Allens

All recent publications

Our experienced legal team regularly publishes articles and updates on a wide range of legal topics - you'll see the most recent publications listed below.

If you would like to read back issues, please go to the 'Publications' menu in the top right-hand corner of this page and use the drop-down menu to select your preference (or use the list in the grey box at the bottom of this page). If you'd like to be notified when we add new publications to the site, please go to our subscription page to sign up for email alerts or, alternatively, you can subscribe to our RSS feeds.

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  • Focus: Supply chains in the spotlight: Establishing an Australian Modern Slavery Act

    21 February 2017

    The Australian Government has announced the launch of a broad inquiry into establishing a Modern Slavery Act in Australia. The inquiry will consider whether the introduction of anti-slavery legislation would strengthen and improve Australia's current regime to combat slavery. If introduced, a Modern Slavery Act would have significant implications for Australian businesses and their suppliers abroad. Partner Rachel Nicolson, Associate Freya Dinshaw and Lawyer Shamistha Selvaratnam report.

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  • Focus: Forge-ing ahead - the treatment of fixtures under the PPSA

    21 February 2017

    The Court of Appeal has confirmed that under the Personal Property Securities Act 2009 (Cth) 'fixtures' are to be understood in the same way as at general law and the same common law test applies to determining whether goods affixed to land have become fixtures (ie part of the land). In unanimously upholding a 2016 decision of the Supreme Court of New South Wales, the appeal decision serves as yet another remainder of the importance of registering security interests on the Personal Property Securities Register, including those arising under equipment leases. Partner Kim Reid, Senior Associate Przemek Kucharski and Associate Jonathon New, who acted for the successful party in this matter, report.

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  • Client Update: Senate Committee supports proposal to broaden the misuse of market power prohibition

    17 February 2017

    The Senate Economics Legislation Committee has published its report supporting the Government's proposed reforms to broaden the misuse of market power prohibition, but recommended that the mandatory factors be removed. It is expected that the Government will now seek to expeditiously progress the Bill through Parliament.

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  • Client Update: Federal Government addresses uncertainty around Indigenous Land Use Agreements

    17 February 2017

    The Federal Government has moved to provide certainty for those who rely on registered Indigenous Land Use Agreements, following the Full Federal Court's decision that called the legal status of these agreements into question, by introducing amending legislation. Partner Ben Zillmann and Senior Associate Andrea Moffatt look at the key elements.

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  • Client Update: Mandatory data breach notification scheme passed

    13 February 2017

    The Federal Parliament has today passed the Privacy Amendment (Notifiable Data Breaches) Bill 2016 which will amend the Privacy Act 1988 (Cth) to introduce a mandatory data breach notification scheme.

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  • Client Update: Take care! Court confirms the devil in the details for PPSA registrations

    10 February 2017

    In a recent case a leasing company lost $23 million worth of leased equipment because it had registered the lease against the lessee company's ABN rather than its ACN – involving just two extra digits. The equipment vested in the lessee company when it went into voluntary administration. The court upheld the constitutional validity of the provision under which this occurred. Senior Finance Counsel Diccon Loxton and Partners Karla Fraser and Renee Boundy report on the case: Alleasing Pty Ltd v Onesteel Manufacturing Pty Ltd (Admins Apptd) [2017] NSW SC 21, a decision of the New South Wales Supreme Court.

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  • Unravelled: English High Court provides important guidance on approach to LIBOR mis-selling claims

    7 February 2017

    The English High Court has handed down its judgment on the first major case following the global regulatory investigations into alleged LIBOR manipulation.

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  • Unravelled: Retail banking remuneration review

    7 February 2017

    The Australian Bankers' Association last year commissioned Stephen Sedgwick to undertake a review of remuneration in retail banking.

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  • Unravelled: Improving external dispute resolution schemes - rather odd recommendations

    7 February 2017

    It is difficult to describe the interim recommendations of the Expert Panel reviewing the 'financial system external dispute resolution and complaints framework' as anything other than odd.

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  • Unravelled: Mandatory margining

    7 February 2017

    Late last year, APRA released the implementation schedule for its long-awaited Prudential Standard CPS 226 Margining and risk mitigation for non-centrally cleared derivatives.

