August

"Accounting in Wonderland": High Court throws open the potential for higher competition and consumer penalties – and beyond - The High Court has confirmed that the 'value of the benefit' obtained by a contravention refers to the total gross amount received, without deduction for costs or other set-offs, when setting a maximum penalty – with potentially wide-ranging consequences for a number of penalty regimes, including the CCA/ACL.
"You can't say that!" Testing the boundaries of non-disparagement clauses - The enforceability of non-disparagement clauses invariably depends on their construction, practical effect, the alleged breach, and the legitimate interests they purport to protect.
Affordable housing needs a COVID cure - Feeling the cold? Spare a thought for the rough sleepers in Sydney who last week shivered through the city’s chilliest June morning in thirteen years.
ASIC continues to focus on market misconduct and consumer harm - ASIC's quarterly enforcement and regulatory report for April to June 2023 shows the broad brush that the regulator is taking to its oversight, investigations and enforcement functions.
ASIC keeps up the pace with its third greenwashing proceeding against Active Super - Superfunds making ethical or sustainable representations should be wary following ASIC's third greenwashing proceeding to date and second against a superannuation trustee.
Competition policy under review by Albanese Government - The Albanese Government is turning its attention to enhancing competition in the Australian market by conducting a comprehensive review of competition policy. The Review will have a two-year timeframe suggesting that there will be a considerable period before any changes proposed will be implemented.
Consultation opened for Illawarra Offshore Wind Zone - The Commonwealth Government has opened consultation on the Illawarra Offshore Wind Zone – the fourth of its kind in Australia – with the consultation period open until 16 October 2023.
Corporate 5 Minute Fix 05: ASIC on IPOs, IFRS S1 and S2, prescribed occurrences, lodgment fees - Get your 5 Minute Fix on the latest legal trends in corporate law. Designed for busy NEDS, GCS, members of the C-Suite and corporate law enthusiasts. In this edition, we have a roundup of the fortnight's top topics, everything from regulatory changes to emerging best practices, giving you a comprehensive overview of what's happening in the world of corporate law.
Defamation: the serious costs of failing to establish "serious harm" - It is likely that many defamation claims will continue to be decided at an early pre-trial hearing on the question of serious harm – and failing to do so could be a catastrophic mistake for many plaintiffs.
Environment and Sustainable Development 5 Minute Fix 41: sea dumping, climate change, wind farms, housing affordability - 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, waste, energy, resources, planning and environmental protection.
Exclusions of liability (and other disclaimers) might not be worth the paper they are written on - Victorian Court of Appeal rules that despite the principle of freedom of contract, as a general rule, parties cannot contract out of, or exclude, liability for misleading or deceptive conduct.
Federal Safety Commissioner & WHS Accreditation Scheme under review - The objective of the Review is to evaluate the FSC's effectiveness and the merits of implementing a similar approach for other areas of Government procurement (ie. expand the operation of the Scheme outside of the construction sector).
Foreign investment into Australia in January-March 2023; trends and implications - Foreign investment in Australia has decreased significantly in Q3 (the January 2023 quarter) including both the number of investment proposals made and the average value of each proposal – highlighting the volatility in foreign investment quarter to quarter.
Further transitional relief for Foreign Financial Services providers - On 7 August 2023, ASIC announced that it would extend the transitional period of relief for foreign financial services providers by a further 12 months (under ASIC Corporations (Amendment) Instrument 2023/588). As a result, the current relief regime will now remain in place until 31 March 2025.
Green loans vs sustainable loans: what you need to know - In the case of a green loan, the loan proceeds must be applied towards a "green project". At this stage we do not have an agreed definition of green projects. On the other hand, the proceeds of a sustainability linked loan are typically used for a borrower's general corporate purposes, which do not need to be green or sustainable in nature.
Implications of ACCC rejection of ANZ Suncorp merger authorisation - The decision by the ACCC to deny authorisation in the ANZ/Suncorp Bank merger is the latest in a series of recent rejections by the regulator, in a sign of the heightened thresholds applied to competition assessments by the ACCC for merger clearance.
