Publications

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Employers put on notice of the application and extended coverage of the Miscellaneous Award 2010

Employers are reminded to be very cautious when attempting to classify their junior or low-paid employees as “award free“. In a recent case before the Fair Work Commission, the Full Bench held that the exclusions under Clause 4.2 of the Miscellaneous Award 2010 (Miscellaneous Award) had been previously incorrectly interpreted and should readily apply to … Read more


Copyright Act Amendments: Safe Harbour and Disability Access

Summary Safe harbour changes The ‘safe harbour’ scheme, as set out in Division 2AA of Part V of the Copyright Act 1968 (Act) was drafted to offer some legal protection to carriage service providers in exchange for assisting rights holders with the identification of copyright infringers. The scheme protects carriage service providers from copyright infringements … Read more


Failing to renew a maximum term contract: can an unfair dismissal claim now be made?

Following a recent significant decision by the Full Bench of the Fair Work Commission, employees who cease employment at the end of an agreed contractual term may now be entitled to make an unfair dismissal claim. Previously, an employee who was engaged for an agreed maximum term (e.g. 12 months) was not entitled to unfair … Read more


Tax Insight: Update – Withholding GST on property transactions

On 7 February 2018, the Treasury Laws Amendment (2018 Measures No. 1) Bill 2018 (the Bill) was introduced into the House of Representatives. The Bill seeks to implement the announcement in the 2017-18 Federal Budget that purchasers of new residential premises or new residential subdivisions would pay the GST on the purchase price directly to … Read more


7th Edition – National Workers Compensation Quarterly Review

Welcome to the latest edition of HWL Ebsworth’s National Workers Compensation Quarterly Review. We are delighted to bring you another series of articles reflecting recent legal and other industry developments within the workers compensation sector across different States and Territories. We hope that you will enjoy this edition of our Quarterly Review and encourage you … Read more


Finally some good news for retail landlords!

Coming off the High Court’s recent refusal to grant the landlord special leave to appeal the decision in the case of ‘CB Cold Storage’, which confirmed the extensive breadth of the ‘ultimate consumer test’, there may finally be some good news for retail landlords. Significantly, VCAT in the January 2018 case of William Buck (Vic) Pty … Read more


Carillion collapse: a warning for the Australian construction industry

Carillion (the UK’s second largest construction company) went into liquidation in mid January 2018, with reported debts of approximately £1.5bn. In the UK, this has caused significant and ongoing angst within the UK Government and the construction industry more broadly about how such an important and large player could “go under”, and how to untangle … Read more


New ‘open and transparent sale process’ requirements for agricultural land acquisitions by foreign investors

Background On 1 February 2018, the Commonwealth Government updated its guidance in relation to agricultural land acquisitions by foreign investors. Foreign investors seeking FIRB approval for an agricultural land investment will now need to demonstrate that the agricultural land has been the subject of an ‘open and transparent sale process’. The Government’s aim is to … Read more


22nd Edition – National Insolvency & Reconstruction Quarterly Review

Welcome to the latest edition of our National Insolvency & Reconstruction Quarterly Review for the period 1 October 2017 to 31 December 2017. 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: Examines the decision in Ten Network … Read more


Minimum expiry date for gift cards under new law

Citing concerns that consumers were losing benefits because of expiry dates and administrative fees, the New South Wales government has introduced new laws concerning gift cards.  The Fair Trading Amendment (Ticket Scalping and Gift Cards) Bill 2017 was passed by NSW Parliament late last year, with the rules commencing from 31 March 2018. The new … Read more


Potential changes to Queensland’s land clearing laws and the impact upon land owners

It is important that land owners intending to clear vegetation on their property in Queensland in the near future take note of potential changes to vegetation management laws. Prior to the 2017 Election, the State Government promised to reinstate restrictive vegetation management laws that were repealed by the Newman government. This commitment was to be … Read more


Tax Insight: Australian Taxation Office to data match visa holders, international students and migration agents 澳大利亚税务局将对签证持有人、国际学生和移民中介进行信息匹配审查

中文 To view the article in Mandarin, click here. The Australian Taxation Office will conduct a data matching program of visa holders, international students who work in Australia and migration agents who help people migrate to Australia. Personal records for the period 1 July 2017 to 30 June 2020 of over 20 million visa holders … Read more


