It’s here: Everything you need to know about the merger reform legislation
On 28 November 2024, the Treasury Laws Amendment (Mergers and Acquisitions Reform) Bill 2024 passed through parliament.
The following G+T Insights consider the new regime:
It's here! Everything you need to know about the merger reform legislation – discusses the new regime and what you need to know ahead of the ACCC’s transitional voluntary arrangements commencing on 1 July 2025 and the long-anticipated commencement of the new regime on 1 January 2026.
ACCC and government call out private equity in merger reforms – the ACCC is tightening its focus on private equity roll-ups and bolt-ons and has called out certain industries that have been popular for private equity investment. This insight provides practical tips for private equity firms considering how to execute growth and exit strategies in the new regulatory environment.
One small step – the Privacy Amendment Bill has passed
On 29 November 2024, Federal Parliament finally passed the Privacy and Other Legislation Amendment Bill 2024. This legislation, emerging from the Attorney General’s four-year review of the Privacy Act 1988 (Cth), introduces a modest but material first tranche of reform to Australia’s privacy regime, including:
a new penalties framework
a statutory tort for serious invasions of privacy
new transparency requirements for automated decision-making
criminal offences for doxxing.
For a refresher on the contents of the Bill, see this previous G+T Insight and for a closer look at some last minute amendments to the Bill and their implications, see this recent G+T Insight.
Cyber Security developments
The trio of cyber security Bills introduced in October have now passed through parliament and received Royal Asset on 29 November 2024:
Announcing the passage of these legislative reforms, Minister for Cyber Security Tony Burke said they marked “an important step in bringing Australia’s cyber laws into the 21st century”, forming a “cohesive legislative toolbox for Australia to move forward with clarity and confidence in the face of an ever changing cyber landscape”.
A recent G+T Insight considers the reforms, what businesses need to know and how you can prepare for changes in 2025.
In a timely development, the Australian Institute of Company Directors and the Cyber Security Cooperative Research Centre released updated Cyber Security Governance Principles on 25 November 2024 to address emerging issues such as digital supply chain risks, data governance and effective cyber incident response and recovery. Since October 2022, the Principles have been a key resource for Australian companies in their management of cyber risks.
Government introduces scams prevention framework
The Scams Prevention Framework Bill 2024 (which was introduced into Parliament on 7 November 2024) proposes to establish the Scams Prevention Framework (SPF) which:
Imposes significant fines of up to $50 million for banks, social media platforms and telecommunications companies if they do not take ‘reasonable steps’ to prevent, detect, disrupt, respond and report scams and attempted scams in their businesses.
Provides victims of scams with ‘clear pathways’ to compensation if the business fails to meet the new standards.
Provides the ACCC with new powers to direct businesses to take specific steps to keep their customers safe from scammers.
Empowers the Australian Financial Complaints Authority to resolve consumer claims over scams in these sectors.
The Bill has been referred to the Senate Economics Legislation Committee for report by 3 February 2025.
See also media release by Stephen Jones MP, Assistant Treasurer and Minister for Financial Services.
For an analysis of the consultation version of the Bill, see previous G+T Insight.
Government ramps up digital platforms online safety agenda
The following Bills were introduced into parliament on 25 November 2024:
Online Safety Amendment (Social Media Minimum Age) Bill 2024 – under this new law, which was passed on 28 November 2024, individuals in Australia under the age of 16 (called age-restricted users) will be restricted from accessing certain social media platforms in an effort to, as the Explanatory Memorandum describes, safeguard the “health and wellbeing of the youngest users of social media platforms” and “to protect, not isolate, young Australians” – see recent G+T Insight which considers the new law in more detail.
Online Safety Amendment (Digital Duty of Care) Bill 2024 –proposes to place legal obligations on digital platforms to take reasonable steps to protect Australian users from foreseeable harm, with the risk of heavy penalties for systemic failures – see previous G+T Insight on this Bill which is currently in the House of Representatives.
Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2024 – proposed to crack down on content on a digital communications platform that contains information that is reasonably verifiable as false, misleading or deceptive, and is reasonably likely to cause or contribute to serious harm of a specified type. On 24 November 2024, the Minister for Communications, the Hon Michelle Rowland MP announced that the government will not proceed with this Bill stating that “based on public statements and engagements with Senators, it is clear that there is no pathway to legislate this proposal through the Senate”.
