September

A cautionary tale for shareholder requisitioned board spills - Activist shareholders and companies alike should take note of the Takeover Panel’s recent decision in response to an attempt by a group of rebel shareholders to spill the board of DRA Global Limited via a shareholder requisitioned meeting and in particular the rules of “association” in relation to shareholder actions.
ACCC flags tougher standards for environmental claims in upcoming greenwashing sweep - The ACCC’s upcoming sweep of environmental claims will potentially catch out many businesses.
ASIC looking ahead – greenwashing, climate-risk disclosures, crypto, scams and more - ASIC released its Corporate Plan for 2022-26 on 22 August 2022 followed by Mr Longo’s speech to the Committee for Economic Development of Australia (CEDA) where he revealed his vision for ASIC to be an “ambitious and confident regulator”, focused on the future.
Australian offshore wind guide 2.0 - Australia’s national regulatory framework for offshore energy came into effect in June 2022. Since then, there has been a flurry of activity in the offshore wind sector with domestic and international developers announcing new projects almost every week. This includes Copenhagen Energy’s proposal to develop four 3GW offshore windfarms, which will be the largest in Australia if they go ahead.
Busting ghostwriters – expert witnesses beware! - Maintaining the independence of an expert is critical.
Buying cloud services Part 2 – what you need to know before you implement - By understanding that the implementation contract is often where customers have the most leverage, customers can use this leverage to minimise project risk when embarking on a cloud implementation project.
Class action waivers in Australia: still some uncharted waters after The Ruby Princess decision - The Full Court of the Federal Court has considered whether contracts which purport to exclude a right to participate in class action are enforceable under Australian law. After last week's decision in Carnival plc v Karpik (The Ruby Princess) [2022] FCAFC 149 by the position is not entirely clear, with each of the three judges delivering separate reasons and the class action waiver considered by the Full Court governed by US law.
Corporations Act director on or before 31 October? Apply for your director identification number by 30 November 2022 - All directors and alternate directors of companies governed by the Corporations Act who were appointed on or before 31 October 2021 – including those who have since ceased to be directors but were a director as at 1 November 2021 – have until 30 November 2022 to apply for a director identification number if they do not have one already.
COVID-19 in 2022 – what to do when COVID-19 affects your workers - Having clear steps that are reviewed and updated as necessary is paramount to ensure both compliance with WHS obligations, but also to minimise or avoid broader risks associated with COVID-19.
Emerging challenges for Australia electric vehicle charging infrastructure - Structural challenges are emerging for Australia’s new electric vehicle charging infrastructure, with growing concerns regarding inter-operable access to charging stations, charging station availability, maintenance and customer behaviour while charging and trip planning.
Ensuring carbon credits are robust and credible: the Independent Review of Australian Carbon Credit Units - Given the increasing importance that carbon markets will play in facilitating cost-effective emissions reductions across all sectors of the Australian economy, the ACCU review is timely.
Environment and Sustainable Development 5 Minute Fix 30: Safeguard mechanism, renewable energy, SA planning review, biodiversity - 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, energy, planning, biodiversity and environmental protection.
eSafety Commissioner’s new powers to help combat online child sexual exploitation, and the ESG impact on business - Some of the world’s largest tech companies have been the first to be served with world-first legal orders by Australia’s eSafety Commissioner. These orders aim to lift the hood on what the companies are doing (or, are not doing) to protect their users from harm caused by online child exploitation and abuse.
Exemption from WA land tax for caravan and residential parks - Amendments to the Land Tax Assessment Act 2002 (WA) exempting caravan and residential parks from land tax have been introduced into Parliament.
Finished! Somat successful in dishwashing tablet trade mark washup - Despite early success in obtaining urgent interlocutory relief, Finish was unable to prove trade mark infringement by German brand Somat and will have two of its trade marks removed from the register for non-use.
How will potential changes to multi-enterprise bargaining affect employers? - Employers should take note of any developments in single or multi-enterprise bargaining so they are fully aware of their changing obligations and duties.
