they may be able to qualify that person for the scheme. According to PM Scott Morrison, if redundancy payments have been made to a recently made redundant employee, the employer and employee will need to discuss how to undo those arrangements themselves. 

The underlying theme for the Job Keeper Allowance is that it is for just that, Australians who keep their jobs. If an employee is unable to keep their job, then they will be properly placed in the Job Seeker scheme. There is no doubling up of the two schemes.

We are yet to have news on what other Government schemes will be available to employees who receive the Job Keeper Scheme. For example, it is uncertain at this time if an employee on Job Keeper will be eligible to withdraw from their superannuation or seek rental assistance. We will keep you up to date on this as the legislation reaches Parliament.

How we compare to other nations- Coronavirus Wage Subsidies (Job Keeper Scheme)

Job Keeper Allowance-Wage-Subsidies-Table-Comparison-Australia

The UK Coronavirus Job Retention Scheme

In the United Kingdom, the Coronavirus Job Retention Scheme will cover the cost of wages backdated to 1 March and is initially open for 3 months, and may be extended if necessary.

British workers who have been asked to stop working, but who are being kept on the pay roll, otherwise known as ‘furloughed workers’, will receive a subsidy of up to 80% of their wage, up to a value of £2,500 ($5K AUD) per month. This is a measure to safeguard against workers being made redundant.

Self-employed Brits receive a similar grant of 80% of their average profits from the past 3 months, up to a value of £2,500 ($5k AUD) per month. The financial support in the UK will not be available until mid-June. 

The Australian Federal Government has commented that a system like that of the UK’s would be inequitable and difficult to administer within Australia’s social security system.

The New Zealand Coronavirus Wage Subsidy

In New Zealand, wage subsidies are being provided as a lump sum flat rate depending on the number of hours an employee works in a week. The NZ Government will subsidise full time workers (20+ hours per week) a flat amount of $585.80 per week; part time workers (-20 hours per week) will receive $350 per week. The subsidy is paid as a lump sum and covers 12 weeks per employee.

This system is similar to Australia in that it is for workers who continue to work. Other welfare systems are available to workers who are no longer gainfully employed. 

Other eligibility criteria which is similar to Australia is that the business must be able to show a decline in revenue by minimum 30%. The decline must be due to the effects of COVID-19 and the business must show they took active steps to mitigate the loss (We are yet to see if these criteria will be included in Australia).

NZ employers are encouraged to pay at least 80% of their employee’s usual wages. If that isn’t possible, they must pay at least the subsidy rate. Unlike the Australian system, if an employee’s wages are less than the flat rate, then the employee should be paid the full amount of their normal wage (i.e. no free pay rise).

Keep posted on Australian employment laws with updates from Rostron Carlyle Rojas Lawyers

We are committed to keeping you up to date with the ever-evolving laws in Australia, especially during the course of the COVI-19 pandemic. 

The Job Seeker Allowance is yet to be put before parliament and therefore the finer details of eligibility for each person and each business will need to be determined once the legislation reaches Royal Assent. At this time, we are told parliament will meet soon in a bid to fast-track these historic changes.

Also read : Jobkeeper Payment Scheme- recent update

Coronavirus Update

corona virus covid 19

Rostron Carlyle Rojas is committed to keeping you up to date on the Coronavirus pandemic.

Last night, the Federal Parliament passed a series of bills to approve Coronavirus economic stimulus measures, without objection. These are:
• Coronavirus Economic Response Package Omnibus Bill 2020;
• Boosting Cash Flow for Employers (Coronavirus Economic Response Package) Bill 2020;
• Guarantee of Lending to Small and Medium Enterprises (Coronavirus Economic Response Package) Bill 2020;
• Australian Business Growth Fund (Coronavirus Economic Response Package) Bill 2020;
• Assistance for Severely Affected Regions (Special Appropriation) (Coronavirus Economic Response Package) Bill 2020;
• Structured Finance Support (Coronavirus Economic Response Package) Bill 2020;
• Appropriation (Coronavirus Economic Response Package) Bill (No 1) 2019-2020;
• Appropriation (Coronavirus Economic Response Package) Bill (No 2) 2019-2020;
• Supply Bill (No. 1) 2020-2021;
• Supply Bill (No. 2) 2020-2021; and
• Supply (Parliamentary Departments) Bill (No. 1) 2020-2021.

The Bills cover two Coronavirus stimulus packages announced by the Government, totalling almost $84 billion. It has been announced that the first direct payments will be made on 27 April 2020.
The Bills are yet to meet Royal Assent, this should happen in the coming days. We will keep you updated as the details of this are announced.

Coronavirus Economic Response Package Omnibus Bill 2020

Arguably the most important, this Bill implements many economic measures, including:
Increasing the instant asset write-off: The instant asset write-off threshold to be increased from $30,000 to $150,000 and will be available to businesses with aggregated annual turnover of under $500 million (previously $50 million). This applies from 12 March 2020 until 30 June 2020.
Backing business investment: Until 30 June 2021, depreciation deductions to be accelerated, enabling businesses with aggregated annual turnover of under $500 million to deduct 50% of the cost of eligible assets on installation. Existing depreciation rules will continue to apply to the balance of the cost of the asset.
Stimulus payments to households to support growth: A tax-free payment of $750 will be paid to around 6.6 million lower income Australians, including eligible concession card holders (such as those on Newstart, commonwealth seniors health card holders, and families receiving family tax benefits), and Social Security, Veteran, Farm Household Allowance and other income support recipients. A further tax-free payment of $750 will automatically be made from 13 July 2020 to eligible recipients.
Supporting apprentices and trainees: Eligible employers can apply for a 50% subsidy of apprentices and trainee’s wages for up to 9 months between 1 January 2020 and 30 September 2020. $1.3 billion will be designated to assist this measure.
Supporting the aviation sector: $715 million will be designated to assist Australia’s aviation industry.
Changes to superannuation: Those affected by the Coronavirus will be able to apply from mid-April 2020 to access up to $10,000 of their superannuation in the 2019/20 financial year, and again in the 2020/21 financial year. Additionally, the minimum payment amounts for account-based pensions will be reduced by half until 30 June 2021.
Additional support for income support recipients: Income support recipients (including those currently receiving Youth Allowance (Jobseeker), Farm House Allowance and Jobseeker Payment) will be eligible to receive an additional fortnightly payment of $550 for the next 6 months.


Boosting Cash Flow for Employers (Coronavirus Economic Response Package) Bill 2020

The ‘Boosting Cash Flow for Employers’ initiative will provide between $20,000 and $100,000 to eligible small and medium sized businesses and non-profits (including charities), encouraging businesses to retain their employees.

This measure will be provided to eligible businesses that have employees and a turnover of less than $50 million. Businesses must continue to be active to be eligible.

A further payment, equal to the total of all payments received under this initiative, will be made to eligible recipients in the July – October 2020 period.


Guarantee of Lending to Small and Medium Enterprises (Coronavirus Economic Response Package) Bill 2020

Under this Bill, the Government will guarantee 50% of new short-term, unsecured loans to small and medium businesses. This ‘SME Guarantee Scheme’ is capped at up to $40 billion. There is also a temporary exemption from responsible lending obligations, allowing quick and efficient access these loans for small business owners.


Australian Business Growth Fund (Coronavirus Economic Response Package) Bill 2020

This Bill authorises the appropriation of $100 million to invest in the Australian Business Growth Fund.


