Landmark decision to pave the way for future OH&S prosecutions A landmark High Court decision handed down yesterday will have a significant impact on how regulators approach prosecutions of employers for breaches of occupational health and safety laws across Australia.

Mediate - at all costs From 1 January 2010, the latest of Hong Kong's civil justice reforms could bring new risks associated with refusing to mediate in Hong Kong. Read our article about the civil justice reforms by Steven Yip.

Win the case, but lose the costs, with mediation as the key 31 December 2010 With 9 months in the civil justice reform, a new feature will come into effect on 1 January 2010. The introduction of mediation as prescribed by Practice Direction 31, is expected to have a profound impact on the way the parties conduct their cases. Read our article by Steven Yip.

Victorian university legislation reforms 10 March 2010 The Victorian Parliament has enacted legislation to rationalise and modernise university governance.

New Right to Information and Privacy Legislation in Queensland 10 March 2010 In 2009 the Queensland Parliament enacted new legislation regarding access to information and privacy. The new legislation applies to public higher education institutions in Queensland.

Authorisation of copyright infringement and the iiNet case 10 March 2010 Universities should still beware of copyright infringement by those using their internet facilities.

The decision in UWA v Gray is here to stay 10 March 2010 If universities want to ensure that they own inventions developed by academic staff in the course of their employment, they need to review their IP arrangements and take immediate steps to ensure that they have properly secured those rights.

Transfer of business rules - implications for universities 10 March 2010 More than six months after the transfer of business laws commenced under the Fair Work Act 2009 (Cth), it is clear that the new laws may affect universities' industrial instrument coverage.

Corporate governance - good governance in the university context 10 March 2010 The Victorian Parliament has enacted legislation to rationalise and modernise university governance.

Academics as expert witnesses: considerations for employers 10 March 2010 Academics are often called to give evidence as expert witnesses and use the name of their employer institution in doing so. This article demonstrates that an expert's role is not necessarily straightforward.

Capital account safe harbour for Australian Managed Investment Trusts 23 February 2010 Eligible managed investment trusts (MITs) may elect to apply the capital gains tax provisions as the primary code for taxing gains and losses on the disposal of eligible assets (namely a share in a company, non-share equity, a unit in a unit trust, land - including an interest in land and a right to acquire or dispose of any of these assets). The election must be made (in the approved form) during the first year that a trust qualifies as a MIT.

Insolvent trading laws to be modified in workouts 19 February 2010 The government has released a discussion paper outlining proposals for the reform of Australia's insolvent trading laws designed to ensure that the insolvency laws complement and assist the conduct of workouts. The paper seeks submissions on issues that arise for directors from operation of the insolvent trading laws, particularly in the context of attempts at business rescue outside formal insolvency administrations.

Updates affecting the privacy sector 19 February 2010 This newsletter contains legislative updates, significant case developments and other important issues affecting the privacy sector.

Australia – Progression, not recession 10 February 2010 The concern expressed in our last Australian Legal Update about the possibility of Australia following most of the rest of the developed world into recession fortunately proved unfounded. Australia has been a notable exception to the experience of many other countries in this respect.

Proposed changes to foreign investment rules 10 February 2010 The Foreign Investment Review Board (Board), being the Australian government body that examines proposals for foreign investment in Australia, recently announced that the monetary thresholds set for the purposes of compulsory notification to the Board of a proposed acquisition will be revised.

Australian Tax Office focuses on private equity 10 February 2010 The Australian Taxation Office's unsuccessful attempt to freeze the bank accounts of the private equity firm Texas Pacific Group has highlighted the ATO's new focus on private equity activities in Australia. The attempted freeze followed the stock market float of the Myer Group, as the ATO sought a reported tax bill of $A452 million from TPG.

Taxation of employee share schemes – new laws 10 February 2010 Some unexpected changes have highlighted the introduction of new employee share scheme legislation, which received Royal Assent on 14 December 2009. Companies will need to give the legislation close consideration given the impact it will have on employee equity plans, particularly the drafting of plan rules and offer documents.

Australia’s Foreign Investment Law not Targeted at China 10 February 2010 Recent changes to Australia’s foreign investment law are not targeted at Chinese investors. The changes make it harder for all private investors to avoid the law.

Security of Payment - 2009 Annual Roundup 10 February 2010 This special report summaries the important decisions and legislation changes to the Building and Security of Payment Acts across Australia.

Draft Taxation Determinations TD 2009/D17 and TD 2009/D18 - 'treaty shopping' and 'private equity'. 09 February 2010 Following the recent actions taken by the Australian Taxation Office to freeze the bank accounts of the private equity firm TPG, the Commissioner of Taxation has released two draft Taxation Determinations. The draft TDs are focused on the private equity sector of the financial investment industry.

BSkyB v EDS (UK): Tender with care 05 February 2010 On 27 January 2010, the UK High Court (Technology and Construction) handed down its decision in the long running case of BSkyB v EDS. The decision by Ramsey J, although subject to potential appeal, could well become a landmark case affecting tenders, pitches and contracts for the provision of services.

Corporations Act reform for companies limited by guarantee in 2010 29 January 2010 The Australian Government recently released for comment an exposure draft of the Corporations Amendment (Corporate Reporting Reform) Bill 2010 (draft Bill) to amend the Corporations Act 2001 (Cth) (Corporations Act). Among other things the Bill proposes two significant changes for companies limited by guarantee. Read our report.

Mediation gains more ground in Hong Kong 04 January 2010 Mediation looks set to become more prevalent in Hong Kong, in the wake of a new practice direction requiring parties to submit to it before all civil court proceedings as well as arbitrators.  Our article by Steven Yip explains that parties will have to file a mediation certificate and questionnaire indicating whether they are willing to mediate the dispute and giving good reasons if they are not.

Capital account safe harbour for Australian Managed Investment Trusts 17 December 2009 On 10 December 2009 exposure draft legislation was released allowing eligible managed investment trusts (MITs) to make an irrevocable election to apply capital gains tax (CGT) provisions as the primary code for taxing gains and losses on the disposal of certain assets - primarily shares, units and land. The draft legislation requires fine tuning but provides much needed certainty for investors and fund managers alike in the Australian financial services industry. Consultations close on 24 December 2009.

WRMC approves draft model WHS Bill 17 December 2009 In a significant step towards making OHS harmonisation a reality, the Workplace Relations Ministers Council (WRMC) has approved the model Work Health and Safety Bill. Although the WRMC's endorsement of the model WHS Bill is a critical step in the harmonisation process, a truly national OHS regime will not be achieved unless all the state and territory parliaments enact the model Bill.

Update from Copenhagen #1 15 December 2009 The UN's climate change conference (COP15) is well underway. Cheryl Edwardes (Special Counsel, Perth) reports from Copenhagen on some of the significant issues impacting on Australian business and government. In this update, Cheryl outlines some of the business discussions that have taken place to date and the government positions which have been adopted. She also shares her personal views on the process.

A web of liability 10 December 2009 The Internet's central role of delivering news instantaneously and providing adequate search engines to users means internet publishers could be at risk from contempt of court proceedings. This article discusses the Australian approach to the liability issues of online and archived material and how internet publishers can limit their risks.

The heat is on 10 December 2009 Large technology and telecommunications companies could be captured by the national greenhouse and energy reporting scheme now that the thresholds that trigger inclusion in the scheme have been lowered. To ensure compliance is met and to avoid any costly penalties, companies must be aware of their obligations.

The challenges of regulating online content in the 21st century 10 December 2009 To meet the challenges of the 21st century, Australia's policy makers have developed an online regulatory framework based on the existing classification system to provide efficiency and transparency. However, internet regulation does create some unique challenges given its volume and accessibility.

The devil’s in the detail 10 December 2009 The downturn in new information and communications technology spending has motivated some software vendors to audit the use of software licences by their customers.

Your broker or mine? 08 December 2009 A recent decision of the Supreme Court of New South Wales provides a timely reminder for lenders to monitor their relationships with third party brokers closely and be aware of how brokers present themselves to potential borrowers.

The OTN mechanism and transferring liability for fossil fuels emissions 08 December 2009 The proposed Carbon Pollution Reduction Scheme generally imposes liability for fossil fuel emissions on upstream fuel producers who are likely to pass on the costs to downstream users. While this model is expected to work well in many cases there are circumstances where it is undesirable so in response, the Commonwealth has developed the Obligation Transfer Number (OTN) mechanism.

How and when to use termination for convenience clauses 08 December 2009 Contract clauses that allow the owner to exit the contract at will are commonly seen in the energy and resources sector — and they are very important right now given the rapid changes in this area with variable demand for commodities and the scarcity of capital for project delivery. The question is when and how can these clauses be used?

Legal issues in offshore geosequestration 08 December 2009 With several geosequestration projects operating worldwide and with the imminent commencement of projects in Australia, the legal issues surrounding geosequestration need to be addressed. This article focuses on the final and legally most contentious stages, of geosequestration — injection and storage— and the regulation of offshore geosequestration, particularly the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) (OPGGS Act).

The evolution of subsidence management in NSW 08 December 2009 Managing the impacts of subsidence has been a topic of debate in NSW for several years. We examine the key developments of the past decade but even today the ground has not yet fully settled and further refinements are inevitable in years to come.

Australian Industrial Relations Commission releases final stage 4 awards 07 December 2009 The Australian Industrial Relations Commission released the final stage 4 awards – which largely completes the award modernisation process – with the new modern awards starting on 1 January 2010. For many employers, the most important part of Friday's decision concerns the Miscellaneous Award – which, as its name suggests, has the potential to apply to a wide range of employees.

Finding consistent messages in FIRB’s approach to Chinese investment 26 November 2009 How FIRB evaluates investment proposals by foreign state owned enterprises in the Australian resources sector reveals just as much, if not more, about FIRB's key policy considerations than Patrick Colmer's recent policy speech.

Potential pitfalls in pre-merger confidentiality arrangements 26 November 2009 Confidentiality agreements tend to be seen as standard, boilerplate legal documents of little relevance to the success of a control transaction. However, inappropriate confidentiality agreements can substantially hamper the ability of bidders and targets to effectively manage a potential transaction.

Stop competition issues taking over your takeover 26 November 2009 Competition or anti trust issues can delay or obstruct M&A transactions. Proper identification, consideration and management of competition issues, including interactions with the ACCC, are therefore critical.

Coercive takeover bid quashed 26 November 2009 The Takeovers Panel recently ordered the withdrawal of an on-market takeover offer for Multiplex Prime Property Fund because it was unacceptable to create, or take advantage of, uncertainty in the market in order to coerce securityholders into accepting an offer.

The Business Letter (November 2009) 24 November 2009 In this issue: From the ashes to the courtroom: illegal 'phoenix' activity and the legal advisor GST - Margin Scheme Have you just rendered your (or your client's) Will ineffective? Employer denied representation in unfair dismissal proceedings

Labouring in Vain? 30 October 2009 Steven Yip and Dennis Wong share why Hong Kong's Civil Justice Reform should help to alleviate some of the pain from construction disputes. Read their article.

Minimum wage debate continues in Hong Kong 23 October 2009 The Minimum Wage Bill has been a source of controversy in Hong Kong since it was gazetted in June 2009. We consider keys point of contention, including the exclusion of live-in domestic helpers and student interns, and special arrangements for disabled persons.

Case update: Knight John Lee v. Global Force Limited trading as The Mix [2009] 23 October 2009 Under the law, an employer cannot force an employee to enter into a release document, and if an employer is aware that the employee was mentally disordered when executing the release, the document may be set aside in the future.  These principles were analysed in the recent case of Knight John Lee v. Global Force Limited trading as The Mix.

Issues and opportunities for universities and online distribution of classroom content 22 October 2009 As use of podcasting, electronic classrooms, social networking sites and other technologies continues to grow in universities, constant vigilance is required to ensure that content created in the institution's name does not infringe the legal rights of authors and creators. We examine the recent rise of Apple's iTunes U as a dedicated channel for the delivery of university content and reflect on the issues universities need to consider when podcasting classroom content.