See also previous G+T Insight on the Bills as introduced.
Government announces new digital competition regime
On 2 December 2024, the government announced its proposal for a new ex ante digital platform competition regime directed to regulate the supply of specific digital platform services by a company designated as having a critical position in the Australian economy.
A recent G+T Insight looks at which digital platform services will be subject to the proposed new digital competition regime, the proposed broad obligations and service-specific obligations on designated platforms in respect of their designated services, and the proposed processes for designation and exemptions.
Australia's proposed beneficial ownership disclosure reforms: overhaul or overreach?
The Federal Government is proposing important changes to Australia’s beneficial ownership disclosure regime which, if passed, will mandate disclosure of a broader range of interests in listed entities, but add considerable complexity to the form of disclosures required to be made by market participants.
A recent G+T Insight examines the likely effect these changes might have in practice and whether they strike the right balance between improved transparency and compliance burden.
Government introduces legislation to regulate Buy Now, Pay Later
On 29 November 2024, parliament passed the Treasury Laws Amendment (Responsible Buy Now Pay Later and Other Measures) Bill 2024 which is intended to bring Buy Now Pay Later (BNPL) products in line with the way other credit products are regulated under the National Consumer Credit Protection Act 2009 (Cth).
Certain modifications to the law are designed to lessen the regulatory burden and ensure that it is proportionate to the nature of the risks associated with BNPL products.
A recent G+T Insight covers what you need to know about this new legislation.
ASIC announces enforcement priorities for 2025
On 14 November 2024, ASIC announced that its enforcement priorities for 2025 seek to reflect the increased risks consumers are facing that are driven by cost of living pressures. ASIC’s priorities will focus on:
misconduct exploiting superannuation savings
member services failures in the superannuation sector
unscrupulous property investment schemes
failures by insurers to deal fairly and in good faith with customers
business models designed to avoid consumer credit protections
debt management and collection misconduct
used car finance sold to vulnerable consumers by finance providers
strengthening investigation and prosecution of insider trading
misconduct impacting small businesses and their creditors
licensee failures to have adequate cyber-security protections
greenwashing and misleading conduct involving ESG claims
auditor misconduct.
ASIC also recently reported increases in the number of formal investigations and civil proceedings commenced in its annual report for 2023-24 and these enforcement priorities indicate this trend may continue in the coming year.
A recent G+T Insight further discusses how the regulator’s priorities for 2025 shine a firm spotlight on the superannuation sector.
Government consults further on proposed unfair trading practices
On 15 November 2024, Treasury commenced further consultation on its proposed prohibition against unfair trading practices. Consultation closes on 13 December 2024.
The contents of the consultation paper are significant for every business that engages with consumers and businesses, but especially those who do so online. This is because the government proposes to introduce not only a general prohibition against unfair trading practices, but also specific prohibitions targeting subscription-related practices, drip pricing, dynamic pricing, online account requirements and barriers to accessing customer support.
A recent Insight by G+T’s CCMR team reports on the elements of the proposed general prohibition and the government’s proposal for addressing specific prohibitions targeting certain practices, including potential remedies and the proposed ‘grey list’ of conduct that is likely to be deemed unfair.
ASIC consults on sustainability reporting regulatory guide
On 7 November 2024, ASIC released Consultation Paper 380 Sustainability reporting (CP 380) which seeks feedback on a draft regulatory guide on the sustainability reporting regime. Submissions close on 19 December 2024.
The new sustainability reporting regime will come into effect for the largest category of entities for financial years commencing from 1 January 2025 (and second and third reporting cohorts are required to prepare annual sustainability reports for the financial years commencing on or after 1 July 2026 and 1 July 2027 respectively).
Draft Regulatory Guide RG 000 Sustainability reporting includes guidance on who must prepare a sustainability report, how the regime will interact with existing legal obligations and how ASIC will administer the sustainability reporting requirements (including the regulator’s approach to granting relief from the regime and the use of its new directions power).
