The Treasury Laws Amendment (Financial Market Infrastructure and Other Measures) Act 2024 (Cth) came into force on 1 January 2025. This Act amends the Corporations Act 2001 (Cth) to impose mandatory climate-related disclosure obligations on large businesses. As a part of this, reporting entities will be required to report on their Scope 3 emissions. This article critically examines the problems surrounding the accurate measurement of Scope 3 emissions due to both data and practical limitations. It then argues that directors need to take the utmost care with mandatory Scope 3 reporting. Significant problems with measurement and accuracy of Scope 3 reporting exposes directors to a heightened risk of penalties and litigation. However, if companies under-report Scope 3 emissions due to legislative exemptions this may lead to "green hushing".
Professional indemnity schemes sanctioned under Australia's Professional Standards Acts have allowed major accounting firms to expand and make most of their revenue from multi-disciplinary consulting services while protected from professional and personal liability by statutory limits intended to cover only traditional audit and insolvency services. In effect, the "Big 4" and other large accounting partnerships compete with other non-accounting consulting firms that do not have the same cover. The indemnity scheme assists the Big 4 to operate as quasi-corporations rather than being subject to the personal liabilities usually assumed of a partnership. By allowing consulting services to be treated in the same way as traditional accounting services, the Professional Services Council has favoured the commercial expansion of the Big 4 rather than prioritising the obligations of accounting firms to consumers and society generally.
Generative artificial intelligence (AI) is reshaping the intellectual property (IP) landscape, with significant impacts on trade secrets law. Auto-generated content, reverse engineering capabilities, unlimited data-sharing practices and the use of unauthorised data have posed new challenges for both businesses and individuals seeking to maintain exclusive control and ownership over their trade secrets. Through a comparative analysis of Australia and the European Union, this article examines the intersection of generative AI and trade secrets law in Australia to identify key gaps in current legislation, including the lack of clear accountability for AI-generated outputs and insufficient protection for trade secrets in AI models. The article argues that regulatory reforms-including enhanced AI governance, stronger transparency obligations and harmonised IP enforcement mechanisms-are necessary to balance the competing interests of innovation, commercial confidentiality and fair competition.
The integration of digital technologies, Big Data, and AI-driven analytics is transforming insurance markets, enabling highly individualised risk assessment and personalised underwriting. While offering significant efficiencies, these developments intensify longstanding concerns about information asymmetry, data integrity, and equitable access to coverage. In Australia, as insurers increasingly rely on algorithmic tools, legal and normative questions surrounding disclosure and transparency have become more pressing. The opacity of data-driven underwriting complicates the insured's understanding of disclosure obligations, challenging traditional legal frameworks rooted in voluntary information exchange. This article examines the evolution of Australia's disclosure regime in light of these technological shifts, assessing whether it continues to strike an appropriate balance between insurers' informational needs and the protection of insureds in a rapidly digitising insurance landscape.
The Optus data breach illustrates the challenges in responding to a modern corporate crisis while also considering legal ramifications and the ability to rely on legal professional privilege. As part of the response to the data breach Optus obtained a forensic investigation report into the breach. The article addresses why Optus failed to establish legal professional privilege over the report and highlights the challenges in establishing the necessary dominant purpose in the context of a corporate crisis, such as stakeholder management imperatives and the involvement of multiple levels of management and the board of directors. The article also suggests possible approaches to securing legal professional privilege, including clarity as to the role of lawyers and legal professional privilege ahead of a crisis, not during one.
Recent African migration to Australia provides opportunities for trade and investment. However, little is known about the impact of legal frameworks on such opportunities. Australian laws confer rights and liberties on people under its jurisdiction, but constrain economic agency in some respects. First, there is very limited scope of international legal protection for Africans in Australia because Australia has limited international economic treaties with African countries. Second, Africans on temporary visas have limited economic agency in terms of businesses activities they can engage in. Third, but not least, the lack of recognition of educational qualifications and English language proficiency requirements constitute significant barriers to entering professions. These legislative constraints limit trade, investment and employment opportunities, and effective use of African migrants' knowledge and skills. This article lays the foundation for subsequent scholarship and policy frameworks on law and international economic relations between Africa and Australia.
The Australian Government recently proposed a new "Digital Competition Regime" to address the anti-competitive and exploitative conduct that thrives in the digital economy. Recognising that existing laws and regulatory tools are unable to keep up with the pace of technological advancement, the proposed regime would introduce ex ante regulatory obligations for designated digital platforms with a critical position in the Australian economy. Australia is seeking to act as a "fast follower" in the race to rein in large digital platforms, drawing on best practices in other national and supranational regimes. At its best, regulation can spur innovation while protecting consumers and markets from anti-competitive behaviour. This brief article will review the proposed regime and argue that it represents a positive step towards responsible regulation of the digital economy.
