April 2004
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In this edition:
Note: All hyperlinks below were correct at the time of publication. Generally, it is too onerous a task for us to check and update these and so if a hyperlink is no longer valid, please accept our apologies.
Regulations have been promulgated under the Spam Act 2003 for the purpose of excluding facsimile electronic messages from the definition of 'commercial electronic message' in section 6 of the Act and specifying a number of conditions to be complied with by the electronic address to which an unsubscribe message may be sent. For a copy of the Spam Regulations and their Explanatory Statement, go to:
http://scaleplus.law.gov.au/html/numrul/20/10084/top.htm
http://scaleplus.law.gov.au/html/ess/0/2004/0/20040408056.htm
The Privacy Amendment Act 2004 has just been enacted. It amends the Privacy Act 1988 to ensure that the protections of the Act are available to foreign nationals, to provide the private sector with greater flexibility in relation to privacy codes, and to correct an unintended limitation on the provision of superannuation services to Commonwealth employees. For a copy of the Act and its explanatory memorandum, go to:
http://scaleplus.law.gov.au/html/comact/11/6805/top.htm
http://scaleplus.law.gov.au/html/ems/0/2003/0/2003120303.htm
Some big penalties this month for trade practices breaches. Penalties of $14 million were ordered against ABB Power Transmission Pty Ltd (in liquidation) and ABB Transmission and Distribution Ltd for price-fixing and market-sharing. Penalties totalling $200,000 were also imposed against the ABB managing director, based on his awareness of the covert and illegal conduct. Three other senior executives received penalties totalling $145,000. This brings the total penalties imposed on companies involved in the transformer cartel to just over $35 million and on their company executives to just over $1 million. Penalties of $3 million have also been ordered against FILA Sport Oceania Pty Limited after a finding that FILA's selective distribution policy for the supply of AFL-licensed apparel to retailers was a breach of sections 46 and 47 of the Trade Practices Act. See Media Releases 057/04 and 053/04:
http://www.accc.gov.au/content/index.phtml/itemId/496100/fromItemId/2332
http://www.accc.gov.au/content/index.phtml/itemId/494199/fromItemId/2332
APRA has released final specifications for the National Claims and Policies Database, which will include detailed policy and claim data for public liability, professional risk and medical indemnity/malpractice from all APRA-regulated insurers. State and Territory insurers have also undertaken to contribute to the database. The NCPD will assist insurers in these classes of business to price risks and develop products that are more appropriate to the current market. It will also enable the Government, community and insurers to identify changes that might reduce the incidence or lower costs of claims for these risks. See Media Release 04.11:
http://www.apra.gov.au/media-releases/04_11.cfm
APRA and ASIC have jointly announced their acceptance of enforceable undertakings from AMP relating to the exclusion of the tax benefits of imputation credits and other tax allowances in the unit prices of some AMP products. The undertakings require AMP Life to compensate policyholders of the affected funds and to obtain an independent external review of its unit pricing processes to ensure that similar issues do not recur. See Media Release 04.13:
http://www.apra.gov.au/media-releases/04_13.cfm
ASIC is seeking comment on 3 CLERP 9 policy proposal papers entitled: Auditor registration, Auditor and financial reporting obligations and Product disclosure. The new policies are intended to be in place by 1 July 2004. You can obtain copies of the 3 policy proposal papers at:
ASIC has released a guide to disclosing the impact of International Financial Reporting Standards being adopted as Australian accounting standards in prospectuses and other disclosure documents. For a copy of the guide, go to:
ASIC has released 5 compliance plan commentaries as practical guidance for operators of managed investments schemes in meeting their compliance obligations under Chapter 5C of the Corporations Act. The guides deal with agricultural industry schemes, financial asset schemes, contributory mortgage schemes, pooled mortgage schemes and property schemes. You can download a copy of the guides from:
In the first action ASIC has taken under the new anti-hawking provisions introduced by the Financial Services Reform Act, ASIC has obtained orders in the Federal Court stopping the door-to-door sale of memberships in two death benefit funds in Aboriginal communities. For details, see Media Release 04-094:
http://www.asic.gov.au/asic/asic_pub.nsf/byid/C9B674A7D5C14C7ECA256E6900244B41?opendocument
ASIC has released the results of a surveillance project into payments of preferential remuneration by institutions to their financial advisers. For a copy of ASIC's report, go to:
The ASX Listing Rules have been updated to provide that while the top 500 listed entities (those included in the S & P All Ordinaries Index) must have an audit committee, only the top 300 of those entities are required to compose their audit committee in accordance with the best practice recommendations of the ASX Corporate Governance Council. The update also incorporates other technical amendments to the Listing Rules. The rule amendments take effect on 3 May 2004. For details, see:
http://www.asx.com.au/ListingRules/LRIntro.shtm
For a summary of proceedings at the recent International Swaps and Derivatives Association AGM in Chicago, see Mallesons, Financial Services Law Alert - 16 April 2004:
For a commentary on the new Spam Regulations (mentioned above), see Blake Dawson Waldron, IT&T Update – 14 April 2004:
http://www.bdw.com.au/publications/it/it14042004.pdf
For a general discussion of recent developments in employee relations law, see Allens Arthur Robinson, Focus: Workplace Relations – April 2004:
http://www.aar.com.au/pubs/pdf/wr/fowrapr04.pdf
For a discussion of the recent decision in Victoria University of Technology v Wilson, holding that a university did not own the intellectual property in an e-commerce invention developed by two academics, see Blake Dawson Waldron, IR Client Alert – April 2004:
http://www.bdw.com.au/publications/irca/irca042004-1.pdf
For a summary of the new minimum conditions that apply to workers in Victoria, see Minter Ellison, HR & IR Update - 20 April 2004:
http://www.minterellison.com/ajpe/resources/file/eb0008405883255/HR&IR-Update_040420.pdf
For a helpful list of steps to take when instructing foreign lawyers to maximise the prospects of their advice being subject to legal professional privilege (derived from the recent Kennedy case, mentioned below), see Gilbert & Tobin, Litigation Update: Legal Professional Privilege - April 2004:
http://www.gtlaw.com.au/binaries/pdf/publications/LegalUpdateProfPrivilege2.pdf
The Federal Court has determined that native title rights exist over waters in the Gulf of Carpentaria but that the native title rights are non-exclusive. See Allens Arthur Robinson, Focus: Native Title – 2 April 2004:
http://www.aar.com.au/pubs/nat/fonatapr04.htm
For a summary of the Queensland Government's new regime to protect indigenous cultural heritage, which began on 16 April 2004, see Allens Arthur Robinson, Focus: Native Title – 21 April 2004:
http://www.aar.com.au/pubs/nat/fonat2apr04.htm
For an outline of the recently announced land tax and stamp duty changes in NSW, see Gadens: Taxation Update - April 2004:
http://www.gadens.com.au/docushare/dscgi/admin.py/Get/File-4636/Tax_Update_-_April_2004.htm
In NRMA v Parkin [2004] NSWSC 296, a union representative arranged a shareholder requisition to convene a meeting of shareholders to amend the objects of NRMA in a way designed to enhance the position of patrol officers involved in an industrial dispute with the NRMA. NRMA sought a declaration that it was not required to put the resolutions to shareholders on the basis that they were void for uncertainty, inconsistent with other existing objects and motivated by an improper purpose. The court rejected all arguments and ordered that the directors proceed to requisition the meeting. The judgment is available online at:
http://cclsr.law.unimelb.edu.au/judgments/states/nsw/2004/april/2004nswsc296.htm
Two important recent cases on the scope of legal professional privilege. In Gartner v Carter; In the matter of Gartner Wines Pty Limited [2004] FCA 258, it was held that legal professional privilege did not apply to a document outlining a proposal for a corporate group restructure which had been drawn up for the purpose of putting assets beyond the reach of a secured creditor. Similarly, in Kennedy v Wallace [2004] FCA 332, it was held that legal professional privilege did not extend to communications for the purpose of obtaining foreign assistance to evade scrutiny of assets and transactions by Australian authorities. The latter case also held that privilege should be denied because the applicant had not discharged the burden of proving that the communications in question were for the dominant purpose of obtaining legal advice. The judgments are available online at:
http://cclsr.law.unimelb.edu.au/judgments/states/federal/2004/march/2004fca258.htm
http://cclsr.law.unimelb.edu.au/judgments/states/federal/2004/march/2004fca332.htm
In Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16, a 6:1 majority of the High Court rejected the notion that an engineer involved in the design or construction of commercial premises owe a duty to subsequent purchasers of the premises to take reasonable care to ensure that the building was free from defects (in this case problems with the foundations) so as to prevent pure economic loss to those purchasers. The judgment is available online at:
http://www.austlii.edu.au/au/cases/cth/HCA/2004/16.html
In National Exchange Pty Ltd v ASIC [2004] FCAFC 90, the Full Court of the Federal Court of Australia has unanimously dismissed an appeal by National Exchange Pty Limited and its managing director against orders obtained by ASIC that an unsolicited offer made by National Exchange to OneSteel Ltd shareholders was misleading and deceptive (reported in our September 2003 Inhouse Update). The judgment is available online at:
http://cclsr.law.unimelb.edu.au/judgments/states/federal/2004/april/2004fcafc90.htm
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