September

ACT reintroduces relief for commercial and retail tenancies - The ACT Legislative Assembly has reintroduced its COVID-19 related instrument affording relief to commercial and retail tenants affected by COVID-19 through the Leases (Commercial and Retail) COVID-19 Emergency Response Declaration 2021.
An Australian first: NSW EPA ordered to take action to address climate change - The Bushfire Survivors decision opens up the possibility of similar challenges in other Australian jurisdictions, and will prompt other Australian environmental authorities to consider whether their regulatory approaches on climate change are sufficient to meet what the legislation in their respective jurisdictions requires.
Another one bites the (coal) dust: NSW greenfield mine rejected by IPC - Obtaining planning approval for a greenfield coal mine is getting harder in NSW, particularly where conflicting land uses and environmental risks are at play, and a proponent's social licence in obtaining approval is important.
ASIC's new Corporate Plan: "Why not litigate" takes a backseat in the name of economic recovery - Despite the retreat from "why not litigate", ASIC still has an important role to play in regulating corporate Australia and will deploy its regulatory armoury when the circumstances demand.
ASIC's new regulatory guidance on breach reporting for AFS and credit licensees commences 1 October - ASIC has now released its updated Regulatory Guide 78 – Breach reporting by AFS licensees and credit licensees (RG 78) and Information Sheet 259 – Complying with the notify, investigate and remediate obligations (INFO 259) to address the reforms commencing on 1 October 2021. The reforms flow from the Financial Services Royal Commission and the ASIC Enforcement Taskforce Review and aim to make breach reporting consistent and clearer across the industry.
ATO on high alert for overclaimed fuel tax credits - This morning the ATO released a Tax Alert relating to fuel tax credits (FTC) being overclaimed in connection with the use of GPS and telematics technology. The release of a Tax Alert on this topic signifies that the ATO sees there to be a high risk of non-compliance on this issue, and will rigorously examine FTC claims.
Automotive snapshot: agency sales, connecting vehicles to the internet, net zero - In our latest snapshot for the highly regulated, dynamic automotive sector, we weigh up the commercial benefits and legal risks of an agency sales model, navigate the regulatory speedbumps to connecting your vehicle and share some of our key considerations for the automotive industry on the road to net zero.
Avoid a bad BDAR, a bad DA and a bad day: demonstrating avoidance of biodiversity impacts for NSW development proposals - While the current focus is on biodiversity offsets, the NSW Land and Environment Court has sent a powerful reminder of the need to properly assess the potential to avoid a development proposal's biodiversity impacts in order to get development approval.
Banksy fight may paint a different picture under Australian trade mark law 05: Distinctiveness - Devising a distinctive trade mark is the best way to mitigate against costly legal disputes both in securing quick registration and defending the registration against any future attempts at cancellation as being non-distinctive.
Changes for public and private sector developments in proposed new Planning Regulations in New South Wales - New requirements for public and private sector developers are proposed in the long-awaited remake of the Environmental Planning and Assessment Regulation 2000, which is now out for public comment.
Considering a "sub-sale" in Victoria? New guidance released on what constitutes "land development" - Land developers, purchasers and investors will need to familiarise themselves with Ruling DA-064 on the meaning of "land development" and ensure they engage in a robust process of considering certain questions to avoid Victoria's double duty trap.
COVID-19 is a workplace injury, says New South Wales Personal Injury Commission - Contracting COVID-19 in the course of employment may constitute a workplace injury and be within workers' compensation schemes.
COVID-19 Vaccination Information Distillation 2: New vaccines, regulation and a Commonwealth indemnity scheme - The COVID-19 vaccination rollout steps up a gear, with more vaccines and the final details of the COVID-19 Vaccines Claim Scheme being hammered out.
COVID-19 Vaccination Information Distillation 3: COVID-19 vaccine claims scheme introduced for claims of $5,000 or more - Based on the information currently available, the COVID-19 vaccine claims scheme provides limited comfort to GPs, nurses, health practitioners or other vaccination providers.
Deadline for casual conversion fast approaching – have you satisfied your obligations? - Employers have until 27 September 2021 to take four steps to comply with the new casual conversion laws.