Assistance for Severely Affected Regions (Special Appropriation) (Coronavirus Economic Response Package) Bill 2020

The Government has dedicated $1 billion to support those most affected by the Coronavirus. Initially, those heavily reliant on industries such as tourism, education and agriculture will benefit from this fund. Initially, it has been announced that fees and charges for tourism businesses operating in the Great Barrier Reef Marine Park, and entry fees for Commonwealth National Parks, will be waived.


Structured Finance Support (Coronavirus Economic Response Package) Bill 2020

This Bill establishes the Structured Finance Support (Coronavirus Economic Response) Fund, which will enable the Government to ensure continued access to funding markets and mitigate impacts on competition in lending markets. The Fund will initially consist of $15 billion.

Appropriation of Funds

A number of Bills propose appropriations from the Consolidated Revenue Fund for ordinary and non-ordinary annual services of the Government, and for expenditure in relation to the Parliamentary Departments:

• Appropriation (Coronavirus Economic Response Package) Bill (No 1) 2019-2020;
• Appropriation (Coronavirus Economic Response Package) Bill (No 2) 2019-2020;
• Supply Bill (No. 1) 2020-2021;
• Supply Bill (No. 2) 2020-2021; and
• Supply (Parliamentary Departments) Bill (No. 1) 2020-2021.

Supply Cocaine Charge Dropped

In early April 2018, police executed a search warrant on our client’s residence. At that time, police located a sunglasses case in the wardrobe of our client’s bedroom. Inside the sunglasses case, police located one large clip seal bag containing four smaller clip seal bags. Within each of the smaller clip seal bags police located 5 clip seal bags containing similar amounts of cocaine. In total police located 20 clip seal bags containing 15.379 grams of a white powdery substance. The substance located was subject to drug analysis testing and as a result 6.392 grams of pure cocaine was detected.

Our client was charged with the serious offence of Possessing the dangerous drug, cocaine in excess of 2 grams. Our client was also charged with one count of supplying the dangerous drug cocaine, as well as a number of summary offences.

Upon reviewing the brief of evidence, Samantha O’Connor of our office sent a submission to the DPP to seek that the supply charge be discontinued due to a lack of evidence within the brief to substantiate the charge. The submission to discontinue the supply charge was accepted and the DPP withdrew the charge.
The possession charge was committed to the Brisbane Supreme Court by way of Registry Committal. An indictment was presented before the Brisbane Supreme Court. The Crown alleged that the cocaine was possessed by our client for a commercial purpose. The matter was listed for a contested sentence given that our client instructed that the cocaine was possessed for personal use.

Samantha O’Connor of our office appeared at our client’s sentence before the Brisbane Supreme Court instructing counsel. Our client was required to give evidence at his sentence to allow the factual issue of whether the drugs were possessed for a commercial or personal purpose to be determined by the Supreme Court Justice. Ultimately, the Presiding Justice rejected our client’s evidence and found that the drugs were possessed for a commercial purpose. Our client’s mitigating features such as his limited criminal history, relative youth, steady employment, otherwise good character as evidenced by character references and rehabilitative efforts in the form of clean urine screens were placed before the Presiding Justice. Our client was sentenced to 2 years imprisonment and our client was granted immediate parole. This was an excellent result for our client in all of the circumstances.

If you are interested in our criminal lawyers acting on your behalf, please call Samantha O’Connor on 3009 8452 or Nick Crawford on 3009 8467.

Deserving Promotions in Commercial Litigation Department

We are delighted to [publicly] announce two very deserving promotions. Sarina Mari Alwi and Michael Finch have both been promoted to Senior Associate.

Sarina Mari Alwi has been effectively managing the commercial litigation department here in Brisbane, whilst Michael has been effectively managing the commercial litigation department in the Sydney office under Paul Rojas’ supervision.

Both Sarina and Michael have shown consistent effort and have continuously proven themselves over the last 12 months. We wish to Congratulate both of them again and hope that they continue to prosper here at Rostron Carlyle Rojas Lawyers.


RCR Lawyers co-host an Investment and Business Migration seminar in Ho Chi Minh City, Vietnam

On May 4, 2019, Rostron Carlyle Rojas Lawyers were the co-hosts of an Investment and business migration seminar in Ho Chi Minh City, Vietnam.

The partnership between RCR Law, TP Immigration, Investment, and Consultancy attracted Vietnamese business people from near and far and was a great success for all involved.

Presenters included our Founding Partner Greg Rostron and Special Counsel Peter Kuek-Kong Lee. Alongside, Greg McKean, Manager at Business and Skilled Migration QLD, Australia and Brendan Goulding, Director in International Services at Bentleys QLD, our very own Peter Kuek-Kong Lee presented on visa options for businessmen and women looking to bring their business and investment to Australia.

RCR Lawyers supports start ups in the UQ accelerator program

On March 11, 2019, it was announced in Lawyers Weekly that Rostron Carlyle Rojas Lawyers are proud supporters of UQ start-ups involved in the Universities new accelerator program.

UQ’s ilab pushed out a progressive start-up program called ‘Germinate Plus,’ to empower up-and-coming entrepreneurs. As part of the program, the up-and-comers are backed by expert legal services, which they only have to repay when they reach $500,000 in investment.

At the forefront of RCR Lawyers’ involvement is Founding Partner Gregory Rostron, who is excited about the firm’s alignment with such a positive initiative. He and the firm as a whole are very aware of the challenges faced by entrepreneurs, with many founders making simple mistakes due to a lack of investment available for legal advice.

“[The initiative] gives our local talent the confidence of a solid legal footing as they launch their businesses into the Australian market and beyond,” Mr. Rostron said.

“We see working with startups at this early stage as an opportunity to create a bond that will grow as the business matures.”

Click here to read the full story. 

Recommended Family Lawyer: Tuskeen Jacobs Makes the Doyle’s List

Recommended Family Lawyer

Leading Family and Divorce Lawyers Rankings 2019

The prestigious directory’s 2019 Leading Family and Divorce Lawyers Rankings acknowledge those solicitors practicing within the areas of family law, matrimonial, parenting, property and spousal maintenance matters in the Queensland legal market who have been identified by their peers for their expertise and abilities in these areas.

Tuskeen Jacobs has again been listed as a ‘Recommended Family and Divorce Lawyer’.

Doyle’s Guide lists leading law firms, lawyers and barristers across 19 specialist categories of legal practice in all Australian states and territories.

Selection to Doyle’s Guide:

Selection to the Doyle’s Guide is determined through an extensive interview process with clients, peers and relevant industry bodies. All research is compiled on an independent basis.

Rostron Carlyle Rojas Lawyers congratulates Tuskeen on this significant achievement.

Illegal Phoenix Activity Reforms

Announcements in the Federal Budget for 2018-2019 saw the Turnbull government continue their crackdown on illegal phoenix activity. Their reform package aims to transform corporations and tax laws in order to provide regulators with additional tools to disrupt “phoenixing”.

What is illegal phoenix activity?

There is no legal or statutory definition of phoenix activity. The Australian government notes that phoenixing can encompass both legitimate business rescue as well as the use of serial insolvency to avoid paying creditors.[1]

Fraudulent or unlawful phoenix activity usually involves the transfer of assets of a company to another company in circumstances where the company that made the transfer was unable to pay its debts when due. The transfer is done in order to deprive unsecured creditors equal access to its assets. There is usually a link between the management and shareholding of the old and new company.

