April

"Opt-out" clause is valid in enterprise agreements - In Newlands Coal Pty Ltd v CFMEU [2010] FWA FB7401, Newlands lodged an appeal in response to Commissioner Roe's first instance decision to refuse approval of the Newlands Coal Surface Operations Enterprise Agreement 2010 which contained an opt-out clause. However, Commissioner Roe's decision was overruled by the Full Bench of Fair Work Australia (FWA) in November 2010. In that instance, the majority of the Full Bench upheld the validity of the "opt-out" clause.
Are you complying with the conditions in your Exploration Licence? - A recent audit by the NSW Government signals the potential for more regulator involvement and tougher conditions on coal and petroleum exploration activities, warn Nick Thomas and Samy Mansour.
ASIC conducting checks on annual compliance certificates - Do you hold an Australian Credit Licence? You might be getting a visit from ASIC to check on the information you've provided in your Annual Compliance Certificates, say Randal Dennings and Samantha Carroll.
ASIC releases new guidance and policy proposals for carbon financial products - Do you need an AFSL to provide financial services in relation to carbon markets and emissions units? Matthew Daley and Graeme Dennis look at the latest on regulating Australian carbon credit units and eligible international emissions units as financial products.
ASX's proposed Listing Rules - more onerous disclosure obligations for mining, oil & gas companies - When ASX Listing Rule changes are implemented, mining and oil & gas companies will face more onerous disclosure obligations. Mining companies would be able to disclose production targets based wholly or partly on inferred mineral resources.
Building a Pro Bono practice: The Australian experience - Not only does a law firm fulfil its obligations of professional responsibility and client service when it creates a pro bono practice, but it can enjoy many benefits too.
Can an arbitrator's declaration be enforced as a judgment? - An English court has held an arbitrator's declaration can be enforced as a judgment, as Vincent Holland explains.
Can you trust your independent contractor with WH&S obligations? - The High Court has provided some valuable guidance on how the "reasonably practicable" obligation in the new harmonised Work Health and Safety Bill laws will operate, and the elements the prosecution must show, in Baiada Poultry Pty Ltd v The Queen HCA [2012] 14.
Clayton Utz advises Iluka Resources on A$800 million bilateral revolving credit facilities - Clayton Utz has acted for Iluka Resources Limited on the replacement of its existing Syndicated Term Loan Facility of A$445 million.
Clayton Utz advises Tasmanian Government on TOTE Tasmania sale - Clayton Utz has advised the Tasmanian Government on the sale of TOTE Tasmania, the state-owned totalisator wagering operator, which successfully completed on 26 March.
Clayton Utz congratulates client on award-winning deal - Clayton Utz is proud to be associated with the new Royal Adelaide Hospital Project which was named Asia Pacific PPP Deal of the Year at the 2011 Project Finance Deal of the Year awards announced in Singapore on 29 March.
Consumer watchdog nabs Google for misleading conduct - In a significant victory for the ACCC, the Full Federal Court has found that Google engaged in misleading or deceptive conduct by publishing advertisers' misleading and deceptive advertisements as sponsored links on results generated by its search engine, overturning the decision of Justice Nicholas at trial.
Discovery won't be a matter of course in NSW Supreme Court - Discovery will be the exception and not the rule in NSW's Equity Division and parties will have to serve their evidence before any order for discovery. Sid Wang and Julia Virgo look at the practical effects of the new disclosure rules.
Employees' duty to report misconduct of themselves or others - An employee has done something wrong - or knows about another employee's misconduct. Do they have to tell you? Dan Trindade looks to a recent case for some guidance.
Enforcement of arbitral awards - navigating the shoals - The enforcement process isn't always easy, particularly if the unsuccessful party is domiciled in less arbitration-friendly jurisdictions, but there are some things you can do about it, say Rob Cutler and Julie Granger.
English court upholds ISDA's interpretation of ISDA Master Agreement - Louise McCoach, Graeme Dennis and Romany Sloan look at how the Lomas decision confirms the understanding of the OTC derivatives industry and realigns the Australian and English law position on the operation of Section 2(a)(iii) of the ISDA Master Agreement.
Faster, higher, stronger - patent law reform in an Olympic year: Part 2 - Changes to patents law bring new exemptions to infringement for experimental and regulatory activities and a much more powerful right to seek non-infringement declarations, as Richard Hoad and Deborah Polites explain.
Future of Financial Advice reforms meet shadow shopping - ASIC was underwhelmed by the results of its shadow shopping for financial advice. Randal Dennings and Samantha Carroll discuss what ASIC found, and what AFSL-holders can do to improve their compliance.
Government consults on new OTC derivatives framework for Australia - On 18 April 2012, the Australian Government took the next step towards reform of the over-the-counter (OTC) derivatives market in Australia by its release of a Treasury consultation paper proposing a legislative framework for implementing Australia's G-20 commitment to OTC derivatives reform.