The challenge of identifying conflicts of interest in the governance of universities 22 October 2009 The NSW Legislative Council's Standing Committee's report Governance of NSW universities highlighted the difficulties universities may encounter in properly identifying when a conflict of interest arises for individuals involved in the governance of the university. We consider some of the key reasons why universities might encounter difficulty in deciding when a conflict of interest might arise and how to manage it.

Can public universities reconcile commercial imperatives with their charitable status? 22 October 2009 The charitable status of public universities can hinder their abilities to directly engage in activities aimed at commercialising or profiting from the results of research activities because charitable institutions cannot pursue profit as an end in itself.

University liability for, and notification of, contaminated land 22 October 2009 Universities, as landowners and occupiers of substantial parcels of land on which a wide variety of activities are carried out, shoulder the burden of potential liability for contaminated land and the requirement to notify regulatory authorities of contaminated land.  Recent amendments to the NSW Contaminated Land Management Act are potentially relevant to all universities because the intent of the amendments may well be adopted in other states, and because universities, as landowners, occupiers, developers, PPP entities or research partners, may be liable under the legislation.

What rights do universities have to inventions developed by academic staff? 22 October 2009 On 3 September 2009, the Federal Court confirmed that universities cannot presume to own inventions developed as part of an academic employee's research activities, especially where the employee has no contractual 'duty to invent' distinct from a duty to carry out research. The unanimous decision in University of Western Australia v Gray has serious ramifications for university-based research, particularly with the increased focus on the commercialisation of research and pressure to derive revenue from research activities.

Special Edition: Government announces first tranche of privacy reforms 20 October 2009 The Government has just announced the first stage of reforms in response to the ALRC's final recommendations on Privacy Law reform.

Website reviews – are the reviewers legally exposed? 15 October 2009 A bad restaurant or hotel experience can be frustrating. But while it may be satisfying to share that frustration online, the downside is that website reviewers potentially can find themselves in court facing a very costly and lengthy defamation civil lawsuit, or, in extreme cases, criminal prosecution.

The First 100 Days of the Fair Work Act 2009 - Part 2 13 October 2009 Last week, we marked the 100th day of the Federal Government's new industrial relations system with the first instalment of our HRIR Update on the issues emerging. Today, we consider the rise and rise of employee claims and transfer of business – some teething issues and some more fundamental concerns.

The First 100 Days of the Fair Work Act 2009 - Part 1 08 October 2009 Today marks the 100th day of the Federal Government's new industrial relations system. In the first 100 days there have been some significant developments especially with enterprise bargaining and the award modernisation process.

Do Not Call Register hits the mark with external call centres 06 October 2009 The Australian Communications and Media Authority announced that the number of complaints of telemarketing calls made to numbers on the Do Not Call Register had been reduced by 60% from those made during its first year of operation.

NSW Law Reform Commission recommends general cause of action for breach of privacy 06 October 2009 The NSW Law Reform Commission, in its report Invasion of Privacy, has called for a general cause of action for breach of privacy in New South Wales. But, even though the report echoes the Australian Law Reform Commission's report Australian Privacy Law and Practice, there are some distinguishing features which we discuss in detail.

New powers for owners and operators to protect their networks 06 October 2009 The Attorney-General's Department has developed a proposal to amend the Telecommunications (Interception and Access) Act 1979 to allow owners and operators of computer networks in Australia to undertake activities to protect their networks. We compare and contrast the two regimes and discuss the implications for owners and operators of computer networks.

ACMA wins first SMS spam case 06 October 2009 The Australian Media and Communications Authority has won its first SMS spam case before the Federal Court. This case, Australian Communications and Media Authority v Mobilegate, illustrates ACMA's willingness to pursue serious breaches of the Spam Act.

Impact of Civil Justice Reform on construction disputes 06 October 2009 The complexity of the issues, long timeframes and the attendant use of volumes of documents and may witnesses means that it can take lot of time and money to resolve construction disputes in court. The Civil Justice Reform, which came into effect on 2 April 2009 aims to reduce delay and legal costs of construction disputes in the Hong Kong High Court. We discuss the impact of the new rules and offer high-level strategic comments running construction disputes.

Building energy efficiency funding schemes 06 October 2009 In this article we outline the operation of the Building Energy Efficiency Funding Schemes and how private building owners can seek funding to improve energy efficiency.

Project finance, EPC contracts and the brave new world for Chinese contractors 06 October 2009 While many large-scale infrastructure projects outside China are financed with project finance, contractors it has been little used within China so far. Chinese contractors who want to compete in international markets need to be familiar with the mechanics of project financing, how and why it is used in infrastructure projects and understand the implications for contractors.

Taking the Asian temperature for Copenhagen 06 October 2009 In December 2009 world leaders from 190 nations will congregate in Copenhagen to negotiate an agreement on greenhouse gas reductions post-2012 when the Kyoto Protocol expires. We provide an overview of climate change policies and legislation in developing Asian countries and consider their likely negotiating positions at the Copenhagen talks.

Local dealings between employers and nominated subcontractors 06 October 2009 The outcome of Hong Kong Housing Authority v Rotegear Corporation Ltd will comfort employers of nominated subcontractors but it prompts reflection on the different ways of engaging subcontractors in Hong Kong, and how this can affect the rights and remedies parties have during the course of construction work.

National OHS harmonisation – model OHS laws proposed 29 September 2009 With 10 principal OHS statutes operating across Australia and over 400 OHS regulations and codes of practice, it is no wonder the harmonisation of OHS laws has been on the political agenda for over 30 years. We are now one step closer to this goal being achieved. In this issue of Workplace Safety Update we provide an overview of the critical aspects of the draft model laws.

Proposed changes to Australia's foreign investment screening rules 14 September 2009 Several adjustments to Australia's foreign investment screening rules were announced in August 2009. A number of measures lift and harmonise applicable thresholds for business applications and may be seen as part of a broader effort by the Australian Government to simplify the application of the investment screening framework. Changes to business applications follow those made earlier in the year to simplify the rules for foreign investment in Australian property. Ultimately though, the fundamental tenets of Australia's approach to foreign investment are unchanged.

Mediation - a well placed investment when disputes arise 10 September 2009 Senior public servants are no strangers to disputes. Many, however, may not have engaged in an alternative dispute resolution (ADR) process. Understanding how resolution processes work, and which are most appropriate to the specific circumstance, can often mean the difference between a long expensive and protracted dispute and a quick and efficient resolution.

AMPLA seminar paper: Foreign investment approval 07 September 2009 James Philips (Partner, M&A Sydney) was the keynote speaker at a seminar on foreign investment approval hosted by the Resources and Energy Law Association (AMPLA), in conjunction with ACLA and the Law Society Northern Territory in Darwin on 7 September 2009. James spoke on the foreign investment approval process, and provided insights into the Government's discretion under the legislation. James also covered the case in which an alleged brief of the foreign investment legislation was used to ground a successful complaint to the Takeovers Panel in a takeover dispute. You can view the seminar paper on AMPLA's website.

Update on award modernisation 04 September 2009 Yesterday, the Full Bench of the Australian Industrial Relations Commission (AIRC) handed down a key decision on the transitional arrangements for the award modernisation process in the federal system. Most importantly, the AIRC has established the general (although not universal) approach that new pay related conditions be phased in over 5 years from 1 July 2010 (which is 6 months after the new modern awards start operating).

Commonwealth Releases the First National Primary Healthcare Strategy 02 September 2009 The Federal Minister for Health and Ageing, Nicola Roxon, released on 31 August 2009 a draft of the Australian Government's National Primary Healthcare Strategy.  The draft strategy presents the Australian government's views on possible future directions for a modern 21st century primary healthcare system.

Tax Laws Amendment (2009 Budget Measures No. 2) Bill 2009: Employee share schemes 31 August 2009 Minter Ellison has been heavily involved in the consultation process surrounding the proposed reforms of the taxation of employee share schemes, which were announced in the 2009 Federal Budget. Our first submission was in response to the Consultation Paper released by the Treasurer, Wayne Swan, and the then-Assistant Treasurer, Chris Bowen, on 5 June 2009. Our second submission was in response to the exposure draft legislation released by the Assistant Treasurer, Nick Sherry, on 14 August 2009.

National Health and Hospitals Reform Commission Report 27 August 2009 The National Health and Hospitals Reform Commission released its final report, 'A healthier future for all Australians' on 27 July 2009. The Report describes the Australian health system as a fragmented system under growing pressure and unprepared to respond to growing challenges, including increasing demand for health services and mounting concerns over safety, quality and inefficiency. Read the report.

Making sense of downstream acquisitions 25 August 2009 If we ever needed reminding that section 611 item 14 of the Corporations Act (the exemption for acquisitions of downstream interests as a result of acquisitions of interests in certain listed entities) is deceptively simple, the Takeover Panel's reasons in Cape Lambert MinSec Pty Ltd [2009] ATP 12 issued on 3 July 2009 are a reminder of the complexities of downstream acquisitions.

NSW land holder regime reimposes duty on some listed takeovers 25 August 2009 Legislative changes in NSW mean that stamp duty may be imposed on some acquisitions of listed entities and the previous 'land rich' requirement no longer applies for new public acquisitions.

Are cornerstone investments the answer? 25 August 2009 Securing a cornerstone investor can help to secure the success of an equity raising by a deleveraging listed entity. The process has been made easier by ASIC's new class order expanding relief available in relation to equity raisings but, as always, at the intersection of Australia's takeover and equity raising rules, there are a number of regulatory issues that need to be considered.

Employee share scheme taxation changes 20 August 2009 Exposure Draft legislation released The Australian Government has now released an Exposure Draft of the new tax legislation for employee share schemes. The draft rules, intended to apply to employee benefits acquired on or after 1 July 2009, follow closely the position articulated in the Government's Final Framework policy statement announced in July (see our News Alert). Under the draft rules,  the introduction of Division 83A in the Income Tax Assessment Act 1997 will replace entirely the former Division 13A of the Income Tax Assessment Act 1936.

New GST rules for representatives of incapacitated entities 12 August 2009 The Federal Treasury has released its proposed legislation to clarify the GST liabilities and obligations of insolvency practitioners, as representatives of incapacitated entities.

Australian Consumer Law and the financial services industry 12 August 2009 Minter Ellison has made a number of submissions in relation to the Australian Consumer Law and its application to the financial services industry. The submissions were in response to papers released by the Hon. Chris Bowen, MP, Assistant Treasurer and Minister for Competition Policy and Consumer Affairs.

Impact of CPRS on outsourcing 10 August 2009 Australian Government's legislation for its greenhouse gas emissions trading system is likely to have a significant impact on many providers and customers of outsourcing services. Parties who are negotiating new contracts who are already party to existing outsourcing arrangements may need to review those arrangements carefully.

The extinction of Dodo's freebies 10 August 2009 Mobile phone providers must exercise caution when offering free incentives to potential consumers of their products. If similar products are also offered at a lower price but without the freebies, the provider may find it receives the unwanted attention of the Australian Competition and Consumer Commission.

Media organisations and journalists put on alert 10 August 2009 Media organisations and journalists will now need to be more cautious when entering into contracts with third parties for interviews and information following the decision of the High Court in ACCC v Seven Network.

FOI reform bill update 10 August 2009 The Australian Government is currently considering submissions made on the exposure draft the Freedom of Information Amendment (Reform) Bill 2009. If passed in its current or similar form, service providers who contract with the Commonwealth, may need to give consideration to managing the practical implications of the legislation such as ensuring that they identify, and make agencies aware of, documents that contain confidential material.

Seven Deadly Sins: some things to avoid during the recession 10 August 2009 As the global economy continues to battle recession and government and industry stakeholders focus on the task of rebuilding business confidence, we consider the seven deadly sins of recession.

Procuring software – are you buying what your vendor is selling? 10 August 2009 Standard vendor software licence and support terms often contain onerous restrictions, limitations s and exclusions. Customers  should carefully consider these terms in light of the importance of the software to their business.

HR & IR Update 06 August 2009 The Federal Government has made significant changes to the Disability Discrimination Act, which came into effect yesterday. The  reforms include an expansion to the definition of disability, the introduction of a positive duty on employers to make reasonable adjustments for disabled employees and applicants, and a new test for indirect discrimination. This update also discusses the new discrimination provisions under the Fair Work Act including the powers of the Fair Work Ombudsman to investigate complaints of discrimination and a reverse onus of proof.

