SA to get new minimum expiry date for gift cards

Summary As we discussed in an alert earlier this year, the New South Wales Government introduced new laws on 31 March 2018 to provide greater consumer protections to users of gift cards. The rules provide for a three-year minimum term on gift cards, and prohibit any charges or fees applied after the sale of a gift … Read more

General Data Protection Regulation privacy changes

EU General Data Protection Regulation (GDPR) As per our previous publication, dated 22 January 2018, the European Union GDPR will be in effect from 25 May 2018, and will replace existing data protection rules set out in the 1995 European Directive 95/46/EC. While the GDPR will be law in the European Union (EU), it is … Read more

Common questions concerning GST withholding law

The new GST withholding law commences on 1 July 2018. We are fielding a number of commonly asked questions concerning the operation and application of the new law. Here are some commonly asked client questions and our responses. If you need any assistance, please do not hesitate to contact us. 1. When does the GST … Read more

Tax Insight: Tax compliance certificates and government tenders

Treasurer Scott Morrison recently released the 2018-19 Federal Budget (Budget).  One key Budget measure and recommendation of the Government’s Black Economy Taskforce (Taskforce) will significantly affect businesses tendering for government contracts. The Australian Treasury is currently consulting on this proposed measure with submissions due by 15 June 2018. From 1 July 2019, it has been … Read more

Broad reach of cartel prohibitions confirmed in record-setting case

The Full Federal Court has imposed a record penalty for cartel conduct of $46 million in a case that also confirmed that a broad interpretation is to be given to the cartel prohibitions. The case involved an appeal from an earlier decision in which the ACCC succeeding in proving that Yazaki, a Japanese company that … Read more

ASX Corporate Governance Principles 4th Edition Consultation Paper Released

The ASX Corporate Governance Council (Council) has released its consultation paper for the fourth edition of the ASX Corporate Governance Principles and Recommendations (CG Principles) proposing a range of changes relevant to listed entities’ governance structures and reporting requirements. Whilst the Council acknowledges that Australian corporate governance operates at a high level in comparison to international standards, … Read more

‘Loot boxes’: a new form of gambling?

Microtransactions (payments of real money within a game for items, benefits, downloadable content, etc) first gained popularity as a method of monetising so-called ‘freemium’ mobile app games. They have now become a feature of triple-A games, including Overwatch, Star Wars: Battlefront II (however temporarily), FIFA 2017 and Call of Duty: WWII and account for billions in … Read more

Insurance bulletin – May 2018

Welcome to the latest edition of the HWL Ebsworth Insurance Review. We are delighted to bring you content addressing a range of current and emerging insurance issues, trends and cases from across our offices nationally, across various lines of business. We trust you will find this edition of our Insurance Review helpful and informative. Should you … Read more

Casualty update – obvious risk, dangerous recreational activity & waivers

An “obvious risk” is a risk that would be obvious to a reasonable person in the position of the person who suffers harm. The determination of obvious involves a ‘forward looking enquiry’ as to whether the risk that eventuated would have been obvious to the hypothetical reasonable person. This means that both the factual scenario facing … Read more

Contractual liability exclusions – why insurers and insureds need to be mindful

Most liability policies contain some form of contractual liability exclusion. This commonly in terms that the insurer will not be liable of any loss assumed by the insured under a contract or agreement, save to the extent such liability would have attached to the insured in the absence of such contract or agreement (under the … Read more

Some recent professional indemnity decisions

The first quarter of 2018 has seen some important decisions come out of the highest courts of our land relating to professional indemnity insurance. We highlight the following three cases for you, involving a certifier, a building inspector and an engineer respectively. We trust they are of interest to our readers working in the PI space. High … Read more

Insurers not faring well under new legislation enabling insurers to be joined

The Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) (the Act) took effect on 1 June 2017. Since then, two court judgments have been handed down that were adverse to the insurers’ positions1. A third decision in February 2018 however demonstrates that applications will not be granted willy-nilly. As further applications for the joinder … Read more

Update re whistle – blower regime

In our “Regulatory spring clean” article of the December 2017 Edition (available here), we reported the draft whistleblower legislation, being the Treasury Laws Amendment (Whistleblowers) Bill 2017 released on 23 October 2017, was to go before an expert advisory panel to consider the recommendations from the Federal Parliamentary Joint Committee on Corporations and Financial Services … Read more

