Acumen March 2017

acumen: noun – quickness of perception; keen insight.

A range of legal issues from October to December 2017 relevant to corporate counsel and senior executives, written by our senior practitioners.

 

Competition

• Going “natural” – when product claims are artificial
  In September 2017, the Federal Court found that supermarket chain, Aldi, had engaged in misleading or deceptive conduct in contravention of the Australian Consumer Law by using the word “natural” in relation to its haircare product line.
   

Planning & environment

• Navigating the maze – practical advice for directors and managers for executive liability offences in environmental law
  Recent judgements issued by the NSW Land and Environment Court have shone a light on the vulnerable position of directors and managers with regards to executive liability offences under environmental legislation in NSW.
• Introducing the NSW Biodiversity Conservation Reform Package – what to know moving forward
  As we wind down to farewell the year that has been 2017, the time has come to pause and reflect on the developments that have come to pass over the last months.
• The future of the water trigger
  In June 2013, the Environment Protection and Biodiversity Conservation Act 1999 (Cth) was amended to make water resources a matter of national environmental significance in relation to large coal mining and coal seam gas developments.
• Water compliance and enforcement – a new Natural Resources Access Regulator in NSW
  A new independent Natural Resources Access Regulator (Regulator) has been established in NSW to increase public confidence in water resource regulation by improving consistency, accountability and transparency of water compliance and enforcement.
   

Energy & resources

• New incentives for mineral exploration: Treasury Laws Amendment Bill 2017
  The Treasury Laws Amendment Bill 2017 (Cth) has been introduced to the House of Representatives; if enacted, the Income Tax Assessment Act 1997 (Cth) will be amended to repeal the current Exploration Development Incentive scheme, and replace it with a new Junior Minerals Exploration Incentive scheme.
   

Restructuring & insolvency

• The status of the trustee’s right of indemnity in the winding up of insolvent trustees – the latest guidance from the Federal Court of Australia
  In the recent Federal Course case of Lane (Trustee), in the matter of Lee (Bankrupt) v Deputy Commissioner of Taxation [2017] FCA 953, Justice Derrington provided an in-depth analysis of the principles relating to an insolvent trustee’s right of indemnity over trust assets.
• Reform of Part 5.8A and the Fair Entitlements Guarantee Scheme
  The Federal Government will soon release draft legislation that, if passed into law, will reform Part 5.8A of the Corporations Act 2001 (Cth). The reforms are part of a wider policy to curb the misuse by corporates of the Fair Entitlements Guarantee which often leads to the cost of employee entitlements being shifted to the taxpayer.
• Providing Safe Harbour advice – issues for insolvency practitioners to consider
  The new section 588GA of the Corporations Act 2001 (Cth) provides a “safe harbour” from insolvent trading claims for directors who, when suspecting a company may be or is insolvent, start developing a course of action that is reasonably likely to lead to a better outcome for the company.
• Secured creditor claims to funds remaining after termination of DOCA – the latest word from the West
  The recent judgment of the Western Australian Court of Appeal in Hughes v Pluton Resources Ltd, concerns the interaction between a deed of company arrangement under Part 5.3A of the Corporations Act 2001 (Cth) and the Personal Property Securities Act 2009 (Cth).
• Do you possess what it takes to perfect your PMSI?
  Making sense of the purchase money security interest (PMSI) priority provisions in the Personal Property Securities Act 2009 (Cth) can be challenging for financiers and insolvency practitioners tasked with assessing the merits of competing security interest claims.
   

Dispute resolution

• Subpoenas in international arbitration
  The recent case of Re Samsung C&T Corporation [2017] FCA 1169 considered whether the Federal Court of Australia has the jurisdiction to grant leave to issue subpoenas to parties involved in foreign seated arbitrations.
• Admissibility of evidence of surrounding circumstances in contractual construction
  In Cherry v Steele-Park [2017] NSWCA 295, the New South Wales Court of Appeal further demonstrated the divergence in Australia regarding the status of the ‘true rule’ of the admissibility of evidence of surrounding circumstances for contractual construction.
   

Tax

• The Diverted Profits Tax (DPT) – the attack on multinationals continues
  The DPT, introduced with effect from 1 July 2017, is the Australian government’s latest legislated initiative aimed at ensuring that multinational enterprises pay their “fair share” of Australian tax.
• New withholding obligation for GST on residential property transactions
  Treasury has released exposure draft legislation relating to the goods and services tax withholding regime for property transactions announced in the 2017/2018 Budget.
   

Employment

• Key employment law developments in 2017
  Employment law issues have dominated the political and media landscape in 2017. We set out the key developments employers need to be aware about which arose in 2017.
• Raising the bar for employee record keeping
  The obligations of employers in relation to employee records have become more important under the recent changes to the Fair Work Act 2009 (Cth) as a result of the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017, which came into effect on 15 September 2017.
   

Projects & construction

• A new Security of Payment regime for Queensland's building & construction industry
  The Building Industry Fairness (Security of Payment) Act 2017 (Qld) (the Act) commenced in force on 17 November 2017. The Act repeals and replaces the Building and Construction Industry Payments Act 2004 (Qld) and the Subcontractors’ Charges Act 1974 (Qld) and amends the Queensland Building and Construction Commission Act 1991 (Qld).

Important Disclaimer: The material contained in this article is comment of a general nature only and is not and nor is it intended to be advice on any specific professional matter. In that the effectiveness or accuracy of any professional advice depends upon the particular circumstances of each case, neither the firm nor any individual author accepts any responsibility whatsoever for any acts or omissions resulting from reliance upon the content of any articles. Before acting on the basis of any material contained in this publication, we recommend that you consult your professional adviser. Liability limited by a scheme approved under Professional Standards Legislation (Australia-wide except in Tasmania).