10 December 2019
#Agribusiness, #Corporate & Commercial Law, #Data & Privacy, #Immigration Law, #Native Title & Indigenous Cultural Heritage, #Planning, Environment & Sustainability, #Property, Planning & Development, #Technology, Media & Telecommunications, #Transport, Shipping & Logistics, #Workplace Relations & Safety, #Procurement
New whistleblower requirements, increased pressure to protect data globally, turbulence in the communications sector, and intensifying drought management issues - 2020 is set to be a significant time of change across many industries.
Our experts from across 11 practice areas pinpoint the key issues for 2020 – and outline how you can best prepare for these.
We outline what you need to know in the areas of:
Key issue for 2020: Drought proofing
From a legislative perspective 2019 saw important changes made to the Privacy Act to protect Australian farmers from having their personal information published. The changes criminalised the action of publishing material, via a carriage service, with the intention of inciting trespass, property damage or theft on agricultural land, effectively closing a potential loophole which existed in the legislation.
This year, our agricultural and regional clients have continued to struggle with drought and water management. As drought continues to ravage Australian farmers, and the Department of Agriculture forecasts a decline of approximately $59 billion in farm production in the 2019-2020 year, we continue to assist our clients to utilise support available through Government drought and disaster assistance programs, including the special disaster assistance recovery grant which has now been extended to 28 February 2020.
With the drought unlikely to break in the immediate future, there has been an increase in restructuring of agribusinesses in an effort to drought proof themselves for the future, including by way of technological innovation to decrease costs. Despite very difficult weather conditions, the outlook for Australian agriculture remains positive given in some sectors the impact of natural disaster has been softened by the ongoing increasing demand for food security among expanding middle classes in Asia, a demand which Australia remains well positioned to meet.
Key issue for 2020: Implementation of whistleblower reforms
With the January deadline for public and large proprietary companies to introduce their whistleblower policies looming, the challenge for these entities in 2020 will be to ensure these policies are implemented, and that staff are adequately trained to recognise, respond to and manage whistleblower reports.
Entities will particularly need to focus on ensuring staff are equipped to distinguish between reports which attract protection under the whistleblower provisions of the Corporations Act 2001 and reports which do not, for example matters which relate exclusively to personal work-related grievances. Research in Australia has shown over 80 per cent of reporting has historically involved mixed content of grievance and financial misconduct, so the imperative is to properly deal with both aspects of any report.
Failure to recognise or manage a complaint as a whistleblower report may have serious implications for the company and individual employees involved, particularly if the whistleblower subsequently experiences detriment or their confidentiality is breached. Individuals face up to two years imprisonment or significant fines for involvement in the breach of whistleblower protections, while the penalties for companies may reach $10,500,000, three times the benefit derived and detriment avoided by the breach or 10 per cent of annual turnover (up to $525,000,000).
In the meantime, ASIC will be conducting surveillance activities to assess and enforce compliance with the new policy requirements. Regulatory guidance released last month suggests that ASIC will be taking a strict approach to determining whether a whistleblower policy complies with the Act.
Authors: Corporate & Commercial senior associate Georgia Milne & paralegal Clare Giugni
Key issue for 2020: Updated ASX Listing Rules now in effect
Following an extensive public consultation process, the ASX Listing Rules have been amended with effect from 1 December 2019. The changes to the rules affect listed entities as well as those seeking to list on ASX, with some changes giving ASX enhanced power to monitor and enforce the Listing Rules.
It is important for all affected companies to make themselves aware of the new rules and take immediate steps to ensure compliance going forward. Below is an overview of some of the key changes:
Author: Corporate & Commercial special counsel Kaveh Zegrati
Key issue for 2020: Protection of data at a global level
The clear trends in 2019 and the view forward for 2020 and beyond were well articulated by the Australian Privacy Commissioner Angelene Falk at her keynote speech at the iapp conference in Sydney in October. She then reiterated those points at a joint presentation to the Law Council of Australia Media and Communications Seminar 2019: “Digital Platforms ― The Future” with ACCC chairman Rod Sims.
The Commissioner noted that in addressing the current and emerging regulatory challenges, there are four key elements to support effective privacy regulation over the next decade:
The first point, global interoperability is playing out locally where there is a growing co-regulation of the privacy space by both the OAIC and the ACCC.
This is evident in the recommendations made in the Digital Platforms Inquiry regarding privacy reforms generally.
The commencement of the Consumer Data Right in February 2020 is another co regulated space, where the ACCC will have the lead and the OAIC has provided the 13 Privacy Safeguards for the CDR.