How does WA's Gas Bulletin Board and Gas Statement of Opportunities affect confidential information? - Will the operator of the Gas Bulletin Board and Gas Statement of Opportunities be entitled to my confidential information? And what can you do about it? Peter Wiese and Jeremy Wilkin look at what this means.
iiNet's High Court win means ISPs must still tread carefully on copyright infringement - Does an ISP have to prevent its customers from infringing copyright? When is an ISP liable for its customers' copyright infringement? iiNet's unanimous victory in the High Court this morning has given some guidance (Roadshow Films Pty Ltd v iiNet Limited [2012] HCA 16), and left the Full Federal Court's decision standing.
Implementing Basel III in Australia - APRA holds the line - The Australian Prudential Regulation Authority (APRA) has released further details of its planned implementation of Basel III in Australia
Mining carbon emissions: market mechanisms v regulatory control - State bodies can regulate greenhouse gas emissions via conditions of approval. What effect will the new Carbon Price Mechanism have in this decision-making? Brendan Bateman and Trisha Cashmere find answers in a recent case.
More fees and discretion to refuse freedom of information requests recommended - Agencies could have greater discretion to refuse freedom of information requests, and charge more fees, if the Australian Government accepts a new report's recommendations, as Avinesh Chand and Barry Dunphy explain.
New Federal Court of Australia discovery rules get their first analysis - Reforms to discovery in the Federal Court have been in force since 1 August 2011, so there's now a better idea of how they work in practice. Michael Legg and Jonathan Slater look at the lessons so far.
Not-for-profit reforms on COAG's agenda - COAG supports regulatory reforms for the not-for-profit sector, says Jacqueline Christie.
NSW lifts ban on uranium exploration - but uranium mining is still banned - The Bill to overturn NSW's ban on uranium exploration has been passed - but, says Nick Thomas, the ban on uranium mining remains.
Optus' TV Now loses copyright fight in sports programs for now - but there's always the Grand Final - Rights-owners scored a win in the Full Federal Court's decision in National Rugby League Investments Pty Limited v Singtel Optus Pty Ltd [2012] FCAFC 59 that Optus' TV Now recording service infringed the AFL's and NRL's copyright in their sports broadcasts
Pre-litigation discovery to identify or locate a defendant - NSW Court of Appeal explains the rules - Who is the right defendant? Sometimes you need some information to find out. Dean Jordan, Michael Legg and Mark Wiese look at when you can get the court to help.
Preparation equals value with private business exits - Owners of privately-owned businesses should ensure they are sale-ready and able to move quickly if they receive an attractive purchase offer or risk failing to maximise the true value of their investment, according to Clayton Utz partner Nick Miller.
Project proponents face more native title uncertainty - Justice Reeves' decision in QGC Pty Limited v Bygrave[2011] FCA 1457 creates more questions than it answers for proponents seeking to use Indigenous land use agreements (ILUAs) to provide native title certainty for their projects.
Straight from the horse's mouth: dealing with unrepresented litigants - Unrepresented litigants are becoming more common, and present some challenges to the efficient conduct of litigation. Caroline Bush and Sally Sheppard set out some practical tips on dealing with them fairly and efficiently.
Terminating and suspending industrial action in the post-Qantas environment - Practitioners will agree that the lockout by Qantas on Saturday, 29 October 2011, which was terminated by a Full Bench of Fair Work Australia (FWA) in the early hours of Monday, 31 October 2011, was one of the most dramatic events seen since the introduction and evolution of enterprise bargaining and protected industrial action.
The first word: The Federal Court's first judgment on "genuine steps", non-compliance and costs - Have you taken genuine steps to resolve your dispute before it gets to the Federal Court? Not doing so could be a costly mistake, as Julia Virgo and Karen Ingram explain.
The importance of comprehensive assignment provisions in debt trade documentation - The long-awaited Equuscorp decision has arrived, but has it brought any clarity to how assignment provisions in debt trade documentation should be written, ask Peter Bowden, Nicholas Poole, Paul James and Sam Cottell.
Unfair dismissal: higher standards and performance managing - Two recent decisions in Fair Work Australia shed light on the tribunal's approach to unfair dismissal cases.
Uniloc settlement shows value of patent protection - The settlement of a long-running patent infringement dispute between Australian software company Uniloc and global software giant Microsoft Corporation highlights the value of getting the right advice upfront on the best way to protect potentially valuable intellectual property - or risk having limited legal recourse against future infringers, according to Clayton Utz partner Jim FitzSimons.
Writing good governance frameworks: A how-to guide - Vanessa McBride and Isabelle Reinecke show you how to write a strong public sector good governance framework using the Lighthouse Model.

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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.