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Australia

Arbitration

The Federal Court of Australia has held that parties who agree to arbitration or exclusive jurisdiction clauses are bound by their agreements. Only in exceptional circumstances will the court grant a stay that has the effect of overriding an exclusive jurisdiction agreement.

The federal Parliament has finally passed the Tax Laws Amendment (Long-Term Non-reviewable Contracts) Bill 2005. The bill sets out a new arbitration process to be used in cases where a supplier and a recipient cannot reach agreement on the consideration to account for the imposition of goods and sales tax.

In the absence of any legal precedent, it is unclear how an Australian court faced with an application for security for costs in respect of an international arbitration would respond. However, the courts appear to have the power to order such security notwithstanding the lack of an express legislative foundation.

The Supreme Court of Western Australia recently held that under Western Australia's Commercial Arbitration Act, an appeal lies from the refusal of leave to appeal an arbitral award on a question of law. The decision is consistent with the policy of a uniform platform for arbitration in Australia and brings Western Australia into line with other Australian states.

A recent case concerned an interlocutory application by several defendants to have the proceedings stayed in order to allow the disputes to be resolved by arbitration. The court concluded that the case concerned both arbitrable and non-arbitrable claims, and referred the proceedings to a referee as a practical solution to avoid a multiplicity of proceedings.

Company & Commercial

The government's recent amendments to the Corporations Law take the bite out of the 'business judgment rule'. While trying to protect employees of companies that become insolvent, the amendments unfairly punish directors who make a bad business decision in good faith.

The Corporations Law Economic Reform Programme is part of a government review into the existing law, and is set to revamp corporate governance in this area.

E-commerce

The Internet Corporation for Assigned Names and Numbers has now signed agreements to introduce two new global internet top level domains into competition with .com: .biz and .info. This update describes the pre-registration process for these domains.

The Privacy Amendment (Private Sector) Bill 2000 (Cth) received royal assent on December 21 2000. The new regime will potentially have an impact on e-commerce transactions. Senate amendments to the bill were rejected, although may be considered at a later date.

There have been over 2,000 cases this year of individuals and businesses laying complaints with the World Intellectual Property Organization, as the international body responsible for determining who is entitled to register domain names. This update looks at some high-profile Australian cases and what Australia will be doing next to protect and enhance the use of domain names.

The Internet poses a challenge for Australian regulators. They have to deal with fraud that could impact on Australia even though it is perpetrated on a global scale.

The government has announced that certain provisions of the Privacy Act will be extended to cover the private sector, motivated in part by a desire to provide a solid legislative structure to support the growing e-commerce sector.

Employment & Labour

Prime Minister John Howard has announced a number of important workplace reforms. Howard invited state governments to refer their workplace relations powers to the federal government; if they do not do so, the federal government will attempt to legislate for a national system of workplace relations.

A new law introducing an offence where there is a death in the workplace has come into force in New South Wales. The bill passed rapidly through Parliament and will impact on directors and officers. Victoria has also recently implemented significant occupational health and safety changes.

The government of New South Wales has released a revised bill that will amend the Occupational Health and Safety Act 2000 (NSW). Now at consultation draft stage, it addresses many of the problems in the previous proposal, which was withdrawn in April following sustained criticism.

The Queensland government has taken the opportunity to make further reforms to its Industrial Relations Act 1999 and to address some longstanding anomalies. Among other issues, the reforms tackle the problem of quantifying paid leave remuneration for those employees paid on a commission basis.

The New South Wales government has announced that the long-awaited amendments to the Occupational Health and Safety Act 2000, which would have doubled the penalties for workplace fatalities and imposed a jail sentence for first offences by directors and managers, will not be introduced to Parliament.

The Western Australian Industrial Relations Commission has revisited the issue of implied terms about redundancy and upheld a claim for severance pay made by a retrenched employee. However, doubts have been raised over the commission's approach to the business efficacy test.

More updates >

Energy & Natural Resources

The government is encouraging the energy industry in its efforts to change through a range of initiatives. It is offering both the promise of improved renewable energy legislation and extra funding. Other measures, such as emissions trading and credits for improvements, are also being considered.

On June 22 2000 the federal government introduced the Renewable Energy (Electricity) Bill 2000 to the House of Representatives. The bill is intended to encourage the development of additional electricity from renewable energy sources.

Including: Oil, Gas and Mining; Electricity; Carbon Trading and Greenhouse Emissions; Native Title

Information Technology

While the application service provider (ASP) model is still developing, both the providers and the users of ASP services should take care to manage the business risks. These risks, and the strategies available to combat them, are considered here.

Insurance & Reinsurance

The federal government has released a proposal outlining 25 refinements to improve the practical operation of the financial services regulation introduced by the Financial Services Reform Act 2001. One proposed refinement is the streamlining of product disclosure statements as they relate to general insurance products.

In a decision that has significance for all insurers, the Court of Appeal has extended the rights and obligations owed to third-party beneficiaries. Although this case dealt with the insurer of a superannuation fund trustee, the decision is significant for all insurers.

Recent High Court decisions have illustrated the court's strict approach to the construction of policy terms. The decisions emphasize how important it is for insurers and insureds alike to ensure that policies clearly identify the cover provided.

Having concluded its review of the Insurance Contracts Act, a federal government panel has now issued a proposed draft of the Insurance Contracts Act Amendment Bill. The panel has paid particular attention to Sections 40 and 54 of the act. The proposed bill may still be amended following comments from stakeholders.

Two court cases have confirmed that insurers can deny indemnity and refuse to pay defence costs where they seek to rely on an exclusion clause applicable to dishonest and fraudulent conduct under a directors and officers liability policy. Although different policy wordings may produce different results, the structure and wording of the policies in these cases was not uncommon.