Defamatory Tweets slam dunked: Brother of NBA star awarded $550,000 and injunction - It is not the number of tweets that count, but the damaging nature of their content and their reach.
Don't "set and forget" your insurance policy – proper maintenance may lead to better coverage - Although often forgotten, maintenance of insurance contracts is an important and necessary exercise to ensure effective coverage.
Environment and Planning 5 Minute Fix 18: climate change, biodiversity, infrastructure, renewable energy - The Environment and Planning 5 Minute Fix gives you a snapshot of what you need to know across a range of environment and planning issues across the country. This edition focuses on the latest in climate change, waste, resources, energy, planning and environmental protection.
Environment and Planning 5 Minute Fix 17: climate change, energy, resources, planning and environmental protection - The Environment and Planning 5 Minute Fix gives you a snapshot of what you need to know across a range of environment and planning issues across the country. This edition focuses on the latest in climate change, energy, resources, planning and environmental protection.
Executive officer liability under Environmental Protection Act 1994 (Qld) clarified by Court - Executive officers' liability for certain environmental offences under Queensland's Environmental Protection Act will only arise if the harm came to fruition during their tenure.
Fake profiles beware: Google can be served with applications to expose the identity of internet trolls - A recent case in the Federal Court of Australia is a reminder you can't bank on hiding behind a fake profile to attack someone's reputation either by false reviews or other defamatory posts – because the courts will assist the efforts of plaintiffs to track down your identity.
Get ready for Victoria's new right to entry laws which allow unions to record potential breaches - Union representatives exercising right of entry powers will soon have new powers to take photos, measurements, sketches, or recordings (video included) when attending a workplace where a designated member works, except for in certain circumstances, following the passage today of the Occupational Health and Safety and Other Legislation Amendment Act 2021.
How to lose $450,000 in four posts: internet trolls beware! - A recent case in the Federal Court of Australia provides a strong warning to "keyboard warriors" with a vendetta: a baseless internet tirade can have serious legal consequences.
IOC decision to withdraw doping case against Aussie Olympian sparks major changes to WADA Code - The World Anti-Doping Authority has enshrined new Minimal Reporting Levels for select banned diuretics. The "Rickard Rule" precedent will affect athletes around the world, prompting significant rewriting of applicable strict liability laws.
Key steps to getting your ESG right - Fundamentally, ESG is about doing business responsibly. It is about having the trust of your stakeholders. It is about businesses acting in a way that is "right" – doing only what achieves legal compliance is no longer enough.
Lenders not misled in $2.5bn Arrium collapse - The latest decision in the Arrium collapse should give some encouragement to Australia's restructuring sector.
Major Projects & Construction 5 Minute Fix 83: penalties home and abroad, Infrastructure Victoria 30 year strategy, building materials on credit - Get your 5 Minute Fix of major projects and construction news. This issue: the doctrine of penalties considered at home – re accelerated repayments and back-dated interest, and abroad– re liquidated damages, staged completion and partial possession; Infrastructure Victoria releases a 30 year strategy report; and guidance on long-term agreements for the supply of building materials on credit.
Major Projects & Construction 5 Minute Fix 84: Australian Infrastructure Plan 2021, bank guarantees, Offshore Electricity Infrastructure Bill - Get your 5 Minute Fix of major projects and construction news. In this issue: we welcome the launch of the Australian Infrastructure Plan 2021; a bank guarantee case provides comfort to those relying on bank guarantees that less is more; the ACT Supreme Court explores extensions of time when challenging an adjudicator’s decision; Queensland Supreme Court demands strict proof of service of an adjudication application, and the introduction of the Offshore Electricity Infrastructure Bill 2021.
Major Projects & Construction 5 Minute Fix 85: cladding in Victoria, WA security of payment, and payment schedules - Get your 5 Minute Fix of major projects and construction news. This issue: Further cladding-related changes proposed for Victoria; action plan released for security of payment reforms in WA; NSW decision examines payment schedule requirements; Victorian Court of Appeal confirms flagrant non-compliance may attract substantial penalties.
Managing fraud and corruption risks: Is your policy best practice? - As part of developing or updating your fraud and corruption policy, your organisation should conduct a fraud risk assessment using a methodology consistent with the relevant recognised standards.