New advertising guidelines for comparative claims made by Universities

Crackdown on comparative claims by universities in the United Kingdom In late 2017, the Advertising Standards Authority (ASA) in the United Kingdom examined a range of complaints made in respect of various advertising campaigns run by six universities in the United Kingdom. The majority of complaints pertained to allegedly misleading or unsubstantiated claims made by … Read more


Anti-money laundering and counter terrorism financing requirements extended to cryptocurrency exchanges

Money laundering is widely recognised as a key enabler for criminal activity, and the recent rise of pseudonymous cryptocurrencies has created new ways for this occur. Existing Australian laws in relation to money laundering were not fully equipped for these developments, but amendments have been passed by Parliament to address such matters. ‘These will commence … Read more


New EU Data Protection Regulations

Summary The European Union General Data Protection Regulation (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 likely to have an impact on Australian businesses that operate … Read more


Grant funding opportunity – SA & VIC manufacturing projects

The Australian Government announced in the 2017-18 Budget the $100 million Advanced Manufacturing Fund (the Fund). Part of the Fund is the $47.5 million Advanced Manufacturing Growth Fund (the Growth Fund) which runs over 4 years from 2017-18 to 2020-21. There is $16.4 million in grant funding allocated to Round 2 of the Growth Fund … Read more


ACCC calls for reforms to new car retail industry

On 14 December 2017, the ACCC released its final report setting out recommendations it says will improve the new car retail industry for consumers. Importantly for new car dealers, the report recognises that there is a power imbalance between new car retail manufacturers and dealers and identifies a range of potential reforms to address this … Read more


HWL Ebsworth Insurance Review

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 … Read more


Consultation Begins on Exposure Draft Road Vehicle Standards Bills

The Federal Government yesterday released a reform package, including bills designed to replace the existing Motor Vehicle Standards Act. The reform package will includes making the importation of used cars significantly less expensive and expanding existing motor vehicle recall obligations. The Motor Vehicle Standards Act controls the safety, environmental and anti-theft performance of all vehicles entering … Read more


Automotive Industry Group Regulatory Update – December 2017

Welcome to the December 2017 HWL Ebsworth Automotive Industry Group Regulatory Update. HWL Ebsworth seeks to keep you updated with the changing automotive industry environment across new legislation, developing policy and pertinent case law developments. This Update provides essential information for those wanting to stay abreast of the challenges and issues facing the automotive industry. … Read more


Competition law changes – Opportunities for franchise systems

On 6 November 2017, the most significant changes to Australia’s competition laws in over 20 years came into force. Press reporting has focused on changes in the law on misuse of market power. However, other changes have greater significance for franchising systems. These include the following: An end to the prohibition on third line forcing … Read more


GossIP: Intellectual Property, Technology and Media Newsletter

Welcome to our Newsletter, bringing you the latest in Intellectual Property, Technology and Media Law news. Australian streaming service takes aim at group that racially harassed senator Sam Dastyari Australian streaming company Stan has written a trade mark letter of demand to Patriot Blue, alleging that the group’s name has been taken from their upcoming … Read more


National Transport Commission Releases Enforcement Guidelines for Automated Vehicles

The National Transport Commission (NTC) has released guidelines about how the requirement of proper control in the Australia Road Rules should apply to vehicles with automated functions. The NTC is the body responsible for developing law reform proposals to apply to and accommodate vehicle automation. Australia’s current road traffic laws are based on the premise … Read more


Queensland Government Newsletter

Welcome to this edition of the HWL Ebsworth Queensland Government newsletter. This occasional newsletter brings together a series of articles of interest to Queensland Government. This month we focus on recent legal developments in Litigation, Competition, Insolvency and Construction. The aim of this newsletter is to provide Queensland Government stakeholders with information on recent reforms … Read more


Insolvency & Restructuring Law Reform: “Safe Harbour” commences, and impact on contractual Termination Clauses

Insolvency law and practice is undergoing significant reform. This reflects the Government’s Innovation and Science Agenda, namely the approach to business restructure, with an increasing emphasis on turnaround and early intervention. There are two statutory reforms, passed in September 2017 (both by way of amendment to the Corporations Act 2001 (Cth)), of particular significance, and … Read more


Wide Ranging Reforms to Queensland’s Building and Construction Industry

Recent legislation has triggered wide-ranging reforms for Queensland’s building and construction industry. Non-Conforming Building Products From 1 November 2017, designers, manufacturers, importers, suppliers and installers of building products: Must (each) ensure that building products conform with their intended use1 ; and Face prosecution if they do not notify the Queensland Building and Construction Commission (QBCC) … Read more