Illegal phoenixing is orchestrated to leave behind a shell company, whereby the liquidation of that company will occur resulting in limited to no returns to creditors. This in turn forces employees to recover their entitlements through the Fair Entitlements Guarantee scheme at the expense of the Commonwealth government.

Accordingly, it is important to seek professional advice before any business restructure.

Costs to the Australian economy

Whilst the impact of illegal phoenix activity is difficult to quantify, in 2012 the cost of illegal phoenix activity was estimated to be in the range of $1.8 to $3.2 billion per year.[2] Such activity has widespread impact through the avoidance of debts to creditors, avoidance of paying employee entitlements and a loss of market integrity which comes at an increased cost to regulators.[3]

Planned reforms

In his announcement, Treasurer Scott Morrison said that the Federal Government plans to introduce a number of measures to protect Australian business from those companies that choose to “deliberately go bust to avoid paying their bills” including:

  • The introduction of new phoenix offences in the Corporations Act 2001 (Cth) to target those that conduct or facilitate illegal phoenixing. This will include offences for directors that fail to produce adequate books and records to a liquidator;
  • Prevent company directors from improperly backdating resignations to avoid liability or prosecution. In particular, where directors lodge a change in director notice more than 28 days after the director’s resignation, they may be liable for misconduct up until the date of lodgement;
  • Limit the ability of directors to resign where it would leave a company with no directors;
  • Restrict the ability of related creditors to vote on appointment, removal or replacement of an external administrator;
  • Extend the Director Penalty Regime to GST, luxury car tax and wine equalisation tax, in turn making directors personally liable for such tax debts of a company; and
  • Expand the ATO’s powers to retain refunds where there are outstanding tax lodgements.

These proposed measures build on reforms that already saw the introduction of the government’s Phoenix, Serious Financial Crime and Black Economy taskforces. Other announced reforms include a combined black economy and illegal phoenixing hotline, as well as reforms to address the corporate misuse of the Fair Entitlements Guarantee and non-payment of the Superannuation Guarantee Charge. At the centre of the reforms is the introduction of a Director Identification Number (DIN). The long awaited and much-discussed DIN will give every director in Australia a unique number. DINs will be used by government agencies and regulators to track the activity of directors in relation to alleged phoenix activity, including their interaction with accountants and lawyers.

The government is now tasked with rolling out the reforms and ensuring they are appropriately targeted in order to avoid legitimate and honest directors getting caught in the crackdown.

Levi Smouha, Partner of Rostron Carlyle Rojas Lawyers, is an expert in restructuring and corporate insolvency. Contact Rostron Carlyle Rojas Lawyers on (07) 3009 8444 or email our office at [email protected]

[1] Australian Government the Treasury, Combatting Illegal Phoenixing (2017), 1.

[2] “Phoenix activity: Sizing the problem and matching solutions” PWC and Fair Work Ombudsman, page 15, June 2012

[3] Australian Government the Treasury, above n 1, 2.



Letter to India 2018


On the National Day for India and Australia on 26 January 2017, I was inspired to write a Letter to India.  A copy of this article can be found here.

A year later on 26 January 2018, I was inspired again when the media reported that Indian born Medical Doctor, Dr Mukesh Haikerwal was only a small handful of Australians awarded the Companion of the Order of Australia, the highest Australian honour that can be awarded:

Dr Haikerwal has held a number of leadership positions in the community but from 2005 to 2007 he was Federal President of the influential Australian Medical Association.

Distinguished Indians

But Dr Haikerwal is not the only Indian born Australian that has played leadership and distinguished roles in Australian life.  There are many other Indians who have made significant contributions to Australia.

Appendix 1 to this article provides a list of notable Indians who have distinguished themselves in Australia across a spectrum of activities. They range from the world of Academia and Science, the Arts, Business, Medicine, Public Service, Politics, and Sports, show casing Indian talent in Australia.  It will be noted that both men and women have excelled in these endeavors.

Appendix 2 provides more information about each of these distinguished Indian-Australians in alphabetical order by first name, and a web link is also provided for them.

We will take from this Appendix a sample of these distinguished sons and daughters of India who have been exemplary and have done India and Australia proud:

  • Academia: Professor Chennupati Jagadish

A stand out from the rich list of Indian academics is Professor Chennupati Jagadish from the Australian National University’s Department of Electronic Materials Engineering.  Like Dr Mukesh Haikerwal, Professor Jagadish has also been awarded Australia’s highest honour, the Companion of the Order of Australia.  He moved to Australia in 1990 and has established a major research program in the field of optoelectronics and nanotechnology, and is Australia’s leading light in this field.

  • The Arts: Pallavi Sharda

Pallavi Sharda is an international film and classical and contemporary Indian dancer.  She was born in Perth to high achiever parents in science and engineering.  She has starred in Bollywood, international films & Australian TV work.  Pallavi advocates and promotes India-Australia relations, and the strengthening of intercultural links between our two countries.

  • Business: Neville Roach

Neville Roach is a giant in Australia’s business world.  I knew of him when I served in the Department of Immigration and he was Chairman to the Advisory Council for a number of Immigration Ministers across many years.

He is the former CEO of Fujitsu Australia and has been on the board of many leading organisations.  He was Chairman of Australia India Business Council (AIBC) from 2000-2006.  He has received several awards, the Order of Australia in 2000 for his contribution to business and Multiculturalism.  In 2017, he was declared Indian Australian Ambassador in the India Australia Business and Community Awards.  He also received the Pravasi Bharatiya Samman Award, India’s highest honour for Overseas Indians from the Indian President in 2008.

  • Medicine: Dr Gorur Krishna Harinath

Dr Gorur Krishna Harinath, born in Hyderabad, has been a GP for over 35 years.

He has been the Chairman and Board Member of Cricket NSW, and is a Board member of Cricket Australia.  He is a prominent face at Indian community events.

He was awarded the 2017 Pravasi Bharatiya Samman by Indian President Pranab Mukherjee in the field of community service, and in 2009 was awarded the Order of Australia Medal for outstanding service to cricket and the community.

  •  Public Service: Peter Varghese

Mr Varghese was born to Indian parents in Nairobi, Kenya.  He migrated with his parents in 1964. He is currently Chancellor of the University of Queensland.

He served as a career diplomat with distinction, becoming the Secretary of the Department of Foreign Affairs and Trade from 2012 to 2016.  He was Director-General of the Office of National Assessments from 2004 to 2009.

He was Australia’s High Commissioner to India from 2009 to 2012, and High Commissioner to Malaysia from 2000-2002. He had been Senior Adviser (International) to Prime Minister John Howard (2003-2004).  He was awarded the Order of Australia (AO) in 2010 for distinguished service to public administration.

  • Politics: Lisa Singh

Senator Lisa Singh was born In Tasmania to a Fiji-Indian father and an English-Australian Mother.  She is a Senator for Tasmania, having been elected twice to Federal Parliament.  She was in the Tasmanian Parliament in 2006, and had served as State Minister for Corrections and Consumer Protection and Minister for Workplace Relations.  She has been an outspoken advocate for human rights.

  • Sports: Jason Sangha

Mr Sangha was born in Sydney to a Punjabi Sikh family.  He is an up and coming young cricketer making the List A debut for Cricket Australia XI on 15 October 2016.  In 2015-16 he became the youngest player in 90 years to represent NSW in a Second XI or Toyota Futures League match.  In December 2017, he was named as the Captain of Australia’s squad for the 2018 Under-19 Cricket World Cup.

