April

Administrative law mythbuster no 05: Shi v Migration Agents Registration Authority (2008) 235 CLR 286 - Merits reviewers can sometimes take into account material that was not before the original decision-maker, but only if there is no limitation in the underlying statutory scheme.
Administrative law mythbuster no 06: Bhardwaj - Bhardwaj provided that administrative decisions infected by jurisdictional error should be treated as having no legal consequence. Whether this is applicable depends on the legislation pursuant to which the decision was made.
Administrative law mythbuster no 07: Briginshaw - Administrative decision-makers are not bound by the Briginshaw principle although it can offer guidance when making findings of fact in relation to serious matters, and may assist them to apply the relevant statutory standard of satisfaction that conditions the exercise of power.
ASD presses “delete” on the Cloud Certified Services List - For government agencies planning to procure cloud services, the discontinuance of the CCSL presents both a risk and an opportunity.
ASX and ASIC COVID-19 capital raising and other measures to provide temporary relief for ASX-listed entities - Amid the evolving COVID-19 pandemic, ASX has released a compliance update providing guidance and temporary relief to ASX-listed entities.
ASX issues updated COVID-19 temporary class waivers for emergency capital raising relief - On 31 March 2020, ASX released Compliance Update no 04/20 and issued two temporary class waivers providing emergency capital raising relief measures.
ATO releases guidelines for employees claiming deductions for "working from home" expenses due to COVID-19 - The ATO Guidelines set out a new and temporary method to calculate deductible working from home expenses for the period from 1 March 2020 until 30 June 2020.
Bringing urgent court applications during COVID-19 - Undertakings, affidavits, and revised court processes all present challenges during the COVID-19 pandemic.
Media Release: Businesses, interrupted may have cover for COVID-19 despite "quarantinable disease" exclusion - Businesses that intend to claim under business interruption (BI) insurance as a result of the COVID-19 pandemic should check their policy terms carefully, as they may be covered despite the policy containing a "quarantinable disease" exclusion.
Changes to the Australian financial services licence (AFSL) application and variation process - As a result of recent amendments to the Corporations Act 2001 (Cth), ASIC recently updated AFSL application and variation requirements by reissuing Information Sheet 240.
Changes to the foreign investor duty surcharge in Tasmania - The rates of foreign investor duty surcharge for residential land and primary production land have both increased from 1 April 2020.
Commonwealth fails in its claim for compensation for delayed PBS listing of generic clopidogrel - The decision highlights the inherent difficulty Courts face in cases involving claims on the Usual Undertaking.
Costs and possibly travel relief for WA tenement holders and the mining sector in response to COVID-19 - Holders of mining tenements in Western Australia have been thrown a potential lifeline from the State Government in respect of their expenditure obligations under the Mining Act 1978 (WA).
COVID-19 and property/business interruption insurance un-occupancy exclusions? Be proactive and don't wait - Businesses seeking to recover business interruption loss suffered as a result of the global COVID-19 pandemic should carefully check the terms of their business interruption (BI) insurance and seek advice as to whether they should make a claim under their BI policy.
COVID-19 relief for tenants in Victoria - The Victorian State Parliament opened the door to new regulations that will affect the relationship between landlords and tenants under retail and commercial leases.
COVID-19 update: PDS considerations for product issuers and ASIC relief - In light of the economic impact caused by COVID-19, issuers of financial products should be vigilant in ensuring that disclosures in PDSs remain up to date – and posting updated information on their website may not be an available option.
COVID-19: APRA and ASIC provide advice to superannuation trustees in joint letter - APRA and ASIC say that liquidity must be a top priority for superannuation trustees.
Delivering better infrastructure, faster - Project facilitation mechanisms and government support can provide an excellent opportunity to extract better and more strategic value from infrastructure projects during a time of uncertainty.
Disputes in a time of COVID-19 - The unprecedented disruption caused by COVID-19 poses significant challenges for business: not least, counterparties need to be able to negotiate (or renegotiate) effectively and expediently and resolve disputes without recourse to the Courts.
Draft Victorian EPA Guidelines – The new operating license & the general environmental duty for licence holders - The EPA's latest guidance materials drive home the importance of having in place properly developed systems, and contain useful suggestions for achieving this.
Federal Parliament passes legislation meaning JobKeeper payments will soon flow - In an emergency sitting tonight, the Commonwealth Parliament is likely to pass a raft of measures paving the way for the JobKeeper payments to flow.
Force majeure and the new (ab)normal: business resilience into the future - Businesses should review their existing force majeure clauses and existing supply chains with a view to building resilience into their practices to address future shifts in what is considered normal and "beyond the reasonable control of a party" under force majeure clauses.
Further fracking inquiry recommendations implemented in the Northern Territory - Amendments have now been passed in the Northern Territory to implement recommendations from the independent Scientific Inquiry into Hydraulic Fracturing in the Northern Territory.
Government Services 5 Minute Fix 03 - Get your 5 Minute Fix of government sector news. This issue: some myths are busted; everyone's talking about force majeure, but are they saying the right things?; the latest on nuclear power and uranium; NSW erects Six Pillars for building reform; emergency procurement; and the future of cloud services without the CCSL.
