August

A proposed legislative regime for Indigenous Cultural and Intellectual Property rights protection - The Productivity Commission in its most recent Draft Report has turned its attention to the issue of inauthentic Aboriginal and Torres Strait Islander visual arts and crafts. In doing so, it has recommended that Indigenous Cultural and Intellectual Property rights require dedicated legislative protection.
ACCC to request information on claims of legal professional privilege - New ACCC expectations about any claims for legal professional privilege when responding to a compulsory notice.
ACSI July report 2022: What do these findings show for Board reporting of climate risk and emissions reduction? - The emerging attention to commitment to and disclosure of emissions reductions targets and management of climate related risks disclosed in the Report by the Australian Council of Superannuation Investors is extremely encouraging.
Adverse action and negotiating Enterprise Agreements – how far is too far? - The Full Federal Court has confirmed that adverse action can be taken on the basis of a potential future exercise of the right to engage in bargaining and industrial action, potentially creating a clearer pathway for future adverse action allegations where an Enterprise Agreement is approaching is nominal expiry date.
As the ACCC announces a crackdown on influencers, some dos and don'ts of influencer advertising - With renewed ACCC focus on businesses using social media advertising, including sponsored posts and influencers, review your key compliance measures to avoid undue scrutiny.
ASIC extends transitional relief for Foreign Financial Services providers - On 2 August 2022, ASIC announced that it would extend the transitional period of relief for foreign financial services providers (FFSPs) by a further 12 months (under ASIC Corporations (Amendment) Instrument 2022/623). As a result, the current relief regime will now remain in place until 31 March 2024.
ASIC releases enforcement and regulatory update for second quarter of 2022 - ASIC's enforcement and regulatory update for the period April to June 2022 highlights the regulator's focus on protecting consumers and investors from harm, improving industry’s financial reporting and risk management, and engaging with industry on new and existing obligations.
ASIC won’t “name and shame” in new breach reporting regime (for now) and pursues more industry consultation and guidance - ASIC has provided some welcome relief to AFS and credit licensees by confirming that it won’t publicise the names of licensees individually in its first public report, but will focus on improving the operation of the new “reportable situations” regime as part of its 2022-23 priorities.
ASIC's recent action against Lanterne highlights ASIC's increasing focus on the adequacy of risk management systems - The action against Lanterne is a good reminder for all AFS licensees and even Australian credit licensees that compliance with the obligations under section 912A of the Corporations Act (and section 47 of the National Consumer Credit Protection Act 2009 (Cth) for Australian credit licensees), should not be considered a one-size-fits-all and “set and forget” proposition.
Australia’s Climate Change Bill: simple approach to a complex problem - While the main Climate Change Bill has garnered much attention, the consequential amendments to other legislation could end up being the main drivers of emissions reductions.
Better be quick! Deadline to make a priority application for a corresponding .au direct domain name is 20 September 2022 - If you hold existing domains in the .au namespace (eg. com.au, net.au or org.au), you are eligible for priority access to register these domains in the new .au direct domain format. However, this must be done by 20 September 2022. After this deadline, if no priority application has been made, all remaining .au direct domain names will become available for registration by the public.
Beware! Substantially higher penalties for competition and consumer law breaches are on the cards - A draft bill, Treasury Laws Amendment (Competition and Consumer Reforms No. 1) Bill 2022: More competition, better prices, together with explanatory material, has now been released for public consultation.
Celgene ACCC authorisation withdrawal provides no vote of confidence for future pharmaceutical patent settlements - Parties seeking patent settlement authorisation will need to have clear and demonstrable evidence of the public benefits claimed in the authorisation application and should obtain competition law advice ahead of submitting any such application.
Changes coming to health services advertising: patient testimonials likely to be allowed soon - Although the ban on using testimonials is expected to be lifted soon, advertisers must still take care not to use testimonials in advertising, except where they relate to non-clinical aspects of a regulated health service.
China establishes mineral resources group to centralise iron ore purchasing - The establishment of China’s state-backed iron ore company is an attempt by China to shake-up the global iron ore market and highlights China’s focus on managing its purchasing power and pricing for iron ore.
Clayton Utz supports CEFC on landmark investment in Southern Downs Renewable Energy Zone to connect Australia’s largest wind farm - Clayton Utz’s Project Development and Finance team has advised the Clean Energy Finance Corporation (CEFC) on a landmark investment that will help to deliver greater reliable power through renewable energy to southern Queensland and Australia’s east coast, powering 700,000 homes, fast-track connection of Australia’s largest wind farm precinct to the National Electricity Market (NEM) and decarbonise Australia’s energy sector.
Climate change adaptation front and centre for New South Wales Government decisions and planning - Climate change adaptation (and especially resilience) will be a critical factor in NSW Government project evaluation, asset management and forward planning, following the release of the NSW Climate Change Adaptation Strategy in July 2022.
