August

"Artificial price" in market manipulation ‒ different tests for different products? - Following several market manipulation cases under section 1041A of the Corporations Act, its application to different types of financial products is evolving, so caution is needed.
"Review of the National Pollutant Inventory" Discussion Paper released - The review report will assess if, and to what extent, the NPI is contributing to the desired environmental outcomes identified in the NPI NEPM and whether those outcomes remain relevant or should be changed.
A new Beetaloo Sub-basin Water Control District – fracking inquiry recommendation implemented - The Northern Territory Government has extended the Daly Roper Water Control District to include the Beetaloo Sub-basin in line with its commitment to implement the fracking inquiry final report recommendations.
ASIC funding boost to fund expanded regulatory and enforcement program - ASIC will be using its increased funding for new approaches to regulation and enforcement, including embedding supervisory officers in financial institutions.
ASX Corporate Governance Principles and Recommendations proposals: their impact on corporate governance in Australia - The ASX Corporate Governance Council's proposals would, if implemented, radically transform key areas of corporate governance in Australia.
Click-wraps the way of the future ‒ but make sure they're legal - Click-wrap agreements will be easier to enforce if they require positive action from the user (like ticking a box), have terms and conditions that are easily found and obvious, and highlight unusual or extremely onerous terms.
Demystifying the defence to unfair preferences and the scope for liquidators to recover benefits from third parties - The two limbs of the defence to an unfair preference claim under section 588FG(1)(b) and (2)(b) of the Corporations Act have separate work to do.
Family and Domestic Violence Leave entitlements now incorporated into Modern Awards - Leave policies, employment contracts, and other internal documents and processes could need amendment now that Family and Domestic Violence Leave terms have been incorporated into all Modern Awards.
Fees and costs disclosure regime in PDSs reviewed with further changes expected - The long-awaited external review into RG 97 comprehensively analyses the fees and costs issues in the Australian regulatory framework, particularly the value, comparability and practicalities of disclosure information.
Higher penalties, more offences proposed for the NSW Security of Payment Act - Significant changes to the Building and Construction Industry Security of Payment Act 1999 (NSW) – including to compliance and enforcement – could be on the way, if a draft Bill released for comment is passed.
How should healthcare providers manage compliance with the My Health Records System? - Differing standards and regulatory requirements apply to health providers who access the My Health Records system, although they are not as stringent as the requirements just introduced in Europe under the General Data Protection Regulation. With the heightened public and regulatory scrutiny for health records, each healthcare provider needs to have a comprehensive data management plan, including a data breach plan.
How to prepare your business for a hard insurance market - A hard insurance market is marked by higher premiums, narrow policy wordings, wide exclusions, more stringent underwriting criteria, and lower policy limits, so you should try to lock in terms now.
Independent contractors and restraint of trade terms: can they be used to protect a principal's business? - Restraints in independent contractor agreements can be complicated, as the goodwill / interests of the principal can be hard to distinguish from that of the contractor's own business.
Major projects & construction 5 Minute Fix 16 - Get your 5 Minute Fix of major projects and construction news. This issue: new decision-making principles, jump-starting the electric vehicle market, cladding removal, and 007: Licensed to drill.
Major projects & construction 5 Minute Fix 17 - Get your 5 Minute Fix of major projects and construction news. This issue: large fines for use of aluminium composite panels in NSW, the potential for national reform to the National Construction Code, security of payment, and proportionate liability legislation.
Major projects & construction 5 Minute Fix 18 - Get your 5 Minute Fix of major projects and construction news. This issue: NSW SOP reform back on the agenda, what the changes to NSW's new Aboriginal procurement policy mean for you, valid termination under the ACL, resolving ambiguity in arbitration agreements, and MPC talent recognised.
Media Release: Clayton Utz acts for Brookfield and Macquarie on US$2.15 billion Quadrant sale to Santos - Clayton Utz has advised a consortium of sellers led by Brookfield and Macquarie on the US$2.15 billion sale of Quadrant Energy to Santos Limited.
Media Release: Clayton Utz advising Squadron Resources in connection with Poseidon Nickel's $75m equity raising - Clayton Utz is advising Squadron Resources Pty Ltd, a resources-focused investment entity associated with Andrew Forrest, in connection with ASX-listed Poseidon Nickel Ltd's placement and fully underwritten entitlement offer to raise approximately $75 million. The transaction was announced to the market today.
Media Release: Clayton Utz congratulates NT Government on the opening of award-winning Palmerston Regional Hospital - Clayton Utz congratulates the Northern Territory (NT) Government Department of Infrastructure, Planning and Logistics on the official opening today of the award-winning Palmerston Regional Hospital project, on which Clayton Utz provided strategic legal input and advice.
Media release: Clayton Utz senior associate Emma Lampard wins Young Construction Lawyer award - Clayton Utz senior associate Emma Lampard was named the joint winner of the 2018 Tom Yuncken[i] Young Construction Lawyer Award at The Society of Construction Law Australia's (SoCLA) recent annual conference. The Award recognises excellence in the field of construction law and practice
Media Release: Clayton Utz's Shengshi Zhao recognised globally as Young Professional of the Year in legal technology - Clayton Utz's Shengshi Zhao was named Young Professional of the Year at the International Legal Technology Association's 9th Annual Distinguished Peer Awards in Washington DC on 21 August.