The above list, nor the names in the appendix, is by no means exhaustive.  There remains many distinguished Indians who have contributed to a wide spectrum of Australian life.

Statistically, these contributions are all the more significant when the Indian-born population in Australia at the end of June 2014 was less than 400,000.

The Indian diaspora beyond those living in Australia has also contributed to Australia’s development, and here are only two illustrations:

  • Sanjeev Gupta is a British billionaire who purchased the Whyalla steelworks in South Australia in 2017 and in the process saved thousands of jobs in South Australia. He is now considering re-energising the defunct automobile industry by establishing an electric car industry in South Australia.
  • Gautam Shantilal Adani is the other Indian billionaire businessman. He is the chairman and founder of the AdaniGroup, India’s biggest coal importer.  He is looking in controversial circumstances to establish one of the world’s biggest coal mines in northern Australia.


 It is pertinent to remind readers that Australia is a vast country, the size of continental USA, with a population of only 24 million.

In contrast, India has a population of 1.324 billion (as at 2016).  Its three largest cities are Delhi, Mumbai and Kolkata.  Although the precise population of these cities are unclear, Delhi’s population is said to be between 16.3 million (2011 census) and 46 million (World Atlas), Greater Mumbai’s population is estimated to be between 18.4 million (2011 Census) to 20.8 million (World Atlas), and Kolkata is said to be between 14.1 million (2011 Census) to 14.7 million (World Atlas).  Regardless, the population of these cities alone is huge when compared with Australia.

In 1983, I had the good fortune of having two short term postings to the Australian High Commission in Delhi for about three weeks on each occasion. The profile of Visa Applicants then are completely different to the applicants of today.

The migration program in 1983 was small, and mainly in the Family Program.

Today, India is the number one source country for migrants to Australia, and has been so since 2011.  It looks set to dominate Australia’s future migration program.

There must be good reasons for this, and I will discuss this below in the segment on business migration, and provide reasons why Australia is such a popular choice for Indians, and for wealthy people of the world looking for a new home.

Indeed, the Indian population is the fourth largest migrant community in Australia and is one of the fastest growing diaspora in Australia.  It is also one of our two leading countries for International Students.  The other country being China.


I remember the Visitor caseload when I worked in New Delhi in 1983.  It was a small and  mainly negative caseload where refusal rates were very high.  How the times have changed.  Tourism from India is emerging to be the fastest growing market for Australia.

There were 278,000 visitors from India in 2016-2017, and the forecast is that this number will increase by up to 21% in 2018-2019 when visitor numbers are expected to increase to 337,000 a year.

With this estimated increase, it will make India the ninth largest inbound market for Australia.

The increase in visitor numbers will also see an increased exposure of Australia to the wider Indian population.

China’s experience of Australia in this regard may have profound lessons for India.

After China increased its tourism program to Australia in the decade commencing 2000, there was a dramatic change in migration trends from China.  In particular, we saw:

  • A spike in migration growth to Australia from China, and especially
  • A huge growth in China’s business migration to Australia.

Today China is by far the largest source country for business migrants to Australia.

What is the lesson from this?  Will increased tourism from India be a harbinger for increased business migration, just as it was for China before?

As India is already the number one source country for migrants to Australia, it is assessed that Indian business migration to Australia will only grow from its current low base.

Trade Relationships

 The other activity that will influence the advancement in business migration will be the growth in India-Australia trade.

It will be noted that the total trade between India and Australia in 2003-2004 was $6.65 billion.  In 2005/2006 it had grown to $10.12 billion with Australia’s exports to India being $8.84 billion and India’s exports to Australia being $1.46 billion.

And in 2015-2016 the total trade had grown exponentially to $19.29 billion, an increase of 190% from 2003-2004.  India’s exports to Australia were $6.45 billion, and Australia exports to India were $12.84 billion.  This makes India Australia’s fifth largest export market, and tenth largest trading partner overall in 2015-16.

Similarly, there has been a significant growth in bilateral investment from a decade ago.  Australian investment in India totalled $10.6 billion at the end of 2015, and Indian investment in Australia $11.6 billion.

This will be set to increase as India’s economic growth advances, and India’s middle class continues to expand prodigiously.  With this growth we are likely to see India’s wealthy to Australia increase as they seek options.  Options to lifestyle, to a secure and healthy environment, to political and economic stability, and to business opportunities and expansion, as Indian migration to Australia continues to grow.

India Engagement Strategies

The Australian Department of Foreign Affairs and Trade states that:

India is the world’s fastest growing major economy, with forecasted growth of 7 per cent in 2017, and between 7.5 and 7.8 per cent growth to 2020. By 2030, India is projected to be the world’s third largest economy. 

With such a forecast it is no wonder that Australian State Governments have been developing specific and targeted India engagement strategies.

For example Queensland and the Victorian Government have appointed Trade and Investment Commissioners to India to promote their respective states.  Victoria also has offices in both Mumbai and Bangalore, whereas Queensland has an office in Bangalore.  Both states obviously targeting the rich innovative and the digital industries of Bangalore.

Interestingly, South Australia, a lesser known state in India has had an India engagement strategy since 2012. In a commitment to India, South Australia regularly updates its strategy to establish long-term trade and investment relationship with India, and there is a specific Unit within the State Government to oversee this strategy.

New South Wales and Victoria have followed suit.  It will be noted that an ‘India International Engagement Strategy’ was released by the NSW Government in 2015.  And Victoria’s India Engagement Strategy was unveiled on 14 January 2018.

Each state’s strategy is varied in its focus and approach.  But they all emphasise the importance of growing strong investment and trade partnerships with India.  Notable in this is the commonality that each of the state’s strategies emphasise Australia’s growing cultural connections with India, and its dynamic Indian market.

It is clear from this that the benefits of strengthening Australia’s economic ties with India are not only recognised but is actively pursued by Australia’s State Governments.

Australian Government Initiative

This approach is also supported by the Federal Government.  It will be noted that Australian Prime Minister Malcolm Turnbull visited India in April 2017.

In that visit both Prime Ministers’ of India and Australia reaffirmed their commitment to the conclusion of a commercially meaningful Comprehensive Economic Cooperation Agreement (CECA) which addresses the priorities of both sides.  It is expected that when this is concluded, CECA will benefit both countries enormously.

But arising from that visit was another notable development.  The Australian Government announced that it would commission an India Economic Strategy to define a pathway for the Australian business community to collaborate with India in its reform agenda, and to unlock opportunities offered by Indian economic growth.  Peter Varghese, a former High Commissioner to India and former Secretary of the Department of Foreign Affairs and Trade, and a distinguished Indian highlighted in this article, was asked to lead this study and identify opportunities for Australian businesses in India.

The report is expected to be released in March 2018.

It was reported in the media at the end of January 2018 that Mr Varghese will argue that “Australia cannot afford to ignore the economic transformation under way in India”, and it is expected that he will offer three compelling reasons for this:

  • Firstly the sheer scale of the Indian economic transformation will be difficult to ignore as India becomes the world’s third largest economy
  • Secondly, much of the Australian economy is complementary to the Indian economy
  • Thirdly, it was reasoned that Australia needs to embrace the Indian economy to diversify its own risks as currently Australia’s linkage with China and Japan alone accounts for 40 per cent of our exports.

