Litigation funders’ new regulatory requirements – practical Issues and the impact on class actions

Changing times The Federal Treasurer has announced that all litigation funders will soon be required to hold an Australian Financial Services Licence (AFSL), which will dramatically increase the Australian Securities and Investments Commission’s (ASIC) regulatory oversight over those funders who do not already hold an AFSL. The announcement follows the Federal Attorney General’s referral to […]

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COVID-19 | ‘Business days’ when business has changed

The ‘business day’ in a new light As at 29 March 2020, the Morrison Government had announced sweeping shutdowns in response to the COVID-19 pandemic.  Pubs and gyms are among those deemed ‘non-essential’ businesses and required to shut down.  Businesses which do not fall under this qualification, including banks, remain open.  Australians are being advised […]

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The approvals climate is changing

In proceedings[1] brought by environmental groups, councils and the Mayor of London, the English Court of Appeal has ruled unlawful a decision, to allow the expansion of Heathrow Airport by the construction of a third runway, because it did not take the United Kingdom government’s policy and commitments on climate change into account. Background For many […]

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High Court confirms who is an “officer”

The Australian Securities and Investments Commission (ASIC) today succeeded in a major High Court decision[1] on who is a company “officer” potentially liable for penalties under the Corporations Act. The High Court unanimously held that the definition of “officer” is not limited to those who hold or occupy a named office in a corporation or […]

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The Brexit case – implications for Australia

Amidst the Brexit debacle, the UK Supreme Court[1] has invented a brand-new rule limiting executive power. Yet, the core legal principles supporting this politically controversial development are thoroughly orthodox and, despite different constitutional arrangements, may strongly influence how executive power is exercised under Australian law. Context The Supreme Court was asked to determine whether the […]

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Doing Business in Australia

The Australian Government welcomes foreign investment. With well-developed infrastructure, a stable political environment, robust economy and easy access to Asia Pacific, Australia is an ideal investment location for foreign companies looking to grow internationally. There are important considerations for foreign investors to make when deciding on how to enter the Australian market. Whether it’s the […]

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Government contracts and future discretions

People rightly expect freely negotiated contracts to be honoured. When a contract is with government, the expectation is not lessened. Indeed, it is accompanied by the reasonable expectation (if not the obligation) that the agreement will be administered fairly and according to law. The government’s failure to meet these expectations creates a form of sovereign […]

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Human Rights Act passes Queensland Parliament

The Human Rights Act 2018, which will have far-reaching implications for public decision making in Queensland, passed Queensland Parliament on 27 February 2019.  What will it mean for public entities on commencement? As noted in our Public Law Tracker in December 2018, the HRA will directly impact the design and interpretation of legislation and, at […]

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Termination for convenience clauses in government contracts

Termination for convenience clauses are commonly included in government contracts, sometimes thoughtfully but often reflexively. Their reflexive use can be a form of security blanket that is rarely necessary and potentially risky. A termination for convenience (TFC) clause is a contractual escape hatch, giving the party with the benefit of the clause the right to […]

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Human rights at the forefront

On 31 October 2018, the Queensland Government introduced new human rights legislation into Parliament. Although not constituting a statutory bill of rights, the Human Rights Bill 2018 (Qld) (“the Bill“), if passed, will increase the focus of government, courts and tribunals on internationally recognised civil and political rights,[1] while providing modest new remedies for some […]

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Procedural fairness not readily ousted

Administrative decision makers are subject to a common law duty to accord procedural fairness for decisions which affect rights, interests and legitimate expectations, unless the governing statute clearly provides otherwise.[1] This is a subset of the broader principle of legality, that courts will not interpret legislation as abrogating or contracting fundamental rights or freedoms unless […]

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Not all errors are equal

The nature of jurisdictional error has long confounded and confused. Not all errors of law are equal. Some errors deprive decision makers of authority, others do not. Some errors may be reviewed; the review of others may validly be excluded. There is a distinction of principle between errors characterised as jurisdictional errors and errors characterised […]

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