February

"Because the Court said so": the benefits of judicial advice - A trustee should always consider whether to seek judicial advice in order to reduce the risk of potential claims against it for breach of trust and/or liability for the costs of any litigation commenced or defended on behalf of unitholders.
5MF 03 - Get your 5 Minute Fix of major projects and construction news.
Aboriginal cultural heritage management in disarray as Court does away with the "Last Claim Standing" rule - Legislative amendments to the Aboriginal Cultural Heritage Act 2003 (Qld) are needed to clarify that it is only where there have previously been determined native title holders that the last claim standing rule does not apply.
ASIC highlights the importance of annual general meetings and recent trends in corporate governance - The Report's findings on executive remuneration, the role of proxy advisers and resolutions relating to environmental, social and governance issues, highlight the importance of the AGM as a platform for shareholder engagement.
Australian merger control update - The ACCC is now a one-stop shop for merger control under the informal clearance process and in relation to applications for merger authorisation.
Australian organisations beware ‒ you could be caught by EU's new General Data Protection Regulation - The scope of the EU's new General Data Protection Regulation is broad enough to cover the activities of many Australian organisations.
California Dreaming: your data would be safe and secure, if it was in LA - California's regime for cyber security, privacy and data protection has some useful lessons for Australia.
Chambers names Clayton Utz as Australian Law Firm of the Year - Clayton Utz has been named Australian Law Firm of the Year at the 2018 Chambers Asia-Pacific Awards held in Hong Kong last Thursday.
Clayton Utz awarded 2017-18 WGEA Employer of Choice for Gender Equality citation - Clayton Utz has for the fourth consecutive year been awarded an Employer of Choice for Gender Equality (EOCGE) citation, announced by the Workplace Gender Equality Agency (WGEA) today.
Clayton Utz Partner is Canada’s new Honorary Consul in Western Australia - Clayton Utz has confirmed that Brad Wylynko, a partner in its firm was recently appointed as Honorary Consul for Canada in Perth with jurisdiction throughout Western Australia (WA). The appointment was made by the High Commission of Canada in Canberra.
Consultation on the proposed Mandatory Comprehensive Credit Reporting Regime closing soon - The Government is seeking feedback on the proposed mandatory comprehensive credit reporting regime by 23 February 2018.
Consultation starts on Infrastructure WA advisory body - Australia's infrastructure sector will have until Tuesday 20 March 2018 to comment on the proposed model for Infrastructure WA (IWA), launched on 7 February by the WA Government.
Cyber resilience is now a board level issue - Regulators now expect companies to have a vigorous and effective response plan to cyber attacks, fully understood and readily executable at the board level.
Discussion Paper for a Coastal and Marine Management Strategy in the NT ‒ have your say - The Northern Territory Government has released a discussion paper for public consultation on what will be the Territory's first Coastal and Marine Management Strategy. Feedback can be provided by Friday, 2 March 2018.
Don't keep it on the down low: data breaches, mandatory notification, personal liability of directors, and D&O policies - Contravention of the mandatory data breach notification regime which comes into effect on 23 February 2018 may lead to personal liability for directors and officers ‒ and their D&O policies might not be of much use, warn Fred Hawke and Irene Drossinos.
Fact or fiction ‒ will the Notifiable Data Breach Requirements apply to State and Local Governments? - The Notifiable Data Breach Scheme has a broad application with State and Local Governments potentially being subject to some aspects of the Scheme. With the 22 February 2018 deadline fast approaching, it is not too late for State and Local Governments to consider the nature and scope of their exposure.
Financial Provisioning Bill for financial assurance and rehabilitation in Queensland reintroduced, open for submissions - Submissions are being sought on the Mineral and Energy Resources (Financial Provisioning) Bill 2018, reintroduced to Parliament on 15 February 2018, which seeks to establish a new financial assurance system for resources projects in Queensland.
Foreign investors in Australian resources projects receive important income tax guidance from Federal Court - All foreign investors into Australian companies, especially resources companies, will need to review their approach to Australian tax risks, following a successful appeal by partners of two private equity investment vehicles against income tax assessments of the proceeds of their disposal of investments in an Australian resources company (Resource Capital Fund IV and V LP v Commissioner of Taxation [2018] FCA 41; Clayton Utz acted for the successful applicants).
