Insights
A new way to litigate: The increasing use of court-appointed referees in complex litigation
What are court-ordered references? A reference involves the court making an order to appoint a referee (or a panel of referees) to assist the court in determining questions of fact or law in dispute in a proceeding. A reference may be ordered at any stage of a proceeding and may be conducted as an interlocutory process (ie, for disputes about standing or discovery) in parallel with the substantive proceeding. Referees...
Responsible AI & Ethics
Linda Przhedetsky is an Associate Professor at the University of Technology Sydney’s Human Technology Institute. She’s a policymaker and PhD candidate specialising in the ethical development, regulation and use of artificial intelligence (AI), and her research focuses on the role of automated decision-making tools in competitive essential services markets and the development of effective regulatory solutions that prevent...
Right-of-entry – different approach by the Fair Work Ombudsman
Following the formal abolition of the Australian Building and Construction Commission and the transfer of its functions to the Fair Work Ombudsman (albeit with a fraction of the budget), some employers are asking legitimate questions about the FWO’s approach to compliance and enforcement. The questions include whether: there will be a different right-of-entry approach by the FWO to that of the ABCC in terms of responding...
The Growing Influence of Generative AI on the Legal Industry: What Lawyers Need to Know
Few technologies have generated as much hype across the legal industry as Generative AI. Open AI’s ChatGPT, Google’s Bard, and a host of new solutions being developed on Large Language Models (LLMs) are making waves across the world. To put that into context, ChatGPT acquired 100 million users in a little over 2 months – making it the fastest growing consumer software application ever. To put ChatGPT’s success into perspective...
Overview of Enterprise Bargaining and BOOT changes in Secure Jobs, Better Pay Act
One of the biggest policy shifts in the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Secure Jobs, Better Pay Act) was the change to the existing enterprise bargaining framework. As part of the policy drive to encourage enterprise bargaining, the Secure Jobs, Better Pay Act reduces barriers to multi-enterprise bargaining and expands the powers of the Fair Work Commission (FWC) to resolve bargaining...
High Court rejects Mayfair and Mawhinney special leave applications
5 Key takeaways and implications for future financial services enforcement Introduction After a lengthy and hard-fought legal battle, the High Court has rejected the Mayfair 101 group of companies and their director James Mawhinney’s special leave applications. What can financial services licensees and their directors learn from the Mayfair 101/Mawhinney saga? How could this impact ASIC’s tactics in initiating future...
Privacy risks from artificial intelligence and machine learning models — what do lawyers need to know?
In this article from the December 2022 edition of the Privacy Law Bulletin expert author Dr Jonathon Cohen discusses Australia's rapidly changing privacy law framework. He also argues that lawyers and their clients would benefit from more clarity around the extent to which amendments to the Privacy Act might impact corporate governance requirements. Subscribers can access the full bulletin HERE . It covers three main...
The Ref’s Call: Pelvic mesh class actions demonstrate the courts’ growing and innovative use of referees in complex cases
By Simone Michel (Legal Writer – Practical Guidance Dispute Resolution) and Michael Kontoudis (Senior Legal Writer – Practical Guidance Dispute Resolution) Recent decisions of the Federal Court in high-profile class actions highlight the emerging trend for the courts to appoint referees in novel and innovative ways in a broad range of complex commercial matters, from the determination of liability and damages to the...
The Internet’s “bizarre” bazaar: ACCC enforcement on digital marketplaces
This article comes from the experts behind the Internet Law Bulletin which covers a range of legal issues posed by the Internet and online services: issues as diverse as copyright, defamation, online dispute resolution, privacy, trade practices and criminal law. Subscribers to Practical Guidance can access the full bulletin HERE . Key tips for lawyers advising companies with digital platforms The Australian...
Company directors’ responsibility for board sign-off of financial statements | Financial reporting
Signing-off on financial statements is one of the key responsibilities discharged by company directors under the Corporations Act 2001 (Cth). The Corporations Act requires disclosing entities, public companies, large proprietary companies registered managed investment schemes and sub-funds of corporate collective investment vehicles (CCIVs) to prepare and lodge audited annual (and, in some cases, half-yearly): financial...
ACCC 2023/2024 Compliance and Enforcement Priorities
On 7 March 2023, the Chair of the Australian Competition and Consumer Commission (ACCC), Gina Cass-Gottlieb, announced the ACCC’s 2023/2024 enforcement and compliance priorities and confirmed its enduring priorities. The priorities span across both competition and consumer law, with many arising from the cost-of-living crisis. READ KEY TAKEAWAYS Subscribe to our Newsletter
Practical Considerations for Mediation in Sporting Disputes
In 1962, during the Cuban missile crisis, then Chairman of the Council of Ministers of the Soviet Union, Nikita Khrushchev, wrote to the President of the United States of America, John Kennedy the following words: Mr President, Mr Kennedy, you and I are like two men pulling on a rope with a knot in the middle, the harder we pull, the tighter the knot until it will have to be cut with a sword. Now why don’t we both...