Jobs & Skills Summit 2022 – a recap - With the doors now closed on the Jobs & Skills Summit 2022, the Albanese Government has pledged legislative reforms to enterprise bargaining including multi-employer bargaining, modification of the “Better off Overall Test” (the BOOT) and access to flexible work arrangements. Changes will come quickly, with a commitment to immediately commence the necessary policy reviews and have legislation before the Parliament prior to Christmas.
Jobs & Skills Summit 2022 – reform agenda for Australia’s labour market - Productivity, upskilling and increased engagement are key targets for the Australian Government’s Jobs Summit 2022, to future-proof the labour market.
Large corporates and universities beware – FWO announces record $532 million recovery of underpayments - As the Fair Work Ombudsman increases its activity in recovering employee underpayments, employers should consider the value of conducting a payroll audit for their businesses.
Litigation 101: alternative dispute resolution - Commercial disputes come in a variety of forms – and so too do options for trying to resolve those disputes. This article provides an overview of the main Alternative Dispute Resolution (ADR) methods and issues to think about when deciding what type of ADR method best meets your needs.
Litigation 101: interlocutory injunctions - An interlocutory injunction operates until the final hearing to protect the applicant against injury for which it could not be adequately compensated in damages if the alleged infringement of its rights were to occur.
Looming tax challenges for the EV sector in Australia's Parliaments and Courts - Debate on the tax settings needed to encourage electric vehicle (EV) take-up gathers steam in Canberra, while all Australian jurisdictions have now intervened in the High Court challenge to Victoria's ZLEV Act.
Major Projects & Construction 5 Minute Fix 106: enforceability of adjudication determinations, releases, Modern Slavery - Get your 5 Minute Fix of major projects and construction news. In this edition: wrap-up of recent decisions re enforceability of adjudication determinations; unconscientious reliance on releases; new agreements regarding existing projects/transactions and the need for consideration; the consequences of ignoring a Calderbank offer; and public consultation on Modern Slavery legislation.
Major Projects & Construction 5 Minute Fix 107: escalation risk, unconditional undertakings, building legislation and standards - Get your 5 Minute Fix of legal trends in Major Projects and Construction. In this edition, we look at: the release of the NSW Government’s commercial principles on escalation risk for infrastructure projects, injuncting calls on unconditional undertakings, when will uncertainty invalidate a contract, the NSW Government announces consultation on building legislation and NSW Government tables its response to the “Further Inquiry into the Regulation of Building Standards”.
Media Release: “Powerful image” of free speech advocate Peter Greste takes out the 2022 Clayton Utz Art Award - Brisbane-based photographer Glenn Hunt has won the $20,000 2022 Clayton Utz Art Award with his photographic portrait of Australian journalist Peter Greste, titled Freedom Fighter.
Media Release: Clayton Utz acts as Australian counsel to Canada’s Maverix Metals Inc. on $50m royalties portfolio acquisition from Barrick Gold Corp - A Clayton Utz team has acted as Australian counsel to TSX- and NYSE American-listed Maverix Metals Inc. (Maverix) on the acquisition of a portfolio of 22 royalties (the Royalty Portfolio) from Barrick Gold Corp. (Barrick). The transaction was announced on 1 September 2022.
Media Release: Clayton Utz advises MotorCycle Holdings Limited on $60 million Mojo Group acquisition - Clayton Utz has advised ASX-listed MotorCycle Holdings Limited (MTO) on its acquisition of Mojo Group.
Media Release: Clayton Utz congratulates Seven West Media on landmark AFL media rights deal - Clayton Utz is celebrating alongside our client Seven West Media (Seven) which yesterday announced that it had successfully renewed its AFL media rights from 2025 to 2031.
New Director Identification Number requirement for registered foreign companies - All current directors of registered foreign companies in Australia must apply for a Director Identification Number by 30 November 2022.