How proposed GST changes affect university real property transactions 31 July 2009 Universities looking to buy or sell real property need to be aware of significant changes to the operation of the GST regime proposed in the recent federal budget such as the replacements of the 'GST-free' treatment of going concerns and farm with a 'reverse charge' mechanism and a review of the margin scheme.

New tax initiatives support investment in the higher education sector 31 July 2009 The higher education sector can benefit from the new 'Research and Development Tax Credit' and the 'Small Business and General Business Tax Break' which provide incentives for universities and other tertiary institutions to invest in order to achieve their objectives.

Managing legal risks in the use of social networking sites (SNS) by universities 31 July 2009 The use and membership of SNS has grown exponentially in recent years. SNS offer many opportunities for universities, but at the same time, universities need to be aware of and manage the legal risks inherent in the use of SNS, including copyright, defamation and privacy.

Submission on National Consumer Credit Protection Bill 2009 27 July 2009 Minter Ellison has made a submission to the Senate Economics Legislation Committee for its Inquiry into the National Consumer Credit Protection Bill 2009 and related bills.  These bills form part of the Government's credit reform package. Click here to read the submission

New offences and prohibitions on cartel conduct 24 July 2009 From 24 July 2009, significant changes to the anti-competitive conduct provisions of the Trade Practices Act 1974 will come into effect. Businesses need to be familiar with the new criminal offences and civil prohibitions on cartel conduct and make sure their training and compliance systems reflect the law as it now stands.

Extending the extraterritorial reach of the Trade Practices Act 24 July 2009 Amendments to the Trade Practices Act broaden its extraterritorial reach. We examine the implications for businesses beyond Australia.

Cartel criminalisation adds a new dimension to ACCC/CDPP relationship 24 July 2009 Cartel criminalisation takes the relationship between the ACCC and the Commonwealth Director of Public Prosecutions into unchartered territory so there are bound to be teething problems.

ACCC gains investigative powers under cartel laws 24 July 2009 The ACCC's investigative powers under the Trade Practices Act have been given greater flexibility and support as the regulator's responsibilities expand to include investigation of the new civil and criminal cartel offences from 24 July 2009.

New joint venture defences: are you exposed? 24 July 2009 Among the more significant amendments introduced by the Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009 are those  in respect of joint ventures.  Businesses involved in, or contemplating, joint venture activities should examine these changes and consider how these changes may impact on their activities.

The race for resources between UCG and CSG 23 July 2009 The technologies behind coal seam gas and underground coal gasification are poised to revolutionise Australia's coal mining and energy industries by offering cleaner power station fuel alternatives to coal. However CSG and UCG are potentially in conflict over the same land, prompting tenure access issues and also the question: can the Australian energy market support only one of these developing technologies?

Introducing the Australian Energy Market Operator 23 July 2009 On 1 July 2009 the Australian Energy Market Operator began functioning as a single integrated energy market operator and national electricity transmission planner for all Australian jurisdictions, except Western Australian and the Northern Territory. AEMO's functions are fundamental to the continued operation, development and reform of the energy sector in Australia and are underpinned by the detailed regulatory systems.

Australian Energy Regulator clarifies rebidding position 23 July 2009 Changes to National Electricity Market bidding practice can be expected as a result of the Australian Energy Regulator's imminent publication of its Revised Guidelines for Rebidding and Technical Parameters.

Queensland Government cracks down on CSG waste water management 23 July 2009 Coal seam gas is now the major source of gas in the Queensland market with CSG fields in New South Wales currently under development. The significant increase in CSG production has generated increasing volumes of waste water, about which there is widespread concern due to its high salinity and the presence of other impurities. The Queensland Government is currently considering a raft of legislative and regulatory amendments which aim to increase regulatory controls aimed at environmentally sustainable outcomes and greater beneficial use of CSG waste water.

Partner profile - Richard Crawford 16 July 2009 Richard is a specialist construction and public, private partnership (PPP) lawyer.

Security of Payments, NSW: significant turn in favour of owners? 16 July 2009 Two recent court decisions signal an end to the perception which often seems to be held by contractors: the same claim can be made in a subsequent payment claim if they are not satisfied with the outcome of an adjudication.

Rule Bitannia: The Empire (or at least the owner) strikes back 16 July 2009 Owners or recipients of payment claims made under the security of payment legislation of the East Coast states have typically struggled to overcome the often drastic consequences of failing to provide a payment schedule in the timeframe required by the legislation.

COAG endorses proposed National Construction Code 16 July 2009 The Council of Australian Governments has endorsed the development of a National Construction Code.

New Zealand introduces AML/CFT legislation 09 July 2009 The New Zealand Government has introduced the much anticipated Anti-Money Laundering and Countering Financing of Terrorism Bill.  Any business deemed to be a 'reporting entity' will be subject to a range of significant new obligations which will need to form part of an ongoing programme of systems and training. For trans‑Tasman businesses, the Australian AML experience will prove useful given the similarity in regimes, although there are some significant differences in the proposed New Zealand regime that need to be taken into account when implementing AML/CFT programs.

NZ Bond Market 08 July 2009 The New Zealand retail bond market has been increasingly active. Minter Ellison Rudd Watts provides an update on retail bond issues in New Zealand as an appealing alternative for banks and corporate borrowers seeking to raise capital, including guidance for Australian issuers wishing to offer bonds in the New Zealand market.

Super start to the new financial year 03 July 2009 There's no escaping that 1 July 2009 was an important date for HR practitioners. But it's not all about the new Fair Work Act. There are also some important changes (and clarification) in relation to superannuation, and changes to the taxation of foreign employees, that take effect from 1 July 2009.

Reform of the taxation of Employee Share Schemes: comparing Division 13A v proposed Division 83A 22 June 2009 Minter Ellison has made a submission to the Government and the Treasury on the proposed reforms to the taxation of employee share schemes. This table compares the current regime (Division 13A of the Income Tax Assessment Act1936) with the proposed regime (proposed Division 83A of the Income Tax Assessment Act 1997, contained in the draft legislation) and highlights the differences between the two.

Charitable and welfare organisations: where do they sit in the regulation of information privacy? 19 June 2009 While there are some significant exemptions for organisations in the charity and welfare sectors  those organisations are not entirely exempt from privacy concerns, and many organisations will have material obligations regarding the collection, use and disclosure of personal information.

Privacy Commissioner urges government agencies to protect data on PSDs 19 June 2009 The Office of the Federal Privacy Commissioner recently urged Government agencies to protect data contained on portable storage devices, a recommendation that private sector organisation should also consider.

Privacy Commissioner issues new case notes 19 June 2009 In this article we review five recent case notes. The first two cases clarify the meaning in NPP 6.1 that an organisation 'provide access' to an individual's personal information that it holds and how the Privacy Commissioner determines whether information disclosure is 'required or authorised by law' in the context of legal proceedings. The next two cases consider the consumer credit provisions of the Act and an own motion investigation into privacy breaches involving medical records. The final case is a timely reminder for employers to be mindful that the 'employee records' exemption under the Privacy Act will not necessarily protect them in all cases when dealing with employee records.

Robust privacy regime fundamental to creating a national eHealth record 19 June 2009 One of the most talked about eHealth initiatives is the introduction of a national electronic health record for all Australians.  Several challenges must be overcome before the national electronic health record can become a reality and one of these is need for a satisfactory and robust privacy regime.

NSW finally introduces general anti avoidance provision 18 June 2009 From 1 July 2009, the general anti avoidance provisions for NSW can apply to artificial, blatant and contrived schemes to reduce or avoid a liability to duty. The new anti avoidance provisions for NSW borrow from existing State taxation legislation across Australia, but also introduce some unique concepts.

Wholesale changes to NSW mortgage duty 18 June 2009 The NSW Government 2009 has introduced wholesale changes to NSW mortgage duty which will apply from 1 July 2009 until its abolition date on 1 July 2012.   These changes will affect many of the common security structures that are in use in the market. Financiers and their advisers need to review all files to identify where a stamp duty structure has been used in particular where any further advances of any sort may be made, or NSW collateral securities are taken, after 1 July 2009 (including continuing overdraft facilities, credit card facilities and the like).

Major NSW stamp duty changes - 'land holder' duty regime 18 June 2009 The NSW Government announced major changes to the taxation of land holding companies and trusts, expanding the state tax base by replacing the former 'land rich' duty regime with a new 'land holder' duty regime that applies to dealings in land holding entities from 1 July 2009.

The Business Letter (June 2009) 17 June 2009 In this issue: Redundancies in the global financial crisis CGT Small Business Concessions Intestacy in South Australia – some things change and some things stay the same

Reform of the Taxation of Employee Share Schemes: submission to Treasury 17 June 2009 Minter Ellison has made a submission to Treasury on its Consultation Paper 'Reform of the Taxation of Employee Share Schemes' and the draft Tax Laws Amendments (Employee Share Schemes) Bill 2009 which were issued on 5 June 2009. Employee share schemes are an important remuneration tool so it is imperative that the governing tax regime for such schemes remains internationally competitive. Having discussed the proposed framework with our clients, our submission raises a number of matters that require legislative clarification or further consideration by Treasury.

Workplace Safety Update 16 June 2009 In this issue of the Workplace Safety Update we cover: the revised timetable for the model OHS Act OHS policies and procedures H1N1 pandemic  recent legislative developments in Victoria and Queensland Click here for more.

It's a long way to Tipperary (station): ASX exercises its discretion on related party sales 12 June 2009 Recently ASX exercised its discretion under ASX Listing Rule 10.1.5 to require one of Australia's oldest companies and largest beef producers, Australian Agricultural Company Limited, to obtain the approval of its shareholders to a transaction from which one of its substantial shareholders would indirectly benefit. Listing Rule 10.1.5 gives ASX discretion to prevent avoidance of the ASX rules regulating transactions with persons of influence.  It is interesting to note the circumstances prompting ASX to exercise the discretion.

Chinese investment in Australian resources 12 June 2009 Like many OECD countries, Australia maintains a foreign investment screening system.  The objective of this system is to ensure that investments in Australia align with Australia's national interest.  A recent surge in interest from Chinese investors in the Australian resources sector, including several high profile investment proposals, has shone a spotlight on the manner in which the Australian authorities approach investments from China in general and from Chinese state-owned enterprises in particular.

Rights issues and possible changes of control 12 June 2009 The recent decision of the Takeovers Panel in Bisalloy Steel Group Limited is a reminder of the Panel's willingness to examine the effect that rights issues may have on the control, or potential control, of a company and to intervene if an underwriter (or sub-underwriter) may end up with more than 20% of the company. Following the Bisalloy decision, if there is a possibility that there may be a material shortfall, the directors need to consider whether the proposed rights issue could be subject to a successful challenge and the issuer or the underwriter or both may, as a precaution, consider requiring that the issuer obtain shareholder approval for any increase in the underwriter's level of ownership arising from the underwriting arrangements.

The hunter hunted: Takeovers Panel unlocks reverse takeover 12 June 2009 The Takeovers Panel decided in Gloucester Coal Limited that a scrip bidder in a reverse takeover should include in the deal structure an effective fiduciary out.  Failing to do so may be an unacceptable lock-up. The bidder's directors need to be free to cancel the deal if a superior proposal becomes available.

Criminalisation of the TPA and CRCs 31 May 2009 The establishment and operation of many Cooperative Research Centres (CRCs) involves cooperation amongst industry participants, including those who may be competitors in other aspects of their businesses.  It is very important that participants in CRCs remember that the prohibitions against anti-competitive conduct in the Trade Practices Act 1974 (Cth) (TPA) will apply to the CRC collaboration.  With the Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 (Cartel Bill) likely to be passed soon, it is a timely reminder for those involved in, or in the process of establishing, a CRC to make sure they are vigilant about the application of the TPA to their operations.

Proposed research exemption to patent infringement may benefit CRCs 31 May 2009 The patent infringement exemption proposed by IP Australia, if enacted, will clarify the ability of CRC participants to undertake research involving experimentation on patented inventions without a licence from the patent owner.

