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

comingsoon

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.

Perspective

 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.

 Tourism

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

2011–122012–132013–142014–15
India64484048
Pakistan1574013642

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.

Contact

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:

https://australiaindiasymposium.com.au/

Australia is waiting for you!

Peter Kuek-Kong Lee

Rostron Carlyle Lawyers

26 January 2018

Email:

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

 Arts:

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

Business

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

Medicine

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

 Public Service

  • Peter Varghese

  Politicians

  • Senator Lisa Singh

Sports:

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

Appendix 2

 Distinguished Indian-Australians

(Alphabetically by first name)

Amritpal Singh

https://www.sbs.com.au/yourlanguage/punjabi/en/article/2017/08/30/amritpal-singh-first-indian-play-australias-national-basketball-league

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

https://staff.qut.edu.au/staff/sharmaak/

  • 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

https://physics.anu.edu.au/people/profile.php?ID=106

  • 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

https://www.cricket.com.au/players/gurinder-sandhu/by_lh695A0CqwjjE9EJtNg

  • 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 

https://www.sbs.com.au/yourlanguage/hindi/en/article/2017/01/11/indian-australian-dr-harinath-receives-prestigious-2017-pravasi-bharatiya-samman

  • 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

https://www.cricket.com.au/players/jason-sangha/fkXQQkatE0mhOSA6VQ3e-g

  • 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

https://www.aibc.org.au/jim-vargese

  • 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

https://www.alp.org.au/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

https://www.lisasthalekar.com/

  • 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)

https://www.l-fresh.com/

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 

https://www.sbs.com.au/yourlanguage/punjabi/en/article/2017/01/26/prof-makhan-singh-khangure-awarded-order-australia

  • 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  

https://www.sbs.com.au/news/australia-day-honours-the-gp-who-survived-a-brutal-attack  

  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

https://www.aibc.org.au/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

https://www.aibc.org.au/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 –

https://www.pallavisharda.com/

  • 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

https://www.cricket.com.au/players/param-uppal/Ke_Nidfnd0qSZvlR3ryfaA#!

  • 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

https://www.uq.edu.au/about/chancellor

  • 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

https://www.sbs.com.au/yourlanguage/punjabi/en/article/2017/06/11/prof-rajiv-khanna-receives-queens-birthday-honour-cutting-edge-medical-research

  • 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 

https://www.sbs.com.au/yourlanguage/punjabi/en/article/2016/09/19/indian-australian-couple-finds-breakthrough-prostate-cancer-treatment

https://www.deakin.edu.au/about-deakin/people/rupinder-kanwar

https://www.deakin.edu.au/about-deakin/people/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

https://www.sbs.com.au/yourlanguage/punjabi/en/article/2017/05/17/punjabi-actress-sharon-johal-hits-australias-small-screen-neighbours

  • 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

https://www.aibc.org.au/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

https://www.sbs.com.au/yourlanguage/punjabi/en/audiotrack/international-recognition-indian-australian-scientist-dr-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

https://chaiwalli.com.au/

  • 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.

 

Crackdown on building products imported into Queensland

On the 25th May 2017, the Minister for Housing and Public Works and Minister for Sport, Honourable Mick de Brenni, introduced into the Queensland Parliament the Building and Construction Legislation (Non-Conforming Building Products-Chain of Responsibility and Other Matters) Amendment Bill 2017 regarding the proposed new laws with respect to building product safety.

The government’s concern was raised by a string of recent building product failures in the residential complexes across South-East Queensland (HQ Apartments in Chermside, Silverstone Apartments in Coolangatta) and the 2014 fire in Lacrosse Towers in Melbourne. In all instances the harmful products which were installed by the builder were imported and did not comply with the relevant Australian Standards.

Presently, Queensland home owners may be covered by a policy of insurance against defective construction under the Queensland Home Warranty Scheme. However, the policy of insurance has significant limitations and usually does not cover multi-unit residential apartments.

The Queensland Building and Construction Commission (‘QBCC’) (Technical Standards Unit) currently has powers to audit construction sites and issue notices to bring defective construction into compliance with the relevant building standards.