Court of Appeal upholds decision on “misleading” fuel labelling - Last week the Victorian Court of Appeal unanimously dismissed an appeal by Mitsubishi in relation to a 2021 Supreme Court decision (which in turn had partially upheld a decision by VCAT) that a fuel label affixed to the vehicle’s windscreen constituted misleading and deceptive conduct in circumstances where the owner had been unable to replicate the fuel consumption figures displayed.
Creating a positive duty to prevent discrimination in Queensland: the impact on employers - With Queensland considering a positive duty to prevent discrimination, and the Commonwealth enacting the [email protected] recommendations, employers should be running the rule over their anti-discrimination measures now.
Don’t give an executive equity incentive without an employment hurdle (unless you really really want to) - When granting equity incentives to directors and senior management, you should use express provisions requiring them to remain in their position or employed up to the time the relevant performance hurdle or milestone is met.
Environment and Sustainable Development 5 Minute Fix 29: climate change bills, environment as a human right, water resources - The Environment and Sustainable Development 5 Minute Fix is a snapshot of need-to-know news on a range of ESD issues nationally. This edition focuses on the latest in climate change, sustainable development, planning and environmental protection.
Failure to afford procedural fairness will generally be material: High Court - Decision-makers will need to be particularly careful about procedural fairness. following yesterday’s High Court decision in Nathanson v Minister for Home Affairs [2022] HCA 26, which has underscored that almost any failure to afford it will be "material", and void the decision.
Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 introduced to Parliament - The National Employment Standards may soon include 10 days paid family and domestic violence leave if the Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 is passed.
Five years in: Treasury to review ASIC’s funding model - A forward-looking review of the Australian Securities and Investments Commission’s Industry Funding Model has commenced to ensure it remains fit for purpose and appropriate in the current market and longer term.
Getting the green light: Lessons for future collaboration on ESG measures under Australian competition law - In Australia, businesses proposing to collaborate with competitors on ESG should continue to consider carefully whether their plans may raise any competition law risks or require an exemption, by ACCC authorisation.
Gig economy regulation likely as Fair Work umpire confirms workers are contractors - The Full Bench of the Fair Work Commission has clarified that gig economy workers are to treated as contractors and not employees – regardless of whether the true nature of the employment relationship suggests otherwise (Deliveroo Australia Pty Ltd v Diego Franco [2022] FWCFB 156).
Implementing [email protected]'s positive duty to prevent sexual harassment - The positive duty to prevent sexual harassment proposed by the [email protected] report will require employers to re-examine their frameworks for the oversight and management of sexual harassment.
Information and communication technology (ICT) accessibility – Important for all, essential for some - Organisations that fail to make their ICT products and services accessible not only risk excluding certain segments of the population, but they also potentially expose themselves to breach of laws, including anti-discrimination legislation.
Is Google the Internet’s librarian, or merely a tour guide? High Court rules Google is not a publisher in defamation - The return by a search engine of a search result which contains defamatory material does not, by itself, make the search engine a “publisher” for the purposes of defamation.
Legislation needed on patentability of computer-implemented inventions, after High Court divided in rare 3:3 judgment - The recent High Court judgment of Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents [2022] HCA 29 creates uncertainty about when a claimed invention that utilises computer software or hardware will be a patentable "manner of manufacture" under the Australian Patents Act.
Litigation 101: Document retention for business - The implementation of a clear and effective document retention policy is important to not only ensure compliance with such document retention obligations, but also to reduce the risk of adverse rulings in current or future litigation, minimise exposure to possible criminal offences, as well as manage the cost to the business of retaining documents unnecessarily.
Litigation 101: The differences between deeds and agreements - There are legal and practical differences between deeds and agreements, and your choice of which to use will depend on the parties and the specific circumstances.
Major Projects & Construction 5 Minute Fix 104: ABCC, combustible cladding, step-in notice, WA security of payment - Get your 5 Minute Fix of legal trends in Major Projects and Construction. In this edition, we look at: the recent changes to the Australian Building and Construction Commission; parties seeking relief for combustible cladding need to demonstrate evidence of combustibility; default interest clause survives challenge based on penalties doctrine; changed contract arrangements undermine homeowners' defects remedies; the NSW Court of Appeal determines the validity of a step-in notice, and the commencement of reforms to the WA security of payment regime.
Major Projects & Construction 5 Minute Fix 105: developer's liability for cladding rectification, expert determination, security of payment - Get your 5 Minute Fix of legal trends in Major Projects and Construction. In this edition: NSW Court of Appeal decision considers developer's liability to owners corporations for cladding rectification; a reminder that the statutory demand process in the context of SOP Acts will not always yield the desired outcome; the Queensland Supreme Court refuses to stay the expert determination process under a royalty deed, and the NSW Supreme Court considers security for costs.