Review of GST treatment under common CRC structures, including tax law partnerships and GST joint ventures (JVs) 31 May 2009 Changes have been proposed to the GST treatment of tax law partnerships and JVs, which are common structures for CRCs.  CRC participants should continue to monitor developments, and ensure that the proposed changes are taken into account when determining the GST treatment of CRC transactions.  Potential participants of new / proposed CRCs should ensure that the proposed amendments are taken into account when: considering CRC structures and preparing documentation concerning CRCs.

New tax developments can benefit CRCs 31 May 2009 Cooperative Research Centres (CRCs) have the opportunity to benefit from changes announced in the Federal Government's Nation Building and Jobs Plan and this year's Federal Budget. The Small Business and General Business Tax Break and the Research and Development Tax Credit provide incentives for CRCs to invest further to achieve their objectives.

Further submission on the Australian Consumer Law 26 May 2009 Minter Ellison has lodged a second submission in relation to An Australian Consumer Law: Fair Markets - Confident Consumers released in February 2009 by the Honourable Chris Bowen, MP, Assistant Treasurer and Minister for Competition Policy and Consumer Affairs.

Submission on Exposure Draft: National Consumer Credit Regime 22 May 2009 Minter Ellison has made a submission in relation to the Exposure Draft of the National Consumer Credit Protection Bill 2009 released on 27 April 2009. Please click here to download a copy of the submission.

International Tax Update: New Zealand update 21 May 2009 The new NZ/US tax treaty heralds a major shift in New Zealand’s tax treaty policy, which has until now been to maintain relatively high withholding taxes.  The new treaty is likely to become New Zealand’s new standard form for double tax agreements.

International Tax News 21 May 2009 This month we review the Australia/Isle of Man Tax Information Exchange Agreement; Australia/New Zealand Double Tax Agreement renegotiation, the new Memorandum of Understanding between Australia and Canada and the Australia/Chile Free Trade Agreement.

International Tax Update: Indirect tax news 21 May 2009 Stamp duty is here to stay and the Carbon Pollution Reduction Scheme is coming.

International Tax Update: Legislation 21 May 2009 In this edition we provide an update on New Division 230 - Taxation of Financial Arrangements (TOFA) and the changes to temporary residents' unclaimed superannuation.

Australia's response to the financial crisis 21 May 2009 We consider the A$42 billion Nation Building and Jobs plan, the temporary bonus investment deduction for capital investments in new tangible assets, and the Australian Business Investment Partnership, which was established to provide liquidity support for major viable commercial proerty projects in Australia.

International Tax Update: Tax cases 21 May 2009 We consider the implications of Undershaft (No 1) Limited v Federal Commissioner of Taxation, Commissioner for Taxation v Star City Pty Ltd, and Dunn v The Australian Crime Commission.

Practical implications of the James Hardie Decision 20 May 2009 On 23 April 2009, Justice Gzell of the New South Wales Supreme Court delivered his judgment in Australian Securities and Investments Commission v Macdonald. We consider the impact of the decision on the statutory duty of care and diligence - particularly for non-executive directors - and  the practical implications for boards and their members going forward.

New laws to combat identity crime 08 May 2009 Symantec's recent Report on the Underground Economy estimates that, between July 2007 and June 2008, US$276 million worth of identity-related information was traded over the internet. However, existing laws in the Commonwealth and most States and Territories in Australia do not cover the broad spectrum of identity crime-related activities

Cloud computing – avoiding the storm 08 May 2009 In the last twelve months, the hype surrounding cloud computing has intensified. Spurred by the growth of cloud services such as Google Apps, Salesforce.com and Amazon’s EC2, many technology and business leaders are touting cloud computing as a new computing paradigm that will revolutionise the way businesses, governments and individuals use information technology.

Ongoing international uncertainty for software patents 08 May 2009 A recent decision in the United States has been widely criticised as creating renewed uncertainty for business method and software patents. The decision may increase the reluctance of software vendors and licensors to provide warranties on the validity of patents or patent applications relating to their software.

IceTV succeeds in High Court battle against Nine Network 08 May 2009 The Nine Network lost a High Court battle to protect its television programming guide in the decision of IceTV Pty Ltd v Nine Network handed down on 22 April. The decision ends a three-year fight between digital media company IceTV and the Nine Network which claimed the company had breached its copyright by compiling an electronic program guide.

Swine Flu - Practical tips for getting prepared 01 May 2009 Yesterday, the World Health Organisation elevated its swine flu pandemic alert from Phase 4 to Phase 5 which reflects its assessment that a pandemic is imminent. The WHO would declare Phase 6 at the point of the pandemic itself. Although there have not been any confirmed cases of swine flu in Australia, the reports are that 113 cases have been investigated including 54 in New South Wales, 27 in Queensland and 1 in Tasmania. Federal Health Minister Nicola Roxon has said that more needs to be done to prepare for a pandemic. To that end, in this update, we focus on what employers can do to prepare for the possibility of a pandemic. It seems rotten luck that the health of employees and business continuity could be so seriously affected at such a difficult economic time.

What does the future hold for PPPs? 22 April 2009 The historic shortfall in public infrastructure, compounded by the current upheaval in the financial markets and the huge competing calls on limited government funds means that government and industry need to work to finetune the Public Private Partnership model so that it remains both available and sustainable.

A review of mining royalties in Australia 08 April 2009 Royalty rates are an important factor in making decisions about mining projects, including determining which States provide the best operating environment for new investments in resources projects.  If, as has been suggested, the Federal Government looks to replace state government royalty regimes with a federal resource rent tax, it may be timely to review how mining royalties are charged and the royalty rates that are payable across Australia.

An overview of Australia's first water market 08 April 2009 The establishment the South East Queensland Water Market, the first of its kind in Australia, is an important step in securing a safe ongoing supply of drinking water for South East Queensland. We outline how the Water Market works, the regulatory framework, the regulation of water quality and further reforms in the pipeline.

20% by 2020? The federal government's proposed renewable energy target 08 April 2009 Since its election, the Federal Labor Government has been working with the states and territories through the Council of Australian Governments to finalise the design of a new scheme designed to deliver on its promise to create a new national Renewable Energy Target of 20% by 2020. We discuss the key features and possible implications of the new scheme.

Partner profile - Clive Luck 07 April 2009 Clive's principal areas of practice are advising on construction, engineering and infrastructure projects, dispute resolution including international arbitration.

Assign of the times? 07 April 2009 A recent decision handed down by the High Court of Australia highlights the difficulties that can arise when a party to a contract changes its internal arrangements without advising the other party.

Liquidated damages 'N/A' 07 April 2009 Australia's judiciary has once again had to consider the interpretation of standard form contracts containing liquidated damages clauses when parties insert the rate for liquidated damages as 'Nil' or 'N/A'.

Is there a separate doctrine of waiver in Australia? 07 April 2009 If a separate doctrine of waiver becomes established law in Australia, new doors will be opened for wronged parties to a contract.  However, until the law is settled, claimants are still likely to mount waiver arguments alleging reliance, detriment and consideration.

Minter Ellison construction lawyers recognised as Australian leaders 07 April 2009 Two recently-published international surveys have recognised the strength of Minter Ellison's construction team, confirming our specialist lawyers as amongst the best in Australia.

Contractor insolvency administration - you snooze, you lose! 07 April 2009 The current economic climate has brought into sharper focus the competing rights of landowners and administrators if a contractor goes into insolvency administration.

Beware unauthorised alterations to leased premises 07 April 2009 The High Court recently delivered its decision in Tabcorp Holdings Ltd v Bowen Investments Pty Ltd and confirmed an award of damages of $1.38 million for breach of a covenant not to alter premises without the landlord's consent. The tenant argued that the measure of damages should be the reduction in the value of the premises by reason of the new foyer (versus the old).  This was not accepted, although such analysis may apply in 'fairly exceptional circumstances' where the rectification works are unreasonable.

Security of Payment Roundup: Major cases & legislative updates 2008 07 April 2009 This special report summaries the important decisions and legislation changes to the Building and Security of Payment Acts across Australia in 2008.

Student grievances and discipline matters project 06 April 2009 In August 2007, the Australian Learning & Teaching Council approved funding for this research project to be undertaken by legal academics from Southern Cross University, the University of Sydney and the University of Technology, Sydney. The project is entitled “Student Grievances & Discipline Matters Project” and aims to scope and study approaches to teaching and learning that may have legal or quasi-legal consequences within and beyond Australian universities.

NSW legislation expands the court's power to control vexatious litigants 06 April 2009 On 1 December 2008, the Vexatious Proceedings Act 2008 (NSW) (Vexatious Proceedings Act) came into effect and replaced the vexatious litigant provisions contained in the Supreme Court Act 1970 (NSW). The new legislation, which is largely based on model provisions developed by the Standing Committee of Attorneys General, is designed to expand the court's power to control vexatious litigants and will be beneficial to Universities and Higher Education Service Providers.

Greenhouse and Energy Reporting Act 2007: potential obligations for universities 06 April 2009 The National Greenhouse and Energy Reporting Act 2007 (NGER) and accompanying regulations that require the reporting of greenhouse emissions, energy use and energy production, have already come into operation. It is therefore important that universities are aware of their potential obligations under this legislation and the impacts that it may have on their business. The first reporting period ends on 1 July this year with affected corporations required to report by 31 October.

Ramifications of University of Melbourne v McKean [2008] VSC 325 06 April 2009 In the last edition of Higher Education Focus we discussed the case of University of Melbourne v McKean. The University refused access to examinations papers and marking guides, relying on exemptions in s30(1) of the Freedom of Information Act which deals with 'internal working documents', and s34(4)(c) which deals with examination papers and similar documents whose use has been completed. Mr McKean made an application for review to VCAT in respect of the University's decision to refuse him access.  The Tribunal ordered that the documents be released.

A step closer for model OHS legislation 06 April 2009 The newly established Safe Work Australia Council has been directed to develop the new model OHS Act, following the National Review into Model Occupational Health and Safety Laws.  In this issue of the Workplace Safety Update, we take a look at the likely timeline and content of the model OHS Act.

HR & IR Update: Award Modernisation – Stage 2 awards made 06 April 2009 Award modernisation is gathering pace, as the 1 January 2010 deadline draws closer.  Last Friday, the Australian Industrial Relations Commission (AIRC) released the final Stage 2 modern awards – the final stage 1 modern awards having been released in December 2008. The Stage 1 and 2 Awards include important industries and occupations such as call centres, clerks (which will affect almost all employers across Australia), financial services (including banks and insurers – some of whom are largely award free), hospitality, IT, manufacturing and retail. With only limited exceptions, the modern awards will apply to all employers within the national system from 1 January 2010 and will replace most current federal awards and former state awards (known as Notional Agreements Preserving State Awards or NAPSAs).  This has important consequences, which we discuss in this Update.

Taxation of Financial Arrangements 25 March 2009 On 11 March 2009, the Tax Laws Amendment (Taxation of Financial Arrangements) Bill 2008 passed through the Australian Parliament.  The bill introduces Stages 3 and 4 of the Taxation Of Financial Arrangements (TOFA) reforms and represents a significant change in the income tax treatment of certain financial arrangements.  In this report we consider the implications of TOFA: what it is, who it affects, what financial arrangements are subject to TOFA, when it will TOFA apply and what taxpayers should be doing now.

Taxing non residents on Australian capital gains and profits 25 March 2009 Australia generally taxes revenue gains or profits, and capital gains, made by non residents where the profits or gains have a sufficient connection with Australia.  This article provides an overview of the key issues for non residents to determine which Australian profits or gains are taxable. It also examines recent decisions of the Australian courts in relation to Australia's taxing rights under treaties, particularly those negotiated before Australia's comprehensive capital gains tax regime was introduced in 1985.

More liberal disclosure of funding in takeovers 23 March 2009 Thorough disclosure of funding is a fundamental tenet of Australian takeovers regulation.  Or is it?  The Takeover Panel's decision in GoldLink IncomePlus Limited 03 reveals a worrying possibility as far as target boards and shareholders are concerned.

