Publications

The Banking Royal Commission: Simplification to meet the intent of the law (8 February 2019)

The Banking Royal Commission Final Report is out, but what does it mean? In this article, Nicola Nygh and Sam Wheeler examine the proposal that Financial Services Legislation be simplified to ensure that the intent of the law is met.

On 4 February 2019, the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (the Commission) released its highly anticipated Final Report.

Contrary to the frenzied media speculation prior to its release, the Final Report has not been as earth-shattering as expected. Indeed, Commissioner Hayne has not recommended structural changes such as the dismantling of vertically integrated financial services businesses and nor will there be any significant dismantling and restructure of the regulators. Continue reading…


Unions NSW v NSW: The High Court’s consideration of the proportionality test (5 February 2019)

The High Court of Australia upheld the implied freedom of political communication in its first decision of 2019. Nicola Nygh and Sam Wheeler discuss the jurisprudence underpinning this decision.

Sections 7 and 24 of the Commonwealth Constitution provide that Parliament will be “composed of members directly chosen by the people”.

Those deceptively simple words lay the foundation of Australia’s representative democracy. The implication of those words, however, is far from simple. From those words, the High Court has implied a limited Constitutional guarantee of freedom of communication on governmental and political matters. Continue reading…


Foodora’s Delivery Riders — Contractors or Employees? Implications for Employee-Creditor Prioritisation

Nicola Nygh, Sam Wheeler and Callum Davis analyse the Fair Work Commission’s recent decision that delivery riders for Foodora are employees, rather than contractors.

The Fair Work Commission recently determined an unfair dismissal claim by a former delivery rider for Foodora, an app-based meal delivery company. It held that, despite the presence of contractual terms which sought to forestall the emergence of an employee/employer relationship between Foodora and delivery riders, those riders were actually employees. While an unfair dismissal case, this decision holds broader implications which warrant close attention by participants in the gig economy. Continue reading…


New law brings to an end the jurisdictional crisis in the District Court of New South Wales

Nicola Nygh, Claudia Dela Cruz and Ekaterina Zotova explore the evolution and the resolution of the jurisdictional crisis which afflicted the District Court this year.

On 28 November 2018, the Governor of New South Wales gave his assent to the Justice Legislation Amendment Act (No 3) 2018 (the Act), which clarifies the jurisdiction of the District Court of New South Wales over actions arising out of commercial transactions. The Act inserts section 44(1)(c1) to the District Court Act 1973 (NSW) (the DCA), which finally resolves the jurisdictional crisis which afflicted the District Court this year. Continue reading…


Mandatory reporting for businesses under proposed Modern Slavery Act

Nicola Nygh examines mandatory reporting requirements under a proposed Modern Slavery Act.

In December 2017, the final report on modern slavery was released by the Australian Parliament’s Joint Standing Committee on Foreign Affairs, Defence and Trade.  To ensure that Australian businesses avoid profiting from modern slavery in their global supply chains, the Report recommended that mandatory reporting requirements be enacted as part of a new proposed Modern Slavery Act. Continue reading…


Safe Harbour Reforms for Insolvent Trading

Michael Daniel and David Hing explain the recent insolvent trading “safe harbour” reforms and their significance for responsibilities of company directors.

The “safe harbour” amendments to the insolvent trading provisions of the Corporations Act have come into law. The “safe harbour” provisions, in effect, provide an important new defence for directors from claims of personal liability for insolvent trading. The “safe harbour” defence applies to directors incurring debts (which might otherwise constitute insolvent trading) when the debts are connected to taking a course of action reasonably likely to lead to a better outcome for the company. These amendments are designed to allow a director to take reasonable steps to help the company recover from possible insolvency. Consequently, these amendments are significant for all directors and companies. Continue reading…


Game on! Industry association says it’s time to amend the Australian Consumer Law to accommodate “digital content”: 25 January 2017

Claudia Dela Cruz explores the Interactive Games and Entertainment Association’s suggestion that a separate consumer law scheme be established for digital content.

The recent Federal Court decision in Australian Competition and Consumer Commission v Valve Corporation (No 7) [2016] FCA 1553 highlights, amongst other things, the increasingly contentious absence of “digital content” clauses in the Australian Consumer Law.  Unlike the UK’s Consumer Rights Act 2015, the ACL does not currently include specific provisions for consumer guarantees with respect to “digital content”. Continue reading…


Unfair contract provisions to protect small businesses: 9 November 2016

From 12 November 2016, unfair terms in standard form contracts with small businesses may be declared void. Special Counsel, Nicola Nygh, discusses the extension of the protection currently available to consumers under the Australian Consumer Law (the ACL) and the Australian Securities and Investments Commission Act (the ASIC Act).

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