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Important commercial and corporate law updates | Australia

The following content relates to advice on updates in relation to commercial, corporate, data protection, tax and employment law via our firm network connection, Bird & Bird for Australia.

16 April 2020

Commercial

Australia - New South Wales

The NSW Government has announced a $50 million package of fee waivers to assist businesses affected by the COVID-19 pandemic. The first, $19.5 million portion of the package includes giving eligible businesses in the entertainment and hospitality sectors access to a 12-month waiver on liquor licences and certain SafeWork NSW and NSW Fair Trading fees and charges.  Fee waivers are available for a 12 month period starting from 1 April, 15 April or 20 April 2020 depending on the type of business and licence fee.

14 April 2020

Commercial

Australia - Federal

The Australian Government has agreed with the States and Territories to implement a mandatory Code of Conduct for commercial tenancies.  This sets out principles for good faith negotiations between landlords and tenants to aid in the management of cashflow for SME businesses (with a turnover of less than $50 million) affected by the COVID-19 crisis.    The Code sets out general principles including that leases must not be terminated for non-payment during the pandemic and reasonable recovery period, tenants must remain committed to the terms of their leases and landlords should offer proportionate rental reductions or deferrals and pass on a proportion of any benefit they receive from loan repayment deferrals or reductions in statutory charges.

Regulatory

Australia - Federal

The ACCC has granted interim authorisation for members of the Australian Securitisation Forum (ASF) to work together to assist small lenders in issuing loans to consumers and small businesses during the COVID-19 pandemic.  This authorisation allows ASF members to coordinate on how the Federal Government Structured Finance Support Fund scheme should be implemented to provide competitively priced funding to smaller lenders.

6 April 2020

Data Protection

Australia - Federal

  • The OAIC has issued guidance in relation to assessing the privacy impacts of a remote working arrangement.  In particular, the OAIC recommends using a privacy impact assessment (PIA) to assess whether changes to working arrangements will impact on the handling of personal information, assess any potential privacy risks (including those of a data breach), and put in place appropriate mitigation strategies.
  • The OAIC advises that it and the states and territories have convened a National COVID-19 Privacy Team to respond to proposals with national implications.
  • The OAIC recommends a range of measures to assist Commonwealth government agencies in meeting their statutory FOI timeframes, advising that applications for extensions of time will be assessed on a case by case basis.
  • The Commonwealth privacy regulator, the Office of the Australian Information Commissioner (OAIC), advises that the Privacy Act will not stop critical information sharing.  Nonetheless, Commonwealth government agencies and private sector employers should limit the collection, use and disclosure of personal information to what is necessary ("need to know") to prevent and manage COVID-19, and take reasonable steps to keep personal information secure.  In addition, even if the employee records exemption for private sector employers applies, organisations should consider  taking steps to notify staff how their personal information will be handled in responding to any potential or confirmed case of COVID-19 in the workplace.

Australia - New South Wales

  • Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 made under Section 7 of the Public Health Act 2010 (NSW) enters force, and allows NSW government agencies to exchange personal or health information with other government sector agencies if necessary for the purposes of protecting the health or welfare of members of the public during the COVID-19 pandemic.
  • The NSW Information and Privacy Commissioner (IPC) will engage with complainants and agencies in relation to any additional time required by those complainants and agencies to meet statutory timeframes in relation to privacy complaints.

Regulatory

Australia - Federal

  • The ACCC has granted interim authorisation for insurance companies and brokers to work together to implement COVID-19 relief measures for certain small businesses. The authorisation applies to Suncorp, Allianz and QBE Insurance as well as any other insurance brokers who choose to take part. Eligible business customers will also be refunded unused premiums for any insurance policy they need to cancel as a result of the pandemic, and will not be charged administration or cancellation fees if they do.

Australia - New South Wales

The ACCC released a guidance on the rights and obligations of small businesses in response to events caused by the COVID-19 pandemic which is accessible at: https://www.accc.gov.au/business/covid-19-coronavirus-information-for-small-business.