Convertible notes transactions to be brought under the Foreign Acquisitions and Takeovers Act 23 March 2009 The Treasurer has announced that the Foreign Acquisitions and Takeovers Act will be amended to ensure alternative structures, including those involving convertible notes, are brought clearly within the coverage of the Act. The text of the amendments is yet to be released, but the Government intends to back date the new rules to 12 February 2009.

Demergers by dividend, no scheme required 23 March 2009 Demergers normally need shareholder approval to confirm a capital reduction, a scheme of arrangement, or both.  But sometimes they do not.  The July 2008 in-specie distribution by Toll Holdings of its shareholding of approximately 63% in Virgin Blue is an interesting example where shareholder approval was not needed.

De-mystifying pre-bid stakes 23 March 2009 So you, or your client, wants to take over a listed company.  Do you acquire a pre-bid stake?  What is the best way to go about it? What are the alternatives? Minter Ellison has prepared a concise table summarising pre-bid structures to guide your decision making.

Standstill obligation OK, but panel not clear on limits 23 March 2009 A standstill provision in a confidentiality agreement may on its face prohibit a party from making a takeover bid for the disclosing entity. A standstill could therefore impede competition for control. Recently in International All Sports Limited, the Takeovers Panel upheld a standstill which prohibited the making of an initial unsolicited takeover bid. It is not yet clear when a standstill would be unacceptable because of its anti-competitive effect.

The ACCC's role in distressed asset sales 23 March 2009 The increase in distressed asset sales accompanying the global financial downturn has seen a resurgence of 'failing firm arguments' justifying mergers that would otherwise raise the ire of the ACCC.  While financial distress is a relevant consideration, parties cannot assume the ACCC will approve a merger because the vendor, target or purchaser could face receivership or liquidation in absence of the merger.

Senate passes Fair Work Bill but... 20 March 2009 Around 2.30am this morning, the Senate passed the Fair Work Bill – but not entirely in the form the Government wanted. The Government has said the House of Representatives will reject the Senate's changes (relating to the definition small business). Discussions are taking place in an attempt to resolve the impasse - we will see how this plays itself out over the course of today and possibly even over the weekend. In other news, the Deputy Prime Minister, Julia Gillard, yesterday introduced the Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 ('Transitional Bill') - a hefty 296 pages – more than half the size of the original Fair Work Bill. The Fair Work Bill and the Transitional Bill will have significant implications for employers, including: The new system is only a few months away - 1 July 2009 - although modern awards and the NESs do not start until 1 January 2010 Award modernisation is causing the most consternation for employers - e.g. consolidation of conditions inevitably means wages and other conditions will increase for some employees Employers who are about to start enterprise bargaining will need to consider the effect of the new bargaining regime (especially good faith bargaining orders), the impact of NESs from 1 January 2010 and the fact new agreements can be enforced by injunction Employers with AWAs and ITEAs need to consider now what they will do - it may be important to put in place new arrangements before 1 July 2009 - and not leave it until 1 January 2010 the impact on redundancy and restructuring programs - especially the capacity of employees to bring unfair dismissals in many circumstances - employers may need to adjust their consultative and redeployment procedures so as to avoid successful unfair dismissal applications.

Thought Leadership in Government March 2009 19 March 2009 Thought Leadership in Government March 2009

When is a resignation not a resignation? 18 March 2009 Arguably now more than ever, organisations need to address performance issues and concerns about employee conduct effectively. However, these matters can be complicated by employee illness and absence - particularly when followed by an employee's resignation. While the recent Australian Industrial Relations Commission decision in Lenora Ann Peary v Australian Hearing (Thatcher C, 18 February 2009) does not break new legal ground, it's a cautionary tale for businesses confronted by these kinds of day to day issues and risks and a handy reminder of things to watch out for.

Developments with the Fair Work Bill 18 March 2009 Things are moving apace with the Federal Government's Fair Work Bill which will be passed by the Senate shortly - probably in the next month. This means the new system is only a few months away - with most of the Bill now starting on 1 July 2009, not just the enterprise bargaining framework and unfair dismissals. The looming issue is the transitional legislation - which is due to be introduced into Parliament in the week of 16 March 2009. The first transitional bill, due to be introduced in the week of 16 March 2009, will be critically important for a range of employers including employers. There is also the capacity for important amendments in the Senate in particular areas.

Climate Space Special Edition: overview of the draft Carbon Pollution Reduction Scheme legislation 16 March 2009 The Australian Government has released exposure draft legislation setting out the legal and administrative mechanisms to establish and operate Australia's Carbon Pollution Reduction Scheme (CPRS). The draft legislation and supporting commentary proposes 1 July 2010 as the commencement date for the Scheme.

Executive remuneration: surviving the global financial crisis 12 March 2009 Last year, the G20 leaders at the Washington summit highlighted the need to better align employee incentives to discourage perceived risk-taking. In recent weeks, the new US administration has taken steps to cap the remuneration of executives of troubled financial institutions. On the local front, the Australian Institute of Company Directors has issued new guidelines for boards dealing with executive remuneration, recognition that the global financial crisis has increased the focus on all aspects of remuneration arrangements. There have been widespread calls in Australia and abroad for tighter regulation of executive remuneration, particularly in the financial services industry, with APRA due to release its discussion paper on the issue in the second quarter of 2009.

Changes to Australian foreign investment policy 12 March 2009 The Assistant Treasurer released details of changes to the Government’s foreign investment screening regime for acquisitions of real estate by foreign persons. The changes are focussed on residential real estate, but have important ramifications for resorts and hotels and developers of new dwellings.

Australia - still the lucky country? 12 March 2009 Can Australia still lay claim to being the 'lucky county'? Australia hit the buffers somewhat later than most developed economies, and some still doubt whether the full force of the global recession will be felt there.

Executive remuneration: surviving the global financial crisis 12 March 2009 The global financial crisis has put executive remuneration under the spotlight, with many now questioning the way key executives are rewarded. This article considers, from an Australian perspective whether share-based incentives still work, possible strategies for dealing with "underwater" options, other remuneration models that may be more suitable to sluggish economic times and recommendations for companies in respect of their remuneration structures.

Surviving the Global Financial Crisis 27 February 2009 With the Global Financial Crisis, the spotlight has been placed squarely on the issue of executive remuneration not only in the United States and across Europe, but also in Australia.

Trade Law - Current issues in Australia 20 February 2009 Chile – Australia FTA can bring immediate benefits Complying with Australian export controls Changes to Australian foreign investment real estate policy Treasurer announces amendments to the Foreign Acquisitions & Takeovers Act

Trade Law - International issues 20 February 2009 WTO challenge to China's IP protection and enforcement regime – who won? WTO Appellate Body calls for an end to the zeroing debate WTO Update

Trade Law Focus - From the editor's desk 20 February 2009 New policy needed for brewing trade cyclone

Do Not Call Register: ACMA's continued search for accountability in the telecommunications industry 19 February 2009 This article discusses ACMA's campaign over the past 12 months to improve telecommunications compliance with the Do Not Call Register

ACMA's enforcement initiatives 19 February 2009 ACMA's selection of enforcement initiatives seems to indicate that, in the absence of flagrant, malicious or egregious behaviour, enforceable undertakings and formal warnings are the preferred methods of dealing with breaches of the Spam Act.

Personal data and the internet: An EU data protection perspective 19 February 2009 The application of the European Union’s Data Protection Directive, introduced to harmonise the data protection laws throughout the EU, raises some interesting dilemmas when dealing with certain technology services such as the internet, which are designed to facilitate the cross-border sharing of data.

Giller v Procopets: the road to an Australian tort of privacy? 19 February 2009 In Giller v Procopets, the Victorian Court of Appeal considered whether the defendant’s disclosure to third parties of a videotape that depicted sexual activity between the plaintiff and the defendant constituted breach of confidence, intentional infliction of emotional harm or an invasion of privacy.

Federal Privacy Commissioner issues new case notes 19 February 2009 The Federal Privacy Commissioner has published three new case notes of finalised complaints concerning the interpretation or application of the Privacy Act. The case notes indicate the Commissioner's approach to resolving disputes.

Data leaks under a new privacy regime 19 February 2009 This article analyses the ALRC's proposed mandatory data breach reporting scheme as well as the current voluntary guidelines issued by the Office of the Federal Privacy Commissioner in order to assist businesses in managing potential data breaches.

Information and privacy reforms for Queensland 19 February 2009 The Queensland Government has proposed significant reforms to privacy and freedom of information laws for its state government agencies. This article summarises the two draft bills: Information Privacy Bill 2009 and the Right to Information Bill 2009.

2009: Overcast, but fine 30 January 2009 With 2009 (and some interesting economic times) upon us, the time has come to review our predictions for 2008, and make some bold new predictions for 2009.

Data leaks under a new privacy regime 30 January 2009 In August 2008, the Australian Law Reform Commission (ALRC) issued a 2700 page report, For Your Information: Australian Privacy Law and Practice (the Report), which makes 295 recommendations. One of the recommendations is likely to impact significantly on how companies manage information and data breaches.

Giller v Procopets the road to an Australian tort of privacy? 30 January 2009 In Giller v Procopets [2008] VSCA 236 (10 December 2008), the Victorian Court of Appeal considered whether the defendant’s disclosure to third parties of a videotape that depicted sexual activity between the plaintiff and the defendant constituted breach of confidence, intentional infliction of emotional harm or an invasion of privacy.

Federal Government proposes international standards for electronic contracts 30 January 2009 The Federal Government is currently taking submissions on proposed amendments to the State and Territory Electronic Transaction Acts (ETAs).  The amendments will incorporate components of the United Nations Convention on the Use of Electronic Communications in International Contracts (Convention) to bring Australia's current electronic contracting regime in line with international standards.  Eighteen countries are currently party to the Convention including China, Australia's largest trading partner.

Media exemption to consumer protection under TPA re-affirmed 30 January 2009 Two recent cases in the Federal Court have reaffirmed the protection offered to media organisations by section 65A of the Trade Practices Act 1974 (Cth) (TPA), which exempts the media from the application of the consumer protection provisions in Division 1 of Part V of the TPA, including section 52 which relates to misleading and deceptive conduct.

International Arbitration 30 January 2009 It is a common misconception that arbitration is only suitable for particular kinds of cases, such as building disputes.  It is also sometimes confused with other forms of non-binding dispute resolution such as mediation. However, arbitration is an effective and binding means of resolving disputes of any kind,  and in the international context, this is especially so.

IPAA Roundtable series 29 January 2009 Minter Ellison's Government Group is proud to be supporting and participating in the 2009 IPAA National Roundtable Series. The National Roundtable Series of forums are designed for discussion, debate and development of ideas on issues critical to professional government administration in Australia today. For more information on the Roundtable Series click here.

ACCC brings Federal Court action for Misuse of Market Power 12 December 2008 With amendments to the misuse of market power prohibition under section 46 of the Trade Practices Act recently passing through Federal Parliament, the ACCC has taken the relatively rare step of commencing Federal Court proceedings alleging misuse of market power; against companies in the Cement Australia group. The proceedings are particularly significant in their allegation of a misuse of market power through the acquisition of a product.

ACCC's Revised Merger Guidelines 12 December 2008 On 21 November the ACCC released a final version of its revised merger guidelines. The guidelines set out the analytical principles applied by the ACCC when assessing whether a merger is likely to substantially lessen competition under section 50 of the Trade Practices Act. This article provides an analysis of the practical consequences for Australian business, with a focus on the simplification of the notification’ thresholds applied by the ACCC.

International cartel enforcement 12 December 2008 The impending introduction of criminal cartel laws in Australia can be considered against the backdrop of significant cartel enforcement activity internationally in 2008.

International report: NZ legal update 12 December 2008 An update of developments in competition law from across the Tasman, including mergers, cartels and regulatory reforms.

Balancing environmental responsibility and consumer protection 12 December 2008 Awareness of environmental responsibility and action to reduce environmental impact continues to grow and reflect itself in marketing strategies.  However, such strategies must ensure consumers are not likely to be misled or deceived, contrary to section 52 of the Trade Practices Act.  What principles should sales and marketing teams apply to ensure that their 'green claims' remain compliant with the Trade Practices Act? How is this illustrated in recent ACCC enforcement activities?