CP 380 also seeks feedback on the intersection with ASIC Corporations (Wholly-owned Companies) Instrument 2016/785, whether any ASIC legislative instruments that grant relief in relation to financial reporting or audit requirements should be extended to sustainability reporting and any other areas where ASIC should support the introduction of the sustainability reporting regime.
See also ASIC media release.
Consumer Data Right developments
On 26 November 2024, the government released draft rules (as well as explanatory materials and information sheets) to expand the Consumer Data Right (CDR) to non bank lending for public consultation. Consultation closes on 24 December 2024.
The proposed changes will:
expand CDR to non bank lending
remove the requirement for banking and non bank lending data holders to share CDR data for niche products and data that does not add significant value to consumers
narrow the scope of obligations to reduce costs for non bank lenders and banks
ensure the CDR targets priority use cases, such as consumer finance and lending, without imposing costs and burden on smaller lenders.
According to the Assistant Treasurer’s media release, expanding CDR to non bank lending will allow consumers to share their bank data with non bank lenders for products like residential mortgages and car loans to get better outcomes when it comes to approvals and interest rates.
The consultation follows the amendment to the CDR from 12 November 2024 (see Competition and Consumer (Consumer Data Right) Amendment (2024 Measures No. 1) Rules 2024) to make it easier for consumers to use the CDR. Changes include:
Simplifying the consent process and streamlining requirements for providers.
Removing barriers for banks by simplifying requirements that apply when an accredited bank seeks data from a consumer.
Support innovation by extending a trial of CDR enabled energy products to 24 months (up from 12 months) and to 2,000 customers (up from 1,000).
Treasury also indicated it will undertake further consultation with stakeholders on proposed amendments to improve business consumer participation in the CDR.
See Treasury’s media release.
Federal Court to Optus: No privilege for multi-purpose report
The Full Court of the Federal Court of Australia has affirmed a first-instance decision finding that a forensic investigation report prepared by Deloitte following a cyber-attack on Optus was not privileged. The Full Court held that the report was commissioned by Optus for multiple purposes and the evidence did not establish it was procured for the dominant purpose of obtaining legal advice or for use in litigation or regulatory proceedings.
This decision provides useful guidance about the relevant principles applicable to claims for legal professional privilege, the dominant purpose test and the evidence that may be required in a corporate context to establish the dominant purpose for which a document was created.
A recent G+T Insight analyses the decision and its key takeaways.
The remedial provision: Section 1322 in focus
On 26 November 2024, the Supreme Court of Western Australia published the reasons for Justice Hill’s decision to make orders extending the time fixed under the Corporations Act 2001 (Cth) (Corporations Act) for Global Lithium Resources Limited to call and hold an extraordinary general meeting and its annual general meeting.
Section 1322(4)(a) of the Corporations Act is commonly relied upon to cure inadvertent corporate governance failings. However, as discussed in a recent G+T Insight, the decision illustrates that section 1322(4)(d) can also be used in anticipation of what would otherwise be a future breach of the Corporations Act, provided that no substantial injustice has been or is likely to be caused to any person – with delay in holding a shareholders’ meeting unlikely to itself cause such injustice.
A powerful parry by (Katy) Perry – US pop star wins latest trade mark battle with Australian fashion designer
Following a long-standing trade mark battle, on appeal the Full Court (Yates, Burley and Rofe JJ) of the Federal Court of Australia has overturned the earlier decision of Markovic J in Taylor v Killer Queen, LLC (No 5) [2023] FCA 364.
The Full Court has partially upheld the appeal of trade mark infringement by Ms Kathryn Hudson A.K.A. American singer Katy Perry (the singer) and her related entities, resulting in the cancellation of an Australian trade mark registration in the name of Ms Katie Taylor A.K.A. Australian fashion designer Katie Perry (the designer). The cancellation was based on two grounds:
The trade mark was invalidly registered in 2008 (the designer was aware of the singer’s reputation).
The likelihood of deception or confusion had increased as the singer’s fame had grown by the time her cross-claim was filed in 2019.
As a result, and subject to any appeal to the High Court by the designer, the singer and her companies are able to sell KATY PERRY-branded clothing in Australia.
A recent G+T Insight discusses the decision and its broader implications.