2 April 2020

Commercial

Australia - Federal

  • The Australian Government implement opening restrictions on restaurants and cafés, allowing only takeaway and/or home delivery to remain operational. These restrictions are enforced individually by State/Territory governments.
  • The Australian Government implemented opening restrictions on food courts, allowing only takeaway and/or home delivery to remain operational.  These restrictions are enforced individually by State/Territory governments.
  • Australian Government issued updated guidance on routine environmental cleaning.  Routine cleaning should include frequent mechanical cleaning of frequently touched surfaces with appropriate detergent or disinfectant.  Minimally touched surfaces should be cleaned with detergent solution/wipes, sinks and basins should be regularly cleaned.
  • Food Standards ANZ and the NSW Food Authority and Safe Food Qld advise that there is no evidence COVID-19 is transmitted through food or drink, however, additional hygiene precautions should be taken when preparing or handling food.  Additional cleaning and sanitising of all contact surfaces is recommended.  Regular best practice cleaning procedures are advised to be sufficient, heating to above 60°C and standard commercial sanitisers (e.g. bleach, hydrogen peroxide or 70% ethanol).   Regular handwashing is essential and businesses should ensure sufficient hand washing facilities are provided.  People with suspected illness should avoid preparing food for other people and Australian Government social distancing guidelines should be observed.
  • The Australian Competition and Consumer Commission (ACCC) advises it will pay particular attention to any instances of unfair or unconscionable conduct on the part of businesses in dealing with consumers during the current crisis.  The ACCC notes that businesses must honour the terms of their contracts with consumers.  This includes providing refunds of payments for ongoing services or deposits when provision of goods or services have been cancelled.  In relation to upfront payments, the ACCC expects consumers to be offered a refund or credit note where the goods or services cannot be provided as a result of government restrictions.  The ACCC has no role in regulating price increases, however, in extreme cases this may be considered unconscionable conduct.  It may also be misleading and deceptive conduct in breach of the Australian Consumer Law if businesses make false claims about the reasons for any price increase.

Australia - New South Wales

The Environmental Planning and Assessment (COVID-19 Development - Takeaway Food and Beverages) Order 2020 made under section 10.17 of the Environmental Planning and Assessment Act 1979 (NSW) entered force. This permits the use of existing community facilities, cooking school facilities, food and drink premises or function centres to be used to be used to prepare and sell takeaway food and beverages (other than alcohol) without obtaining development approval.  Premises used in this way must have existing kitchen facilities and sufficient space to comply with social distancing requirements.  Preparation and sale of takeaway food and beverages from mobile food outlets is also permitted at any time without development approval, provided the operator has consent of the owner of the land or relevant public authority, no more than one mobile food outlet is located on a single piece of private land, access to neighbouring land is not obstructed, no damage is caused to public property and sufficient space is provided to allow for social distancing requirements.

Corporate

Australia - Federal

  • The Government has legislated a temporary 6 month 'safe harbour' for directors, granting them relief from personal liability if trading while insolvent. The safe harbour applies in respect of debts incurred 'in the ordinary course of business', during the six month period from the date on which the law commenced (24 March 2020) (or any longer period prescribed in the regulations), and before the appointment of an administrator or liquidator during the safe harbour period.
  • The Australian Securities & Investments Commission (ASIC) has announced temporary measures to facilitate AGMs for proprietary and public companies with a financial year ending 31 December 2019, by announcing 'no action' positions on a 2 month extension to the date by which AGMs must be held, and on listed companies holding virtual AGMS.
  • The Federal Government has amended the laws relating to statutory demands, raising the minimum debt in respect of which a statutory demand can be served from $2,000 to $20,000, and the period within which a company must pay the amount demanded (or make an application to set aside the demand) has increased from 21 days to six months.
  • The threshold under the Bankruptcy Act for the minimum amount of debt required for a creditor to initiate bankruptcy proceedings against an individual debtor will temporarily increase from its current level of $5,000 to $20,000, plus the time a debtor has to respond to a bankruptcy notice will be temporarily increased from 21 days to six months.
  • The Treasurer will be given a temporary instrument-making power in the Corporations Act 2001 to temporarily amend provisions of the Act to provide relief from specific obligations or to modify obligations to enable compliance with legal requirements during the crisis.
  • The Treasurer has announced changes to the Foreign Investment Review Board (FIRB) regime legislated under the Foreign Acquisitions and Takeovers Act. The threshold for foreign investors taking an interest in a business or in land to submit a FIRB notification is now $0. FIRB review periods have been extended to 6 months to allow FIRB sufficient time to screen applications.
  • The Government has implemented measures to assist Australian businesses to manage their cash flow, including: Providing up to $100,000 to eligible small and medium-sized businesses and not for-profits (i.e. with an aggregated annual turnover of under $50 million) to help with their cash flow so they can continue operating, retain staff, and pay their rent, electricity and other bills,  and supporting small business to retain apprentices and trainees by providing a wage subsidy of up to 50% for 9 months.
  • The Reserve Bank of Australia announced a term funding facility for the banking system providing banks with access to at least $90 billion in funding at a fixed interest rate of 0.25% and announced an easing in monetary policy by reducing the cash rate to 0.25 %.