Under the proposed new laws, the QBCC will receive broader powers of inspection with respect to the construction sites, for example to take samples for testing and to direct rectification. Apart from the building contractors and certifiers, the QBCC will be able to have recourse against various stakeholders in the “chain of responsibility” with respect to the building products that pose health and safety risks. It is further understood that in the proposed legislation the liability for non-compliant building products may attach to designers, manufacturers, importers, suppliers and installers.

The proposed legislation contains provisions regarding the issuing of public safety warnings and the establishment of the Building Products Advisory Committee to oversee the issues relating to nonconforming building products.

If passed through the parliament, it is expected that the new laws will be enacted by end of 2017.

Rostron Carlyle Lawyers specialise in building and construction law. Contact our construction team for more information.

You might also want to read: QBCC Insurance- Problems with a builder in Queensland?

Letter to India

comingsoon

Australia and India share the same National Day, 26 January. Yet as countries they are similar but different.

Both India and Australia have ancient civilizations, except that India’s civilization is readily recognised, but Australia’s indigenous civilization is not. Both countries are expansive in geography, but India has a teeming population of one billion people with obvious population pressures like clean air and blue skies, whereas Australia only has 24 million people, the population of New Delhi. It has clean air and blue skies almost every day.

With these differences, we begin to see a stark contrast in the two countries.

India has a myriad of languages spoken and is culturally diverse, but Australia is uniquely more diverse with people settling in Australia from every corner of the world, speaking all the world’s languages, and has cuisine from every corner of the globe.

Yet India and Australia have much in common: with a population of one billion, more Indians speak English than any country in the world including the UK and USA. We share a common legal system inherited from the British who had a major influence in transforming both countries.

These juxtapositions continue, but what is not commonly known will be revealed in this article.

Australia

Australia is a relatively young country of just over 200 years old, despite its ancient indigenous civilization. It is located in Asia, even if only in its south-east corner, where the engine of the world’s economic growth is centred.

It has a stable system of government, excellent education, a strong economy and a diverse and dynamic population. It has immigrants from every country in the world.

Given its geographic location and abundant resources, the opportunities of living in Australia are enormous, as is the potential for business.

An Indian Phenomenon

Many Indians are aware of these benefits and have moved to Australia in significant numbers but this phenomenon is not generally well known.

Did you know that in the past two years, India is the number one source country for immigrants to Australia? India is also the number two source country for International Students. Indeed the Australian Department of Immigration has reported that the Indian-born population is now the fourth largest migrant community in Australia, with Hindi a fast growing language spoken in the home. In fact the Indian-born people living in Australia has more than doubled in eight years, from June 2006 to June 2014.

While the public may stereo-type Indians as working as taxi drivers and running 7-Eleven stores in Australia, India is Australia’s number one source country for Skilled migrants and employer sponsored visas like Temporary Work (Skilled) visas.

Indeed the Writer’s doctor is an Indian as is his Cardiologist. Indians as a community is fulfilling a major role in Australia’s health, IT, engineering and other industries. And significantly is also playing a major role in Australia’s culinary culture. You will find Indian restaurants common in all the major cities of Australia; and slowly Hindu and Sikh temples are becoming evident.

Indian Business

While Indians are leading the way and migrating to Australia in such big numbers, it is incredulous that this is also not reflected in Business Migration, despite India’s growing middle and upper class.

Australia issues seven thousand two hundred (7,200) business migration visas every year for more than the past three years. Yet in the three years (2012/13, 2013/14 & 2014/15) mentioned in the Department of Immigration information, no more than 48 visas were issued to Indian nationals. This equates to about four Indian families a year.

Why is this so?

Is it because Indian business men and women are not interested in Australia unlike their other compatriots who have migrated; or is it because they don’t meet the business migration criteria?

It is believed both reasons are wrong. Indian business people are not aware of this program. It may be because Indian business people are too busy, and are not aware of Australian business migration opportunities.

This conclusion was reached from two reconnaissance undertaken in India in August and November 2016. From these visits, it showed that business people in India are not aware of the program. But importantly the people we saw had an abiding strong interest in the program.