Navigating mandatory personal data breach notification obligations around the world: what do I need to do? - The obligations for personal data breach notifications are complex, vary between jurisdictions and within jurisdictions based on the type of information that organisations collect or have access to, but there are some key steps that can be taken across the board.
New contamination guidelines in South Australia - The legislative and policy approach to risk-based assessment and remediation of site contamination in South Australia will now be supported by a suite of new guidance documents.
New interception and access powers to encrypted communications and devices to affect carriers and device manufacturers - The Department of Home Affairs has released an exposure draft of the Assistance & Access Bill 2018, which confers powers on law enforcement agencies to require access and intercept encrypted communications and devices in Australia and affects foreign and domestic communications providers, device manufacturers, component manufacturers, application providers, and traditional carriers and carriage service providers.
Not navigating the technicalities of the on-sale prohibitions lands ASX-listed companies in court - Failing to manage the on-sale prohibition and disclosure obligations associated with even small share placements can have significant adverse consequences for issuers and investors.
Notifiable Data Breaches second quarterly report gives useful insight into data security vulnerabilities - Malicious or criminal attacks, followed by human error, are the greatest causes of notified data breaches, so entities should focus their data security efforts to reduce these risks.
NSW Conveyancing Act a useful tool for creditors and insolvency practitioners - Section 37A can be used by future, contingent and prospective creditors to recover assets, meaning the transferor need not be indebted at the time of the transfer.
NSW Interim Occupation Certificates to stay until September 2019 - NSW developers' ability to obtain interim occupation certificates has been extended by 12 months to 1 September 2019.
On-premises retail crime: a checklist for businesses of rights and obligations - From suspecting a crime through to criminal proceedings and compensation, there are basic steps a retailer should take.
Queensland moves to fix major Indigenous cultural heritage issue by reviving "Last Claim Standing" rule in new Bill - The Queensland Government has taken the first step towards restoring much-needed certainty to the Aboriginal and Torres Strait Islander Cultural Heritage regime, by confirming the validity of the numerous cultural heritage managements plans and other agreements with Aboriginal (and Torres Strait Islander) parties entered into with people thought to have been Aboriginal (or Torres Strait Islander) parties under the "last claim standing" rule.
Riding off into the sunset – what you need to know about changes to the Sale Of Land Act 1962 (Vic) - Vendors and developers will both be affected by changes to the laws on off the plan contracts.
Rule makers, law breakers? Are sporting bodies like the AFL liable for player injuries caused by rule changes? - Governing bodies do not owe a duty of care to players to amend the rules of play to make dangerous sports safer, but the position is less clear where rule changes inadvertently increase the risk of injury.
Second, more detailed stage of consultation for planning reform in the NT now underway - Six principles and three directions are at the core of the second round of consultation to inform future reforms to the planning system in the Northern Territory.
South Australia's draft State Planning Policies and policy discussion papers released – have your say - Development stakeholders in South Australia now have an opportunity to shape the economic, environmental and social planning priorities for South Australia, via public consultation draft State Planning Policies and policy discussion papers which will inform the Planning and Design Code.
Sweet little lies: Heinz fined $2.25m for misleading claims on Little Kids Shredz packaging - Product development and marketing review processes should encourage careful consideration of the accuracy of any product claims, including claims that may be implied from product packaging.
The Code of Banking Practice: No [release of] guarantees - It is clear that the community and consumers continue to rely on and hold up the Code of Banking Practice as a shield against enforcement action.
Tougher Australian Consumer Law penalties due to commence shortly - Significantly higher financial penalties for breaches of the Australian Consumer Law are on the way with new legislation passed by Parliament expected to take effect shortly.
Water licences for mining and petroleum activities in the Northern Territory open for consultation - Mining and petroleum activities could require water licences under changes being considered by the Northern Territory Government.
What is "natural" anyway? The Federal Court explains when it is (and isn't) a misleading claim - Exercise caution when marketing products as natural, and make sure you can substantiate your claims.
Wilpinjong mining approval stands despite climate change policy challenge - One of the first Australian cases in which an environmental activist group has used Australia's ratification of the Paris Agreement to challenge a project approval highlights a continuing trend of considering climate change impacts when granting an approval
You can't register that as a trade mark! A win from the discount bin for Aldi - The more descriptive a trade mark, the greater the chance that it will be found to have no inherent adaptation to distinguish the goods of any singular trader.
Your casual workers are not actually casual, says Full Federal Court – so review all casual engagements now! - Yesterday's Full Federal Court decision that a fly in, fly out worker was not a casual employee for the purposes of the Fair Work Act, and was entitled to annual leave, will make it much harder to classify and treat employees as "casual" where they work set, inflexible hours, and there is a degree of certainty about their ongoing work.

Disclaimer

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.