May

"Logically, ethically and grammatically wrong": Federal Court cautions use of direct speech in witness evidence - Since the mid-1990s, New South Wales solicitors have prepared evidence in chief of conversations in direct speech – that is, the words are presented within quote marks, sometimes with the caveat that these are “words to the following effect”. That may be about to change, with criticism of the practice coming from the Federal Court in Kane's Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381.
A matter of expert opinion: how lawyers should engage with expert witnesses - The New Aim decision makes clear that lawyers may permissibly engage with experts on a range of matters, but practically they should err on the side of caution, both for forensic and ethical reasons.
ASIC releases and clarifies its corporate finance priorities for the coming quarter - Companies should consider their internal documentation to avoid regulatory action against greenwashing or poor cyber-risk policies and ensure their reporting frameworks are in line with best practice policies for whistleblower protection and financial accountability.
Buy Now, Pay Later to be regulated in Australia – plan now for the upcoming changes - Australia's Buy Now, Pay Later industry will soon be regulated under the National Consumer Credit Protection Act 2009 (Cth). Industry should begin preparing for the changes but will have a further opportunity to comment on the final form of the legislation.
Contract remains king and the superannuation guarantee is still unsettled, so check your independent contractor contracts - Who falls within the ordinary or extended meaning of "employee" under the Superannuation Guarantee (Administration) Act 1992 (SGA Act) has arisen again, and this time the result should trigger a review of your relationships with independent contractors. The decision of JMC Pty Ltd v Commissioner of Taxation [2023] FCAFC 76 emphasises the importance of a comprehensive written contract between parties and warns against an overly confined and narrow reading of its terms without proper regard to the broader commercial and practical context in which the agreement was made.
Corporate 5 Minute Fix 02: court approval for schemes of arrangements, meeting venues, estimates of mineralisation, greenwashing - 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.
Corporate 5 Minute Fix 03: company officers' personal liability, competing bids and exclusivity, greenwashing - 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. If you want to dig deeper into any of the issues we cover, we're always here to help. So, don't hesitate to contact us for more information, and our team will be happy to provide additional resources and assistance.
Environment and Sustainable Development 5 Minute Fix 38: emissions targets, renewables, fracking, water, koalas - 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, resources, sustainable development, planning and environmental protection.
Fewer revenue measures in Budget 2023-24 signal a holding pattern with more compliance – for now - With cost-of-living pressures as a major policy driver and inflation the major handbrake, Budget 2023 perhaps was never likely to be an opportunity for the Federal Government to impose significant new revenue-raising measures. It has instead chosen relatively modest tax measures and clarified or strengthened existing ones where additional revenue could be had, which nonetheless (in combination with many other factors) are projected to deliver a budget surplus.
Further IR reforms are on the way, including huge penalty increases for wage underpayments - Consultations are underway on criminalising wage theft, employee-like forms of work, "same job, same pay" for labour hire workers, and stronger protections for workers.
Further petroleum amendments to commence to implement Northern Territory Fracking Inquiry recommendations - The Petroleum Legislation Amendment Act 2022 (NT) is the third suite of Fracking Inquiry-related amendments to the Petroleum Act.
Get ready for fast-tracked investment for critical minerals and clean energy in Australia under new US-Australia Compact - Investors and industry participants should get ready now for co-ordinated policies and investment frameworks on critical minerals and renewable technology within and between Australia and the United States, following agreement on an Australia-United States Climate, Critical Minerals and Clean Energy Transformation Compact at the G7 over the weekend.
Gippsland offshore wind – time to partner up and pay up - Feasibility licence applications are now in for Gippsland offshore wind after many key players partner up to improve chances of success. We outline the next steps for the Minister to decide on licence applications and potential for a financial bid process to come.
Is that you? Deep dive into deepfakes part 3: Recent examples, tips and tricks - While they may seem complex, and they do certainly present risks to businesses and individuals, there are some key steps that can be taken to spot and circumvent the potential danger of deepfakes.
It's not a lie, says generative AI: untruths, defamation and the use of ChatGPT - ChatGPT can create false and defamatory material – and you can be liable if you publish it.
Listed takeovers to lose their tax concessional status in New South Wales - The Revenue Legislation Amendment Bill 2023, if passed, will amend the Duties Act 1997 (NSW) to remove the 90% concession that currently applies to the acquisition of public landholders such as listed companies and trusts which hold land in New South Wales. Such acquisitions would then be treated in a similar way to acquisitions of private landholders.
Long-awaited tax changes to propel build-to-rent investment in Australia - On 28 April 2023 the Federal Government announced a reduction in the managed investment trust (MIT) withholding tax rate for newly constructed residential build-to-rent projects (BTR) after 1 July 2024. Once the change is effective, foreign investors in qualifying jurisdictions (such as Singapore, Canada, Japan, Germany, the UK and US) will be eligible for a reduced rate of withholding tax (from 30% to 15%) on "fund payments" (broadly, a distribution of taxable income subject to certain adjustments) in relation to BTR projects in Australia.
Major Projects & Construction 5 Minute Fix 115: further defects, payment claims and adjudication, quantifying damages - Get your 5 Minute Fix of legal trends in Major Projects and Construction. In this edition: NSW Court of Appeal considers whether Owners Corporation’s amendments concerning further defects introduced a new cause of action; no shadows cast on referee's findings of fact; NT Supreme Court confirms a party can "re-set the clock" for an adjudication application by submitting another payment claim; certainty and particularity are key for quantifying damages, and NSW Security of Payment roundup.