Guidance material for the NT's new environmental regulatory regime out for consultation - In preparation for the commencement of the new environmental regulatory regime in the Northern Territory, guidance material has been released for public consultation with more to follow in the coming weeks. Submissions can be made until 17 April 2020.
Have your say on the Productivity Commission Draft Report on Resources Sector Regulation - The Draft Report identifies leading practices to reduce unnecessary costs and burden on businesses and regulators without undermining environmental outcomes.
High Court confirms influence, not job title, the key to Corporations Act liability as director or officer - The High Court emphasised the importance of the principle that if individuals have the requisite capacity to significantly affect the financial standing of a company then they can be an "officer" of a corporation.
Hitting fast-forward on government procurement processes in the COVID-19 pandemic environment - Although fast-track procedures are available, the Commonwealth's interests still must be protected and each procurement achieve value for money in accordance with the CPRs.
ICLG - Drug & Medical Device Litigation 2020 - Greg Williams and Alexandra Rose's International Comparative Legal Guides (ICLG): Drug & Medical Device Litigation - Australian chapter that covers regulatory frameworks, manufacturing, transactions, advertising, promotion and sales, data privacy, clinical trials and compassionate use programmes, product recalls, litigation and dispute resolution in 21 jurisdictions.
Is there a pot of gold at the end of the litigation rainbow? The latest on common fund orders - Almost four months on from Brewster, we still don't know whether a CFO is available at the settlement stage of a class action or judgment; to clear things up, we'll need a decision of an appellate court or a change to legislation.
Is your organisation moving fast to respond to COVID-19 from a privacy law perspective? - The Office of the Australian Information's new guidance sets out three key points for organisations grappling with new privacy issues arising from COVID-19.
Long awaited proposals for NSW Infrastructure Contributions reform released - Public consultation documents for proposed reforms to the NSW infrastructure contributions framework have been released, addressing funding mechanisms used by local councils and State government agencies to obtain infrastructure contributions from developers.
Major projects & construction 5 Minute Fix 49 - Get your 5 Minute Fix of major projects and construction news. This issue: the 2020 Infrastructure Priority List's focus on climate and sustainability projects; the Design and Building Practitioners Bill 2019 and Building and Development Certifiers Regulation; and the issues that can arise in the interpretation of security recourse clauses and the importance of consistency.
Major projects & construction 5 Minute Fix 50 - Get your 5 Minute Fix of major projects and construction news. This issue: our hub for the practical and legal impacts of the COVID-19 pandemic on infrastructure and construction projects; recent case law applying High Court guidance on quantum meruit claims and rejecting recourse to unconditional performance securities; regulatory changes affecting WA resources projects; and an update on modern slavery.
Major projects & construction 5 Minute Fix 51 - Get your 5 Minute Fix of major projects and construction news. In this issue, a round-up of developments in various Australian jurisdictions to facilitate the remote execution and witnessing of documents, and we take a look at three cases dealing with security of payment adjudications: the NSW Supreme Court restrains a party from seeking determination of a purported payment claim under the SOP Act, more on jurisdictional error, and the WA Supreme Court looks at whether an adjudicator can determine claims the subject of a previous adjudication.
Mandatory code of conduct for commercial and retail leases on the way as part of COVID-19 response - Today, the Prime Minister Scott Morrison foreshadowed the creation of a mandatory code of conduct in relation to commercial and retail leases.
Mandatory Code of Conduct for commercial tenancies released - The much-vaunted National Cabinet Mandatory Code of Conduct for commercial leasing was released by the Prime Minister on 7 April 2020.
Media Release: Clayton Utz advising Eagle View Technologies on strategic sale - Clayton Utz is advising Eagle View Technologies, Inc. (Eagle View) on its entry into a conditional agreement with ASX-listed Aerometrex Limited for the sale of Australian aerial imagery company Spookfish Australia Pty Ltd. The transaction was announced to the market today.
Media Release: Clayton Utz well represented on 2021 Best Lawyers Australia list - Legal industry peers have voted their Clayton Utz colleagues in large numbers as among Australia's best lawyers, with 178 individuals from the firm named in the 2021 Best Lawyers Australia list.
Modern slavery and COVID-19: Guidance Note sets out increased risk from pandemic on global supply chain workers - Greater pressure on supply chains have increased the risk of modern slavery, and the need for Australian businesses to be more vigilant than ever – but there is some relief on reporting dates.
New agency to drive disaster preparedness and recovery in NSW - The new agency will focus on developing and implementing systems to avoid disasters where possible, and to deal with the critical steps before and after those disasters which do occur.
New powers to affect ACT retail and commercial leasing in response to COVID-19 - The ACT Legislative Assembly has amended the Leases (Commercial and Retail) Act 2001 and the Residential Tenancies Act 1997, allowing the Minister to make a declaration temporarily affecting retail and commercial leases in response to the COVID-19 pandemic.