The ACCC has also clearly stated its intent to continue to enforce the consumer aspects of privacy breaches, including location tracking.
Author: Corporate & Commercial general counsel Lyn Nicholson
Key issue for 2020: Review of national occupation list
We saw a lot of changes to migration legislation in 2019 particularly with the introduction of two new regional visas. And 2020 will be no different.
An occupation list review is currently taking place with changes to all occupation lists expected in the first half of 2020.
This will include some changes to skill level classifications. We also expect to see more regions approved for Designated Area Migration Agreements
Author: Registered Migration Agent Rebecca MacMillan
Key issue for 2020: Native title compensation
This year was a busy year for native title. Over 23 new native title claims were registered nationwide joining the existing 230 claims yet to be determined. Over 28 determinations, recognising the existence of native title with the consent of the parties, were made by the Federal Court.
The emerging issue is native title compensation. The High Court Decision in Timber Creek has paved the way for native title compensation claims to be made once native title claims are successfully determined.
Three compensation claims were made in Queensland but were discontinued this year. A further three claims are on foot in Western Australia. In recent news, the Noongar People indicate that they will be commencing a significant compensation claim for $290 billion for the loss of their native title against the Western Australian Government. How this relates to the settlement ILUA registered between the Noongar People and the WA Government in 2018 is unclear.
As more native title claims are successfully determined we can expect to see an increase in native title compensation claims.
As many questions relative to how native title compensation should be calculated remain unanswered by the Court decisions to date, these claims will become important test cases.
Author: Local Government and Native Title partner Jenny Humphris
Key issue for 2020 - Victoria: Murray-Darling Basin Plan controversy
The Murray-Darling Basin Plan continues to create controversy.
The most recent debate centres around both Victoria and NSW raising concerns about powers given to the Murray-Darling Inspector General and former Australian Federal Police Commissioner Mick Keelty, and in the case of NSW concerns about water resource plans.
Berejiklian cabinet documents allegedly show that on December 9, 2019, the NSW State Government will formally consider terminating the Murray-Darling Basin Agreement by demanding more water be kept in the State. The Sydney Morning Herald reports that a cabinet submission dated 6 December 2019 obtained by it shows that eight of the 20 water resource plans required to be completed by the State of NSW before the end of 2019 may not be submitted on time, resulting in non-payment of $16 million. The same submission also expresses concern about the Morrison Government’s new Murray-Darling Inspector General and claims this may result in duplication of compliance and enforcement activities.
Deputy Premier John Barilaro has issued demands that NSW be allowed to keep 450 GL of water set aside for environmental purposes on the basis that too much water will be handed to South Australia and diverted for environmental purposes at times when irrigators and regional towns are suffering from severe drought. Water resource plans should be delayed until the drought has broken.
Victorian water Minister Lisa Neville has in turn raised concerns about handing over powers to the Murray-Darling Inspector General stating that she will not support any proposal which compromises Victorian entitlements.
Deciding how a scarce resource like water should be shared between irrigators and the environment was always going to be a problematic exercise. The history of debate over the Murray-Darling Basin Plan and indeed the sharing of water resources since Federation demonstrates this to be the case. The serious drought affecting basin communities seriously compounds the problem.
In the case of the Murray-Darling Inspector General, in the writer’s submission there is a need for an office like the Federal Murray-Darling Inspector General given the federal nature of the Murray-Darling Basin scheme and the demonstrated failure by NSW state water agencies to take enforcement over water theft, as found by the NSW Ombudsman.
Author: Planning, Environment & Sustainability partner Joseph Monaghan
Key issue for 2020 – New South Wales: A busy year ahead for local councils
It is set to be a big year for local government in NSW with council elections slated for September, e-planning to become mandatory, and fast-approaching deadlines to comply with reforms to the state's planning laws.
We wrap up these changes, plus the other key planning and environment issues likely to arise in NSW in 2020.
Introduction of Local Strategic Planning Statements
As the 2017 reforms to the Environmental Planning and Assessment Act 1979 (EP&A Act) continue to be rolled out, NSW local councils will be required to have their local strategic planning statements (LSPS) in place in 2020. Councils in Greater Sydney will be required to have their LSPS in place by 31 March 2020, while regional councils have until 1 July 2020.
The LSPS will identify the 20-year vision for land use in the area, the special characteristics which contribute to the local identity, the shared community values which are to be maintained and enhanced, and how growth and change will be managed into the future.