Managing the intersection between trauma-informed processes and natural justice obligations - As the adoption of "victim focused" or "trauma informed" processes (TIP) in complaint and investigation processes increases, it is timely to assess these mechanisms in the context of natural justice obligations and requirements and to consider whether and how TIP mechanisms and natural justice obligations can coexist.
Media Release: Clayton Utz acts for US-based Lilac Solutions on investment in 'Lithium Triangle' Kachi project - Clayton Utz has acted as Australian legal counsel to US-based lithium extractor Lilac Solutions on its strategic partnership with ASX-listed Lake Resources' flagship Kachi Project in Argentina. The transaction was announced to the market this week.
Media Release: Clayton Utz advises Minerva and SALIC on WA abattoir acquisitions - Clayton Utz is advising Minerva Foods and SALIC Australia on their acquisition of abattoir facilities in Shark Lake (near Esperance) and Tammin in Western Australia. The facilities will be acquired by a joint venture in which Minerva Foods will hold a 65% interest and SALIC Australia will hold a 35% interest. The joint venture is looking to invest approximately US$35 million in the facilities, which are expected to reach a slaughter capacity of 1 million head per year.
Media Release: Clayton Utz congratulates our client Healthia on strategic Back in Motion acquisition - A Clayton Utz team is today celebrating a client's strategic growth milestone, with the announcement by leading allied health business Healthia Limited (Healthia, ASX: HLA) of its agreement to acquire Back in Motion Health Group (Back in Motion), a deal valued at around A$88 million.
Media Release: Conversation-starting 'January 26' wins 2021 Clayton Utz Art Award - Brisbane-based art photographer Sangeeta Mahajan has taken out the $20,000 Clayton Utz Art Award for 2021 with her photographic print titled, January 26.
Media Release: Successful rescue of Virgin Australia wins international Transaction of the Year award - One of 2020's biggest turnaround success stories - the restructure and sale of Virgin Australia to Bain Capital, on which Clayton Utz advised - has been recognised at the peer-reviewed Turnaround Management Association's 2021 Turnaround/Transaction of the Year Awards.
Multiple class actions against one defendant: Victorian Supreme Court sets out a partial solution - The Fuller decision gives some guidance on how plaintiffs could jointly run a consolidated class action, but things are likely to get more complicated if one of the consolidating law firms is running the class action on a no-win, no-fee basis and the other is running a funded class action which is a managed investment scheme.
New controls proposed for large-scale solar and wind developments in NSW - Proposed changes to planning controls for utility-scale wind and solar energy projects could make it more difficult to obtain planning approval for new projects, and expansions of existing projects, near strategic regional cities in NSW. The NSW Government's planning assessment guidelines for these projects are also up for review.
NSW Court of Appeal clarifies the assessment of climate change impacts from mining projects - The NSW Court of Appeal has dealt a critical blow to a proposed new coal mine in the Bylong Valley by dismissing an appeal made by the proponent after it unsuccessfully applied to the Land and Environment Court to overturn the IPC's decision to refuse the Project.
NT Government policies targeting large emitters of GHG emissions and proposing the how and when to offset - In an effort to manage and offset greenhouse gas emissions in the Territory, the NT Government has released policies aimed at the management of emissions from new or expanded large emitter projects and to guide the offsetting of residual emissions. Submissions on the offsets policy can be made until Friday, 15 October 2021.
OAIC Notifiable Data Breaches Report: January-June 2021 - The Office of the Australian Information Commissioner has released its biannual statistical information about notifications received under the Notifiable Data Breaches scheme.
Orders Without Borders: Australia's new law allows authorities access to data from communications service providers - The Telecommunications Legislation Amendment (International Production Orders) Act 2021 establishes a framework that, subject to an international agreement, will allow Australian Government agencies to obtain "International Production Orders" issued directly to foreign "prescribed communications providers", in respect of information stored overseas.
Real estate: 5 Minute Fix 15: COVID-19 relief, stamp duty and land tax changes, strata and community title - Get your 5 Minute Fix of real estate news. This issue: COVID-19 relief, stamp duty and land tax changes, strata and community title, and execution.