The first visit was to Delhi and the Punjab, where in Delhi a number of interviews were conducted over a week end. These meetings showed that Indian business people were not familiar with the Australian program. And surprisingly, 56% of the people interviewed in Delhi were eligible for the business migration program.

In the second visit, we went to Delhi (again) and Mumbai. It was interesting that the profile and characteristics of business people seen in both these cities was quite different. But the constant in the interviews conducted in both cities showed a lack of awareness but keen interest in the business migration program.

Consistent with the first Delhi visit, the eligibility of the people seen in both cities were very high, and as a result, clients from both cities are already signing up requesting assistance in applying for these visas.

Australian Business Migration

Moving to Australia does not necessarily mean cutting off business ties with India. The world is becoming a global village, and increasingly business people can work from more than one centre. This is true of Australia, as it is true of India.

Indeed by moving to Australia, Indian business people have the best of both worlds in terms of living, lifestyle and business opportunities. They literally have a foot in both camps, and the opportunities that both countries can offer them.

So what is Australia’s Business Migration Program?

This comprises a suite of business and investment visas to suit different business people. In total the suite has seven visa streams that can be considered. See diagram below.

 

For people who are substantial business people, they can apply for the Business Talent Visa which will potentially grant them permanent residence when the visa is granted. There are two streams in this visa subclass 132: the first is the Significant Business History applicant who intends to develop a significant business in Australia, and the second is a Venture Capital Entrepreneur who intends to be a Venture Capitalist in Australia.

In contrast, there are five other streams that belong to the two-stage Provisional, and later Permanent Residence visa. This suite of visas belong to the subclass 188 visa category comprising the following five streams:

  • (a) the business innovation stream where the business person sets up a smaller business proposal than the subclass 132 Significant Business History applicant; and
  • the investor category where there are four investor visa streams available:
    • (b) Investor Visa
    • (c) Significant Investor Visa
    • (d) Premium Investor Visa
    • (e) Entrepreneur Visa.

Tripartite Collaboration

Given the interest in the Australian business migration program that has been generated from the reconnaissance visits in 2016, three groups have joined together to work collaboratively in helping Indian business people move to Australia and do business there.

The Group comprising the parties to this collaboration are:

These three parties will work together to assist Indian business people move to Australia.

If you wish to contact any of these parties, the email addresses and phone numbers for the contacts are:

  • Spatial Impacts: Manish Karkhanis, Managing Director: [email protected]; and Phone: +61 4 326 345 74 (Australia) and +91 9819918189 (India);
  • SMC India: Saroon Kumar, General Manager – International Market & NRI Desk: [email protected]; Phone +91- 9811627346; and
  • Rostron Carlyle Lawyers: Peter Kuek-Kong Lee, Senior Migration Lawyer:
  • [email protected] rclaw.com.au; and Phone: + 61 7 3009 8444 and +61 4242 888 43.

While the Group is currently focussing on the Delhi and Mumbai markets, the Group is willing to assist any business person in India regardless of their location. SMC India has also travelled to the Punjab and Gujarat to meet and help clients.

The Group will have campaigns in India periodically, and the next campaign will be in Delhi (11-15 February 2017) and Mumbai (16-20 February 2017).

A Migration Lawyer (Peter Kuek-Kong Lee) from Australia will be in Delhi and Mumbai to participate and meet with eligible clients. This lawyer has over 37 years’ experience in the migration industry, having worked on both sides of the industry: he worked for 25 years in the Australian Department of Immigration, including 12 years on overseas postings with the department, and the past 12 years in private Practice helping people move to Australia successfully.

If you are interested to participate in this campaign, please contact Mr Saroon Kumar by email: [email protected]

If you are eligible, Australia is waiting for you!

We look forward to seeing you.

Spatial Impact

SMC India

Rostron Carlyle Lawyers

26 January 2017

 

New Partner appointed to spearhead growth in Sydney

comingsoon

Rostron Carlyle has set its sights on growing its foothold in the Sydney market, with the appointment of James Hatzopoulos to Partner to strengthen the firm’s leadership as it expands its presence in New South Wales.