Misleading or deceptive conduct legal update: component pricing 12 December 2008 Last month, the Federal Government passed the Trade Practices Amendment (Clarity in Pricing) Bill 2008 (Bill).  The Bill essentially amends the Trade Practices Act 1974 (TPA) to regulate the use of 'component pricing'.  In short, where a corporation makes a price representation to consumers, it may only use a component price if it also  'prominently' specifies the 'single figure' price payable for the good or service (where a single figure price is quantifiable). For an overview of the Bill and its requirements, please refer to the Minter Ellison News Alert 'Government passes Bill to govern component pricing under the TPA' available (click here)

Amendments to the Cartels Bill and Immunity Policy 12 December 2008 On 3 December 2008 the Australian Government introduced into Parliament an amended version of its legislation to criminalise cartel conduct under the Trade Practices Act.  The proposed cartel laws are supported by revised investigation, prosecution and immunity policies of the ACCC and Commonwealth DPP. How do the revised laws and policies differ from earlier drafts?  What are the practical implications for Australian business?

Third party access to Pilbara railways 12 December 2008 There have been a number of significant developments in recent months in a series of applications for third party access to railway services in the Pilbara region of WA. This article considers the Treasurer's decision to declare particular 'all points' services provided by the Goldsworthy, Hamersley and Robe railways, the High Court's decision that services provided by the Mount Newman and Goldsworthy railways are not an exempt 'use of a production process', and the ARTC's interstate rail access undertaking.

Information sharing by competition regulators - are Australian executives exposed to foreign criminal laws? 12 December 2008 Significant attention has been paid to the exposure of individual directors and officers to imprisonment under the Trade Practices Act. However, little attention has been given to an amendment quietly introduced in 2007 that permits the ACCC to share ‘protected information with foreign competition authorities. Whilst the amendment has yet to be publicly tested, it has the potential to expose Australian executives to criminal proceedings in foreign jurisdictions – regardless of whether criminal sanctions are introduced in Australia.

International Tax Update - December 2008 11 December 2008 This edition of International Tax Update incluudes an overview of Australia's response to the global financial crisis, and our regular topics including international tax news, tax administration, legislation and cases. We also cover indirect tax developments, government reviews and climate change.

Workplace Safety 08 December 2008 In this issue of the Workplace Safety Update we cover: the long-awaited Fair Work Bill recently introduced into Parliament and its provisions on OHS rights of entry useful tips to help ensure your office Christmas party is remembered for all the right reasons how YouTube footage was used as evidence in a safety prosecution the National OHS Review Panel's report and the recommendations on the duties of care and offences in the model legislation safeguards to protect employers from unreasonable or ill informed PINs in Queensland.

Is the Administrative Appeals Tribunal limited to a fixed point-in-time 28 November 2008 Is the Administrative Appeals Tribunal limited to a fixed point-in-time when reviewing administrative decisions. Or can it take into account the events which occurred up to the date of its own review? These questions often arise during the review process.

Application of TPA to corporations negotiating and entering commercial contracts with government 28 November 2008 Government purchasing authorities may need to re-examine the terms of their request for tender following a Federal Court decision which examined claims of breaches of the Trade Practices Act 1974 against Baxter Healthcare.

What do the new procurement guidelines mean for agencies? 28 November 2008 The Minister for Finance and Deregulation has issued new Commonwealth Procurement Guidelines to apply to procurement processes commencing on or after 1 December 2008. The new CPGs continue to focus on achieving value for money in procurement and, whilst the general requirements are largely the same as the previous version, there are a number of changes and refinements. The new CPGs implement some changes which agencies should consider in advance of the start date.

The credit slump and Commonwealth procurement 28 November 2008 The global credit crisis has seen the Federal government take a number of  proactive and far-reaching steps in an effort to shield Australia's financial markets from  the meltdown. However, while the government has focused its attention on the  activities of the private business sector, it needs to be aware of its own  exposure as a procurer of goods and services.

Highway to success 28 November 2008 Despite current headwinds Public Private Partnerships provide an excellent model for effective funding of infrastructure projects, harnessing the efficiency and resources of the private sector to achieve quality public policy outcomes.

Fair Work Bill 2008 introduced 26 November 2008 Yesterday, the Federal Government introduced its long awaited Fair Work Bill 2008 - often described as 'scrapping Work Choices'.  Today, we provide you with our comprehensive analysis of the Bill in our latest HRIR Update - including our analysis of the top 10 issues for employers.

The Carbon Pollution Reduction Scheme – are you ready? 13 November 2008 Businesses working in  the construction industry must start preparing for the arrival of Australia's  Carbon Pollution Reduction Scheme - a key aspect of the Government's climate change response.

Trade Law Focus 13 November 2008 The current edition of  Trade Law Focus begins with an overview of the newly announced EU-Australia partnership framework, which hints at the direction and priorities of this key bilateral relationship.  We also report on Australia's new guidelines on foreign investment, the adoption of UNCITRAL model law on cross-border insolvency, the Mortimer Report on export policies, the Government's deposit guarantee scheme and we review Australia's expanding free trade agenda.  We conclude, as always, with a roundup of important developments, issues and cases in the international trade arena. The articles in this edition include: New EU - Australia Partnership Framework Aligning foreign investor guidelines with Australia's national interest Australia's Expanding FTA Agenda Australia Adopts UNCITRAL Model Law on Cross-Border Insolvency Brazil to challenge US ethanol protection at the WTO Mortimer Report calls for national export and investment strategy Increased use of anti-dumping remedy around the world Subsidising and dumping of traded services Foreign corrupt practices and sanctions regimes – enforcement activity increasing Anti-subsidy case against Chinese exporters dropped ADI Scheme tests Australia's international financial services commitments WTO Update Minter Ellison – University of Canberra WTO law courses 25 & 28 November Click here to view the newsletter.

OFT Bid Rigging Scandal 13 November 2008 A scandal has erupted in the UK regarding bid rigging for public sector contracts – procurement based on the lowest price is seen as a significant contributing factor. This article discusses the controversy raging in the UK regarding bid rigging for public sector contracts and compares the UK position with that in Hong Kong.

Managing risk in an era of developing knowledge 13 November 2008 The recent  case of BHP Coal Pty Ltd v OK Orenstein and Koppel AG provides a  timely reminder of the challenges facing professionals in an advancing world of  knowledge.

Ten steps to achieving a 'Security of Payment Act' disaster 13 November 2008 Ever been involved in a construction project which hasn't gone smoothly? No need to worry.  Most states have now enacted legislation concerning 'security of payment' claims which will make your life much easier - provided you avoid the 10 most common and costly traps.

Court of Appeal's decision on indemnity and insurance 13 November 2008 A recent decision in the Court of Appeal limits the effectiveness of indemnity and insurance provisions commonly found in contracts and subcontracts. All subcontractors must ensure their insurance adequately covers the head contractor for all liability flowing from a danger or hazard.

Getting investigations right 22 October 2008 Recent decisions by the Australian Industrial Relations Commission (AIRC) and the courts have provided specific direction to employers on the process, obligations and legal risks arising from the conduct of investigations.  Employers are increasingly expected to ensure that when employment decisions are made on the basis of contested factual findings, those findings are made only after a careful, fair investigation process.

Federal Governments brings forward changes to IR laws 22 October 2008 Deputy Prime Minister, Julia Gillard, announced further details of the Labor Government’s new IR Laws – which are due to be introduced into Parliament in the next few months. The Deputy Prime Minister also announced that key parts of the legislation (including unfair dismissal and the new ‘bargaining framework’) will start early on 1 July 2009 - with the balance to commence on 1 January 2010.

The New Uniform Defamation Act gets a Workout in New South Wales 08 October 2008 Over the past few months, the New South Wales Supreme Court has become the battle ground for the first string of defamation claims to be heard under the uniform Defamation Act. Yet, in some ways, the cases have raised more questions about the new legislation than they have answered.

Don't get crunched! 08 October 2008 It is well known that many technology companies have 'thin' balance sheets and, with the credit crisis really starting to bite, many suppliers in the industry will find it increasingly difficult to access working capital. So what can be done? Take a more proactive approach and consult our checklist for some useful strategies.

Realising value in whole-of-enterprise telecommunication contracts 08 October 2008 To gain the full value of these types of contracts the customer needs to consider a number of fundamental issues including transitioning from existing suppliers, competitive pricing, contract management and governance avoiding lock-ins, building in flexibility and clarifying roles and responsibilities.

10 ways to ensure that your change project is doomed 08 October 2008 You’ve somehow made it through the tender process, but your mission-critical IT project stubbornly refuses to run off the rails. Don’t panic! If your project involves significant organisational change, here are 10 sure ways to consign the project to its doom, and maybe even take your organisation with it.

Green technology in a regulatory climate 08 October 2008 IT departments are among the largest consumers of energy in the corporate landscape, and with many technology users and manufacturers adopting more environmentally sustainable approaches to using, producing, transporting and disposing of technology, green IT is now firmly on the regulatory, corporate and consumer agenda.

Using PPPs for university student accommodation projects 29 September 2008 In spite of current financial conditions universities are increasingly turning to public private partnerships (PPPs) as the preferred means of funding, building and operating student accommodation projects.

Case Note: University of Melbourne v McKean [2008] VSC 325 29 September 2008 The Victorian Supreme Court has upheld a student's claim, under the Freedom of Information Act, for access to examinations papers and marking guides.

CRC program to re-focus on dealing with significant challenges facing Australia 29 September 2008 As part of a wider examination of Australia's national innovation system, the Federal Government commissioned a review of Australia's Cooperative Research Centre (CRC) Program. The resulting report, Collaborating to a purpose, released in August 2008, recognised the important role the CRC Program still plays in Australia's innovation system by encouraging large-scale collaborative research but also recommended several changes and improvements to address perceived problems with the Program itself and issues raised by universities, other research entities, industry and CRCs themselves.

Yin and yang – achieving cohesion in Chinese-Australian cooperative education structures 29 September 2008 Education in China is currently in a boom phase, with Chinese universities investing large amounts into the promotion of courses, research and development. Australian educational institutions can benefit from this scramble for knowledge and access to international technologies through their involvement in cooperative education ventures with Chinese institutions. But they need to understand the regulatory regime that surrounds Chinese education or it can be difficult to gain the necessary approvals.

Australia Adopts UNCITRAL Model Law on Cross-Border Insolvency 26 September 2008 The Cross-Border Insolvency Act 2008 (Cth) has been passed by Australia's Federal Parliament and received royal assent on May 26, 2008. The introduction of the law will mean that Australia joins the other countries which have adopted the UNCITRAL Model Law, including Great Britain, Japan, the United States, Canada and New Zealand.

Electronic health information systems 22 September 2008 The ALRC has considered the Australian Government's proposal to establish national shared electronic health records based on a unique healthcare identifiers system and recommended that any scheme should be established under specific enabling legislation. The Privacy Commissioner has made similar recommendations in its submission to the National E-Health Transition Authority on the Privacy Blueprint for the Individual Electronic Health Record.

ALRC Final Report on Privacy Law Reform – proposed new definition of 'personal information' 22 September 2008 One of the significant recommendations made by the ALRC is to amend the definition of 'personal information' in the Privacy Act. This will be relevant to all organisations and agencies since under the proposed new definition, information that is held by them may now be subject to the Privacy Act.

Social networking – Staying safe online 22 September 2008 In addition, the Australian Communications and Media Authority has produced a Fact Sheet to protect the privacy of individuals who engage in online social networking. The Fact Sheet identifies a number of key risks and suggests simple steps that individuals can take to protect themselves.

Privacy Commissioner issues new Guides 22 September 2008 The Privacy Commissioner has recently issued three new Privacy Guides on: interaction between the Privacy Act and the Spam Act, for organisations who engage in electronic marketing internal investigations of privacy complaints, a step-by-step approach for organisations and agencies to investigate and attempt to resolve complaints by individuals about interferences with their privacy and handling personal information security breaches, to help organisations and agencies prevent and respond effectively to breaches of personal information security.