It is expected that the Varghese strategy will see Australia adopt a national strategy centred on about ten key Indian states, with a strategic emphasis on sectors where Australia is naturally placed to do well in India, such as education, agribusiness, resources and ­energy, and tourism.

The Varghese strategy will also be cognisant that India’s economic transformation is driven by huge structural factors such as urbanisation, the move from an informal economy to a formal economy, the demographics of a young population, and the investment in infrastructure, among others; and that Australian businesses should be aware of this.

The conclusion of this report, if accepted, will see a blueprint of great significance for the advancement of the India-Australia relationship, and for business opportunities.

Australia India Council

There is in Australia other instruments and organisations that have been established to further the promotion of Australia India relationships.  One is an Australian Government sponsored Australia India Council (AIC), created on 21 May 1992 to promote growth and collaboration between the two countries, including in trade and investment and the collaboration of Australian and Indian organisations.

AIC’s primary objectives are to:

  • raise awareness of Australia in India, and of India in Australia to promote growth  between the two countries,
  • promote exchange and collaboration between Australian and Indian organisations
  • deliver high quality programs to influential audiences in India.  To this end, financial  grants are available to support this endeavour
  • seek community involvement, and private sector support in advancing Australia-India relations; and
  • publicising AIC’s activities as a means of encouraging broad support to foster the Australia-India relationship.

Australia India Business Council

Another organisation worthy of consideration in Australia is the Australia India Business Council (AIBC).  This is the premier non-government and non-profit organisation founded in 1986 to foster Australia-India relations.

Its primary objective is:

to promote trade dialogue between India and Australia through nurturing and maintaining close relationships in both Australia and India, with Federal and State government agencies, the diplomatic corporations and industry bodies

The AIBC is an Australia-wide organisation with chapters in all Australian capital cities except for Hobart and Darwin. AIBC maintains close relationships with federal and state governments, the diplomatic corps and industry bodies, and it showcases opportunities to the Australian business community through an active program of events.

Rostron Carlyle Lawyers is excited to be collaborating closely with AIBC and is in the process of applying to become a National Corporate Member.

It will be a good idea for Indian business entrepreneurs to join this body when they migrate to Australia as it will bring them into contact with a wide and useful network.

It will help them settle more quickly into their new business environment, and learn the cultural mores of doing business in Australia.  With AIBC they will find a mutual vision, a common synergy, and importantly a camaraderie with likeminded people in their newly adopted land.

Business Migration

It is interesting to note that Australia has been the favourite destination for the world’s wealthy migrants looking for a new country for at least three years in a row.

In February 2017 Indian main stream media The Hindu reported that High Net Worth Individuals (HNWI) chose Australia ahead of the USA and the UK for migration for the second straight year, reporting that an estimated 11,000 millionaires moved to Australia in 2016:

And in January 2018 it was reported in Australian media that for the third year running, Australia was the top migration destination for rich and wealthy business people:

Both reports reported very similar reasons why the rich chose Australia as their favoured destination, and these reasons were:

  • Proximity to emerging Asian economies: Australia’s location makes it a better base for doing business in emerging Asian countries such as East and South East Asia. Australia is geographically closer with similar time zones;
  • Safety record: Australia is safe for women & children in particular;
  • Australia does not have inheritance taxes;
  • Australia’s superior growth over the past decade: Total wealth held in Australia has risen by 83% compared to 20% growth in the US. The average Australian is now significantly wealthier than the average US citizen;
  • Perceived problems with the US healthcare industry: Australia has one of the best health care systems in the world.

What the reports do not mention, and I believe is also the critical reason why India is our number one source country for migrants to Australia, and these are:

  • The quality of life in Australia – our cities are not crowded and our amenities are modern
  • The climate – Australia has a mild and congenial climate all year round
  • Education – Australia has one of the best education systems in the world which explains why India is also a top source country for International students in Australia;
  • Economic & Political stability – Australia has a stable economy, and a stable political system
  • Income equality – Australia is intrinsically an egalitarian society and there is relative income equality; and
  • Multicultural Australia and how welcoming it is to new migrants – more than one in four people in Australia are either migrants or have one parent who is a migrant

And while all this information is known to the thousands of Indians that have been our number one source migrants, it is interestingly not a well-known fact for the rich Indians who may be looking for a new abode for their families from the statistics that are available.

In my four trips to India since August 2016 to meet with the wealthy clients in Delhi, Mumbai and Chandigarh, it struck me that there is a strong urge among the Indian wealthy to look for a new abode, presumably for all the reasons given above.  And interestingly not only were the clients I saw eligible for Australia’s Business Innovation and Investment Visas, but they largely did not know of the program’s existence.

From these clients I noted that their primary reasons for choosing Australia were:

  • Not to abandon India and their successful businesses there, but to forge new business and lifestyle opportunities – Australia is a perfect bridge for that
  • To provide their families with options, safety and security
  • Education for their children
  • Stability – Political and economic
  • Lifestyle
  • Climate & clean environment
  • With the growing Indian diaspora in Australia many had close family connections
  • New opportunities for them and their families

These reasons are not exclusive but were the main reasons I encountered.

However, notwithstanding this interest, business migration from India has been slow.  The comparative table below are statistics that have been extracted from the Department of Home Affairs website (the statistics are the latest available).

Two observations can be made from these statistics:

  • One is business migration from India is small and in its infancy. In the four year period from 2011 to 2015 the best number per annum for Indian business migrants was in 2011-2012 when 64 Indians were granted business migration visas, and it will be noted that numbers have fallen since.  This 64 visas would constitute barely 16 families, a miniscule number for a population of 1.324 billion.
  • Two is an interesting comparison that Pakistan with a population of 193.2 million, one seventh India’s population, has produced more business migrants to Australia than India!

 Business Innovation and Investment Visas


Source:  Department of Home Affairs

While business migration from India is slow, inevitably like thousands of other Indians that have made Australia home, the business people of India will also find their way to Australia.

Peter Varghese who was mentioned earlier said the following in a speech given in India in December 2016:

The Indian elite has traditionally not looked to Australia. That is beginning to change…..

It is interesting that in the same speech on Australia-India Partnership, he made the following observation:

… anyone interested in doing business with India, and especially anyone interested in doing business in India, needs large wellsprings of patience because India punishes impatience.

  Australia India Symposium

 In therefore publicising Business Migration opportunities in Australia, Rostron Carlyle Lawyers in conjunction with its partners Spatial Impacts, and the Pan-India SMC Group, will host the first Australia-India Symposium in Delhi and Mumbai in April 2018.

The main objective of this event is to promote and facilitate viable business connections between India and Australia.

We aim to offer successful Indian business men and women an opportunity to gain investment and migration knowledge about Australia.  This event will provide attendees the knowledge and resources they need to expand the scope of their businesses into Australia.

The event will also provide attendees an opportunity to learn more about Australia and the Australian lifestyle.  The event will involve presentations from sponsors and delegates, and interested attendees will be offered the opportunity to speak one-on-one with Symposium Resource people.

In recognising the growing cultural connections between Australia and India, Rostron Carlyle and its partners are committed to enlightening Indian business people of the numerous investment and migration opportunities available in Australia.

Rostron Carlyle and its partners are committed to India, and jointly we offer ourselves as a vehicle that will bridge India and Australia.

This will be a win-win scenario:  it will benefit the client, it will benefit the partners to the Symposium, and importantly it will benefit the two countries by strengthening the India and Australia business ties.