Mr Hatzopoulos, who has held senior positions with Rostron Carlyle since he joined the firm in 2014 as part of the amalgamation with Maunder & Jeffrey, manages the Corporate, Commercial & Property practice in Sydney.

Rostron Carlyle Partner, Gavin McInnes, said that Mr Hatzopoulos’ elevation to Partner was an important step forward in expanding the firm’s Sydney offering.

“Over recent months, we have been focused on elevating the Rostron Carlyle name across Sydney and the broader NSW legal market. James Hatzopoulos has significant experience across a range of industries as well as the exceptional knowledge of the NSW legal market,” Mr McInnes said.

Mr Hatzopoulos said becoming a Partner was something he has aspired to achieve since he began studying to become a Lawyer.

“It has most definitely been a lifelong goal, and to have reached this goal so soon in my career and now stand alongside the other Partners of Rostron Carlyle Lawyers is truly an honour,” Mr Hatzopoulos said.

“My vision as a Partner of the Sydney office is to both continue to grow, and find new ways of growing Rostron Carlyle’s current foothold in the Sydney Legal Market. With the upcoming office move into the Aurora Place Building in the Sydney CBD as well as bringing on new members to the legal team, I have no doubt that Rostron Carlyle Sydney will become a force in the legal services sphere with a highly-regarded reputation of ensuring unrivalled service is provided to all clients.”

With a specialisation in the Service Station and Petroleum Industry, Mr Hatzopoulos said the past few years has seen a staggering increase in terms of yield performance and general interest/transaction flow amongst property investors, developers, and retailers and expects that to continue this year.

“Increases in environmental protection standards imposed by the relevant authorities has seen Service Stations become one of the most sought after investment opportunities in recent years, and I believe this will continue to reach new heights in 2017,” Mr Hatzopoulos said.

“I believe 2017 will be another solid year of growth, backed by the ever-growing Sydney property market ensuring confidence remains in the marketplace.”

About Rostron Carlyle

Rostron Carlyle was established in 2001 and employs more than 100 people. With offices throughout Australia, Rostron Carlyle prides itself on its talented and diverse team including accredited specialists in business and family law.

Boutique Firm Ag Edwards Merges With Rostron Carlyle

comingsoon

Rostron Carlyle  has strengthened its expertise across the Commercial and Property division with the recent merger of Brisbane and Gold Coast based law firm AG Edwards.

Since 2013, AG Edwards has been providing corporate and commercial legal, property and compliance solutions to a range of national and multinational clients.

Rostron Carlyle Commercial and Property Partner, Gavin McInnes, said the merge was a significant step in adding greater depth and experience to his team and the firm.

“AG Edwards brings additional expertise to Rostron Carlyle’s Commercial and Property group, in particular the team’s specialised experience in corporate and commercial, capital markets, banking, finance and financial services sectors,” Mr McInnes said.

“We are continually looking for ways to strengthen our offering to clients. Rostron Carlyle is proud of its focus on establishing long-term relationships with our clients. Strategic merges, such as this one with AG Edwards, means we can continue to evolve and offer a variety of legal advice and services to help support the daily and ongoing operations of their businesses.

Adrian Edwards, Principal of AG Edwards, said the firm’s merge with Rostron Carlyle presented key opportunities for his team’s future growth.

“The AG Edwards team brings more than 20 years of legal, compliance and financial experience to Rostron Carlyle. The merge with Rostron Carlyle will enable the AG Edwards team to continue to develop their knowledge and capabilities with the support of one of Brisbane’s top law firms,” Mr Edwards said.

“We look forward to working with Rostron Carlyle clients and introducing our client base to the additional range of services that are now available directly to them.”

Mr McInnes said the firm was looking forward to welcoming the AG Edward team to the 100-strong national team at Rostron Carlyle.

“We are thrilled to welcome Adrian and his team to Rostron Carlyle and look forward to working together on the extension of services now on offer to both our current and future clients.”