Relevantly, a council must consider its LSPS as part of the LEP making process and an LSPS that has been endorsed by the Department of Planning, Industry and the Environment, will be part of the strategic merit test for a gateway determination under section 3.34 of the EP&A Act. Therefore, LSPS’ will be relevant to any proposals to rezone land.
Mandated e-planning and online lodgement of applications
The Premier has announced that in 2020 reforms will be introduced making e-planning mandatory for metropolitan councils in Sydney, the Illawarra, the Central Coast and Newcastle.
This will include mandating the online lodgement of development applications, with the aim of reducing assessment timeframes and increasing efficiency.
Local government elections
All 128 local councils in NSW will hold general elections on 12 September 2020.
Commencement of building and subdivision certification provisions
Part 6 of the EP&A Act relating to building and subdivision certification commenced on 1 December 2019 and so the new Part 6 is now in effect for 2020.
These provisions remove interim and final occupation certificates, create a new certificate for subdivisions works, and give powers to principal certifiers to issue directions to enable fast responses to non-compliant aspects of development.
New focus on place-making
The Greater Sydney Commission has recommended a renewed focus on the place-making approach to planning, urging council’s to consider development from a holistic perspective rather than on a site-by-site ad hoc basis.
The Department of Planning, Industry and Environment has also signalled a continuing policy priority in this space and published its “Local Character and Place Guideline” in February 2019 (Guideline). The Guideline aims to conceptualise place and defines it as “multi-layered and diverse environment within the broader context of society” with the intention of integrating this understanding within the planning system. It is intended to be a strategic policy for use by government and decision makers when considering how to define local character.
How the Guideline will be implemented remains to be seen, however, there is intended to be integration with the planning system through:
The Guideline signals a priority focus on public participation and community engagement. It also provides detailed outlines of character considerations such as safety, public space, active street frontages and height transitions.
This is likely to be a continuing and developing area of policy interacting with the planning system in 2020.
Sydney: The Night Economy and lifting the lock out laws
The Department of Planning, Industry and Environment has highlighted its emphasis on the Night Time Economy and how it interacts with placemaking in Sydney. With the lifting of the lock out laws announced to commence on 14 January 2020 it will be interesting to see whether there are further planning law requirements implemented in response to issues such as noise or venue licensing, that arise in 2020.
Though currently unclear, in 2020 we may see a draft of the revised Environmental Planning and Assessment Regulation 2000, following the exhibition of the issues paper in 2017 and the amendments to the EP&A Act which largely commenced on 1 March 2018.
Key issue for 2020 – Brisbane: Significant changes to Brisbane City Plan 2014
Brisbane City Council recently passed a series of amendments to its City Plan that will likely have significant impacts on developers.
Both the Property Council of Australia (PCA) and the Urban Development Institute of Australia (UDIA) have expressed concern regarding the recent amendments.
UDIA said: “Both amendments have specifically targeted the 'missing middle' medium density developments that should play a critical role in accommodating the anticipated population growth in Brisbane".
Both amendments will limit supply in important areas of Brisbane, drive increased house prices, and impact housing affordability.
Read more about the Brisbane City Plan 2014 here.
Author: Planning, Environment & Sustainability partner Gerard Timbs
Key issue for 2020: Likely increase in government procurement tender challenges
The new year will likely bring an increase in government procurement tender challenges.
With both Commonwealth and State statutory regimes now available for tenderers to challenge certain government tender processes we expect to see an increase in government procurement tender challenges. Read more in our article here.
We will continue to watch this space to monitor the success of any tender challenges and how agencies respond to these new statutory regimes.
Authors: National head of procurement practice, partner Scott Alden & associate Victoria Gordon
Key issue for 2020: Digital revolution in property transactions
The first Electronic Transactions Act (ETA) was passed in 1999 by the Commonwealth Government. The States and Territories followed suit in 2000 (NSW, Victoria, South Australia, Tasmania and the Northern Territory), 2001 (Queensland and the ACT) and Western Australia in 2011.
Those Acts were intended to make it clear that electronic communications and signatures could be used in various situations where information and agreements are required to be provided or made in writing.
The ETAs provide for electronic signatures, which can be as simple as your name typed into the bottom of an email, or a scan of a signature. The next level is the digital signature provided through an electronic signing platform. Probably the most commonly used platform is DocuSign, but it has plenty of competitors. The advantage of a platform and digital signature is greater security and an independent record of the transaction.
The next step in the revolution was the introduction of e-conveyancing for mortgaging and property sales. The volume of transactions through the e-conveyancing platforms is steadily increasing and e-conveyancing can now be used for more complex transactions. The NSWs land registry has started to accept leases through the e-conveyancing platform. It is to be expected that others will follow.