Use of clean fill on development sites not subject to levy

The WA State government passed legislation on 28 April 2018 that permits clean fill (and other fill material meeting certain thresholds) to be used on development and construction sites without payment of levy under the Waste Avoidance and Resource Recovery Levy Regulations 2008 (WA) (Levy Regulations). These changes will help resolve the legal uncertainty for developers and … Read more

Tax Insight: 2018-19 Federal Budget

Last night, Treasurer Scott Morrison released the 2018-2019 Federal Budget (Budget). In his speech, the Treasurer outlined five key principles which have shaped the development of this Budget: Provide tax relief to encourage and reward working Australians; Back business to invest and create more jobs; Guarantee essential services for all Australians; Keep Australians safe; and … Read more

ACMA bans bookies ads in broadcasts of live sport

Last year, the Turnbull Government announced that it was moving to restrict the promotion of gambling and betting to curb problem gambling and make sport more family friendly. This led to amending the Broadcasting Services Act (Act) and new broadcasting codes of conduct registered with the Australian Communications Media Authority (ACMA). There are also draft rules … Read more

ACCC Recommends Mandatory Data Sharing for Automotive Industry

ACCC Chairman Rod Sims declared last Friday, 4 May 2018 at an automotive industry event that voluntary data sharing arrangements between motor vehicle manufacturers and the aftermarket sector have failed. At the event, run by aftermarket industry group the Australian Automotive Aftermarket Association (AAAA), Mr Sims stated that the ACCC’s recent new car retailing industry … Read more

Consultation on draft rules for gambling ads in online live sport

Last year, the Turnbull Government announced that it was moving to restrict promotional content of gambling and betting in order to curb problem gambling and make sport more family friendly. This led to amendments to the Broadcasting Services Act (the Act), as well as a series of new broadcasting codes of conduct (Codes) registered with the … Read more

23rd Edition – National Insolvency & Reconstruction Quarterly Review

Welcome to the latest edition of our National Insolvency & Reconstruction Quarterly Review for the period 1 January 2018 to 31 March 2018. A significant amount of activity has occurred over the last quarter and we outline a few of those matters in this edition. In particular, our team: Considers the recent appeal decision in … Read more

Medical opinions justifying dismissal now open to Fair Work Commission scrutiny

Until recently, employers had greater ability to make a final call when weighing competing medical evidence to determine if an employee is fit to perform the inherent requirements of his or her role. In appropriate cases, this empowered employers to consider whether an independent specialist’s opinion would trump an employee’s GP certificate when assessing an … Read more

Health law update (Melbourne)

Coroner’s court – Inquest into death of Louis Oliver Tate 13 year old Louis Oliver Tate passed away on 23 October 2015. Louis had a history of asthma and allergies to cow’s milk, raw egg, peanuts, and tree nuts. On 21 October 2015, he was experiencing an exacerbation of his asthma. As a result he … Read more

Automatic renewal clauses increasingly vulnerable under the Australian Consumer Law

An automatic renewal clause typically provides that a contract is automatically extended for a further term upon the occurrence or non-occurrence of certain events.  For example, a contract may be automatically extended for a further one year period if the other party does not provide written notice terminating the contract at least 30 days before … Read more

VCAT update: extension to planning permit granted despite Better Apartment Design Standards

Gagliano v Moreland CC [2018] VCAT 527 VCAT recently granted an extension to a planning permit for a seven storey building, despite non-compliance with the recently introduced Better Apartment Design Standards (BADS). James Lofting of HWL Ebsworth Lawyers successfully represented the applicant. The decision is significant as it provides clear guidance on the weight to … Read more

Rents will tumble: Medical centres, hospitals and dental clinics forced to charge market rate rent to co-located pathology collection centres

The following article was co-written with William Buck. Since being enacted in 2008, “prohibited benefits” laws have been unenforced and widely unfollowed. Many medical centres, hospitals and dental clinics have routinely charged rents substantially above market rates to pathology collection centres co-located on their premises. A new regime of enforcement by Medicare will start to … Read more

Important Proposed Amendments to Intellectual Property Legislation in Australia

On 28 March 2018 the Intellectual Property Laws Amendment (Productivity Commission Response Part 1 and Other Measures) Bill 2018 (Cth) (Bill) was introduced to the Federal House of Representatives. The Bill proposes amendments to all intellectual property legislation apart from the Circuit Layouts Act 1989 (Circuit Layouts Act). Changes are proposed in respect of the Copyright Act 1968 (Copyright Act), the Trade … Read more

