• A fine balance needed to grow infrastructure investment - Australian governments and the private sector have an impressive track record of collaborating to prioritise and fund infrastructure of national significance over the past decade.
  • A new regulatory framework for Aboriginal cultural heritage commences in WA tomorrow: what you need to know - The regulatory framework for the protection of Western Australia's Aboriginal cultural heritage has been in a state of uncertainty – essentially incapable of implementation – since August, when the Government announced the repeal of the recently commenced Aboriginal Cultural Heritage Act 2021 (WA) (ACH Act). We will see some certainty return tomorrow, with the commencement of the substantive provisions of the Aboriginal Heritage Legislation Amendment and Repeal Act 2023 (WA) (Repeal Act) and the repeal of the ACH Act.
  • Amendments to SOCI Act flagged in Australian Cyber Security Strategy - The recent Australian Cyber Security Strategy flags changes to the Security of Critical Infrastructure Act 2018 (Cth) which appear likely to be implemented as part of phase 1 of the 2023 - 2030 Cyber Security Strategy Action Plan.
  • Company directors must act now and consider nature-related risks, according to new legal opinion - Company directors could be found liable for breaching their duty of care and diligence under the Corporations Act if they fail to identify the company's nature-related "dependencies" and "impacts" and consider the "potential risks" this may pose to the company.
  • Controversial new draft wind and solar energy policy in NSW - The NSW Department of Planning and Environment has released its Draft Energy Policy Framework comprising a series of guidelines which, if implemented, could have significant impacts on the rollout of new wind and solar energy projects in NSW.
  • COP28: What we can expect at Dubai - COP28 priorities are focused on the first Global Stocktake and its implications for emissions reduction commitments, the Loss and Damage Fund, carbon markets and climate finance.
  • Corporate 5 Minute Fix 07: continuous disclosure, shareholder communications, schemes of arrangement, cyber risks - Get your 5 Minute Fix on the latest legal trends in corporate law. Designed for busy NEDS, GCS, members of the C-Suite and corporate law enthusiasts. In this edition, we have a roundup of the fortnight's top topics, everything from regulatory changes to emerging best practices, giving you a comprehensive overview of what's happening in the world of corporate law.
  • Corporate 5 Minute Fix 08: proposed merger reforms, ASIC remakes class orders, CHESS solution, cyber security - Get your 5 Minute Fix on the latest legal trends in corporate law. Designed for busy NEDS, GCS, members of the C-Suite and corporate law enthusiasts. In this edition, we have a roundup of the fortnight's top topics, everything from regulatory changes to emerging best practices, giving you a comprehensive overview of what's happening in the world of corporate law. If you want to dig deeper into any of the issues we cover, we're always here to help. So, don't hesitate to contact us for more information, and our team will be happy to provide additional resources and assistance.
  • Do you understand your employees' public holiday entitlements? - The High Court yesterday refused to grant BHP special leave to challenge a significant full Federal Court decision regarding employees' entitlements to be absent from work on public holidays. The full Federal Court's decision related to employees working in the mining industry, whose employer required them to work on Christmas Day and Boxing Day in 2019. The Full Court found that by requiring its employees to work, and not requesting whether those employees were willing to work, the employer had contravened the National Employment Standards.
  • Enforcement priorities: ASIC sets the tone for 2024 - ASIC's enforcement and enduring priorities provide industry with an appreciation for the subject matter that ASIC intends to target in 2024 and is a timely reminder for those needing assistance to ensure compliance with their legal obligations.
  • Environment and Sustainable Development 5 Minute Fix 44: national sustainable finance strategy, petroleum and geothermal decommissioning - The Environment and Sustainable Development 5 Minute Fix is a snapshot of need-to-know news on a range of ESD issues nationally. This edition focuses on the latest in a national sustainable finance strategy, reforms to Queensland's regional planning interests legislation, best-practice guidance on petroleum and geothermal decommissioning in WA, CSG subsidence management reforms, significant reforms for NT mining activities, ACT legislating a right to a healthy environment and the reinstatement of Aboriginal cultural heritage legislation (with amendments) in WA.