Two Migration Lawyers (Peter Kuek-Kong Lee and Anna Gunning-Stevenson) from Rostron Carlyle Lawyers will be in Delhi and Mumbai to participate and meet with eligible clients.

Cumulatively between them these lawyers have over 40 years’ experience in the migration industry helping people to move to Australia successfully.

If you are interested in the Australia India Symposium please refer to the website:

Australia is waiting for you!

Peter Kuek-Kong Lee

Rostron Carlyle Lawyers

26 January 2018


Peter Kuek-Kong Lee:        [email protected]

Anna Gunning-Stevenson: [email protected]

Appendix 1

Distinguished Indian-Australians

Academics & Scientists:

  • Professor Chennupati Jagadish
  • Professor Arun Sharma
  • Professor Rajev Khanna
  • Dr Surinder Singh Sohal
  • Dr Rupinder Kanwar and Professor Jagat Kanwar


  • Pallavi Sharda
  • Sharon Johal
  • L Fresh the Lion (aka Sukhdeep Singh)


  • Neville Roach
  • Jim Varghese
  • Sheba Nandkeolyar
  • Uppma Virdi
  • Dr Nik Senapati


  • Dr Mukesh Haikerwal
  • Dr Gorur Krishna Harinath
  • Professor Makhan Singh Khangure

 Public Service

  • Peter Varghese


  • Senator Lisa Singh


  • Gurinder Sandu
  • Jason Sangha
  • Param Uppal
  • Amritpal Singh
  • Lisa Sthalekar

Appendix 2

 Distinguished Indian-Australians

(Alphabetically by first name)

Amritpal Singh

In March 2010 Mr Singh joined the Ludhiana Basketball Academy

  • In 2015, he signed with Tokyo Excellence of Japan’s National Basketball Development League (NBDL). He secured a one-year contract with a Tokyo team.
  • In 2017, Mr Singh signed with the Sydney Kings.
  • He is the first Indian to play professional basketball in the National Basketball League (NBL).

 Arun Sharma

  • Professor Arun Sharma is the former president of the QLD Chapter of AIBC (2006-2011)
  • He is the former head of the School of Computer Science and Engineering at UNSW.
  • He is the Cofounder of National ICT Australia (NICTA) Pty Ltd and CRC for Smart Internet Technology.
  • He holds a PhD from the State University of New York at Buffalo and a Masters in Science from the Birla Institute of Technology and Science.

  Chennupati Jagadish

  • Professor Chennupati is a distinguished professor of Physics at the Australian National University
  • He is head of the Semiconductor Optoelectronics and Nanotechnology Group which he established in 1990.
  • He was awarded the Federation Fellowship and Laureate Fellowship by the Australian Research Council.
  • In 2016 he was awarded a Companion of the Order or Australia for his service to physics and engineering.

Gurinder Sandu

  • Mr Sandu is an Australian cricketer who has represented his country internationally.
  • He played for the Australia Under-19 cricket team in the 2012 ICC Under-19 Cricket World Cup.
  • He made his senior cricket debut for the Sydney Thunder in the 2011–12 Big Bash League season
  • In March 2013, Mr Sandhu was voted the Australian Cricketers’ Association player of the month

Gorur Krishna Harinath

  • Dr Gorur Krishna Harinath has been a GP for over 35 years;
  • He was awarded the 2017 Pravasi Bharatiya Saaman by Indian President Pranab Mukherjee in the field of community service;
  • He was awarded the Order of Australia Medal in 2009 for his outstanding service to cricket and the community.  He is a prominent face at Indian community events in Australia.
  • He has been the Chairman and Board Member of Cricket NSW, a Board Member of- Cricket Australia, President of Sydney Cricket Club, and Director of the Bradman Foundation

 Jason Sangha

  • Mr Sangha was born to a Punjabi Sikh family in Australia.
  • He made his List A debut for Cricket Australia XI against South Australia on 15 October 2016.
  • In 2015-16 became the youngest player in 90 years to represent NSW in a Second XI or Toyota Futures League match.
  • In December 2017, he was named as the captain of Australia’s squad for the 2018 Under-19 Cricket World Cup.

Jim Varghese

  • From the accomplished Varghese Family born of Indian parents in Nairobi, Kenya.
  • Mr Varghese is the current Chairman and owner of the Leadership Company QLD Pty Ltd and Director of the Springfield Land Corporation (SLC).
  • He has over 30 years’ experience as a Chief Executive in leading government agencies covering Transport, Main Roads, Education, Training, Employment and Primary Industries in both VIC and QLD sectors.
  • Mr Varghese was awarded a centenary medal for services to the public sector (2001)
  • He was appointed as a member of the order of Australia for service to public administration in Queensland (2009)

 Lisa Singh

  • Senator Lisa Singh was born In Tasmania to a Fiji-Indian father and English-Australian Mother.
  • She was first elected to the Australian Senate in 2010, representing the state of Tasmania. She was re-elected for a second term at the 2016 Federal election.
  • Prior to being elected to Senate, Lisa was elected to the Tasmanian parliament in 2006 representing the electorate of Denison.
  • In 2008, she was appointed Minister for Corrections and Consumer Protection and Minister for Workplace Relations, as well as Minister assisting on Climate Change.
  • Senator Singh is a long-time supporter of human rights and advocate for refugees. She has been outspoken as a Senator on the need for Australia to reform its immigration policy, particularly the practice of immigration detention, and the treatment of children in detention.
  • Senator Singh has also been a strong advocate for women’s rights, nuclear disarmament, international development, and asbestos disease sufferers.

 Lisa Sthalekar

  • Ms Sthalekar is the first cricketer of Indian origin to represent Australia, when she made her debut in a one-day international competition against England.
  • She is the former captain of Australia’s international women’s cricket team.
  • She has since become the highest all-time wicket taker in Australia’s Women’s National Cricket League.

 L-Fresh the Lion (also known as Sukhdeep Singh)

L-Fresh The Lion (aka Sukhdeep Singh) is an Indian-Australian hip hop artist, born in Sydney to Indian immigrant parents from Punjab who came to Australia in the 1980s.

  • L-Fresh has a law degree and has worked in the community assisting refugees and migrant groups.
  • L-FRESH and his live band have shared stages with names such as NasDead Prezand Talib Kwelias well as performed to crowds at Splendour In The GrassGroovin’ The MooWOMADelaideWoodford Folk FestivalNYE On The HillThe Plot, and numerous other Australian festivals.

 Makhan Singh Khangure

  • Born in India, he moved to England with his family at the age of 9, where he completed his tertiary studies and medical training
  • Professor Makhan Singh Khangure was awarded Life Membership of the Royal Australian and New Zealand College of Radiologists in 2014
  • He is one of two Indians to receive the Order of Australia in 2017.

 Mukesh Haikerwal  

  Dr Mukesh Haikerwal was awarded a Companion of the Order of Australia in 2018.

  • He is the former president of the Australian Medical Association;
  • He has represented Australia at the World Medical Association, worked with the National Health and Hospitals Reform Commission, the Australian Institute of Health and Welfare and Beyond Blue.
  • In 2011 he was awarded the Officer of the Order of Australia (AO).