Chain of responsibility and executive officer liability reforms – understand your liability under the changes to the Heavy Vehicle National Law

If you are a director or an executive of an organisation that supplies or uses heavy vehicles to transport goods, you must make sure that you understand your obligations and potential liability under the amended Chain of Responsibility laws taking effect on 1 July 2018. Under the new regime, penalties of up to $300,000 and … Read more

Federal Court sets penalty in Flight Centre case

The Full Federal Court has handed down its decision on penalty in relation to the long-running Flight Centre case. The Court has ordered Flight Centre to pay a total penalty of $12.5 million in relation to five contraventions of the Trade Practices Act (TPA) that occurred between 2005 and 2009. In setting this penalty, the Court … Read more

Update on the Australian digital currency regulations

There have been a number of updates to the current regulatory regime relevant to the digital currency market in Australia. The update below will cover new guidance from the ATO, ASIC, ASX and AUSTRAC. 1. Australian Tax Office (ATO) The ATO has published an expanded note on digital currency such as bitcoin. The ATO reiterates … Read more

Tax Insight: Update – Purchaser GST withholding Bill receives Royal Assent

On 29 March 2018 the Treasury Laws Amendment (2018 Measures No. 1) Bill 2018 (the Bill) received Royal Assent and will take effect from 1 July 2018. The Bill passed the House of Representatives and the Senate unchanged from its original form, meaning that purchasers of new residential premises or subdivisions will be required to remit the GST payable on … Read more

ASIC reports on corporate finance

ASIC has released its eighth report on the regulation of corporate finance issues in Australia (Report 567: ASIC regulation of corporate finance: July to December 2017) to provide greater transparency around ASIC’s role in the regulation of corporations and corporate transactions. The report provides key insights about ASIC’s regulatory approach to assist companies and their … Read more

Intellectual Property, Technology and Media Newsletter – March 2018

Welcome to our Newsletter, bringing you the latest in Intellectual Property, Technology and Media Law news. HWL Ebsworth successfully defends Thunder Road over ‘Pacific Ale’ HWL Ebsworth has successfully defended the owners of Melbourne-based brewery Thunder Road in an intellectual property dispute brought by Byron Bay’s Stone & Wood. Click here to view more. Copyright … Read more

From a trickle to a flood – Dealing with Australia’s new notifiable data breach scheme

In recent years it has been hard to escape the rising numbers of high profile incidences of data breaches, where the private information of individual customers or clients is stolen, leaked or merely lost by companies and government entities who have been entrusted with that information. In Australia, Parliament recently concluded that the public’s expectations … Read more

eSports – a new type of competition, same old legal issues (but different?)

One of the defining features of the generation dubbed “Millennials” is their love of all things digital.  Nothing exemplifies this better than the explosion in popularity of eSports. What are eSports? Rather than traditional sports, the sport of choice for younger generations is often eSports – competitive video gaming (yes, it’s a real thing).  In … Read more

Copyright in computer programs

The recent New South Wales Supreme Court decision in EIFY Systems Pty Ltd v 3D Safety Services Pty Ltd [2017] NSWSC 1310 (EIFY v 3D) has reaffirmed the application of Australian copyright law as set out in the Copyright Act 1968 (the Act) to computer programs. EIFY Systems Pty Ltd (EIFY) provided an online induction … Read more

Banking and Finance Disputes Monthly

Reminder – bank’s duties to customers in relation to forged cheques The purpose of this article is to provide a short reminder of a bank’s duties to its customers in relation to forged cheques and, in particular, where the allocation of risk lies as between a bank and its customer. Introduction Cheque use in Australia … Read more

2018 Senate inquiry into the Franchising Code of Conduct and Oil Code

On 22 March 2018 the Senate passed a motion made by Senator John Williams to refer a matter to the Parliamentary Joint Committee on Corporations and Financial Services (Joint Committee) for inquiry and report by 30 September 2018 (Senate Inquiry). This Senate Inquiry is quite different to the extensive review conducted by Mr Alan Wein … Read more

Foreign businesses beware: the Australian Consumer Law goes global

Valve Corporation v Australian Competition and Consumer Commission [2017] FCAFC 224 The Full Federal Court has affirmed a $3 million penalty levied against Valve Corporation (Valve) for contraventions of the Australian Consumer Law (ACL). Valve was held to have made false or misleading representations about the existence or exclusion of a guarantee or remedy in … Read more