International Tax Update - September 2008 19 September 2008 This edition of International Tax Update covers the Federal Budget roundup and our regular topics including international tax, indirect tax, tax administration and tax cases.

New procedures to harness local development of wind power in China 12 September 2008 Wind power is a rapidly growing industry in China – driven as much by a focus on cleaner energy fuels to cuts greenhouse gas emissions as by the introduction of state policies and laws, such as the Renewable Energy Law, that encourage the use of renewable energy sources.

Construction Law Update 11 September 2008 This issue discusses a number of cases in relation to fairness in tender submission, the meaning of repudiation and consequential loss, and the principles for assessing damages for defective work.

Harmonisation of OHS Laws: The ACTU vs Employers 27 August 2008 Written submissions to the Review Panel on the harmonisation of OHS laws closed on 11 July 2008. 242 submissions were received. In this article, we outline some of the views expressed by the union movement and employer groups on these issues.

Record fine in brewery fatality 27 August 2008 Fosters Australia Limited has been fined a massive $1.125 million in relation to a fatality at its Abbotsford brewery in April 2006. This is the largest fine imposed so far under the Occupational Health and Safety Act 2004 (Vic). The decision highlights the need for employers to carefully review their risk management systems.

National round up 27 August 2008 This national round up covers the ACT: Work Safety Bill 2008, Qld: Review of health & safety communication in the mining industry, WA: Health and safety of labour hire workers and SA: Review of bullying provisions.

OFT Bid Rigging Scandal 20 August 2008 Hong Kong-basedIan Cocking and Joanne Smith discuss the controversy raging in the UK regarding bid rigging for public sector contracts and compare the UK position with that in Hong Kong.

Superannuation reforms: going beyond the traditional family 06 August 2008 On 28 May 2008, the Federal Government introduced a Bill to amend the Superannuation Industry (Supervision) Act 1993 (Cth) and the Income Tax Assessment Act 1997 (Cth) with effect from 1 July 2008 to remove discrimination against same gender couples and their children. If passed, these amendments will have wide ranging implications for superannuation trustees and their funds.

Industry News 06 August 2008 A summary of industry news and legislative developments from the past few months.

ASIC catches software-based financial adviser in its net 06 August 2008 The Federal Court decision in ASIC v Oxford Investments serves as a reminder to financial services companies to ensure that any activities, events, tools or materials which may contain subjective interpretation of figures or information comply with the financial product advice regime.

Reforms to improve competitiveness of Australian MITs 06 August 2008 The Australian Government has announced a range of reforms designed to improve the competitiveness of Australian Managed Investment Trusts. This article outlines the details of those reforms and their likely impact on the managed investment sector.

Hong Kong now an even more attractive place to do business with the PRC 01 August 2008 In addition to the low tax regime and certainty afforded by Hong Kong’s common law judicial system, from 1 August 2008 certain Hong Kong Court decisions will be recognised and enforced by PRC courts without revisiting the merits and vice versa. This is a very positive development for foreigners who are doing business with PRC entities because it will facilitate direct enforcement of a Hong Kong judgment against assets in PRC, without the need to relitigate in the PRC courts or litigate the dispute in the PRC in the first place.

construction law made easy 29 July 2008 Minter Ellison is delighted to introduce construction law made easy. construction law made easy by Minter Ellison is a website specifically designed to make life easier for construction, property and infrastructure industry professionals. Our online resource explains legal concepts in easy to use terms. We provide you with real life examples and links to current cases and legislation.

10 tips for managing contractor performance 29 July 2008 Here are some useful tips to help facilitate the successful delivery of complex projects.

Early Contractor Involvement 29 July 2008 The current boom in the engineering and infrastructure market has seen principals become more creative with project delivery models to help attract the best contractors and engineering resources available. Early Contractor Involvement is one such innovative project delivery method that has a strong emphasis on developing long-term relationships between parties.

Security of Payment in South Australia 29 July 2008 The introduction of the Building and Construction Industry Security of Payment Bill could potentially over-ride the Worker's Liens Act, which has been in operation for more than a century. If passed, the Bill will have a much wider application than existing legislation by offering contractors additional entitlements.

Partnership approaches to meeting public transport needs 29 July 2008 If a future Australia is to have a world class public transport system, we must start exploring innovative ways to manage and procure transport infrastructure and services through harnessing substantial investment from the private sector.

(Untapped) Potential of WTO Rules to Discipline Private Trade-Restrictive Conduct 21 July 2008 Presentation to the Inaugural Society of International Economic Law

Misleading or Deceptive Conduct – Lessons from the year to date 18 July 2008 The ACCC has continued its thematic approach to misleading or deceptive conduct in 2008, targeting comparative (or 'dual ticket') pricing, environmental or 'green' claims and the perennial issue of food labelling. What practical principles can business apply to minimise risks in these areas?

Misleading or Deceptive Conduct – Lessons from the year to date 18 July 2008 The ACCC has continued its thematic approach to misleading or deceptive conduct in 2008, targeting comparative (or 'dual ticket') pricing, environmental or 'green' claims and the perennial issue of food labelling. What practical principles can business apply to minimise risks in these areas?

VCAT cracks down on unfair contract terms 18 July 2008 Consumer Affairs Victoria has successfully challenged a number of payment, termination and release clauses commonly used in contracts by the fitness industry under the Fair Trading Act 1999. The case has wider implications for all businesses that provide on-going services to consumers.

Merger clearance processes: is formal clearance a viable alternative? 18 July 2008 It has now been 18 months since the introduction of a formal merger clearance system. However, we are yet to see a single application to the ACCC under that mechanism. Why has it not been utilised to date? In what circumstances would it present strategic benefits for merger parties?

Franchising issues before the High Court 18 July 2008 The uncertainty regarding the form vs substance of the Franchising Code of Conduct is nearing its conclusion, with the High Court hearing the final appeal in the Ketchell case. An analysis of the arguments heard by the Court give an insight into its potential outcome.

Third party access to Pilbara railways 18 July 2008 The National Competition Council has released draft recommendations to declare services provided by means of the Hamersley, Goldsworthy and Robe railways in the Pilbara region of WA, under Part IIIA of the Trade Practices Act. It follows the release of the WA government's own proposed third party access regime for the Pilbara railways.

Proposed amendments to Predatory Pricing – an overstated significance? 18 July 2008 The Federal government has introduced a Bill to reform to the misuse of market power provisions of the Trade Practices Act. The amendments primarily seek to clarify the specific prohibition against anti-competitive predatory (or 'below-cost') pricing in section 46(1AA), enacted by the former government in September 2007. This follows criticisms of the effectiveness of the section, and its inconsistency with the general misuse of market power prohibition in section 46. However, the amendments are unlikely to have a significant practical impact.

Mutual Recognition and Enforcement of China Mainland and HK Court Judgements 17 July 2008 From 1 August 2008 certain Hong Kong Court decisions will be recognised and enforced by PRC courts without revisiting the merits and vice versa.

An overview of the National Greenhouse and Energy Reporting System 16 July 2008 Following questions from our clients concerning the National Greenhouse and Energy Reporting (NGER) system, we have prepared a special edition of Climate Space to provide a briefing note which addresses operation of the system, the obligations it creates, and some key considerations for business. With the release of the Australian Government's green paper on the establishment of an Australian Emissions Trading Scheme, it is becoming increasingly clear that the NGER system is likely to be a key plank in the operation of the Australian ETS. As such, compliance with the NGER system is an important early step for large Australian businesses on the road to emissions trading.

Productivity Commission Comments on the Impact of Biofuel Subsidies 09 July 2008 The Productivity Commission's recent examination on the Australian Government's subsidisation of biofuels such as ethanol fits into a wider international discussion about the merits of biofuels in the context of sharply rising international food prices.

New Zealand concludes an FTA with China 09 July 2008 New Zealand has become the first developed country to secure a Free Trade Agreement with China. While the FTA provides for improved access for New Zealand producers and investors into China, it is primarily a strategic move to strengthen ties with the world's next superpower.

The Trade Practices Act and carbon claims 09 July 2008 As Australians becoming increasingly aware of the impact their choices of consumer goods and services are having on the environment, many businesses are recognising the opportunity to differentiate themselves from their competitors on their 'green credentials'.

Anti-dumping measures on the decline 09 July 2008 New data released by the Productivity Commission in its Trade and Assistance Review 2006-07 highlights a historically low level of anti-dumping proceedings being initiated in Australia.

Backgrounder: The WTO dispute settlement process 09 July 2008 Australia's participation in a growing number of World Trade Organization disputes either as a 'party' or so-called 'third party' raises some important questions on how WTO disputes work and how long they take to resolve?

WTO Update 09 July 2008 We highlight the developments that occurred in WTO dispute settlement between 31 January 2008 and 24 June 2008.

The WTO: The boy who cried wolf 09 July 2008 Are we really entering the final stages of the World Trade Organization's long outstanding multilateral trade negotiations that were initially launched in Doha in late 2001? Or are we about to witness yet another example of world trade negotiators teasing us with a conclusion to the Doha Round?

WTO 'Hormones' panel issues report after EC complaint over US and Canada retaliation 09 July 2008 The World Trade Organization panel was asked to consider the legality of US and Canadian trade sanctions against the European Communities. The panel handed down its report in April, which contained a number of recommendations in relation to compliance.

New criminal offences for non-compliance with UN sanctions 09 July 2008 On 24 March 2008 the International Trade Integrity Act was introduced in response to the Inquiry into certain Australian companies involved in the UN Oil-for-Food Programme. The Inquiry's Report recommended that offences be created for individuals and companies acting contrary to UN sanctions that Australia has agreed to uphold.

Recent cases considering management of ill or injured employees 01 July 2008 Our attached HR & IR Update examines two recent decisions dealing with the often complex issues that arise when dealing with ill or injured employees. It also includes an update on the on the increased unfair dismissal remuneration cap, the expiry of the Superannuation Choice of Fund default insurance exemption and the AIRC's model flexibility clause for modern awards.

Compilation of WTO Legal Services Offers 30 June 2008 This list was compiled by Minter Ellison's International Trade Group and prepared for the International Bar Association WTO working group.

National Employment Standards Finalised 18 June 2008 On Monday, Deputy Prime Minister Gillard issued both the final National Employment Standards and a revised award modernisation request. Importantly, the Australian Industrial Relations Commission has been directed to establish an award for non managerial employees who are currently award free, but perform similar work to award covered employees.

Anti-money laundering for universities 17 June 2008 While universities may not be subject to any additional regulation under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), their international students may feel the affects of its implementation when seeking financial services while studying in Australia.

University of Western Australia v Gray – shifting sands of IP ownership by academics? 17 June 2008 A recent Federal Court decision is of particular significance to universities because it takes a narrow approach to the issue of when a university will be entitled to ownership of inventions developed by their academic staff.

Revamp of Victoria's tertiary legislative framework 17 June 2008 In early February this year, the State Government announced that it would conduct a full review of the Acts which govern Victoria's public universities. This announcement was made as part of the Premier's Statement of Government Intentions for 2008, which included a promise to 'modernise university governance'.

Outsourcing of IP Commercialisation Services – a New Trend? 17 June 2008 Over the past few years there has been a notable shift in the way universities and research organisations have approached commercialisation of their intellectual property. Some have had the budget and focus to establish in-house capacity. Others have sought to complement in-house skills with external collaboration and more recently we have seen movement towards full outsourcing of IP commercialisation services. This article gives an overview of some of the issues that usually appear in the course of negotiating an IP commercialisation outsourcing arrangement.

Draft Voluntary Information Security Breach Notification Guide 13 June 2008 This article summarises the recent Draft Voluntary Information Security Breach Notification Guide issued by the Office of the Privacy Commissioner.

No appeal from Victorian County Court privacy decision 13 June 2008 This article discusses the aftermath of the recent decision of the Victorian County Court in relation to whether a common law duty of care exists between a broadcaster and member of the public.

Anti-Money Laundering and Counter-Terrorism Financing 13 June 2008 In light of the imminent public release of the Australian Law Reform Commission's (ALRC) Final Report on Privacy, this article outlines the reform suggested by the ALRC in their Discussion Paper 72 on the "Review of Australian Privacy Law" in relation to anti-money laundering and counter-terrorism financing.

