The World Bank has released its Benchmarking Public Procurement 2016 report, which provides comparable data on regulatory environments that affect the ability of private companies to do business with governments in 77 countries. Partner Leighton O’Brien* (who contributed to the report’s analysis of Australia’s public procurement practices) and Lawyer Patrick Easton look at the report and the lessons it provides Australian procuring entities on global best practice in public procurement.

The Federal Government has released the discussion paper foreshadowed in its Smart Cities Plan about how to use value capture to fund infrastructure projects in Australia. Infrastructure & Transport Sector Leader Leighton O’Brien, Government Sector Leader Paul Kenny, Special Finance Counsel Phillip Cornwell together with Senior Associates Michael Zissis and Nick Beresford-Wylie take a look at the paper and highlight issues for stakeholders to consider when preparing their submissions.

Proposed amendments to the Construction Contracts Act 2004 (WA) will, if passed, result in significant changes to the adjudication process in Western Australia. Partner Jeremy Quan-Sing, Senior Associate Fiona Potter and Law Graduate Thanushar Sridaran report on the potential impacts of the changes.

The Queensland Government introduced legislation to establish the Cross River Rail Delivery Authority, an independent statutory body charged with delivering the Cross River Rail project and the wider economic developments along the project’s corridor. Partner Nicholas Ng, Senior Associate Matt Thomas and Associate Brydon Wang consider the legislation and its implications.

The Queensland Supreme Court has stayed proceedings on the basis that the parties did not follow the agreed contractual provisions for the proper escalation of a dispute. Partner Leighton O’Brien, Senior Associate Julian Berenholtz and Law Graduate Flora Ma report on the decision that emphasises the importance of constructing appropriate dispute resolution clauses for each transaction.

In Samsung C&T Corporation v Duro Felbuera Australia Pty Ltd [2016] WASC 193, the Supreme Court of Western Australia had to carefully consider the role that Australian courts play when there is a dispute over the existence and scope of an arbitration agreement. The key issue was whether a jurisdiction clause in a term sheet was inconsistent with there being an agreement to arbitrate disputes arising under the term sheet. However, the court was also required to consider the extent to which it should determine whether an arbitration agreement existed, and whether a dispute fell within its scope, in circumstances where an arbitral tribunal had already been asked to rule on its own jurisdiction to hear the same dispute. Partner Jeremy Quan-Sing and Law Graduate Lily Hands report.

The Planning Act 2016 commences today, together with the Planning Regulation 2017, various new planning documents and new forms. The Act replaces the Sustainable Planning Act 2009. While there is a lot that has changed under the new regime, the cornerstones of the planning system remain intact. Special Counsel Rosanne Meurling identifies those things that you need to know on day one of the new planning regime.

The Victorian Government has released the Victorian Value Creation and Capture Framework which articulates its policy on value creation and value capture in the planning and delivery of public projects. The intention of the framework is to harness the potential of government investments to create additional value for the community and signal to the public, private and community sectors how the Victorian Government will go about doing so. Partner Paul Kenny and Lawyer Patrick Easton report.

Stapled structures have been used as an investment platform in the property and infrastructure sectors for decades, and more recently have been deployed into renewable energy, agriculture and other areas. Through the issue of its Taxpayer Alert on stapled structures on 31 January 2017, the ATO indicated that it had serious tax integrity concerns with the proliferation of stapled structures. The Commonwealth Treasury has now revealed that it has also been concerned at the increasing impact of stapled structures on the corporate tax base by releasing a Consultation Paper calling for submissions on potential policy options in relation to stapled structures, the taxation of real property investments and the recharacterisation of trading income. Partner Martin Fry and Senior Associate Igor Golshtein report.

The NSW Government has kicked off 2017 by releasing proposed reforms to the State’s ageing planning legislation. Partner Bill McCredie, Planning Special Counsel Marcia Doheny and Senior Associate Michael Zissis outline the key proposed reforms for developers and major project proponents, including miners.

The Queensland Government recently released a Queensland Building Plan discussion paper for public consideration that coincided with the enactment of the Federal Government’s Building and Construction Industry (Improving Productivity) Bill 2013. Both developments have the potential to affect the existing security of payment regime in Queensland. Partner Nicholas Ng, Managing Associate Nikki O’Leary, Senior Associate Matt Thomas and Associate Brydon Wang consider the proposed changes to security payment regimes under the Queensland Building Plan and the ABCC legislation.

The draft scoping requirements for the proposed North East Link project’s Environment Effects Statement have been released and are open for public comment until 12 June 2018. Partner Jillian Button and Lawyer Dale Straughen report.

The Federal Government has released John Murray AM’s report into Australian security of payment regimes. The Review includes an extensive range of recommendations aimed at achieving legislative best practice and balancing the often competing interests of stakeholders. Importantly, it makes the case that security of payment is best dealt with at a national level, in a cohesive and co-operative manner. Partners Nick Rudge and David Donnelly and Associate Rami Marginean report.

A number of industries and issues are in the spotlight following release of the ACCC’s 2018 Enforcement and Compliance Priorities by ACCC Chairman Rod Sims on 20 February 2018. The financial services, energy, commercial construction and agriculture sectors will be a focus in 2018, as well as the post-Harper misuse of market power and concerted practices provisions, digital platforms and large franchisors.

Project proponents and operators in Queensland can breathe a sigh of relief following the introduction of a Bill to restore certainty and validity to agreements for the management of Aboriginal cultural heritage in that state. The Bill proposes amending the 2003 Aboriginal Cultural Heritage Act to overcome the recent decision in Nuga Nuga and to reinstate the ‘last claim standing’ rule for identifying relevant Aboriginal parties. Partner Ben Zillmann and Senior Associate Giselle Kilvert consider the changes.

New reporting requirements for critical infrastructure require the lodgement of information on the Register of Critical Infrastructure Assets before 11 January 2019. This is the time for owners and operators of Australian infrastructure to consider whether any of their assets qualify as ‘critical infrastructure’. Partner Wendy Rae and Senior Associate Nick Kefalianos explain what critical infrastructure is and who will be affected by the new requirements.

New insolvency legislation that is designed to provide greater opportunities to restructure failing businesses, both before and during external administration, has recently been passed. The reforms restrict the enforcement of contractual rights triggered by voluntary administration, receivership or schemes of arrangement to avoid being wound up in insolvency (known as ‘ipso facto’ clauses). These changes will have significant ramifications for those involved in the construction sector. Partner Leighton O’Brien and Lawyer Daniel Abadee report.