About Rostron Carlyle

Rostron Carlyle was established in 2001 and employs more than 100 people. With offices throughout Australia, Rostron Carlyle prides itself on its talented and diverse team including accredited specialists in business and family law.

Professional Recovery Services Pushes Into Victorian Market

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Heightened demand for professional debt collection and recovery services has seen Professional Recovery Services move into the Victorian market with a new office opening in Melbourne this month.

Professional Recovery Services, a subsidiary business of national law firm Rostron Carlyle Lawyers, has been successfully operating in the Brisbane and Sydney market for a number of years.

Managing Director, Stewart Wilkinson, said recent demand from clients south of the border has resulted in the opening of a dedicated Victorian office in Bourke Street, Docklands.

“Professional Recovery Services has been providing commercial and private clients with a range of debt recovery services for many years now. With the business continuing to grow, particularly across Victoria we will now have a dedicated team to service our clients out of Melbourne,” Mr Wilkinson said.

“Our senior management have spent several decades working in debt collection agencies and specialist law firms in the debt collection industry. Using this wealth of experience, we have identified the best practice to deliver successful results to our clients.”

“This push into Melbourne will enable our clients to directly access our broad range of services. Our team in Melbourne will be supported by the Professional Recovery Services teams in both Sydney and Brisbane.”

PRS Victoria

Professional Recovery Services Melbourne office will be headed by Tom Torpy, who has more 30 years’ experience across a number of management roles within the debt recovery industry.

Prior to joining the collection industry, Tom was the Deputy Registrar at the Melbourne Magistrates’ Court based in the Civil Registry. In this role he administrated all civil legal actions including all debt collection matters. Tom’s role at the Magistrates’ Court, combined with his extensive collections experience has given him a practical working knowledge of the civil legal system from both the users and administrators perspectives.

Tom’s hands on approach and extensive experience in all facets of the collection industry, ensures that the Professional Recovery Services team will maximise your recoveries, with the focused objective to affect all recoveries in the shortest possible period.

Tom will be supported in his role by Professional Recovery Services Brisbane and Sydney Managing Director Stewart Wilkinson who has lead the business since 2014.

PRS Queensland and NSW

Stewart is the Director of Professional Recovery Services in Queensland and New South Wales.

Stewart has had a diverse career background in Sydney working in the futures markets, finance industry as well as the NSW Police Force finishing his career in the State Crime Command.

Stewart has worked in the Debt Collection industry for well over a decade and has led two leading national debt recovery firms through unprecedented growth. Although Stewart has worked in many fields of Debt Collection including consumer, finance and debt purchasing, his speciality is the SME market and problematic disputed matters. Stewart is regularly approached to lead complex insolvency appointments where Receivers or Administrators are faced with realising debtors of an insolvent company.

Stewart has also been part of Project Management teams incorporating Law Firms and growing businesses. He understands the specific needs and expectations of clients when leading single complex defended matters or organising a supply chain of high volume litigation teams.

Please feel free to contact Stewart to discuss any small or large recovery matters you have.

Professional Recovery Services goal is to assist its clients in the recovery of bad debts, whilst providing advice and training on how to minimise bad debts in the future.

About Professional Recovery Services

Since 2012 Professional Recovery Services has been providing a range of recovery services to its clients across three divisions including Commercial & Corporate Debt Recovery, Insolvency and Realisation of Debtors Ledgers and Purchased Debt. Professional Recovery Services is a subsidiary business of Rostron Carlyle Lawyers.

About Rostron Carlyle

Rostron Carlyle Lawyers was established in 2001 and employs more than 100 people. With offices in Brisbane and Sydney, Rostron Carlyle prides itself on its talented and diverse team with its focus in the areas of Commercial, Property and Corporate Law, Litigation and Disputes, Insolvency, Construction and Corporate Recovery.

The opening of PRS Victoria is the first step for Rostron Carlyle in securing a permanent presence in the Melbourne market.

Insolvency Law reforms and its impact on business and directors

Insolvency Law reforms and its impact on business and directors

The Insolvency Law Reform Act 2016 (Act) is due to commence operation on 1 March 2017 and is the first set of reforms proposed by the Australian National Innovation and Science Agenda (NISA).

