There have been a range of recent legal developments that affect Commonwealth decisionmakers. Further information on these is available by clicking on the hyperlinks or online at www.sparke.com.au.
Contracts
Australian contract law to change?
The Attorney General recently released a discussion paper on the scope for reforming Australian contract law. The paper is designed to provoke discussion about whether our current contract law is adequate for today's needs and will meet the challenges of the future. The paper notes that Australia has a significantly different system of contract law from its first, second and fourth biggest trading partners (China, Japan and the Republic of Korea) and that the contract law of our third biggest trading partner, the United States, has diverged significantly from its English origins.
Are dispute resolution procedures futile?
Do you have to comply with a contractual dispute resolution procedure when you think it is going to be futile? The recent Queensland Supreme Court decision of Downer EDI Mining Pty Ltd v Wambo Coal Pty Ltd examined this issue and provided a useful summary of the guiding principles. The case also demonstrates the reluctance of courts to interfere with dispute resolution procedures that have been agreed in a contract.
Does unjust enrichment apply if you benefit too?
Under the principle of unjust enrichment, work done at the request of another can be claimed back from them. But it's not always clear whether a party who performs work that provides a benefit for itself and another party is entitled to rely on the principle. This was considered in Progressive Pod Properties Pty Ltd v A & M Green Investments Pty Ltd.
Employment
Board of Bendigo Regional Institute of Technical and Further Education v Barclay
This recent High Court decision tested the concept of adverse action under the Fair Work Act 2009 (Cth). To view a webinar on this case, visit http://www.brrmedia.com/ event/103959
Privacy
Government releases discussion paper on new privacy regulations
The Attorney General recently released a discussion paper on the proposed regulations under the Privacy Amendment (Enhancing Privacy Protection) Bill. The paper is notable for the lack of regulations proposed to be made in areas other than credit reporting. As discussed in our earlier publications (see our Privacy reform update and Privacy: the sands continue shifting articles) the new privacy regime will require agencies to do more work than the private sector as it is more closely aligned with the National Privacy Principles than the Information Privacy Principles.
IP and ICT
Copyright in the digital age: is Australia keeping up?
On 20 August 2012, the Australian Law Reform Commission released the Issues Paper for its inquiry into copyright and the digital economy. The paper follows the release of the inquiry's terms of reference on 29 June 2012. There are two key areas that are discussed: Crown use of copyright material, and cloud computing.
Probity
Probity on trial – lessons for government
The recent ACT Supreme Court decision in Wagdy Hanna and Associates Pty Ltd v National Library of Australia is a reminder of the importance of probity in procurement. The case concerned a tender to design and construct a storage facility for the National Library of Australia in 1996 under a request for tender document.
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