Media Release: Clayton Utz boosts Commercial Litigation team with new partner, Matt Spain - Matt Spain has joined our firm in Melbourne as a partner in our top-ranked[i] national Litigation and Dispute Resolution team.
Media: International Perspectives on Greenwashing: Australia and the UK - Greenwashing is one of the keenest regulatory concerns for Australian businesses over the coming 12 months, with Australia being the stage for some of the most novel and innovative actions in global businesses.
More national workplace relations reforms on the horizon: Protecting Worker Entitlements Bill - Employers should consider how changes under a second tranche of workplace reforms may impact their workforce and how to practically address operational challenges presented by the new legal obligations.
No room for doubt: Overseas entities now clearly within the grasp of the ACCC's expansive investigative powers - Amendments to the law on section 155 notices have been introduced so the ACCC can effectively enforce the Competition and Consumer Act against market participants based overseas but engaging in market conduct in Australia.
Northern Territory Budget revenue measures 2023: taxes on non-land assets to be abolished - On 9 May 2023, the Northern Territory Budget was handed down and as part of the budgetary measures, the Northern Territory Government has announced a range of tax reforms. The reforms are included in the Stamp Duty Amendment Bill 2023 which is a bill to amend the Stamp Duty Act 1978. If passed, and upon assent by the Administrator, the Bill will enact the following revenue measures:
Poor report card on modern slavery compliance acknowledged with $8m to implement Anti-Slavery Commissioner - As part of the Labor Government's Tackling Modern Slavery election commitment, the Federal Budget 2023-24 included $8 million to establish an Anti-Slavery Commissioner to galvanise compliance with the Modern Slavery Act 2018 (Cth), monitor supply chains and guard against exploitation of vulnerable workers in Australia and overseas. The funding will be spread over four years ($2 million per year).
Pre-acquisition negotiations with minor interests: some good news from the Land and Environment Court - Acquiring authorities in NSW now have support from the Land and Environment Court to adopt a pragmatic approach that affords the six-month negotiation period to the primary interest holders in land only.
Proptech: Building and managing a smarter future in a post-COVID-19 world – intellectual property considerations - It is important that businesses proposing to utilise technologies within their property or that are purchasing “smart buildings” ensure that they have sufficient contractual and intellectual property (IP) rights in respect of such technologies.
Protecting decisions from human rights challenges in Queensland – getting the balance right - Queensland government decision-makers should pay attention to a Supreme Court decision published this week, which helps clarify when decisions can be challenged on human rights grounds under the Human Rights Act 2019.
Queensland's information privacy reforms present opportunities for alignment with Commonwealth and overseas regimes - With the Commonwealth and Queensland both undertaking comprehensive reviews of their privacy frameworks in 2022, there is a unique opportunity for reform which promotes alignment nationally between the Australian jurisdictions and with international privacy standards, such as the GDPR.
Queensland's proposed licensing pathway for hydrogen open for comment - On 9 May 2023, the Minister for Energy, Renewables and Hydrogen introduced the Gas Supply and Other Legislation (Hydrogen Industry Development) Amendment Bill 2023 Qld into the Queensland Parliament, the purpose of which is to provide an efficient and effective regulatory framework for the hydrogen industry. It is open for consultation until 6 June 2023.
Regulator ready: Countdown is on for the commencement of the NSW water industry competition reforms - The long-expected shake-up of NSW's water industry competition regime is drawing closer, as the Water Industry Competition Act 2006 regulator releases administrative guides for comment.
Shock-proofing Australia: Budget 2023 sparks new funding for energy and scam solutions - Overall the funding allocation to the ACCC is in tune with the regulator's objectives of enhancing the welfare of Australians through promotion of competition and fair trading and the protection of consumers.
The current state of play: State and Territory land tax relief for Build-to-Rent (BTR) projects - Given the persistent talk of a housing crisis in Australia, the States and Territories are under pressure to increase housing supply. As both a short-term and long-term response, a number of States and Territories have enacted various revenue measures to provide an incentive for developers to undertake BTR projects, and we have set out the land tax relief currently available in the table below.
The final pieces in Australia’s Emissions Safeguard Mechanism reforms - The reformed Safeguard Mechanism is almost set to commence on 1 July 2023, as the Federal Government has released a set of legislative rules setting out the detailed design for the scheme.
The resurgence of enterprise bargaining 02: Ready, set, go! How enterprise bargaining begins - Employers need to know how bargaining begins under the new legislation, when they can be compelled to bargain, and what they should do before bargaining begins.
The Victorian Government walks a delicate tightrope in the 2023/2024 Budget - The Victorian Government has announced a number of revenue measures with the dual purpose of supporting Victorian small businesses with tax concessions and repaying the monumental COVID-19 debt by targeting large and non-resident taxpayers.
Thinking about investing in Australia? Here's how the Federal Budget 2023-24 affects you - Foreign investors and their advisers should be looking keenly at three measures in Australia's Federal Budget, handed down on Tuesday night, which could affect their current or future investment plans.
What is "essential" koala habitat: QCAT explains the statutory test - The Queensland Civil and Administrative Tribunal has strictly applied the statutory test for making a koala habitat area determination for an area within a koala district. The small size of the area and an absence of evidence that koalas used the site were also important considerations in this case, however the true test is whether the habitat was essential.

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.