The Act is generally a consolidation of the current rules which govern corporate and personal insolvency, as currently split between the Bankruptcy Act 1996 (Cth), the Corporations Act 2001 (Cth) (Corporations Act) and Australian Securities and Investments Act 2001 (Cth) and makes a number of changes including:

  • increasing the powers of ASIC to regulate corporate insolvency;
  • the registration of insolvency professionals;
  • the introduction of a minimum remuneration of insolvency professionals without the need to hold a creditor’s meeting; and
  • the improvement in the position of creditors to request information and review estate or external administration.

NISA proposals

The second set of reforms recommended by the NISA proposals paper (Proposal) issued in April 2016 if adopted will have a significant impact on business given the proposals include:

Reduction of bankruptcy period

The proposal recommends that the current default bankruptcy period be reduced from 3 years to 1 year with the effect that many of the restrictions placed on bankrupts such as obtaining finance and prohibition on overseas travel are reduced to 1 year. Despite the proposed reduction in the bankruptcy period, the proposal recommends that the period for the obligation to repay the bankrupts debts remain set at three years. In addition to the above the bankruptcy period may be extended up to eight years with income contributions to continue for that period. We note that any perceived risk as result of this change is easily mitigated by conducting bankruptcy searches as is appropriate due diligence for commercial transactions such as business acquisitions and loans.

Safe Harbour proposals

In addition the proposal seeks the introduction of safe harbour provisions to protect directors from personal liability for insolvent trading. The proposal has set out two models for the safe harbour provision with one being a defence to insolvent trading whilst the other will be a carve out and would require the liquidator to prove that the safe harbour provision should not apply. The two models are as follows:

  • under the Model A, the directors would be able to absolve themselves of liability by appointing a restructuring advisor to develop a turnaround plan for the company; and
  • under Model B, a carve out for s 588G of the Corporations Act would be introduced to allow directors to attempt to trade out of short term losses where it is reasonable to do so and any increases in debt do not materially increase the risk of loss to creditors.

These safe harbour provisions are aimed at providing directors with a restructuring option that allows them to retain control of the company whilst receiving formal advice rather than prematurely surrendering control to an external administrator. In relation to Model A, the recommendations have also provided for the defence to not apply where the director is disqualified at the time the debts are incurred, the defence is not satisfied, business activity statements have not been lodged or where there has been a significant failure to pay employee entitlements.

Both of the models discussed above contemplate the appointment of a restructuring adviser to lead the proposed turnaround activity and provide advice on the reasonable courses of action, whether the business is in fact reasonably capable of being saved. At this point in time it is uncertain what type of professional this adviser is likely to be; however the Proposal has noted that the restructuring advisor will need to be an accredited member an organisation approved by the Minister  and that such organisations are likely to include (but not be limited to) the Law Society, CPA Australia, Chartered Accountants Australia and New Zealand, the Australian Restructuring, Insolvency and Turnaround Association and the Turnaround Management Association.

The main impacts of this proposal if adopted will likely be:

  • insolvent trading claims becoming even less frequent, given the difficulty and expense required to pursue; and
  • encouraging businesses and directors when facing financial distress to act much earlier in an attempt to fall within the safe harbour provisions;
  • greater transparency with creditors as directors attempt to take reasonable steps in an attempt to save the business; and
  • directors fully investigating the possibilities of restructuring and trading out of short term losses, without penalty of trading a company whilst insolvent where under the current regime they would likely resign or cease trading and apply for voluntary administration.

Ipso Factum clauses

The last recommendation of the proposals is that clauses which allow a contract to be terminated solely due to insolvency event are made unenforceable or void where the company is undertaking a restructure. The aim of this proposal is to prevent trade creditors and suppliers undermining the voluntary administration process by refusing to provide goods and services despite them still being paid on the basis of insolvency event.

It should be noted that this proposal does not affect the termination of a contract for reasons other an insolvency event such as non-payment of fee or the non-performance of the contract.

If you need advice on what this means for you and your business, contact us now or visit our dedicated insolvency space.