April 2009
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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 Generally, it is too onerous a task for us to check and update these and so if a hyperlink is no longer valid, please accept our apologies.
The Fair Work Act 2009 (Cth) has passed into law. The Act and its explanatory memorandum can be viewed at:
The federal government has release a public exposure draft of the National Consumer Credit Protection Bill 2009 and related documentation. The package can be downloaded at:
www.treasury.gov.au/consumercredit
The federal government has announced that it will conduct an audit of its laws that impact on the issue of company director liability. See media release 17 April 2009:
ACCC has released a revised version of its Compliance and Enforcement Policy. For a copy, go to:
APRA has released for public consultation a discussion paper and draft prudential guide for registrable superannuation entity licensees on managing conflicts of interest. They can be viewed at:
http://www.apra.gov.au/Policy/upload/Super-DP-Conflicts-of-Interest-April-2009.pdf
http://www.apra.gov.au/Policy/upload/SA_PPG_SPG521_042009_ex.pdf
APRA has released a discussion paper and draft prudential practice guide on the management of reserves by APRA-regulated superannuation trustees. They can be viewed at:
http://www.apra.gov.au/Policy/upload/SA_DP_UORSF_042009_ex.pdf
http://www.apra.gov.au/Policy/upload/SA_PPG_SPG235_042009_ex.pdf
In the wake of the Brisconnections fiasco, ASIC has reminded investors that purporting to transfer partly paid securities to fictitious persons is an offence under section 1308(2) of the Corporations Act and not legally effective to transfer the obligations on the shares. See Media Release MR09-65:
ASIC has released a report outlining its decisions on applications for relief from the corporate finance, financial services and managed investment provisions of the Corporations Act between 1 August and 30 November 2008. For a copy, go to:
For ASIC's take on its win in the James Hardie proceedings, see Media Release 09-69:
http://www.asic.gov.au/asic/asic.nsf/byheadline/09-69+James+Hardie+proceedings?openDocument
Another insider trading scalp for ASIC. A former Queensland Gas Company Ltd executive has been sentenced to 2 years jail with a minimum custodial period of 14 months for insider trading. See Media Release 09-71:
Again, in the wake of the Brisconnections fiasco, ASX has introduced a new market rule requiring participants to alert retail clients of the need to inform themselves of the rights and obligations associated with trading partly paid securities. Market participants will be required to obtain from retail clients a signed agreement that their clients are aware they have a responsibility to obtain and read a copy of a prospectus, product disclosure statement or information memorandum produced by the product issuer when they are entering into a transaction to buy a partly paid security for the first time. See ASX Circular 098/09 and attachment:
ASX has amended its Market Rules Procedures to specify new trading times for index futures and options. See ASX Circular 098/09 and attachment:
AUSTRAC has released Guidance Note 09/03 International funds transfer instruction reporting requirements for items 1 and 2 of section 46 of the AML/CTF Act. For a copy, go to:
http://www.austrac.gov.au/files/gn0903_ifti_reporting.pdf
AUSTRAC has also released a summary of the different types of AML/CTF reports and related case studies taken from the AUSTRAC Typologies and Case Studies Reports. It can be downloaded at:
http://www.austrac.gov.au/files/amlctf_reports_and_case_studies.pdf
For a summary of the public exposure draft of the National Consumer Credit Protection Bill 2009, see Mallesons Stephen Jaques, Release of National Consumer Credit Protection Bill 2009 - 30 April 2009:
http://www0.mallesons.com/publications/2009/Apr/9889036w.htm
The Real Property and Conveyancing Legislation Amendment Bill 2009 introduced in New South Wales Parliament this month will make a series of amendments that will impact mortgagees under real property mortgages. Amongst other things, the Bill will require a mortgagee or chargee of land to take reasonable care in exercising a power of sale in respect of mortgaged or charged land. See Minter Ellison, Alert - New NSW Mortgagee Obligations and Requirements - 6 April 2009:
The Federal Court has made orders authorising a shareholder's representative to inspect D&O insurance policies held by a company for the purpose of enabling the shareholder to determine whether to bring any proceedings on the company's behalf against its directors and officers. See Blake Dawson, Litigation Update - 28 April 2009:
http://www.blakedawson.com/Templates/Publications/x_publication_content_page.aspx?id=55111
The Productivity Commission has released its issues paper regarding the review into executive remuneration in Australia previously announced by the Rudd Government. For a summary, see Mallesons Stephen Jaques, Executive Remuneration - Tighter Regulation Moves a Step Closer - 8 April 2009:
http://www.mallesons.com/publications/2009/Apr/9869180W.htm
For a useful summary of the decision in ING Funds Management Ltd v ANZ Nominees Ltd (a link for which appears below), see Freehills, Changing a Constitution: Commercial Drivers and Legal Issues - 17 April 2009:
http://www.freehills.com.au/4852.aspx
The relevant legislation and policy documents have now been issued to give effect to the Commonwealth Government's announcement in December 2008 of amendments to the FIRB regulations governing the acquisition of real estate by foreigners. See Allens Arthur Robinson, Client Update: FIRB Real Estate Changes - 1 April 2009:
http://www.aar.com.au/pubs/fmres/cufmresapr09.htm
The Commissioner of Taxation has issued a new Taxation Ruling TR 2009/2, which highlights some important issues to be considered in determining whether payments made to employees on the termination of their employment qualify for treatment as a genuine redundancy payment. For further details, see Mallesons Stephen Jaques, Genuine Redundancy Payments: Final Taxation Ruling Issued - 24 April 2009:
http://www.mallesons.com/publications/2009/Apr/9885310W.htm
Treasury has released a draft regulation for consultation which seeks to deal with the issue of solvency clauses in subordinated note issuance facilities and whether the notes are to be treated as debt for the purposes of the debt/equity tax rules. See Mallesons Stephen Jaques, New Draft Regulation on Solvency Clauses for Debt/Equity Tax Rules - 22 April 2009:
http://www.mallesons.com/publications/2009/Apr/9884506W.htm
The decision of Gzell J in ASIC v Macdonald (No 11) [2009] NSWSC 287 can be viewed at:
An interesting decision in Territory Realty Pty Ltd v Garraway [2009] FCA 292, holding that a transfer of shares to a member who held them on trust for a third party infringed provisions in the constitution of the company conferring pre-emptive rights on other members where shares were to be transferred to non-members. The decision can be viewed at:
http://cclsr.law.unimelb.edu.au/judgments/states/federal/2009/april/2009fca292.htm
In ING Funds Management Ltd v ANZ Nominees Ltd [2009] NSWSC 243, the NSW Supreme Court held that a deed poll executed by the responsible entity of a registered managed scheme to modify its constitution to freeze redemptions was beyond the responsible entity's powers of amendment in section 601GC(1)(b) of the Corporations Act and ought to have been made by a special resolution of members under section 601GC(1)(a). The court also held that preliminary attempts to amend the constitution by an incorrectly executed deed poll were legally ineffective and did not comply with section 601GB, on the basis that the constitution itself was a deed and as such could only legally be amended by another properly executed deed. The decision can be viewed at:
http://cclsr.law.unimelb.edu.au/judgments/states/nsw/2009/april/2009nswsc243.htm
For those interested in following the Brisconnections fiasco, the decisions in Re Australian Style Investments Pty Ltd [2009] VSC 128, Macquarie Capital Advisers Ltd v Brisconnections Management Co Ltd [2009] QSC 82 and Julie Anne Barrow Charitable Trust v Brisconnections Management Company Ltd [2009] FCA 412 can be viewed at:
http://cclsr.law.unimelb.edu.au/judgments/states/vic/2009/april/2009vsc128.htm
http://cclsr.law.unimelb.edu.au/judgments/states/qld/2009/april/2009qsc82.htm
http://cclsr.law.unimelb.edu.au/judgments/states/federal/2009/april/2009fca412.htm
The High Court's decision in IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14, holding that IceTV had not infringed any copyright of Channel Nine in its weekly schedules of television programs by producing an electronic TV program guide from third party aggregated TV guides, can be viewed at:
http://www.austlii.edu.au/au/cases/cth/HCA/2009/14.html
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