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  • Client Update: Registering Indigenous Land Use Agreements - it's all or nothing

    6 February 2017

    In McGlade v Native Title Registrar, the Full Federal Court has found that the Native Title Registrar does not have the jurisdiction to register an agreement on the Register of Indigenous Land Use Agreements unless the agreement is signed by all registered native title claimants. This is a significant change from the current legal position and has potentially far reaching consequences not just for future agreements, but will also call into question the validity of many existing agreements. Partner Ben Zillmann and Senior Associate Andrea Moffatt consider the implications of the decision.

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  • In touch: Competition news

    1 February 2017

    In Touch looks at what's been happening in Competition this month, and what it means for your business.

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  • Focus: The Rolls-Royce bribery case and its implications in Australia

    30 January 2017

    A Deferred Prosecution Agreement in the United Kingdom, which will see the Rolls-Royce company pay more than £500 million to settle charges of foreign bribery, is the most significant UK DPA to date. It is likely to influence the approach and expectations of the Australian Government and law enforcement agencies, which are considering a suite of measures aimed at facilitating a more effective response to corporate crime, particularly those that encourage self-reporting of foreign bribery. Partners Rachel Nicolson and Peter Haig, Senior Associate James Campbell and Lawyer Malak Johnson report.

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  • Report: Allens' response to ACL Review Interim Report

    20 January 2017

    Allens' submission in response to the Australian Consumer Law Review Interim Report. Although the Australian Consumer Law is generally functioning well, Allens considers that a number of provisions require amendment and clarification to ensure that the ACL meets its objectives.

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  • Focus: Key planning reforms for developers, miners and major projects in NSW

    19 January 2017

    The NSW Government has kicked off 2017 by releasing proposed reforms to the State's ageing planning legislation. Partner Bill McCredie, Planning Special Counsel Marcia Doheny and Senior Associate Michael Zissis outline the key proposed reforms for developers and major project proponents, including miners.

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  • Focus: Queensland security of payment regime: more change on the horizon

    16 January 2017

    The Queensland Government recently released a Queensland Building Plan discussion paper for public consideration that coincided with the enactment of the Federal Government's Building and Construction Industry (Improving Productivity) Bill 2013. Both developments have the potential to affect the existing security of payment regime in Queensland. Partner Nicholas Ng, Managing Associate Nikki O'Leary, Senior Associate Matt Thomas and Associate Brydon Wang consider the proposed changes to security payment regimes under the Queensland Building Plan and the ABCC legislation.

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  • Linklaters Insights: A cross-border guide to starting a business

    23 December 2016

    Our global alliance partner Linklaters has compiled a guide for foreign investors who are looking to start a business in selected jurisdictions.

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  • Food Law Bulletin

    21 December 2016

    In this edition we look at the ACCC's case against Heinz's Shredz product and what it means for advertising of high-sugar foods; litigation relating to the health claims of a2 milk; and the new safe harbour provisions for country of origin labelling.

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  • Client Update: ASIC announces fintech licensing exemptions

    19 December 2016

    As part of its implementation of the 'regulatory sandbox' for fintech companies, ASIC is providing relief for certain fintech businesses from the obligation to hold an Australian financial services or Australian credit licence. Relief may be available for up to 12 months and may be useful to businesses in what ASIC refers to as the 'testing' stage of their development. ASIC has also made some changes to the responsible manager requirements for licensees, which may be particularly useful to 'robo advice' providers. Managing Associate Simun Soljo and Associate Jonathan Gardner report.

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  • Focus: Disclosing privileged documents to regulators

    16 December 2016

    In Cantor v Audi, the Federal Court denied Australian class action plaintiffs access to documents exchanged between Volkswagen AG and a foreign regulator. The case provides insights into what you should consider before providing privileged documents to a regulator. This is critical in an era of increasing regulatory action and class actions in which plaintiffs seek to piggy back off global regulatory investigations and proceedings. Partner Alex Cuthbertson, Senior Associate Monisha Sequeira and Lawyer Alex Lee report on the decision.

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  • Client Update: A framework for CIPRs or just more work for super trustees?