The Australian financial regulatory framework, while founded on principles-based regulation, faces persistent cyclical failures and continued enforcement challenges, particularly affecting ASIC's ability to regulate effectively. Fragmented legislative provisions obscure governing principles, leading to an over-reliance on regulatory guidance and imposing economic and operational burdens on stakeholders. This legislative inefficiency contributes to broader regulatory dysfunction, undermining confidence in the financial system and hindering policy objectives. Meanwhile, the rise of corporate sustainability and greenwashing necessitates stronger climate risk disclosures in financial products. Climate-related risks constitute material financial considerations warranting regulatory scrutiny and disclosure obligations equivalent to traditional financial risks in product documentation. Through a comprehensive analysis of reform proposals and emerging regulatory imperatives, this article argues that restructuring Australia's financial services law and improving regulatory efficiency would reduce uncertainty, enhance market integrity, and streamline compliance for industry participants-delivering benefits that decisively outweigh the challenges of implementation.
Across the technology sector, the emergence of new contracts and agreements is now governing commercial relationships. Significantly, the technology driven economy uses contracts and agreements to govern digital payments, digital finance, cybersecurity, personal data storage, tokens, amongst others. Notably, these contracts and agreements come with a level of legal obligation. Thus, under the law of Australia and India, itis likely that these agreements will fall under contract law. The article compares the relevant laws and arbitration rules across the economies of Australia and India in relation to multi-party, joinder, third-party arbitrations and class arbitrations. It further highlights how cross-chain smart contracts and the technology of blockchain or a distributed ledger is not advanced enough at this stage to manage these contracts. This article is timely as Australia and India expand their trade and investment relations.
This article discusses three cases recently decided under the Personal Property Securities Act 2009 (Cth) (PPSA). The first is Kirkalocka Gold SPV Pty Ltd (recs and mgrs apptd) v Zenith Pacific (KLK) Pty Ltd, which (broadly speaking) concerned the meaning of "possession" in the PPSA context. The second is Metal Manufactures Pty Ltd v WesTrac Pty Ltd, which concerned the rights of a secured party (A) under ss 32 and 46 of the PPSA in circumstances where the grantor (B) sold the collateral to a buyer (C) who subsequently resold to D. The third case is Volkswagen Financial Services Australia Pty Ltd v Muon, which concerned the relationship between the repossession provisions in s 123 of the PPSA, and ss 88, 99, 100 and 101 of the National Consumer Credit Protection Act 2009 (Cth), Sch 1 (the National Credit Code).
There have been two significant global crises in the new Millennium. The first was aptly described as a financial crisis and coined with the "GFC" acronym. The Global Financial Crisis was one of the most significant financial crises since the 1930s Great Depression, eclipsing the more contemporary 1987 Stock Market Crash and the 90s Asian Financial Crisis. The second global crisis swept the globe at the end of 2019 and the beginning of 2020. This time, a health crisis in the form of a contagious coronavirus, COVID-19 engulfed the world. Like the GFC, the health crisis engineered a global recession, with many parts of the world experiencing a substantial slowdown in economic growth coupled with rising unemployment in 2020 and 2021. To date, limited research has investigated the effect both crises have had on the value and holdings of intellectual property (IP) assets. This article presents an empirical snapshot of IP holdings of the top 100 listed entities on the Australian Securities Exchange (ASX) during the onset of the GFC and the more recent onset of the COVID-19 global pandemic. The article further examines the impact of monetary and fiscal policy responses to both the GFC and COVID-19 crisis to determine whether there was any discernible effect on IP values and holdings with large ASX-listed entities.
Certification trade marks indicate that particular characteristics of the goods or services have been certified to meet specific standards or other criteria. Such marks are examined and registered at the national intellectual property offices, ensuring compliance with stringent requirements for registration, governance and use. This article presents the findings of a comparative empirical study on the application and registration of certification trade marks in New Zealand and Australia filed between 1 January 2002 and 31 December 2023. It analyses trends in applications and registrations and the scope and characteristics of registered certification trade marks, including lifecycle data, intrinsic features, and use conditions.