  • Fair Work Commission refuses EA approval after uni misrepresents sign-on bonus to casuals - A recent decision of the full Fair Work Commission highlights the need for employers to ensure statements made to employees during enterprise bargaining are accurate throughout the bargaining process.
  • From algorithms to applications: unpacking PayPal's AI patent refusal - The Australian Patent Office has recently refused a patent application by PayPal Inc. for a system that generates more accurate recommendations using AI machine learning (Paypal Inc. [2023] APO 54). The decision acknowledged that while the claimed combination of machine learning models may have been new, it did not represent a technical contribution beyond the normal use of computers. The Delegate also concluded that as the invention primarily focused on addressing a business problem rather than a technical one, it was not eligible for patent protection.
  • Justice in the class action context: recent developments in litigation funding - Three recent decisions demonstrate the continued evolution of litigation funding in Australian and confirm the viability of investing in class actions in the Federal Court of Australia and the Victorian Supreme Court.
  • Major projects & construction 5 Minute Fix 121: contracting out and construction contracts under the ACL, NSW net zero and infrastructure, variations - Get your 5 Minute Fix of major projects and construction news. This issue: "contracting out" misleading and deceptive conduct under Australian Consumer Law; unfair contract amendments and construction contracts; NSW releases decarbonisation and infrastructure pipeline reports; and variations or a new contract?
  • New environmental approvals guideline for offshore renewable energy projects - Proponents of offshore renewables projects, including wind farms, electricity transmission cables, and research and demonstration projects, should familiarise themselves with the Guidance and the key licensing and environmental approvals process applicable to their proposed project.
  • New rules for fixed-term contracts from 6 December 2023: are you ready? - Employers should review their staffing profile and needs, and review their contract templates, to ensure they are ready for the new fixed term contract limitations commencing from 6 December 2023, although the Minister has granted leeway for five specific industries until 1 July 2024.
  • Queensland powers up its energy transition with new Bill - On 24 October 2023, the Minister for Energy, Renewables and Hydrogen and Minister for Public Works and Procurement introduced the Energy (Renewable Transformation and Jobs) Bill 2023 into Queensland Parliament. The Bill lays the foundations for Queensland's energy transition, however, it remains unclear how the government intends to deal with the emerging issues associated with the co-location of renewable projects and mining or petroleum projects in Queensland.
  • Replumbing financial markets for a sustainable future: the Government's Sustainable Finance Strategy Consultation Paper - The Australian Government is seeking comment on a proposed Sustainable Finance Strategy, outlining potential regulatory changes affecting all Australian investment markets, to support the nation's path to net zero. The potential legal reforms it canvasses have far reaching implications for all sectors of the economy.
  • The ACMA cranks up enforcement: do your "factual" customer emails pass the Spam Act test? - For businesses that think their "factual" or "transactional" electronic messages to customers are exempt from the spam rules, now is a good time to review their customer communications to ensure they are indeed outside scope.
  • The resurgence of enterprise bargaining 08: voting - Once you have made it through the Good Faith Bargaining (GFB) process and have a proposed agreement which has been negotiated, the next step is to ask employees to vote on it. This sounds rather simple, however even simple questions can be become quite procedurally complex. This article will guide you through the requirements prior to and when conducting vote to ensure that you are compliant.
  • Treasury publishes consultation paper on proposed merger reforms - Treasury has released a consultation paper on the ACCC's proposed merger reforms released earlier this year in April, and called for input by 19 January 2024.
  • Try and try again? Remaking decisions and the doctrine of functus officio - As a government decision-maker, you can only make a decision based on what's in front of you (and sometimes not even then, if it's irrelevant). When new facts emerge, it's certainly tempting to revisit the issue, and remake a decision, in normal decision-making or disciplinary proceedings. That temptation runs up against the doctrine of functus officio: based on the principles of finality, functus officio means that the power to make a decision has already been spent and cannot be re-exercised.
  • Utilities outages and insurance cover for business interruption losses - The Optus outage on 8 November 2023 led to widespread disruption to Australian businesses who might wish to consider their insurance position. Early indications, however, suggest that recourse to common forms of business insurance may be limited, at best.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.