NSW duty on change in beneficial ownership of dutiable property – list of excluded transactions expanded - On 19 May 2022, the Duties Act 1997 (NSW) was amended to impose duty on transactions which result in a change in beneficial ownership of dutiable property. However there are a number of prescribed transactions that are excluded from comprising a change in beneficial ownership for duty purposes. These transactions include:
NSW Government sets reform agenda for building standards - The NSW Government has an ambitious agenda for the reform of building legislation in light of high-profile building failures and defect issues.
Proposed defamation defences for digital intermediaries, including forum administrators - The recently released draft Part A Model Defamation Amendment Provisions and accompanying Background Paper present two alternative options for a new defence for digital intermediaries. Interested individuals and organisations are invited to provide written submissions in response to these documents by 9 September.
Public and private sectors beware – a powerful National Anti-Corruption Commission is coming - It’s not only the Federal public sector that should be getting ready for the National Anti-Corruption Commission (NACC); its wide reach and retrospective powers mean the NACC will have major ramifications for the private sector too.
Public Law Essentials 06: Statements of Reasons - Whether required by statute or not, a statement of reasons can improve decision-making and make the resulting decision more robust if challenged or reviewed.
Real estate 5 Minute Fix 19: WA significant developments, off-the-plan contracts, ACT residential tenancies, REIQ contracts - Get your 5 Minute Fix of legal developments in the Real Estate sector. This edition: Western Australian Government extends assessment pathway for significant developments; amendments to ACT Residential Tenancies legislation; possible reform to the off-the-plan contracts; new REIQ commercial contracts and more.
Self-redress when you are defamed – your right of reply to an attack - Consider as one of your options “replying” to a defamatory attack (ie. counter-attacking) rather than seeking vindication through the more expensive and slower route of legal proceedings.
The Financial Accountability Regime Bill is back - With greater certainty that the FAR Bill is likely to proceed without substantial amendment, entities can start their implementation plans in earnest.
The perils of failing to document an oral agreement at mediation – a cautionary tale - Commit any agreement made to written form on the day of the mediation, regardless of the simplicity of the agreement or quantum in dispute, or risk costly Court proceedings.
Thomson Reuters Agricultural Law in Australia Guide - Our Agribusiness & Food team sets out the basics of agricultural law in Australia in this Q&A guide, including a high level overview of agricultural law, including subsidies, environmental issues, agricultural companies and co-operatives, land ownership and usage rights, water controls, tax and financing, crop seed business, plant variety right protection, GM crops, animal welfare, livestock gene patentability, food standards and product liability.
Unfinished business: The first step to aged care reform in Australia - One element of the current Government’s plan to reform the aged care system in Australia has been introduced into Parliament – the Royal Commission Response Bill – with more to follow.
WA security of payment reforms: No payment, no work – A contractor’s right to suspend for non-payment - The expanded right to suspend work will operate in addition to other SOPA rights a contractor may opt to exercise in the event of non-payment.
WA security of payment reforms: The new adjudication process - Contracts entered into after 1 August 2022 will be subject to a revised statutory adjudication process, which differs to the existing process under the Construction Contracts Act 2004 (WA) (CCA). The changes will significantly impact the way construction contracts are currently administered and managed, with parties having to manage and comply with shortened time frames for completing various steps, along with newly introduced obligations for claimants and respondents alike.
WA’s security of payment reforms: Preparing your contracts, policies and procedures and education - There are some basic practical steps that can be taken now to enable you to address and manage the changes introduced by WA’s new security of payment laws, but some are more important than others.
WA's new Security of Payment laws toolkit - Any construction contracts entered into on or after 1 August 2022 will be subject to Stage 1 of Western Australia’s new security of payment regime under the Building and Construction Industry (Security of Payment) Act 2021 (WA). This resource kit will help you to navigate the significant changes to the legislative landscape introduced by the SOPA, including providing you with practical insights into the application of the SOPA and tools to help you ensure that you and your organisation are aware of and compliant with the changes which have come into force with the first stage of the Act.
Western Australia opts in to new state class action regime - Following the lead of other Australian states, a class action regime will soon be introduced in the Western Australian Supreme Court. We explain the background to the new regime, and highlight key differences to the regimes which apply in Courts in other Australian jurisdictions.

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.