    16 December 2016

    Yesterday, Treasury released a paper seeking feedback on a framework for Comprehensive Income Products for Retirement (CIPRs). It will permit trustees to offer members on a 'soft default' basis 'mass-customised, composite retirement income products' and, to encourage trustees to do what some might think they can already do, trustees will have no liability to a member who sues them because the CIPR was not in the best interests of the member. It is all most surprising, and for trustees it is a whole new kettle of fish. CIPRs are meant to be available from 1 July 2018, but there is a long way between the cup and the sip as they say and we suspect much of it won't make it into law. The Allens superannuation team reports.

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  • Focus: FSB Task Force reports on climate-related disclosures

    16 December 2016

    New recommendations have been released that aim to provide guidance to companies regarding the making of climate-related disclosures in public fundraising documents. Allens Climate Change group members Partner Andrew Mansour, Senior Associate Emily Gerrard and Lawyer Dale Straughen provide an overview of key recommendations and findings of the task force's report.

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  • Focus: Take care with agency arrangements - Flight Centre decision

    14 December 2016

    The High Court today handed down its decision in the high-profile ACCC proceedings against Flight Centre. The High Court allowed the ACCC's appeal from the Full Federal Court, finding that Flight Centre competed with airlines in the sale of international airline tickets and attempted to induce three major airlines to enter price-fixing arrangements. Partner Carolyn Oddie, Managing Associate Robert Walker and Lawyer Darcy McLennan consider the implications.

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  • Client Update: Product design and distribution rules

    13 December 2016

    On 13 December 2016, Treasury released a paper seeking feedback on the proposed financial product design and distribution obligations, and proposed product intervention powers for ASIC. The proposals are intended to 'create new accountability obligations' for product issuers and distributors. On one view, it is a brave new world, on another, it is just more of the same. Which it turns out to be, we think, will depend on what product issuers make of it and what ASIC does with it. Industry has until March 2017 to make submissions on the detail, it is unlikely that more substantial objections to the policies will be successful. The Financial Services Regulation team report.

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  • Focus: A blow to class action judgments achieving finality

    12 December 2016

    Ordinarily, a party cannot raise in later proceedings issues which it could and should have raised in earlier proceedings. This principle recognises the public interest in resolving disputes with finality. In a recent decision, the High Court considered how that principle applies in the context of group proceedings. The judgment sounds a cautionary note that a successful class action defendant cannot rely on mere failure by members of a class action to opt out of group proceedings to establish that these members are subsequently prevented from raising other claims in relation to the same factual circumstances in new proceedings. Partner Belinda Thompson and Lawyer Alex Lee examine the decision and its implications.

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  • Focus: Adani clears latest hurdle in Carmichael Mine approval

    12 December 2016

    The Supreme Court of Queensland has upheld the decision of the Chief Executive of the Queensland Department of Environment and Heritage Protection to issue an environmental authority for the Carmichael Mine. In dismissing an application for judicial review by one of the mine's objectors, the Supreme Court clarified the limited scope of the consideration to be given by the Chief Executive when making a final decision to issue an environmental authority. Partner Ben Zillmann and Senior Associate Giselle Kilvert consider the court's decision and its impact on future resource projects in Queensland.

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  • Focus: Predictive coding gets green light from an Australian court

    9 December 2016

    The Victorian Supreme Court recently handed down the first decision of an Australian court to specifically consider and approve the use of predictive coding technology in a large-scale discovery exercise. Partner Nick Rudge, Managing Associate Kate Austin and Applied Legal Technology Manager Lisa Kozaris consider the decision and its implications.

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  • Unravelled: Budget superannuation changes passed

    9 December 2016

    The Government's main changes to superannuation have been passed by Parliament. We look at what this means for the superannuation industry (and for you).

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  • Unravelled: Seeking judicial advice on whether to seek judicial advice

    9 December 2016

    For more than 150 years trustees have been able to obtain advice from courts on matters affecting the management or administration of trust property and on matters respecting the interpretation of trust deeds. Trustees would usually only seek such advice, however, if they had doubts about a proposed course of action.

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  • Unravelled: Insourcing investment management in super - challenges and opportunities for in-house teams

    9 December 2016

    With the release of an ASFA Best Practice Paper on insourcing investment management, we look at some of the challenges and opportunities for in-house legal teams that come with the seemingly inexorable move in the superannuation industry towards insourcing investment management functions.

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  • Focus: Employment Law

    6 December 2016

    In this issue we look at the Fair Work Ombudsman's decision to prosecute a sham contracting offence even after the employer had rectified the underpayments; the enforceability of post-employment restraint of trade clauses; how a new ABCC will look like after its journey through the Senate; and the importance of negotiating an enterprise agreement only with employees who have commenced work.