5 Steps to Bridge the Reputation-Reality Gap During a Cyber Incident
As 2022 cyber events have shown us, few crises have the potential to impact an organisation’s reputation as negatively as a cyber incident. When not handled correctly, the damage to an organisation’s reputation from a cyber event can be severe and long lasting. A cyber incident that results in the theft or loss of customer personal information can irrevocably undermine trust in the organisation. This may erode market...
Generative AI and what it means to you
Unlike its generative predecessors such as Midjourney and DALL-E 2, ChatGPT seems to have caught the interest and imagination of the mainstream. I’d initially held off writing anything on the launch of ChatGPT due to the hype that accompanies these launches, but over a month later, it is still very much in the public consciousness. While it is still early days, ChatGPT represents a significant set forward in generative...
ESG and its relevance for both companies and lawyers
How can you understand what ESG (Environment, Social and Governance) is, and how it is relevant to your organisation and to your legal team? What can you do to ensure that your ESG policies are legitimate and make a real impact? The changing regulatory landscape and significance of ESG policies in the public eye are forcing organisations to reconsider their implementation of ESG. So, what are the fundamentals of Environmental...
Three tips for banking and finance lawyers when responding to an ASIC advertising query
Australian Banking & Finance Law Bulletin subscribers can read the full article here. Introduction From time to time, a credit licensee may receive a “please explain” letter from the Australian Securities and Investments Commission (ASIC) in relation to representations in advertising, to test the accuracy of statements made, the basis for making or evidence supporting representations, or any underlying calculations...
Beware of unfair contract terms
Significant increases to competition and consumer law penalties have commenced and sweeping reforms to the unfair contract terms regime will follow in 12 months’ time. Get ready, the ACCC has just been given a much bigger stick! What do these changes mean for Australian businesses? What are the key considerations for lawyers? Luba Poukchanski , our expert legal writer for LexisNexis Practical Guidance Consumer unpacks...
Mind the gap — ASIC turns its mind to whistleblower policies and entities must “walk” the policy “talk”
The Australian Securities and Investments Commission (ASIC) is calling on Australian CEOs, from public companies, large proprietary companies and corporate superannuation trustees to review their whistleblower policies and processes to ensure compliance with private sector whistleblower laws. Strengthened private sector whistleblower regime An enhanced private sector whistleblower regime commenced 1 July 2019: Pt...
Unfair dismissal: A “line in the sand” must not be discretionary (Michael Hudson v Metcash Trading Ltd [2021] FWC 2765)
Mr Hudson was employed as a forklift driver by Metcash Trading Ltd (Metcash) for 23 years. He was dismissed after using his mobile phone in a high-risk area in contravention of a Metcash policy. However, Mr Hudson was reinstated by the Fair Work Commission as the policy did not support this “ zero tolerance approach ”. This is a lesson for employers to pay attention to policy drafting to ensure the policy provides...
Four Key Factors Impacting Your ESG Score
Corporate responsibility is playing an increasing role in how the world views your brand or organisation, and the impact of these efforts goes far beyond basic public image or social media accolades. Your organisation's approach to sustainability and your ESG score can influence everything from how likely consumers use your product, which prospective employees are interested in working for you and how attractive you might...
Close your eyes at your peril: former directors penalised for breaches of the Credit Code and ASIC Act.
In Australian Securities and Investments Commission v Rent 2 Own Cars Australia Pty Ltd (No 2) [2022] FCA 491, the Federal Court penalised two directors of the now-deregistered Rent 2 Own Cars Australia Pty Ltd (‘ R2O’ ) a total of $228,000 for being knowingly concerned with R2O’s unlawful conduct, which included charging excessive interest and misleading consumers. The decision provides a practical application of the...
The contract is in the driver's seat but is it sayonara for labour hire independent contractor or Odco arrangements
The long-awaited High Court decisions in ZG Operations v Jamsek [2022] HCA 2 and Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 signal that the contract is in the driver’s seat but flags issues with “Odco” relationships for labour hire agencies. Multi-factorial but only as far as the contract says The multi-factorial analysis has held sway for several years....
Challenges for Victorian council landlords in managing leasing portfolios
Managing a large and varied leasing portfolio can be challenging for any landlord. Most landlords managing large portfolios use digital tools to manage various aspects of their leasing portfolios (eg, processing maintenance repairs and requests, tracking outgoings and rental payments and invoicing for such items). Increasingly, commercial, institutional and other large-scale landlords are also using digital tools to help...
Climate-related challenges for council landlords managing leasing portfolios
Climate change will continue to present challenges for council landlords in how they manage their leasing portfolios. Two of the CSIRO’s climate change projections are that extreme rainfall events will become more intense and that tropical cyclones, while possibly occurring less often, will become more intense. [1] With those and other predicted climate change impacts, council landlords might expect more frequently occurring...
Privacy in one’s image and biometrics
Newsletter subscribers can read the full article here . Introduction New technologies are making it easier to collect and use the images and biometrics of individuals. This article examines the types of biometric technologies being used, their legal ramifications and how Australia’s privacy law framework is responding. Background Biometrics are the physical or behavioural characteristics that can be used to...