No time to hibernate as NSW Government moves to maintain development during the pandemic - Public and private sector developments are starting to benefit from major initiatives which the NSW Government has announced in an effort to maintain economic activity through development projects.
NSW emergency procurement procedure provides expedited procurements to aid COVID-19 response - Public sector agencies and their procurement teams should review the new emergency guidelines to understand the provisions and exemptions to expedited procurement.
NSW EPBC Act Bilateral Agreement amended: what this means for biodiversity offsets - Project proponents will benefit from more streamlining of Commonwealth and NSW biodiversity offsets requirements, now that the EPBC Act bilateral agreement in NSW has been amended.
NSW landlords and tenants now on surer footing for COVID-19 related rent relief with release of Regulations - NSW is the first State or Territory to make legislation giving effect to the Mandatory Code of Conduct, with the Retail and Other Commercial Leases (COVID-19) Regulation 2020 taking effect on Friday 24 April 2020, and applying for six months until 24 October 2020.
NSW Modern Slavery laws: very much alive and kicking - Pending the NSW Government's response to the report, businesses should assess whether they will be required to report under the NSW Act (as amended by the report recommendations).
NSW now allows signatures to be witnessed via audio-visual link - NSW has become the first Australian jurisdiction to pass new laws and regulations to facilitate the witnessing of signatures via audio visual link during the COVID-19 pandemic.
NT counting down until its new environmental regulatory regime commences - Regulations have now been made in anticipation of the pending commencement of the Northern Territory's new environmental regulatory regime on 28 June 2020.
Overcoming a post-judgment barrier to settlement - Two court decisions allow both parties to resolve primary and appeal proceedings with a commercial settlement and setting aside of judgment, thus removing the perception of an adverse judgment.
Parliamentary inquiries open the dialogue on nuclear energy and uranium mining - This article reviews the current regulation and policy framework in Australia for uranium mining and exploration, as well as for nuclear facilities.
Place your bids: make money by reducing electricity consumption - Large electricity customers will be able to participate in the National Electricity Market (NEM) by bidding demand response under the AEMC's proposed wholesale demand response mechanism.
Q&A with Ian Temby - The newest member of our Government Services team sits down and explains what makes him tick.
Queensland state and local government procurement obligations and opportunities during emergencies: new COVID-19 guide - Public sector agencies, local government and their procurement teams should consider emergency procurement on a case-by-case basis.
Round 2: A fight about much more than peanuts: Kraft beaten by Bega in crunch trade mark appeal - It remains unclear whether brand owners can validly license common law trade marks, so brand owners should register all distinctive product packaging and get-up as a trade mark in Australia.
Soft closure mis-deploys: another hurdle for class action settlements? - The decision reinforces the need for all parties in class actions who are interested in exploring settlement to embrace the challenges that opt-out class actions bring to scoping the likely number of group members and assessing the quantum of their potential claims.
Stronger Regulators Act: ASIC's powers strengthened again with search warrants, wire taps and banning orders - The strengthened powers provide ASIC with further avenues to collect evidence for the purposes of its investigations and enforcement action.
Taking evidence abroad: Pathway to obtaining documentary evidence in Australia - The scope and contents of the Request will seriously affect the prospects of the Request application being granted by the NSW Court, so it is critical to get this step right.
The clock is ticking: ATO runs a short amnesty for unpaid superannuation guarantee payments, and then harsher penalties - Employers, including those who pay above the SGC rates, should undertake a full legal review of superannuation compliance to identify any current or historical non-compliance.
The distinction between joint, several, joint and several liability and why it matters - Minor changes in contractual wording around "liability" can make a big difference in your ability to pursue or defend litigation.
The laws on unfair contract terms will soon apply to contracts subject to the Insurance Contracts Act - A contract subject to the Insurance Contracts Act will only fall within the purview of the unfair contract terms regime if it was entered into on or after 5 April 2021, or renewed or varied after that date.
Therapeutic Goods and COVID-19 or other emergency exemptions: what does the future hold (for liability)? - Expedited development and widespread distribution of a product or products that have not been adequately tested or registered in any other market, or registered in a system that does not adopt equivalent standards to the Australian system, could cause problems.
To adjourn or not to adjourn: Courts say the show must go on! - Increasingly, judges only adjourn court matters in exceptional circumstances, and even COVID-related problems may be no excuse for delay. Whether in calm or crisis, you should have plans in place for your proceedings to continue.
Tools to help you manage environmental compliance in Queensland during COVID-19 - A TEP is a specific program that, if approved and complied with, achieves compliance with the EP Act for the activity to which it relates.
Victorian Supreme Court guidance on “True Rule” of contractual construction and restrains access to performance security - For commercial parties in Victoria, this is a significant finding as it places further emphasis on the primacy and certainty of a written agreement.
WA landlords not immune from new COVID-19 legislation - The Commercial Tenancies (Covid-19 Response) Act is now in force, imposing a six-month moratorium commencing on 30 March 2020 for evictions and a freeze on rent increases – and more changes are planned.

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.