Palmer Wind Farm decision quashes objections and provides clarity to wind farm developers

What does this decision mean for wind farm proponents / operators? The decision provides clear determinations on issues that are commonly raised by objectors to wind farm proposals. The decision makes it clear that the more a proponent is on the front foot in addressing these issues, the smoother the approvals process should run. We … Read more

Stamp duty amnesty period for motor car traders

In a recent Duties Bulletin, the Victorian State Revenue Office (SRO) has offered licensed motor car traders (LMCTs) an opportunity to voluntarily disclose, before Thursday 31 May 2018, any motor vehicles they have incorrectly obtained a duty exemption on over the last five years. By doing this, they will reduce the amount of penalty tax payable … Read more

HWL Ebsworth successfully defends Thunder Road over ‘pacific ale’

HWL Ebsworth has successfully defended the owners of Melbourne-based brewery Thunder Road in an intellectual property dispute brought by Byron Bay’s Stone & Wood. Since 2010, Thunder Road has sold a range of beers described as ‘Amber’, ‘Golden’, ‘IPA’, ‘Pale Ale’ and ‘Pilsner’ under its ‘Thunder Road’ brand name and iconic Thor logo. Thunder Road introduced … Read more

Trust Me – Amerind appeal delivered and some measure of clarity provided

One of the most vexing issues facing the insolvency profession has been, and continues to be, the interrelationship between insolvency laws and the laws of trusts. With competing lines of authority pronounced by eminent judges, the industry has been in an understandable quandary, and has been awaiting the outcome of 2 appellate cases heard in … Read more

Queensland land valuation notices to be issued today

The Valuer-General has announced that 22 of Queensland’s local government areas will receive an annual valuation for 2018 today. The local government areas are Banana, Barcoo, Boulia, Bulloo, Central Highlands, Charters Towers, Diamantina, Douglas, Fraser Coast, Gladstone, Gold Coast, Goondiwindi, Hinchinbrook, Isaac, Maranoa, Murweh, Noosa, Paroo, Quilpie, Scenic Rim, Sunshine Coast and Toowoomba. Land valuation … Read more

Environment Ministers endorse Australia’s first PFAS National Environmental Management Plan

Australia’s Environment Ministers have endorsed a National Environmental Management Plan (Plan) for per- and poly-fluoroalkyl substances (PFAS).  The Plan is Australia’s first to provide a consistent, practical and risk-based framework for the management and regulation of sites and materials contaminated with PFAS.  As such, it will be welcomed by regulators, industry and property owners affected … Read more

Mandatory recall obligations – Takata airbags

The Assistant Minister to the Treasurer has today issued a compulsory recall for all vehicles with defective Takata airbags, following an ACCC safety investigation. The ACCC has today stated that the Minister decided to issue a compulsory recall because, based on extensive evidence provided to the ACCC: It is reasonably foreseeable that use of vehicles … Read more

Amendments to the Environmental Planning and Assessment Act 1979 commence tomorrow

Many of the amendments to the Environmental Planning and Assessment Act 1979 passed by the NSW Parliament last year will take effect tomorrow on 1 March 2018. The most obvious and immediate change will be the structure and numbering of the Act, with other amendments subject to savings and transitional provisions which will be contained in (yet … Read more

ACCC announces new car retailing & consumer guarantees as compliance & enforcement priorities

On 20 February 2018, the ACCC announced that new car retailing was among its top 2018 Compliance & Enforcement Priorities. Specifically, the ACCC identified as a priority: ‘consumer issues in new car retailing, including responses by manufacturers and dealers to consumer guarantee claims and other matters identified in the ACCC’s 2017 New Car Retailing Industry … Read more

New State Environmental Planning Policy (SEPP) for remediation of land

The NSW Government is proposing an overhaul to policy on remediation of land and contamination including a new Remediation of Land SEPP and revised Contaminated Land Planning Guidelines. The Government has released; An Explanation of Intended Effect (EIE) for the proposed new SEPP; and Draft Contaminated Land Planning Guidelines. for public comment by the 31 … Read more

New privacy laws commence today

The Privacy Amendment (Notifiable Data Breaches) Act (Cth) 2017 came into force today. All APP Entities are now required to notify affected individuals and the Information Commissioner if they suspect that: A data breach has occurred; and There is real risk of serious harm as a result of the breach. The mandatory data breach notification … Read more