Get it right! There's no substitute for clear drafting in property dealings - The primary source in interpreting an easement or any other registered dealing must be the terms of the document. Parties can assume significant risks if those terms aren't clear or don't clearly reflect their intentions.
High Court rejects review of SOP Act adjudication determinations for non-jurisdictional error - Today the High Court of Australia held that courts do not have the power to review adjudication determinations made under Building and Construction Industry Security of Payment Act 1999 (NSW) (the SOP Act) for non-jurisdictional error of law on the face of the record.
Innovate or perish: a call to arms by Innovation and Science Australia - Australian businesses should carefully consider how they can assist in implementing, funding, and monitoring the recommendations set out in the 2030 Plan.
Innovation patents ‒ the beginning of the end - The phase-out of Australia's innovation patents system will be gradual: new innovation patent applications can be lodged as divisionals of pending standard patent applications filed before the commencement of the amending legislation, so there will be innovation patents in force in Australia until 2027.
Late arrivals can spoil the party: FWC reinforces consultation required with all bargaining representatives - Employers bargaining for a new enterprise agreement who want their voting process to stay on track should give all bargaining representatives a genuine opportunity to consider and comment on the agreement before it is presented to employees.
Major changes to Australia's Therapeutic Goods Regime commence soon - New pathways to the market will soon be available to pharmaceutical companies following the passage of the Therapeutic Goods Amendment (2017 Measures No.1) Bill 2017 through both Houses of Parliament.
Major projects and construction: 5 Minute Fix 04 - Get your 5 Minute Fix of major projects and construction news. This issue: the shape of WA Infrastructure, security of payment, Building Code, and carve-outs from the scope of arbitration.
Mandatory data breach notification starts today ‒ are you ready? - Australia's mandatory notifiable data breaches scheme under the Privacy Act 1988 (Cth) is now in effect, with substantial penalties for non-compliance.
More FIRB restrictions on agricultural land - Restrictions on the sale of agricultural land and interests in agribusiness to foreign entities have been tightened again under changes to FIRB policy announced by the Treasurer on 1 February 2018.
New "GST Withholding" regime on "new" residential property transactions ‒ will you be ready? - The new "GST withholding" regime to commence from 1 July 2018 is on its way, and promises to have a significant impact on "new" residential property transactions.
Online distributors selling into Australia can be caught by the Australian Consumer Law, Court confirms - A foreign company operating mainly outside Australia can be engaging in conduct in Australia or carrying on business in Australia, and the Australian Consumer Law can apply to its activities with Australian consumers.
Online reviews: don't get tripped up by the Australian Consumer Law - Any business should be wary of selectively asking customers who they believe to have had a positive experience to write an online review.
Protecting your brand on the Amazon marketplace ‒ Amazon Brand Registry launched in Australia - Businesses with registered Australian trade marks selling goods on Amazon should consider enrolling in the Amazon Brand Registry program
Remeasuring our future: submissions open to reform Australia’s measurement framework - The Australian Government is reviewing the legislative framework underpinning Australia’s measurement system and is seeking your input to identify the key issues, challenges and opportunities, with submissions closing on 30 June 2018.
Significant planning reforms proposed for contaminated land in NSW - The proposed Remediation of Land SEPP seeks to impose further obligations on those carrying out remediation work, particularly work that does not require development consent. The changes are intended to ensure that remediation of land is regulated consistently across the State and with a greater level of oversight.
The importance of jurisdictional facts for decision-makers - If a jurisdictional fact must objectively exist before a statutory power can be exercised, a decision-maker's mere subjective belief or value judgment will not be enough.
The New Year Workplace Health Check - From training to technology, a quick workplace health check can uncover important action items for 2018.
Toner low! Intellectual property and recycled printer cartridges - In any case where modification and resale of a patented article is proposed, a careful technical analysis will need to be made to assess the extent of the modifications and the extent to which they alter the elements of the article that are the subject of the patent claims.
Trans-Pacific Partnership deal finally concluded - 2018 has kicked off with agreement on the TPP, but the fine detail is yet to be released.
What's the big deal? Media mergers and the ACCC's new role in merger authorisations - When considering merger approvals, parties to a merger should have an eye to the potential wider public benefits and detriments that may occur beyond any loss of competition in the market in which they operate.
Window closing for NSW Owners Corporations to comply with safety requirements - NSW Owners Corporations must fit window safety locks on all above ground windows to protect children from falling from unsecured windows before 13 March 2018.

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.