Litigation and dispute resolution: the importance of well-drafted arbitration clauses

Two recent Federal Court decisions provide examples of the importance of well-drafted arbitration clauses. In both cases, the use of arbitration was accepted by the court, despite counterparties raising a number of issues and criticisms in each case. In Liaoning Zhongwang Group v Alfield Group, the Federal Court ruled that a Chinese arbitral award regarding … Read more


Competition and communications: ACCC releases draft communications sector market study report

The ACCC has released its draft communications sector market study report, and is currently seeking submissions. The closing date for submissions is 8 December 2017 and we anticipate further developments in this area as the NBN roll-out continues. Key findings of the study include: Although prices are dropping and data quotes are rising, communications markets … Read more


Tax Insight: Thomas’ Case: The uneasy relationship between tax and trust law

The somewhat strained and counterintuitive relationship between tax law and trust law has again been highlighted with the Full Federal Court’s controversial decision earlier this year in Thomas v Commissioner of Taxation [2017] FCFCA 57 (Thomas’ Case).  In Thomas’ Case, the Full Federal Court held that: The Commissioner of Taxation (Commissioner) was compelled to follow the Queensland Supreme … Read more


Bills of lading – Who might you mislead?

In October this year the District Court of New South Wales handed down a judgment in the matter of Australian Capital Financial Management Pty Limited (ACFM) v Freight Solutions (VIC) Pty Limited (Freight Solutions) [2017] NSWDC 279 that provides a clear warning to freight forwarders and all those issuing bills of lading. Freight Solutions (an … Read more


Tax Insight: Draft legislation released on withholding GST on property transactions

On 6 November 2017, Treasury released for public consultation Exposure Draft legislation on a new GST withholding regime. These changes are to implement the announcement in the 2017-18 Federal Budget that purchasers of new residential premises or new residential subdivisions would pay the GST on the purchase price directly to the ATO as part of … Read more


Competition law changes come into force TODAY

Last month two Acts implementing the biggest changes in Australia’s competition laws in over 20 years were passed into law. On Thursday last week a commencement date of 6 November 2017 was proclaimed for these changes.  Most changes are therefore in force TODAY – earlier than was generally expected. From today: The controversial ‘effects test’ … Read more


Australian Government Agencies Privacy Code: your one-page cheat sheet

The Australian Government Agencies Privacy Code was registered on 27 October 2017 and will come into effect next year. It requires agencies to take a range of specific steps to move towards a best practice approach to privacy governance. Click here for a handy one-page summary on what you need to do to prepare.


Internal or external investigation?

The difficult decision of whether to undertake an internal or external investigation Employers regularly deal with allegations of inappropriate or unlawful conduct. Although not all allegations will amount to a breach of the law or be substantiated, it is still important for employers to actively manage any allegations to limit the risk of claims (e.g. … Read more


Federal Treasury’s new proposals: reforms to corporate misconduct penalties, the regulatory sandbox and whistleblower protection

The Australian Government Treasury department (Treasury) has commenced consultation on a number of new proposals which will have significant implications for financial institutions and other corporations. Treasury has last week released draft legislation and position papers in respect of the following: ASIC Enforcement Review (Enforcement Paper) – which proposes to strengthen corporate and financial misconduct … Read more


Tax Insight: Foreign equity distributions to Australian companies via partnerships & trusts

The Australian Taxation Office (ATO) has recently issued Taxation Determinations TD 2017/21 and TD 2017/22 (the ATO Determinations) which are relevant to Australian companies that receive foreign equity distributions (eg dividends) via an Australian partnership or trust. Broadly, an Australian company is not subject to tax in Australia on foreign equity distributions where certain conditions … Read more


Crowd-sourced funding legislation

On 29 September 2017 new legislation came into effect for equity crowd-sourced funding (CSF) allowing small unlisted public companies to obtain funding in an innovative way by raising small amounts of capital from a large number of investors. This is a key alternative to the current fundraising options permitted under the Corporations Act 2001 (Cth) … Read more


ACCC successfully enforces the B2B UCT law in court action against waste management provider, JJ Richards