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  • Client Update: Major water reforms in Queensland to affect all water users

    6 December 2016

    Major water reforms that will affect all water users, particularly the resources industry, have commenced in Queensland. All water users should be aware of the changes and new obligations, especially as there may be potentially significant time and cost benefits and risks. Partner Bill McCredie and Senior Associate Gobind Kalsi report.

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  • Client Update: Court confirms life easier for default interest clauses post-Paciocco

    6 December 2016

    A recent New South Wales Court of Appeal case considered the application of the penalties doctrine to default interest rate provisions in loan agreements following the High Court's liberal approach to the doctrine in Paciocco v ANZ. Senior Finance Counsel Diccon Loxton, Lawyer Hamish McCormack, and Law Clerk Ryan Abotomey report on Arab Bank Australia Ltd v Sayde Developments Pty Ltd [2016] NSWCA 328.

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  • Report: Wrap-Up of Sydney Arbitration Week 2016

    6 December 2016

    The Allens Arbitration group reports on some highlights from Sydney Arbitration Week, which is an important event on the arbitration calendar. Discussion among local and international participants included some of the biggest challenges facing the future of international arbitration and practical tips for arbitration in the Asia Pacific region.

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  • Client Update: Climate change policy news: more guidance for Australian businesses

    6 December 2016

    Over the past fortnight, both the Federal and Victorian Governments have made progress in climate change policy and regulation, with the Federal Government announcing its terms of reference for the 2017 climate change policy review, and the Victorian Government tabling its new Climate Change Bill 2016 in Parliament last week. Partner Chris Schulz , Senior Associate Emily Gerrard and Associate Emily Johnstone report.

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  • Focus: Room to move in joint operating agreements

    5 December 2016

    The Western Australian Supreme Court of Appeal has handed down its decision in Apache v Santos, allowing the appeal by Apache and overturning the first instance decision. The Appeal Court's decision has important implications for the interpretation of joint operating agreements and the ability of parties to undertake development activities outside the operation of such agreements at their own expense. Partner Igor Bogdanich and Law Clerk Erin Molony report.

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  • Focus: Diverted profits tax exposure draft Bill and explanatory memorandum released

    2 December 2016

    Exposure draft legislation and explanatory materials for a diverted profits tax have been released by the Federal Government. Targeted at multinational groups transferring profits to offshore associates, the measures will give the Commissioner of Taxation a power to issue assessments at a punitive rate of tax based on limited knowledge, pursuant to a 'pay now, argue later' approach. Partner Toby Knight and Senior Associate Scott Lang discuss the detail of the exposure draft, the remaining uncertainties and the practical implications for multinational corporate groups.

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  • Client Update: Amending the misuse of market power prohibition

    1 December 2016

    On 1 December 2016 the Federal Government introduced a Bill to Parliament to amend section 46 of the Competition and Consumer Act 2010 (Cth), which prohibits the misuse of market power. The Bill adopts the recommendations of the Harper Review.

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  • Client Update: Updated fee and cost disclosure - transition period extended

    29 November 2016

    ASIC has today announced that superannuation fund trustees and responsible entities will have until 1 October 2017 to comply with the updated fee and cost disclosure rules for PDSs set out in ASIC Regulatory Guide 97 and ASIC Class Order 14/1252 - but only if they comply with certain conditions. Partner Geoff Sanders and Senior Associate Stephanie Malon report.

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  • Client Update: Successor Fund Transfers - all aboard!

    25 November 2016

    APRA yesterday released a draft guide on transferring a member's benefit from one superannuation fund to another without their consent. Because the member is not consenting, the law says that the receiving fund must, when compared with the existing fund, confer 'equivalent rights' in respect of benefits. APRA has interpreted this requirement narrowly. If APRA is correct, the requirement provides little, if any, protection to superannuation fund members. Senior Regulatory Counsel Michael Mathieson and Partner Michelle Levy report.

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  • Client Update: Review into four major banks - money for consultants?

    25 November 2016

    The Parliamentary Economics Committee released its report following its review into Australia's four major banks yesterday. Our Financial Services Regulation team has a look at the recommendations in this update.

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