Media Release: “We can all play a role”: Clayton Utz special counsel sees opportunity with ESG agenda to help tackle child sexual exploitation and abuse - The Environment, Social and Governance (ESG) movement is an opportunity for corporations to play a more active role in helping to eliminate child sexual exploitation and abuse (CSEA) – a global humanitarian issue that is more prevalent in Australia than people might think, says Clayton Utz special counsel Mariam Azzo, the international research co-ordinator of the It’s a Penalty CommonProtect research report on CSEA.
Media release: Clayton Utz advises Mitsui on the disposal of its interests in the BHP Mitsui Coal (BMC) Joint Venture - Led by Hiroyuki Kano, Co-Head of the Japan Practice, and Stuart MacGregor, National Energy & Resources Leader, together with special counsel, Shigeki Yamaura, and senior associate, Tristan Appleby, the Clayton Utz team advised Japanese trading house, Mitsui & Co., Ltd., and its Australian subsidiary, Mitsui & Co. (Australia) Ltd (together Mitsui) in respect of the divestment of their 20 per cent interest in Stanmore SMC Pty Ltd, formerly known as the BHP Mitsui Coal joint venture (BMC), a metallurgical coal joint venture in Queensland.
Media Release: Clayton Utz advises Tattarang’s Wyloo Metals on $150 million cornerstone investment in Hastings Technology Metals - Clayton Utz is advising Wyloo Metals (a Tattarang company) on its $150 million cornerstone investment in Australian rare earths developer, Hastings Technology Metals Limited (ASX: HAS). The investment was announced to the market today, and is subject to regulatory and shareholder approvals
Media Release: Clayton Utz advises The Market Herald Limited on $86m acquisition of Gumtree, Carsguide and Autotrader and $26m Entitlement Offer - Perth, 26 August 2022: Clayton Utz is advising ASX-listed digital business and investor relations platform services provider, The Market Herald Limited (ASX: TMH) in respect of its acquisition of 100% of the shares and related assets of Gumtree Au Pty Ltd, Carsguide Autotrader Media Solutions Pty Ltd and Gumtree IP AUS Holding Ltd from Adevinta. The transaction was announced to the market today.
Media Release: Clayton Utz partners Nikki Robinson and Cameron Gascoyne recognised at 2022 Lawyers Weekly Partner of the Year awards - Clayton Utz partners Nikki Robinson and Cameron Gascoyne were among the winners at the 2022 Lawyer Weekly Partner of the Year awards, announced at a gala function in Sydney on 28 July.
Media Release: Clayton Utz wins Intellectual Property Team of the Year at 2022 Lawyers Weekly Australian Law Awards - Our Intellectual Property and Technology (IP&T) team was among the winners at the 2022 Lawyers Weekly Australian Law Awards held in Sydney last Friday evening.
Meet our new partner: Robert Dearn - Robert Dearn helps government and private sector clients realise their digital transformation ambitions through the adoption of technology and data-driven products and services.
No option but to pay duty: NSW now imposes duty on changes in beneficial ownership - On 19 May 2022, substantial amendments were made to the Duties Act 1997 (NSW), including the introduction of a new head of duty which imposes duty on transactions which result in a change in beneficial ownership of dutiable property. This formulation of dutiable transaction broadened the duty base, and the wording captures an extremely wide range of transactions.
NSW to introduce new Biodiversity Credits Supply Fund and Taskforce - The NSW Government has announced the establishment of a Biodiversity Credits Supply Fund and Taskforce aimed at increasing the supply of 'in demand' biodiversity credits which are needed to support the State’s projected infrastructure, housing and manufacturing growth.
Proptech: Building and managing a smarter future in a post-COVID-19 world – cybersecurity risks - Proptech’s benefits will need to be carefully managed by both private and public sectors to avoid the increased exposure to hackers and other criminal actors.
Public Law Essentials 05: Procedural fairness - Decision-makers can take practical steps to make sure decision-making is robust in terms of procedural fairness.
Safe Work Australia finalises Code of Practice for psychosocial hazards - Employers should review their risk management processes relating to psychosocial hazards, following the finalisation of Safe Work Australia’s model Code of Practice for managing psychosocial hazards and recent legislative changes in the model WHS Regulations and in Victoria.
Suspect your supplier is infringing copyright? Take action or Biggin trouble might be coming your way - Copyright owners can sue intermediaries who have authorised the primary infringement, whether by act or omission.
The metaverse: privacy and data protection challenges - The metaverse presents incredible opportunities for businesses, communities and individuals, but it needs an up-to-date and dynamic privacy and data protection regime that protects all interests and allows for further technological advances.
What’s your data worth: Google hit with $60m penalty for misleading consumers about data collection and use - Businesses that regularly interact with consumers need to have consumer laws front of mind, particularly when dealing with the collection and use of consumer personal data, or they could face significant penalties.

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.