While there would be no debate that the impact of the Trade Practices Act 1974 (Cth) (TPA) over the last 50 years on all aspects of business behaviour has been extraordinary, there is one area where the TPA was used to achieve extraordinary results which has rarely been discussed. In this article I will be discussing the Australian Competition and Consumer Commission's (ACCC) role in the Waterfront Dispute and how it used the secondary boycott provisions to combat global and domestic boycott conduct. The ACCC played a central (and somewhat unwilling) role in the dispute after the Office of the Employment Advocate concluded it did not have jurisdiction. Once the ACCC entered the fray it was not willing to exit stage left without obtaining some meaningful remedies much to the chagrin of the Maritime Union of Australia, Patrick Stevedores Holdings Pty Ltd, the Australian Council of Trade Unions and the Howard Government.
The prohibition of misleading or deceptive conduct, first introduced in s 52 of the Trade Practices Act 1974 (Cth) but now enshrined in s 18 of the Australian Consumer Law, has had a massive impact on the conduct of business in Australia. The section has had an influence far beyond its assumed residual consumer protection role as a provision complementing the specific provisions prohibiting particular examples of misleading conduct. It has evolved into a general norm of conduct for misleading conduct in a range of circumstances far removed from any traditional notions of consumer protection and has become a staple of commercial litigation. This article traces the development of s 18 and its increasing impact on Australian business.
The Trade Practices Act 1974 (now the Competition and Consumer Act 2010) had its 50th Birthday on 24 August 2024. This article revisits its legal and political origins, and its legal significance and economic impact at the time. It goes on to trace what remains of the original Act, to evaluate its ongoing application and the utility of those provisions, and to make some quantitative and qualitative observations as to its form and effect.
The Trade Practices Act 1974 (Cth) (TPA) revolutionised Australian competition law by establishing a comprehensive framework for regulating anti-competitive behaviour and protecting consumer rights. This legacy, continued through the Competition and Consumer Act 2010 (Cth) (CCA), faces unprecedented challenges with the rise of artificial intelligence (AI). This article examines the transformative impact of the TPA, its evolution into the CCA, and the implications of AI for Australia's competition regime. The article highlights how AI-driven technologies disrupt markets, facilitate tacit collusion, and exacerbate barriers to entry, raising concerns about transparency, adaptability, and liability. Drawing on the Australian Treasury's inquiry into AI and consumer law, this piece critically evaluates the adequacy of the current regulatory framework. The article argues for AI-specific reforms to safeguard consumer rights and ensure competitive fairness in an increasingly AI-dominated marketplace.
The Australian competition law has always allowed specific exemptions for particular conduct and nominated parties based on tests around public benefit under its authorisation process. This process has stood the test of time and has been expanded in more recent years till it covers all Pt IV conduct. This recognises that competition is a means to an end and may need to be modified in some particular cases where public policy demands a different market solution. This article considers the history of authorisation through the lens of mergers on the 50th anniversary of competition law in Australia. It is also a time when the merger process has been under review. It examines the impact of public benefit considerations in the Australian merger authorisation process to determine whether the process has been effective and how public benefit should be interpreted going forward. It reflects on how past experience might inform any new approach to public benefit in mergers. It concludes that there is little evidence that consideration of public benefits to date has been superfluous, flawed or should be abolished. It finds that public benefit analysis is, however, subject to the issue common to all competition law analysis - the determination of the "future with and without" and likely public benefit arising - with any degree of certainty. It considers whether further guidance should be included in the CCA in the new merger provisions about the ambit of public benefit. It also finds that the positives of the authorisation process far outweigh the negatives and confirms that authorisation provides an unusual though really useful tool for strengthening markets under Australian competition law both in respect of mergers and other conduct.
Unlike common law employees, contractors typically do not have the right to have mandatory superannuation contributions made on their behalf. However, a legislative exception applies to contractors who receive payments through a contract that is "wholly or principally for the labour of the person". The judicial interpretation of this statutory exception introduces considerable uncertainty and creates opportunities for manipulation. This article examines two additional statutory frameworks designed to distinguish contractor arrangements with workers who resemble employees: the personal services income provisions and the state payroll tax provisions. It concludes that there would be considerable merit in replacing the existing law with either of these frameworks as the method for determining contractor eligibility for mandatory superannuation contributions.
Financial product design and distribution obligations commenced in October 2021. These obligations require issuers to design financial products that meet the needs of an identified target market and to take reasonable steps to ensure that the product is distributed to that target market. Enforcement of the obligations is undertaken by the Australian Securities and Investments Commission (ASIC). ASIC has a wide range of enforcement powers in relation to the obligations, including issuing stop orders, accepting enforceable undertakings and commencing civil or criminal litigation. The authors examine all ASIC enforcement actions relating to the obligations from October 2021 to June 2024. The issues discussed by the authors include which enforcement actions are prioritised by ASIC and the types of financial products that are the subject of this enforcement action. The authors argue that this is an area of ASIC's responsibilities in which it has demonstrated effective enforcement capabilities.