Looking into the crystal ball, it is relatively easy to see that more property transactions will migrate to the digital world. On-line real estate marketing can easily combine with e-contracting and e-conveyancing to create a streamlined system for simple property transactions.
All that is required are standard contract terms and some form of presale property warranty and associated insurance. Sales, valuation, conveyancing and finance can be linked into one process from the purchase decision to the arrival of the keys.
Every revolution has victims and the cottage conveyancer may be an endangered species once the link is created between on-line real estate marketing and the e-conveyancing system.
Author: Property & Real Estate partner Peter Nugent
Key issue for 2020: A year of change after a bumpy ride
It is difficult to remember a time when the Australian regulatory landscape in the broader communications sector, covering the areas of telecommunications, media and technology, has been in such a state of flux.
It is not clear what 2020 holds, but it will be a year of change.
For example, as 2019 draws to a close:
The impact of all of the above on the communications sector in 2020 could be profound.
And this does not take into account many other likely changes, including the implementation of the Consumer Data Right (CDR) in the telecommunications sector (the Government has stated that the CDR will be rolled out in this sector after it is implemented in banking and energy, which will occur in the early part of 2020), potential changes to the contentious mandatory data retention laws, following the completion of a required statutory review currently being undertaken and a number of reviews that have been announced by the Communications Minister, including the review of the “Telecommunications in New Developments” policy, which is intended to allow third parties to compete with the National Broadband Network (NBN) in providing infrastructure in greenfields sites, and the long awaited review of laws providing powers and immunities to telecommunications providers in deploying infrastructure which is either temporary or has a low impact.
This regulatory reform is occurring against a backdrop of increasing demand for broadband services, particularly mobile, the ongoing rollout of the NBN and the imminent arrival of mobile 5G services, as well as increased regulator activity, including for example the ACCC’s blockage of the TPG and Vodafone merger (which the parties are contesting in the courts) and action by both the ACCC and the Australian Communications and Media Authority (ACMA) to protect consumers – in the past few months alone, the ACMA has penalised iiNet for action relating to customer migration to the NBN, given Telstra a formal warning over excess usage notifications and taken action against 11 telecommunications companies for failing to comply with consumer protection laws.
Whatever 2020 holds, the communications sector is likely to have a bumpy ride.
Author: Technology, Media & Telecommunications partner Angela Flannery
Key issue for 2020: National transport infrastructure, regulation and safety
In 2009, the Council of Australian Governments (COAG) endorsed the implementation of consistent national regulation of domestic commercial vessels, heavy vehicles and rail.
The Productivity Commission has just released its draft report into the effectiveness of the national transport regulatory reform and identified the following shortcomings that have stopped the reforms from achieving their promised aims of lower operating costs and greater productivity and safety – lack of uniformity amongst Australian jurisdictions, the approved single national safety regulators are yet to be operational in each transport mode, inconsistent application amongst Australian jurisdictions results in increased complexity and cost to transport operators and the approvals process for access to local roads is still a road block and dampener on productivity.
To properly realise the promises of the national transport regulation scheme, COAG has recommended that jurisdictions shift their focus to accelerating regulatory reform agendas, strengthening safety culture through industry education and regulatory incentives, recognising the safety and productivity benefits of technological solutions and removing regulatory barriers to the early application of new technologies within the transport sector.
As a result, the Transport sector should expect a renewed focus of government and regulatory agencies at all levels on nationally consistent regulation, safety and technology.
Expect transport infrastructure spending to continue through 2020, as well. As governments look for ways to stimulate the economy, the National Freight and Supply Chain Strategy provides ideal opportunities. And now that the Queensland government has signed on to the massive Inland Rail project, expect to see more developments there.
Key issue for 2020: Remuneration and rostering systems compliance
A key challenge for our clients in 2020 will be ensuring industrial law compliance in remuneration and rostering systems.
During 2019, annualised salary arrangements were the subject of increased scrutiny by the Fair Work Ombudsman, particularly in retail, hospitality and professional service sectors.
After the Fair Work Commission issued a more restricted annualised salary clause for modern awards, many employers have decided to return to hourly payment systems. This has placed new emphasis on having effective and efficient time and attendance systems, raising in some cases privacy issues (for example, consider the Lee v Superior Wood ruling in relation to collection of biometric data).
Rostering of working hours has attracted greater legal significance in respect of payment for and accrual of paid leave entitlements (following the Mondelez decision of the Federal Court ) and the entitlement of casuals to paid leave (amid continuing uncertainty as to the implications of the Workpac v Skene ruling).
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.