Refocusing energy from waste projects from Sydney to key NSW regions - The EfW Infrastructure Plan indicates the NSW Government's intention to imbed the new policy into environmental planning instruments and legislation.
Responding to Courts and regulators: claiming privilege against self-incrimination - The High Court provides a useful reminder on what to prove, how to prove it, and what protection you receive when claiming privilege against self-incrimination.
Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 passed, and commences soon - Legislative amendments made by the Government in response to the [email protected] Report are largely technical in nature, aiming to ensure that existing protections against sexual harassment cover all workers and that there are accessible avenues of complaint.
South Australia follows Victoria and introduces bill for a distance-based electric vehicle levy - The SA Government has given a clear and early indication to vehicle owners and manufacturers of the proposed distance-based electric vehicle levy, and also demonstrated general consistency with the Victorian regime in terms of model, rate and scope of application of the SA levy.
The ACCC is calling for a new ban on unfair trading practices in business – why, and what it would mean - Underpinning the push for a new general law prohibiting "unfair practices" is the ACCC's argument that it brings us into alignment with overseas regimes, but it's more likely such a law will take us into uncharted waters.
The registered designs system wakes from its slumber - The biggest practical obstacle to obtaining registered design protection is about to disappear, as a result of some changes to Australia’s designs laws which have just been passed, so all businesses involved in product design should be reassessing their intellectual property protection strategies.
The top five trends shaping disputes with the Australian Tax Office (and your tax risk) in 2021 - The ATO wants greater information and earlier engagement, and that is influencing its approach.
This trade mark stoush is as sweet as honey! - The contest over who can use Manuka for their honey products shows no signs of being resolved any time soon.
Time is running out for Victorian developers before new owners corporations obligations and restrictions commence - With less than three months to go, developers must revisit amendments to the law on owners corporation and satisfy themselves that no changes will be required to owners corporations proposed for their developments.
Tips and traps to accessing Court documents as a non-party - It's always important to keep up-to-date with current judicial proceedings which relate to your industry because it can help to inform your case strategy. Where appropriate, you may benefit from requesting access to certain Court documents even as a non-party to the litigation.
Trends in the management of sexual harassment 01: the rise of the employee activist and bystander - While bystander action and employee activism can be seen as a positive sign of a "safe to speak up" environment, it can raise complexities for those dealing with sexual harassment matters which must be carefully managed.
UK Supreme Court confirms liquidated damages survive termination - Had the Court of Appeal decision not been overturned, the issues raised by Sir Rupert Jackson’s reasoning would, almost certainly, have been considered by the Australian courts at some point, and resulted in a significant blow to the certainty of operation of liquidated damages clauses in this country if followed.
Victoria's Environment Protection regime: the general environmental duty - Where a person fails to meet the general environmental duty in the course of conducting a business or undertaking, they will commit an offence.
Victoria's Environment Protection regime: transition of permissions, notices, classifications and policies - Despite the repeal of the Environment Protection Act 1970 (Vic), some permissions, notices, directions and classifications are saved under the new 2017 Act as if the old Act had not been repealed, while others transition to be equivalent instruments under the new regime.
Workplace investigations refresher part 8: Participants in workplace investigations – witnesses - In this article, we take a closer look at how an investigator can manage witnesses in an investigation, as well as identifying some key steps investigators can take to protect the interests of all parties at the same time as obtaining the evidence they need.
Your feedback sought on unique crediting arrangement for Australia’s largest greenhouse gas emitters - A new proposal to establish a crediting element may provide an incentive for large-emitting industrial to take advantage of abatement opportunities.
You're the publisher of public posts on your social media pages, says High Court – but don’t panic just yet - If you allow the public to post on your social media pages, you are the publisher of what they say – including anything defamatory. That's the upshot of today's decision by the High Court in appeals by Fairfax Media Publications, Nationwide News and Australian News Channel, who were sued by Dylan Voller over comments left by the public on their social media pages under stories about Mr Voller ([2021] HCA 27).
YouTuber's proposed defamation defences knocked down by Parliamentary privilege - Parliamentary privilege is a matter for Parliament to adjudicate and waive, not the courts, even if it affects a possible defence to defamation actions.

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.