Keep up with new laws impacting your business in 2022

Changes on online privacy, consent, and unfair contractual terms. Preview three 2022 changes to legislation and governance and how they might impact your business.

Keeping up with change

What a decade. As SMEs do their best to survive and thrive amid geopolitical, economic and supply chain uncertainty, it’s important not to let legal and regulatory requirements slip.

Keeping up to stay compliant is a challenge. Let’s take a look at three key upcoming governance and legislation changes and their impact on SMEs:

1. Online Privacy Bill
2. Affirmative Consent
3. Unfair Contractual Terms

#1 Online Privacy: Your obligations

The Online Privacy Code, proposed as part of the Online Privacy Bill in October 2021, governs the privacy obligations of certain organisations. It seeks to extend and uphold current Australian Privacy Principles, with a focus on regulating the online space.

Key changes

New obligation to take reasonable steps to stop using or disclosing personal information upon request.

New obligation to take extra steps when dealing with the personal information of persons under 18 or vulnerable groups. The Code states that consent must be obtained from these individuals or their parents or guardians.

Clarified obligations under the Australian Privacy Principles, including:

The requirement to have a documented Privacy Policy which clearly explains how an organisation collects, holds, uses and discloses personal information

Voluntary, informed, unambiguous and current consent for collecting personal information

Clear, understandable and timely collection notices of personal information

Key penalties

Increased civil penalties for serious and repeated privacy interferences up to $10 million, three times the value of the benefit gained by the company, or 10% of the company’s domestic annual turnover.

Infringement notices for failing to provide relevant information for Commissioner investigations.

Does it impact your business?

Does your business collect personal information from customers to send notifications, delivery updates or a newsletter? Then the Online Privacy Code will apply to your business and you’ll need to be compliant.

The Code will apply to organisations already subject to the Privacy Act. This includes ‘large online platforms’ collecting personal information from over 2.5 million customers or users — businesses operating online including retailers, marketplaces and SaaS providers.

#2 Affirmative Consent: Why it matters to the workplace

At least half of all women in Australia have experienced sexual harassment, sexual abuse or physical abuse. This abuse often takes place in the workplace.

Affirmative consent laws were passed in NSW in November 2021 and presented to Victorian parliament in August 2022. Affirmative consent imposes a responsibility for consent to be explicitly given before sexual activity — consent may include, but isn’t limited to, verbally asking for and getting a “yes”, or a physical gesture such as a nod.

Key changes

The new laws in NSW state that:

Consent can be withdrawn at any time, and consent to one act is not consent to another.

 A person does not consent to a sexual activity if they don’t say or do anything to communicate it – that is, without positive communication, there is no consent (i.e. it can’t be assumed).

If the alleged victim did not consent, but the accused person honestly believed that they did, that belief is not reasonable if they didn’t say or do anything to find out if there was consent.

Does it impact your business?

Yes. Affirmative consent removes any ambiguity around unwanted sexual advances or outright sexual violence between staff. SMEs should consider incorporating these new laws into employee code of conduct and onboarding processes to ensure clear expectations for a safe workplace.

#3 Unfair Contractual Terms: Closing the contract loopholes that impact small business

Has your business been caught out by an unfair contractual term? SMEs are particularly vulnerable because they don’t have the time and resources for review, and generally have little scope to negotiate terms.

New legislation announced in July 2022 makes unfair contractual terms illegal.

Key changes

Proposed amendments to Unfair Contractual Terms will:

Introduce civil penalty provisions outlawing the use of, and reliance on, unfair terms in standard form contracts. This will enable a regulator to seek a civil penalty from a court.

Increase the small business eligibility threshold for the protections from <20 to <100 employees.

Introduce an annual turnover threshold of less than $10 million as an alternative threshold for determining eligibility.

Does it impact your business?

Fairness in contract and payment terms impacts every small business. Cash is king, and that cash flow relies on fair terms that don’t seek to exploit smaller suppliers. This isn’t just about how suppliers are paying you, but how you’re managing your own Accounts Payable. Your business must stay compliant, even if it takes some supplier management.

Get the right advice to stay ahead of changing laws

These are just three of the upcoming changes that impact SMEs — and reason enough to work with professionals who stay ahead of new and changing legislation. Choose a proactive accountant to be your governance eyes and ears. They’ll keep up with changing legislation and market trends – and ensure you stay compliant.

How sure are you that your business meets all its compliance obligations?
Contact us at Kelly+Partners.