Legal issues
A broad range of legal matters and issues are of relevance to the University and its staff. This page provides either an overview of, or a link to other helpful University resources on some of the more common legal issues.
- Contractual issues
- Trade Practices Act
- Employment/Industrial relations
- Independent contractors vs employees
- Insurance
- Spam Act
- Privacy
- Freedom of Information
Contractual issues
Contracts do not have to be in writing on a formal document and signed to be legally binding. The major elements of formation of a contract are offer and acceptance; consideration; intention to create legal relations and certainty of terms. Thus, provided these elements are met, a contract may be construed via exchange of e-mails, scribbling on the back of a docket or even verbal exchanges.
Even if no contract has been formed, if a party has made a representation to another party and that other party has relied on it to its detriment, the first party may be prevented from departing from this representation under the doctrine of estoppel.
Therefore, when dealing with external parties, beware of making any
written or verbal commitments or representations as these may be legally
binding. If you do want to create a contract with an external party, you
must ensure that the contract is in writing. The
Solicitors will be able
to assist you in this, either by providing a precedent contract, or by
developing a tailored contract to suit your needs.
Employment/Industrial relations
If you have a query regarding employment or industrial relations law, you
should in the first instance contact your local HR Officer or
Human Resources
Independent contractors vs employees
When engaging an individual to provide services to the University as an independent contractor, there is a risk that such a person could be construed as an employee instead. If such a relationship is held to be an employer-employee relationship, the University will be at risk of penalties for not satisfying its taxation, superannuation and other obligations as an employer.
In determining whether a person is an employee or an independent
contractor, various factors are considered. Please refer to the
FS28 form for a list of these factors. If the person should be
an employee, please consult your HR Officer for assistance in setting up the
relevant employment contracts. If the person is an independent contractor,
you need to put in place a contract for services.
Insurance
If you have a query regarding the University's insurance policies, please
contact the University's
Insurance
Office within the Finance Unit.
Spam Act
The Spam Act 2003 (Cth) commenced operation on 10 April 2004 and applies to the University. The Spam Act regulates the sending of commercial electronic messages with an Australian link (i.e. sent to or from an Australian electronic address). A commercial electronic message is an email, SMS or other electronic message of a commercial nature.
An electronic message is of a commercial nature if, having regard to the content and presentation of, and links contained in the message, it would be concluded that one of the purposes of the message is to
- offer to supply goods or services
- advertise or promote goods or services
- advertise or promote a supplier of goods or services
- offer, advertise or promote a business opportunity
[Note: The Act also includes other factors, but the above are the most likely to be relevant to the University.]
Purely factual messages (e.g. invitations to free events, messages with links to non-commercial informational websites) are exempt from the Spam Act. Also exempt are commercial messages which are authorised by the University to be sent to current/former students and their households.
If you wish to send a commercial electronic message on behalf of the University, you must ensure that the message:
- is only sent to a recipient who has provided consent (see below for what constitutes 'consent')
- has a functional unsubscribe facility (ie method by which the recipient can elect to not receive further commercial electronic messages)
- includes accurate sender information
Consent may be express (ie obtained specifically from the recipient) or inferred from the conduct of the recipient, the business relationship that the University has with the recipient (eg if the recipient is a current or recent client of the University), or other situations where it would be reasonable to do so.
Please consult the Solicitors if you are in any doubt about your
obligations under the Spam Act.
Privacy
The Commonwealth Privacy Act 1988 regulates how certain organisations handle personal information. The University is not an organisation to which the Privacy Act 1988 will apply. Similarly, the South Australian-based scheme of privacy regulation for the public sector does not apply either. However, incorporated bodies or trusts or unincorporated associations associated with the University are separate organisations in their own right to which the Privacy Act apply.
Nonetheless, even though the University is not directly bound by the Privacy Act itself, it does choose to be guided by the Privacy legislation. Additionally, it may be required to abide by the Privacy Act as a contractual obligation. For example, if the University provides services to Commonwealth agencies or other organisations which are bound by the Privacy Act, those organisations would need to ensure that the University also complies with the Information Privacy Principles (if Commonwealth agency) or National Privacy Principles (if the organisation is in the private sector) prescribed by the Act in relation to the performance of the services. This obligation would be contained in the contract between the organisation and the University.
Please visit The Office of the
Federal Privacy Commissioner Australia website or
contact the Solicitors if you are uncertain about your privacy obligations.
Freedom of Information
The University is required to comply with Freedom of Information legislation. If you receive a Freedom of Information (FOI) request, please consult the University's FOI Officer, Cathy Davis