The ACCC has been successful in its first court action enforcing the business to business unfair contract terms regime. The action was taken against JJ Richards & Sons Pty Ltd (JJ Richards), one of the largest privately-owned waste management companies in Australia and concerned JJ Richard’s service agreement. Background From 12 November 2016, the business … Read more


Competition Law in Australia enters uncharted waters

The Federal Government last week passed the Competition and Consumer Amendment (Competition Policy Review) Act. This and the linked Competition and Consumer Amendment (Misuse of Market Power) Act amend the Competition and Consumer Act 2010 (CCA) to implement recommendations from the ‘Harper Review’ of competition law that commenced in 2014. Together, the two Acts implement … Read more


Tax Insight: Reduced corporate tax rate – New passive income test

Yesterday, the Treasury Laws Amendment (Enterprise Tax Plan Base Rate Entities) Bill 2017 was introduced in the House of Representatives, placing further limits on the eligibility for the reduced corporate tax rate, currently 27.5%. What’s changed? Currently, a company qualifies for the reduced corporate tax rate of 27.5% if they are a corporate tax entity … Read more


21st Edition – National Insolvency & Reconstruction Quarterly Review

Welcome to the latest edition of our National Insolvency & Reconstruction Quarterly Review for the period 1 July 2017 to 30 September 2017. A significant amount of activity has occurred in our space over the last quarter and we outline a few of those matters in this edition. In particular, our team: Examines some of … Read more


Pre-appointment work – where is the line?

The importance of a Declaration of Independence, Relevant Relationships and Indemnities (DIRRIs) and the independence of external controllers has been a focus for an extended period of time, since before the ASIC v Franklin decision.  In increasingly large and complex insolvency matters, the issues of independence and its perception of independence are matters that not … Read more


In the matter of Ten Network Holdings Limited (Administrators Appointed) (Receivers and Managers Appointed) and Others [2017] NSWSC 1247

Background The Ten Group of Companies (Ten Group) entered into voluntary administration on 14 June 2017 and appointed Mark Korda, Jarrod Villani and Jenny Nettleton of Korda Mentha as joint and several administrators (Administrators) of each of the companies within the Ten Group. On 7 August 2017, the Administrators invited the submission of recapitalisation and … Read more


Insolvency Law Reform – A new world for creditors after 1 September 2017

The Insolvency Law Reform Act 2016 (Cth) (ILRA) has introduced an extensive suite of changes to insolvency law. The reforms have been implemented in two tranches, the first of which commenced on 1 March 2017 and the second tranche of reforms commenced on 1 September 2017. As part of the reforms to insolvency law, the … Read more


Limitations to the right of set off

Introduction A recent decision of the Supreme Court of Western Australia has held that where a company is in liquidation: The only right of set off available to a debtor is pursuant to section 553C of the Corporations Act 2001 (Cth) (Act) and contractual and other rights of set off are not enforceable; and Where … Read more


Creditors beware: a judgment debt is not always enough

Introduction It is well-known that Bankruptcy Courts have the power (and obligation) to ‘go behind’ a judgment in certain circumstances to determine if there is a genuine debt.  Most attempts to do so involve either a default judgment or allegations of improper conduct. What has not been clear was when the Bankruptcy Courts would be … Read more


Door rolls open for administrators to recover remuneration for work impliedly requested: the latest in a line of cases on invalid appointments

Darwin is not ordinarily regarded as a petri dish of insolvency jurisprudence, but the Northern Territory Supreme Court’s recent decision in Blackadder v McQuinn (No. 2) [2017] NTSC 57 has broken new ground by expanding the extent to which invalidly-appointed administrators can claim remuneration and expenses. Ordinarily, when a company is validly placed into voluntary … Read more


Changes to the Queensland Planning Regulation to allow development applications to be lodged prior to remediation or validation of contaminated land

On 10 August 2017, we provided our first in a series of e-alerts regarding difficulties with the implementation of the new Planning Act 2016 (Planning Act) and the Planning Regulation 2017 (Regulation).  As at the date of our previous e-alert, a development application for a material change of use for a sensitive use or a commercial use involving an … Read more


5th edition – Life Insurance Quarterly Newsletter

We are delighted to welcome you to the fifth edition of the HWL Ebsworth Life Insurance Quarterly Newsletter. With insurance lawyers in each capital city, HWL Ebsworth has one of the largest insurance practices in Australia, dedicated to assisting clients in all aspects of insurance and reinsurance. Within the national practice group we have a … Read more