 Neville Roach

  • Mr Roach has been Chairman to several Immigration Ministers’ Advisory Councils
  • He has been on the board of many leading organisations such as OneSteel, NRMA Building Society, AIIA, CEDA SBS, UNSW Foundation, TAFE Global and AARNET.
  • He is the former CEO of Fujitsu Australia.
  • He was appointed an Officer of the Order of Australia in 2000 for his contribution to business, especially the IT industry and for the development of Australian Multiculturalism.
  • He was Chairman of AIBC from 2000-2006
  • In 2008, he received the Pravasi Bharatiya Samman Award – India’s highest honour for Overseas Indians from the President of India.
  • In 2017 he was declared the Indian Australian Ambassador in the India Australia Business and Community Awards (IABCA).

Nik Senapati

  • Dr Senapati is a Geologist and has spent over 35 years in the mining industry. He had roles in exploration, operations, strategy and external relationship;
  • His initial degree is in geology from St Xavier’s College, Bombay University. He has further degrees from Oxford University and a PhD in geology from Wollongong University, Australia.
  • He is the current President of the QLD chapter of the AIBC;
  • Until 2015, Dr Senapati was country head (Managing Director) of Rio Tinto in India;
  • Dr Senapati is the Honorary Advisor to FICCI in Australia;
  • He has chaired the mining committee of CII.

 Pallavi Sharda –

  • Ms Sharda is an Australian-Indian international film and classical (Bharatha Natyam) and contemporary Indian dancer.
  • She has starred in Bollywood and international films including Besharam (2013), Save Your Legs (2013), Hawaizaada (2015) and the oscar nominated film Lion (2016).
  • Ms Sharda stars in ABC Australia’s new television drama Pulse.
  • Ms Sharda is an honours graduate from the University of Melbourne Law, Arts and Languages schools

 Param Uppal!

  • Mr Uppal was born in Chandigarh
  • He made his List A debut for Cricket Australia XI in the 2017–18 JLT One-Day Cup on 27 September 2017.
  • He made his List A debut against South Australia in the first match on September 27, and went on to play all six matches for the tournament.

 Peter Varghese

  • From the accomplished Varghese Family Mr Varghese was born to Indian parents in Nairobi, Kenya.  He migrated as a child with his parents in 1964.
  • He had studied history and graduated from the University of Queensland with a university medal
  • Mr Varghese is the current Chancellor of the University of Queensland where he had studied years earlier. 
  • He was Senior Adviser (International) to the Prime Minister John Howard (2003-2004), and had been speechwriter to Foreign Minister Gareth Evans.
  • He was Australia’s High Commissioner to India from 2009 to 2012, and previously High Commissioner to Malaysia from 2000-2002.
  • Between 2004 and 2009, he was Director-General of the Office of National Assessments.
  • Mr Varghese was Secretary of the Department of Foreign Affairs and Trade in Canberra (2012-2016)
  • He was appointed an Officer in the Order of Australia (AO) in 2010 for distinguished service to public administration.
  • He was awarded a Doctor of Letters honoris causa by the University of Queensland in July 2013 in recognition of his distinguished service to diplomacy and Australian public service.
  • Arising from Prime Minister Turnbull’s visit to India in April 2017 the Australian Government announced that Mr Peter Varghese would lead an independent India Economic Strategy to identify opportunities for Australian businesses in India. The report is expected to be released in March 2018.

 Rajev Khanna

  • Professor Rajev Khanna has been a research scientist at the Queensland Institute of Medical Research for over 25 years;
  • He is a recipient of the Officer of the Order of Australia for “distinguished service to medicine in the field of immunology, through contributions to the development of cellular immunotherapies for the treatment of cancers, infectious complications and chronic disease.”

Rupinder Kanwar and Jagat Kanwar

  • Dr Rupinder Kanwar and her husband, Professor Jagat Kanwar are scientists and academics at Deakin University in their Geelong campus
  • Both are a power couple in Science research
  • In 2016, Deakin University medical scientists Dr Rupinder Kanwar and Professor Jagat Kanwar along with two other scientists made an important breakthrough in prostate cancer treatment that could help reduce the toxic side effects for patients.

 Sharon Johal

  • Ms Sharon Johal is a third generation Punjabi Indian, born in South Australia.
  • Ms Johal graduated with a Law and Commerce degree and moved to Melbourne with the hope of furthering her acting career.
  • She is an actress well known for her roles in Neighbours (2017), Winners & Losers (2011) and Tu Mera 22 Main Tera 22 (2013).

Sheba Nandkeolyar

  • Ms Sheba Nandkeolyar has been a member of AIBC for over 15 years and is now the national chair.
  • She is the Founder and Chair of Women in Business Chapter at AIBC, Sheba plays an active role in linking Women in Business across Australia & India
  • Ms Nandkeolyar co-founded one of Australia’s leading communication and marketing companies – MultiConnexions.
  • She was awarded the ‘IAA Inspire Champion Award ‘ – an International Lifetime Achievement Award for Excellence in Global Communications by the International Advertising Association in May 2015 in London; the only awardee from Australia.
  • Ms Nandkeolyar has won many awards internationally, including The Arch of Excellence for the `Best Entrepreneur’ category by the Government of India, prior to migrating to Australia.

 Sukhwinder Singh Sohal

  • Dr Sukhwinder Singh Sohal  is a lecturer in Histopathology in the School of Health Sciences
  • Originally from the Punjab, he and his wife Pardeep migrated to Australia, where he began his PhD at UTAS in 2006, graduating in 2010;
  • In 2016, Dr Sohal was recognised by the American Thoracic Society (ATS) in San Francisco for his work on Chronic Obstructive Pulmonary Disease (COPD).

Uppma Virdi

  • Ms Uppma Virdi is a successful Indian entrepreneur born in Chandigarh and raised in Melbourne
  • She is the Founding Director of Chai Walli, a tea business focused on the making, educating and sale of high grade Indian teas. 
  • Ms Virdi is a lawyer specialising in commercial law, employment law and intellectual property.

New Act Brings Major Changes for Construction Businesses

New Act Brings Major Changes for Construction Businesses

On 10 November 2017, the Building Industry Fairness (Security of Payment) Act 2017 received royal assent, affecting every stakeholder in the building and construction industry in Queensland.

Although the key provisions of the Act do not come into force until a date to be proclaimed by the Queensland Government, it is anticipated that the major reform to the operations of the Queensland building and construction industry will take effect from early 2018.

The controversial changes were enacted following a six month consultation with the industry stakeholders and an intensive advertising campaign focusing primarily on the project bank accounts as a mechanism for a ‘fair’ recovery of payments for the tradie subcontractors. (1)

The Act consolidates the current Queensland security of payment legislation (2) and introduces some important amendments to the Queensland Building and Construction Commission Act 1991, particularly in relation to tougher measures in prosecuting unlicensed building work and targeting insolvency in the building industry. We will be discussing the changes to the QBCC Act in a separate publication, so watch this space.

Project Bank Accounts

The mandatory use of project bank accounts will be gradually phased in over the next two years. From the early 2018, all Queensland Government construction projects of the value between $1 million and $10 million will be covered by the operation of the Act. From 1 January 2019, all of the construction projects above $1 million including the private, 3 commercial and government sectors will be required to operate the compulsory project bank accounts. Separate contracts for building work at the adjacent sites for a combined value of over $1 million between the same parties will be taken to be a single contract and thus also covered by the project bank account requirements.

Although a large body of the procedural matters will be addressed by a regulation, which is yet to be drafted, we have summarised the most important provisions with respect to the project bank accounts below.