Regulatory

Australia - New South Wales

  • The NSW Government issued a Statement of Regulatory Intent which sets out the regulatory approach it will take in relation to home delivery and take-away sales of liquor in the context of COVID-19 and application of the Liquor Act 2007 (NSW).The Statement of Regulatory Intent notes that "a flexible approach" will be taken where licensed venues wish to provide home delivery or takeaway services, even where those liquor licences do not authorise the sale of alcohol for consumption away from the premises.
  • Public Health (COVID-19 Self-Isolation) Order 2020 made under the Public Health Act 2010 (NSW) entered force.  This requires that any person diagnosed with COVID-19 must immediately self-isolate at home or in hospital as directed by a medical practitioner and remain isolated until cleared by a medical practitioner.
  • Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 made under Section 7 of the Public Health Act 2010 (NSW) enters force. This implements previous Australian Government guidance on movement, gathering and business restrictions and replaces the previous Public Health (COVID-19 Gathering) Order (No 3) 2020.  Gatherings of more than two people in a public place are prohibited except in certain circumstances including at supermarkets or markets which predominantly sell food, for the purposes of transportation, or when transiting through a place.  People must not leave their place of residence except for specified reasons.  These include obtaining food and essential goods and for work where it is not possible to work remotely. Operators of premises (including food providers) must not allow people to enter unless there is sufficient space to allow four square metres of space per person.  Food and drink premises must not open except for selling food or beverages for consumption off the premises.  Penalties for non-compliance are fines of up to $11,000 or six months imprisonment for an individual or fines of up to $55,000 for a corporation, with additional fines for each day the offence continues.

Australia - Federal

  • The Australian Competition and Consumer Commission (ACCC) announced it will adjust its regulatory focus to prioritise issues arising from the COVID-19 pandemic.  In particular the ACCC will focus on any behaviour which seeks to exploit the crisis to unduly enhance their commercial position or which may harm consumers.  The ACCC has established a COVID-19 taskforce to communicate directly with businesses and educate them on their responsibilities.  Price gouging and affordability issues are areas of particular concern and, although the ACCC does not directly regulate pricing, it will take action where this behaviour amounts to misleading and deceptive or unconscionable conduct.  The regulator burden of enforcement activities will be minimised as far as possible and the ACCC encourages businesses to seek authorisations where necessary to support ordinarily prohibited coordination between businesses, where this is in the public interest.
  • The Australian Government published information on the use of surgical masks.  This advises that the use of masks by the general public or customer service staff is not generally necessary.  People who suspect they have COVID-19 must self-isolate and wear masks when in contact with others.  Customer service staff should wear masks if there is high chance they will come into contact with suspected cases.  This advice reiterates that there is no evidence that general usage of masks by healthy people is effective to reduce transmission of COVID-19.
  • The Australian Government announced new restrictions limiting indoor and outdoor gatherings in public spaces to a maximum of two people.  Guidance was issued requiring people to stay at home unless for shopping for food or necessary supplies; medical or health needs; exercise; or work/study where it cannot be conducted remotely.  These restrictions are enforced individually by State/Territory governments.

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