Litigation 101: Provenance of company records: litigation record-keeping reminder - If you wish to rely on the records of a company during litigation, it will be necessary to authenticate the document by proving the document's provenance. Failure to prove the provenance of the document could be fatal to the success of the litigation.
Looking to modernise: new review lays ground for reform of modern slavery offences in Criminal Code - Improving the standard of modern slavery reporting and enforcing obligations of large businesses will be targeted as areas for reform, as well as the Labor Government's promise to introduce penalties for non-compliance to give the laws some teeth.
Major Projects & Construction 5 Minute Fix 118: conditions precedent, insolvency in construction, cladding - Get your 5 Minute Fix of legal trends in Major Projects and Construction. In this edition: recent Queensland Supreme Court considers the implication of failing to satisfy or waive conditions precedent; the Parliamentary Committee Report on Corporations and Financial Services Corporate insolvency in Australia supports Murray Report security of payment reforms, including the use of "cascading trusts"; the insurer of a manufacturer of combustible aluminum composite panels to be joined to an action against the manufacturer by an owners corporation; and the Federal Court finds that posting false reviews and testimonials contravenes the Australian Consumer Law and constitutes misleading or deceptive conduct.
New Act, scope and protections recommended for Queensland's public sector whistleblower protection regime - Queensland agencies would owe a duty of care to whistleblowers, and have clearer obligations for dealing with them, if the Wilson Review's recommendations are accepted.
New NSW Government protocol to avoid another SO52 avalanche - On 29 June 2023, the Hon John Graham MLC, Special Minister of State, tabled the "Protocol for proactive release of government information to Members of the Legislative Council" (Protocol) in the NSW Legislative Council. Minister Graham noted that, in the previous 57th Parliament, 452 orders were made under SO52 (the highest ever), requiring the production of 4,634 archive boxes of documents. However, in the new Parliament, only three SO52 motions have been passed to date.
NSW Government procurement under increased scrutiny for modern slavery risks - NSW Government entities should assess and comprehensively address any current modern slavery risks in their operations and supply chains, and engage in responsible procurement.
Proptech: Building and managing a smarter future in a post-COVID-19 world – Using generative AI - The use of generative artificial intelligence (AI) is currently having, and will continue to have, a disruptive impact on the real estate sector. The use of such technologies has many potentially helpful applications across the real estate industry. However, it is important that businesses understand and manage the risks associated with the use of such technologies before applying them.
Real Estate 5 Minute Fix 22: residential tenancy, zoning and tax reforms, current market rent - Get your 5 Minute Fix of real estate news. This issue includes changes to residential tenancy requirements across Queensland and the ACT, zoning reforms, tax reforms across WA and Victoria and reminders of the principles of breach, termination, waiver and affirmation in commercial leases.
The resurgence of enterprise bargaining 05: when bargaining goes wrong - No one ever said bargaining was easy, so it's important for employers and employees to be aware of the range of options available to keep bargaining on track.
Time is important, but essentially how important? Understanding what "time is of the essence" means - It is important to understand what agreeing that "time is of the essence" under a contract will mean if the transaction does not complete, and what you can do in those circumstances.
Trading with a WA Government Trading Enterprise? Factor in new approvals and processes - Transaction timelines could be extended by new rules for WA Government Trading Enterprises, which extend Ministerial notification and approval to more transactions.
WA's Aboriginal Cultural Heritage regime – Back to the future: what the repeal means - With Monday's announcement by the WA Cook Government that it will be repealing the Aboriginal Cultural Heritage Act 2021 (WA) (ACH Act), only five weeks after its commencement, project proponents now need to understand what the repeal process is, what the replacement regime will look like, and what remains unclear at this stage.
When nature calls: recent High Court decision clarifies the scope of vicarious liability - The High Court has reinforced that when considering whether an employer is vicariously liable for an employee's wrongful conduct, the scope of the employee's employment is crucial, including identifying what the employee was actually employed to do.

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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.