Despite the flavour of the earlier advertising campaign and the Government’s various press releases, (4) only the head contractors and tier one subcontractors (5) will be covered by the new security of payment regime through the operation of project bank accounts, leaving the end suppliers and subsequent subcontractors out.(6) However, these categories of the building industry operators will still be able to recover payments from their employers through the usual channels, like the payment claims and subcontractors’ charges.

Each of the project bank accounts will be utilised to hold on trust only the following amounts:

  • payments by the principal to the head contractor under the building contract;
  • payments to a subcontractor from the head contractor under the first-tier subcontract;
  • retention monies withheld under the first-tier subcontract; and
  • monies the subject of a payment dispute.

This system will necessitate the operation of three separate trust accounts (7) for each project, with the head contractor being the trustee and beneficiary of these accounts, while each of the first-tier subcontractors are to have a beneficial interest in the amounts held on trust. The accounts must be operated by a financial institution within Queensland and be generally opened within 20 business days after the head contractor enters into a first-tier subcontract.

There are strict requirements for the operation of the project bank accounts, in particular, deposits and withdrawals only by electronic transfer, withdrawals and transfers between the accounts only by using a payment instruction given to the financial institution.

The head contractor will not be entitled to pay itself unless sufficient funds are held in the trust account to cover payments due to the subcontractors and must cover any short fall in the trust funds, which is unpaid by the principal. If there are insufficient funds in the account the head contractor must pay all of the subcontractors to whom payments are due on a pro rata basis.

There is an express exclusion of the trust account funds from the creditor claims (other than the subcontractor beneficiaries), as well as a prohibition on investment of these funds other than interest earned on each of the accounts. The head contractor is unable to recover the costs of the administration including the bank fees from the funds held in the project bank accounts or from the subcontractor beneficiaries.

Payment claims

The Act establishes a new process for progress payments and associated dispute resolution, which is largely based on the modified provisions of the Building and Construction Industry Payments Act 2004. As opposed to the project bank account provisions, this process is applicable to all suppliers and subcontractors who contribute to a construction contract and the definitions of construction work and the related goods and services for the purposes of the payment claims are very wide.

The new procedure for submission of the payment claims is somewhat more favourable towards the claimants (similar to the old regime prior to the 2014 amendments).

The requirements for the payment claim remain unchanged, although there is currently no express prerequisite for stating that a payment claim is made under the Act (similar to the security of payment legislation in NSW). However, further requirements as to the form and content may be enacted under a regulation for both the payment claim and the payment schedule.

An additional final reference date is added for terminated contracts.

If the construction contract does not provide for a due date of a progress payment, the due date will become the 10th business day from the date a payment claim is made.

A payment claim must generally be given within 6 months of the carrying out the work or the supply of the related goods and services, unless provided for otherwise in a construction contract. Although only one payment claim is to be made for each reference date, any amounts from previous payment claims may be included in the subsequent claims.

The payment schedule must be provided by no later than 25 business days after the day the payment claim is given or earlier if the shorter period is specified under the relevant construction contract. If the respondent fails to give the payment schedule, as prescribed, the amount in the payment claim becomes payable by the due date for the relevant progress payment, which means that if the contract is silent as to the due date, the respondent is immediately liable for the full amount of the payment claim.

Penalties, as well as disciplinary action under the QBCC Act, now apply for a failure to provide a payment schedule in response to a payment claim.

Dispute Resolution Process

If the respondent does not issue a payment schedule and fails to pay the amount of the payment claim, the claimant may elect to recover the claim as a debt through court action or to apply for adjudication.

There is a further entitlement for the claimant to suspend work with notice upon the conditions specified in the Act.

The claimant may apply for adjudication within the following time frames:

for a failure to deliver the payment schedule: 30 business days after the later of the due date for the relevant progress claim or the last day when the respondent could give the payment schedule.
for a failure to pay the amount stated in the payment schedule: 20 business days after the due date for the relevant progress payment; and
for a dispute with respect to the amount stated in the payment schedule: 30 business days after the claimant receives the payment schedule.
The respondent will be unable to submit an adjudication response if no payment schedule was given with respect to the payment claim. Any adjudication response also may not include any new reasons, which were not included in the payment schedule.

The adjudication response must be given to the adjudicator within the following time frames (‘response date’):

for a standard claim within the later of 10 business days after receiving a copy of the adjudication application or 7 business days after receiving adjudicator’s notice that the adjudication application was accepted.
for a complex claim (over $750,000 excl GST) 15 business days after receiving a copy of the adjudication application or 12 business days after receiving adjudicator’s notice that the adjudication application was accepted. These timeframes may be further extended at the discretion of the adjudicator for up to 15 additional business days upon application (which must be made within a specified time limit).
After the adjudication response date (which will apply as specified above regardless of whether the respondent is entitled to give the adjudication response), the adjudication decision must be made within 10 business days for a standard claim and 15 business days for a complex claim respectively.

As an alternative to the adjudication process, the claimant may give a 5 business days’ warning notice to the respondent of the intention to commence court proceedings to recover the payment claim. Such notice must be given within 20 business days from the due date of the relevant progress payment. The claimant will then be able to apply for judgment provided that the court can be satisfied that the progress payment was not paid by the due date and that the payment schedule was not given (if applicable). The respondent will be unable to bring as counterclaim or any defence with respect to the matters arising out of the relevant construction contract in those proceedings (similar to the old regime prior to the 2014 amendments).

Subcontractors’ Charges

The provisions of the Subcontractors’ Charges Act 1974 appear to have been adopted with little change. The most notable variation however is the inclusion of the mandatory response period to a claim of charge within 10 business days of service of the claim. Further, a charge under Chapter 4 of the Act will not attach to the funds held in the project bank accounts, which means that from early 2018 the subcontractor’s charges are likely to be only effectively utilised by the subcontractors below the first tier under a building contract. If the claim of charge is issued, the claimant will be unable to enforce a progress claim or to initiate proceedings under Chapter 3 of the Act unless the claim of charge is withdrawn.

Further observations

The Act provides the QBCC with an active role as a watchdog for compliance including, for example, audit of the project bank accounts, registration and administration of the adjudicators and processing of the various hefty fines and penalties under the Act. Strict compliance is anticipated to be enforced, given that imprisonment terms apply to the offences against several provisions of the Act. However, it is yet to be clarified by regulation as to due processes for imposing those penalties.

Curiously, the Act contains a provision for a compulsory review of the reform by the minister to be commenced no later than 1 September 2018, which indicates that the new law is in a live test mode for now.

These changes will affect every stakeholder in the building and construction industry in Queensland. The above information is intended only as a selective overview of the provisions of the Act and should not be interpreted or relied upon for legal advice.

For further information please contact our construction team on (07) 3009 8444.

1 For example, TV commercial from Queensland Department of Housing and Public Works published on Youtube on 1 February 2017.
2 Repeal of the Building and Construction Industry Payments Act 2004 and the Subcontractors’ Charges Act 1974.
3 The contract for construction of three or less residential dwellings and associated structures is currently excluded from this requirement.
4 For example, Premier’s and Minister’s statement on 30 November 2016 published by the Queensland Government.
5 The relevant tiers of subcontracts are defined in s 6 of the Act.
6 With the exception of second-tier subcontractors, in the circumstances where the head contractor and the first-tier subcontractor are related entities – Part 2 Division 3 of the Act.
7 To be opened and maintained by the head contractor.