Transborder Data Flows 13 June 2008 As we reported in our March 2008 edition, the APEC Data Privacy Pathfinder has been endorsed by APEC members. This article discusses how Australian businesses should approach the transfer of data to international entities, in particular to APEC and EU countries.

Final report from External Reference Group on 457 visas 11 June 2008 An External Reference Group (ERG) commissioned by the Federal Government to investigate Australia’s temporary skilled migration program recently delivered its final report. This Update outlines the recommendations of the ERG on 457 visas as well as the implications these will have on your business.

ASIC extends disclosure relief for rights issues 03 June 2008 In an effort to increase the opportunities for retail investors to participate in fundraising offers, the Australian Securities and Investments Commission issued Class Order 08/35 which ensures that non-traditional rights issue structures are covered by the existing prospectus and product disclosure statement exemption for rights issues.

Infrastructure Australia 03 June 2008 Mark Birrell, Special Counsel and leader of Minter Ellison's National Infrastructure Industry Group, has been appointed to the new Australian Government's inaugural Infrastructure Australia Board.

Federal Budget 2008 03 June 2008 The new Australian Labor Government, in its first budget handed down on 13 May 2008, has been credited with presenting a cautious budget designed to control government spending and position Australia to ride out the possible shocks of an unstable world economic climate over the immediate future.

New ACCC merger bible 03 June 2008 The Australian Competition and Consumer Commission (ACCC) has released a draft of its revised merger guidelines which will amend the analytical framework applied by the ACCC when assessing whether a merger (or proposed merger) is likely to substantially lessen competition under section 50 of the Trade Practices Act 1974 (Cth).

International Development Law Organisation policy dialogue for South Asia 27 May 2008 Iain Sandford addresses International Development Law Organisation policy dialogue for South Asia.

Towards harmonisation 21 May 2008 Last week, in the 2008/2009 Budget, the Government announced it would provide more than $27 million over four years to finance the national harmonisation of occupational health and safety and other areas of business regulation.

Chain of responsibility legislation in the heavy vehicle industry 21 May 2008 Historically, the enforcement of road transport legislation was aimed primarily at the driver and, in some circumstances, the operator of a heavy vehicle. It has now been recognised by the players in the road transport industry that driver and public safety is the responsibility of all those who participate in road transport activities.

Superannuation changes to take effect from 1 July 2008 21 May 2008 In last week's Budget, the Government announced a number of changes to fringe benefits tax that are likely to increase the cost to employers of providing certain benefits to employees. In addition, some important changes to superannuation will take effect on 1 July 2008. This Update looks at these changes and also a recent ATO decision that could have a significant impact (in relation to superannuation and taxation) for employees whose old contracts are renewed.

Liability for internet intermediaries in defamation 14 May 2008 In Mark Forytarz and Paul Castran v Google Australia Pty ltd and Destra Corporation Ltd, a case that could set a precedent for liability on the internet under Australia's new uniform defamation laws, two Melbourne real estate agents have sued Google Australia in the Victorian Supreme Court over allegedly defamatory statements posted by Neil Jenman on his blogsite and accessible via Google's search engine. The plaintiffs have also sued Destra Corporation Ltd, claiming it was the host of the blogsite.

A fundamental change in the law concerning 'consequential loss' 14 May 2008 The fundamental importance of technology to modern business means that a business may be exposed to significant losses should its technology fail – even where a failure is short term.

I like my First Life! Why do I need a Second Life? 14 May 2008 In the last 12 months or so, online virtual worlds have attracted a great deal of attention in the mainstream press. So why do people bother? Why are so many businesses, governments and educational institutions joining them? And what legal exposures do individuals and others face in this weird and wonderful virtual world? This article will explore these questions.

Financial Services Legal Update News 06 May 2008 An update of the news around Financial Services from the past few months.

Award modernisation process begins 30 April 2008 The Australian Industrial Relations Commission (AIRC) issued a Statement on 29 April 2008, laying down a proposed timeline for the AIRC’s award modernisation process. The AIRC’s Statement also identifies 19 priority industries, in relation to which it is proposed that the award modernisation process will be completed before Christmas 2008. Employers in the priority industries identified by the AIRC would be well advised to become involved in, or at least informed about, the award modernisation process.

International Tax Update - April 2008 18 April 2008 This edition of International Tax Update covers the Federal Election and our regular topics including international tax, indirect tax, tax administration and tax cases.

Cartels Overview 17 April 2008 This article Cartels Overview is an extract from The 2008 Asia Pacific Antitrust Review, a Global Competition Review special report - www.GlobalCompetitionReview.com.

Notice upheld despite uncertainty 14 April 2008 The decision of Precept Services Pty Ltd v Concrete Equipment Australia (Trading) & Anor outlines some of the key issues to consider when upholding the validity of a notice of claim of charge.

Can a Superintendent submit a payment schedule under the Security of Payment Act? - Bucklands Convalescent Hospital v Taylor Projects Group [2007] NSWSC 1514 14 April 2008 Can a Superintendent submit a payment schedule under the Security of Payment Act? This was the question thrown into the spotlight during a recent case heard before the NSW Supreme Court.

Infrastructure road map – blueprinting Australia’s future 14 April 2008 The creation of Infrastructure Australia by the Rudd Government represents the first concerted attempt at national leadership in the prioritisation and delivery of public infrastructure. What will be the likely impacts of this new statutory body for Australia's construction industry?

'But you didn't tell me that was there!' 14 April 2008 The recent case of BMD Major Projects Pty Ltd v Victorian Urban Development Authority raised some interesting issues for both owners and contractors when dealing with latent conditions claim. It also highlighted the need for contractors to take care when considering the wording of latent condition clauses and notice provisions in construction contracts.

OTHER INDUSTRY ISSUES: Impacts of the new Division 250 of the Tax Act 08 April 2008 For those operating in the energy and resources sector, the new Division 250 of the Tax Act has important implications for both existing and new contracts, particularly when dealing with Government entities and non-residents.

WATER: New regime proposed for the Murray-Darling 08 April 2008 Following an in principle agreement by the Council of Australian Governments on 26 March 2008, a water management plan for the Murray-Darling Basin could be one step closer.

OIL & GAS: The future of the gas industry in China 08 April 2008 China's draft Energy Law and first White Paper on energy, released at the end of 2007, are an attempt to address the inadequacy of current energy policies and strategies to support the country's strong energy demands, economic growth potential and environmental responsibilities.

WELCOME... and industry overview 08 April 2008 While the Australian Bureau of Agricultural and Resource Economics' latest annual review of the resources and energy sectors highlights some interesting growth statistics, on the flip side are some important issues that weigh heavily across the sector.

CLIMATE CHANGE: Trade rules and climate change 08 April 2008 Contrary to what some commentators might believe, the World Trade Organization can accommodate measures focussed on protecting the environment. But it does impose important disciplines on those measures when they impact on international trade.

MINING & MINERALS: Can exploration keep up with demand? 08 April 2008 In spite of Australia's strength as a resource exporter, there are clear signs that exploration is declining, and this is something that will significantly impact the sector in the short, medium and long term.

ELECTRICITY: NSW electricity privatisation, vertical integration and the TPA 08 April 2008 The Australian Competition and Consumer Commission's long-standing interest in the issue of vertical integration in the electricity industry has come to the fore, given the Owen Inquiry Report to the NSW Government and the government's response to its recommendations.

Transition to Forward with Fairness Bill to come into effect imminently 25 March 2008 The Senate passed the Workplace Relations Amendment (Transition to Forward with Fairness) Bill (Transition Bill), with some amendments that were proposed by the Government. The amended Transition Bill has also been passed by the House of Representatives, and is awaiting Royal Assent before it comes into effect.

Update on ALRC Report 17 March 2008 As we reported in the November 2007 edition of the Privacy Update, submissions in response to the Australian Law Reform Commission's 'Review of Privacy' closed on 7 December 2007. According to the ALRC website at the time of issue of this edition, the ALRC's final report and recommendations were due to be delivered to the Attorney-General on or before 31 March 2008.

Recent decisions of and latest news from the Office of The Privacy Commissioner 17 March 2008 This article summarises three recent cases that came before the Privacy Commissioner late last year and recent news from the Office of Privacy Commissioner.

APEC Data Privacy Pathfinder 17 March 2008 The APEC Data Privacy Pathfinder (Pathfinder) was formally endorsed by APEC members when they met in Sydney last year. The purpose of the Pathfinder is to develop a framework to regulate the transfer of personal information by business across national borders, which aims to ensure that an individual's personal information is protected no matter which APEC country the information is transferred from or to.

Changes to Higher Education Workplace Relations Requirements 27 February 2008 The new Labor Government has introduced a new Bill known as the Higher Education Support Amendment (Removal of Higher Education Workplace Relations Requirements and National Governance Protocols Requirements and Other Matters) Bill.

Climate change law – an overview for universities 27 February 2008 Universities need to be aware of the dynamic climate change policy environment, to ensure they comply with their obligations under the new laws, protect themselves against risk, and to ensure they are ready to capitalise on new opportunities as they arise.

Assessing copyright risk in new classroom technologies 27 February 2008 The increasing use of technologies such as podcasts, chatrooms, online forums and other forms of 'electronic classroom' has led to a proliferation of new content created in, and by, educational institutions.

Rewarding volunteers, not the ATO 27 February 2008 Higher education institutions looking to recognise contributions people make to the institution for free ought to have in mind the various tax law aspects of doing so.

Doubt shadows confidentiality clauses in Government contracts 26 February 2008 There is now uncertainty over the effectiveness of some confidentiality agreements in Government contracts to protect the scope of information intended to be confidential. In the recent case of Watt v Forests NSW, Montgomery JM considered the application of clause 13(a) of Schedule 1 of the Freedom of Information Act 1989 to a government supply contract which contained a confidentiality clause. This case could have broader implications for confidentiality agreements beyond the FOI regime.

WTO Dispute Settlement Update 25 February 2008 We highlight the developments that occurred in WTO dispute settlement between 17 August 2007 and 31 January 2008.

Plastics, chemicals and Asian exporters dominate Australian anti-dumping activity in 2007 25 February 2008 A review of Australia's anti-dumping activity in 2007 shows a moderate decline, with an overwhelming focus on the plastic and chemical sectors.

Can Quarantine measures be the subject of investor-state claims? 25 February 2008 It is well understood that quarantine measures may be subjected to review in the World Trade Organization , but a recent case under the North American Free Trade Agreement highlights the possibility that quarantine measures may also be reviewable under investment treaties.

Trade rules and climate change: pressure points emerging 25 February 2008 Contrary to popular belief, the World Trade Organization can accommodate environmental protection measures so long as, amongst other things, the discriminatory nature of such measures are minimised as much as possible.

Sovereign Wealth Funds and Australia's Foreign Investment Oversight Regime 25 February 2008 The treatment and transparency of Sovereign Wealth Funds has been thrown into the spotlight following concerns arising from the credit crunch fallout.

China-Australia:Investor-State may be possible 25 February 2008 A recent arbitral decision in Europe has confirmed that 'most favoured nation' clauses can extend investor-state dispute settlement rights.

Reviewing Australia's FTA policy 25 February 2008 In an attempt to reinvigorate Australia's export market and strengthen our presence on the international stage Australia's new Minister for Trade, Simon Crean, has indicated that Australia's trade polices and programs will be reviewed.

Australian Government releases draft National Employment Standards 18 February 2008 Late last week, the Australian Government released an exposure draft of ten National Employment Standards, that will apply to all employees from 1 January 2010. There are some significant changes, such as a redundancy pay entitlement for all employees (not just award-free employees). The Government is seeking submissions on the proposed Standards by 4 April 2008. We provide details of the proposed Standards, and discuss the next steps, in the attached HR & IR Update.

Forward with Fairness Transitional Bill introduced 14 February 2008 On 13 February 2008, the Commonwealth Government introduced into Parliament the first plan of its Forward with Fairness reforms to the workplace relations system. In the attached HR & IR Update we discuss the Transitional Bill, and its implications for employers.