April 2010
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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 Generally, it is too onerous a task for us to check and update these and so if a hyperlink is no longer valid, please accept our apologies.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 Government has announced its proposed reforms to the financial planning industry in an information pack entitled Future of Financial Advice. For a copy, go to:
The Government has released an exposure draft of legislation to reverse the Sons of Gwalia decision. It can be viewed at:
http://www.treasury.gov.au/contentitem.asp?NavId=037&ContentID=1790
The Government has released its response to the Productivity Commission report on executive and director remuneration in Australia. It is available at:
The Government has also released an exposure draft of proposed regulations under the Personal Property Securities Act 2009 (Cth). The exposure draft can be downloaded from:
The Federal Court has ordered 4 foreign based suppliers of marine hose to pay penalties exceeding $8.24 million for engaging in cartel conduct. See media release NR 074/10:
http://www.accc.gov.au/content/index.phtml/itemId/923519
ASIC has released a revised version of Regulatory Guide 196 Short selling with guidance on the new short selling reporting obligations. It is available at:
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/RG196.pdf/$file/RG196.pdf
ASIC has released consultation papers aimed at improving disclosure to retail investors by responsible entities of agribusiness schemes and infrastructure entities. The papers can be downloaded from:
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/cp133.pdf/$file/cp133.pdf
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/cp134.pdf/$file/cp134.pdf
ASIC has released Regulatory Guide 211 Clearing and settlement facilities: Australian and overseas operators outlining its approach to the licensing and regulation of clearing and settlement facilities. See:
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/rg211.pdf/$file/rg211.pdf
ASIC has confirmed that a listed company may accept proxy votes for general meetings that are lodged by electronic means without amending its constitution to expressly permit that. See Advisory 10-85AD:
The Australian Credit Licence registration process came into effect on 1 April. See Advisory 10-71AD:
Another insider trading scalp for ASIC. An equities dealer at a funds management firm has pleaded guilty to 19 charges of insider trading and 6 charges of communicating inside information under the Corporations Act. The dealer allegedly traded in contracts for differences while in possession of inside information about his employer’s trading intentions. See Advisory 10-72AD:
The ASX Corporate Governance Council has released for public comment proposed changes to the Corporate Governance Principles and Recommendations relating to diversity, remuneration, trading policies and analyst briefings. They are available at:
http://www.asx.com.au/about/pdf/20100421_proposed_changes_to_corporate_governance_principles.pdf
ASX has also released an exposure draft of proposed amendments to the ASX Listing Rules introducing requirements for listed entities to adopt and disclose a company trading policy and the top 300 ASX listed entities to have a remuneration committee that is comprised solely of non-executive directors. The exposure draft can be viewed at:
http://www.asx.com.au/about/pdf/20100422_exposure_draft_listing_rule_amendments.pdf
New operating rules are to be introduced for both the ASX and SFE markets. It is intended that the SFE market be renamed the ASX 24 market and this name has been used in the draft SFE Rules. A document explaining the changes, along with exposure drafts of the ASX Operating Rules and ASX 24 Operating Rules can be downloaded from:
http://www.asx.com.au/supervision/rules_guidance/changes/asx_asx24_or_explanation_document.pdf
http://www.asx.com.au/supervision/rules_guidance/changes/asx_operating_rules.pdf
http://www.asx.com.au/supervision/rules_guidance/changes/asx_24_operating_rules.pdf
A number of amendments have been made to the ASX market rules and procedures to cater for the ASX's new VolumeMatch, Centre Point Order, Centre Point Crossings and Undisclosed Orders functionality. See ASX Circular 136/10 and attachments:
A number of other minor changes have been made to the ASX market rules to reduce overlap with ASIC requirements. See ASX Circular 141/10 and attachment:
New Anti-Money Laundering and Counter-Terrorism Financing Rules have been made conferring the power to deregister high-risk money remitters. See media release dated 16 April 2010:
AUSTRAC has released Information Circular No. 70 Financial Action Task Force statement on improving global AML/CTF compliance: ongoing process. It can be downloaded from:
http://www.austrac.gov.au/files/aic70_fatf.pdf
For a summary of the proposed regulations under the Personal Property Securities Act 2009 (Cth), see Blake Dawson, Banking & Finance Alert – 20 April 2010:
http://www.blakedawson.com/Templates/Publications/x_publication_content_page.aspx?id=58389
The recent case of Buzzle Operations Pty Ltd (In Liquidation) v Apple Computer Australia Pty Ltd [2010] NSWSC 233 gives some useful guidance to lenders and others as to potential liability as an officer or shadow director of a company. For further details, see Corrs Chambers Westgarth, Liability as an officer or shadow director of a company - 23 April 2010:
http://www.corrs.com.au/corrs/website/web.nsf/Content/Pub_TGIF_Shadow_Director_230410
For a summary of the Government's response to the Productivity Commission's inquiry into executive remuneration in Australia, see Allens Arthur Robinson, Focus: Federal Government's response to executive remuneration inquiry - 30 April 2010:
http://www.aar.com.au/pubs/cg/focgapr10.htm
For a general discussion of recent developments in employee relations law, see Mallesons Stephen Jaques, Workplace and Employee Relations Update - April 2010:
http://www.mallesons.com/publications/update-combine.cfm?id=2114395
The Equal Opportunity Act 2010 (Vic) has received Royal assent and will come into effect on 1 August 2011. It redefines direct and indirect discrimination, alters the role of the Victorian Equal Opportunity and Human Rights Commission, introduces a new duty regarding best practice and proactive compliance with equal opportunity obligations, and also introduces a new express and positive duty on employers to make reasonable adjustments for an employee or prospective employee with an impairment, as well as other changes. See Blake Dawson, Employment Alert - 27 April 2010:
http://www.blakedawson.com/Templates/Publications/x_publication_content_page.aspx?id=58423
For a summary of the Federal Government response to the Ripoll Inquiry into financial products and services, see Corrs Chambers Westgarth, Regulatory Update: The Future of Financial Advice - Beyond Ripoll - 27 April 2010:
A reminder that Issuers and advisers of margin lending facilities have until 30 June 2010 to apply for an Australian financial services licence or a variation to an existing licence, if they intend to continue to provide financial services relating to margin lending facilities after 1 July 2010. See Minter Ellison, Alert - Margin lending issuers and advisers: it's time to apply for a licence - 27 April 2010:
For a summary of the second and third Cooper reports on superannuation, see Mallesons, Cooper Review releases "MySuper: Optimising Australian superannuation" - 20 April 2010 and Cooper phase 3: Self Managed Super Solutions - 29 April 2010:
http://www.mallesons.com/publications/2010/Apr/10315772W.htm
http://www.mallesons.com/publications/2010/Apr/10325653W.htm
The Government has released an exposure draft of the proposed new foreign investment fund rules. For further details, see Mallesons Stephen Jaques, New foreign investment fund rules: Exposure Draft released - 29 April 2010:
http://www.mallesons.com/publications/2010/Apr/10324209W.htm
The Government has also released exposure draft legislation to amend the definition of a managed investment trust in the withholding tax rules. See Mallesons Stephen Jaques, Proposed changes to the MIT withholding tax & Capital Account Election regime - 19 April 2010:
http://www.mallesons.com/publications/2010/Apr/10313023W.htm
The Assistant Treasurer has issued a media release announcing several changes to the tax treatment of financing transactions. The measures cover the extension of the transitional period for Upper Tier 2 instruments issued by ADIs to 1 July 2010, the finalisation of regulations facilitating the "debt interest" tax treatment of term subordinated notes (where payment obligations are subject to solvency and capital adequacy clauses) and new draft legislation to amend the taxation of financial arrangements rules in Division 230 of the Income Tax Assessment Act 1997 (Cth). See Mallesons Stephen Jaques, Tax changes for financing transactions: Upper Tier 2, term subordinated notes and amendments to TOFA rules - 21 April 2010:
http://www.mallesons.com/publications/2010/Apr/10316555W.htm
The High Court has held in Lehman Brothers Holdings Inc v City of Swan & Ors [2010] HCA 11 that provisions of a deed of company arrangement purporting to provide for a moratorium on and release of claims that might be made by a company's creditors against persons other than the company in administration are legally ineffective and void. The decision can be viewed at:
http://www.austlii.edu.au/au/cases/cth/HCA/2010/11.html
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