August 2005
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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 Generally, it is too onerous a task for us to check and update these and so if a hyperlink is no longer valid, please accept our apologies.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 Superannuation Laws Amendment (Abolition of Surcharge) Act 2005 (Cth) has passed into law. For a copy of the Act, go to:
ACCC has released a revised 'first-in' immunity policy for cartel conduct. The new policy replaces the 2003 leniency policy and follows a review to ensure that the policy was operating effectively. For a copy of the new immunity policy and the accompanying interpretation guidelines, go to:
ACCC has released a new guide entitled Don't Take Advantage of Disadvantage to assist businesses dealing with consumers who may experience disadvantage or vulnerability. A copy of the guide can be downloaded from:
APRA has released the second of two discussion papers setting out its proposed prudential response to the adoption of International Financial Reporting Standards by APRA-regulated institutions. This paper deals with the treatment of eligible Tier 1 capital instruments and securitisation for authorised deposit-taking institutions and general insurers. For a copy of the discussion paper, go to:
http://www.apra.gov.au/repec/RePEcDocs/Archive/discussion_papers/dp0024.pdf
ASIC has published an example Statement of Advice illustrating its interpretation of clear, concise and effective advice and disclosure in a specific financial advice scenario. For a copy of the sample SOA, go to:
ASIC has published 2 FAQs giving guidance to advisers on how to comply with their general advice warning obligations and providing further explanation about when advice is general, rather than personal. See Information Release IR 05-45:
http://www.asic.gov.au/asic/ASIC_PUB.NSF/byid/2EA45E958E137D82CA25705400027F27?opendocument
ASIC has released a consultation paper inviting comment on proposed relief that would reduce the need for Australian financial services licensees and their representatives to repeat the general advice warning to retail clients who have heard it before. For a copy of the consultation paper, go to:
ASIC has issued a new class order CO 05/385 giving relief to product issuers who provide general financial product advice in advertisements. The class order brings greater consistency between advertising in the media and on billboards or posters. See Information Release 05-47:
http://www.asic.gov.au/asic/ASIC_PUB.NSF/byid/35205D8E9E7D26F1CA25706E000D83BC?opendocument
ASIC has released a consultation paper inviting comment on proposed relief from the authorisation requirements for certain distributors of general insurance products. For a copy of the consultation paper, go to:
ASIC has released a consultation paper inviting comment on proposed relief and guidance for providers of online calculators. For a copy of the consultation paper, go to:
ASIC has released an updated Policy Statement 146 Licensing: Training of financial product advisers, revising the guidance on the training requirements for advisers on basic deposit products and related non-cash payment products. See Information Release IR 05-48:
http://www.asic.gov.au/asic/ASIC_PUB.NSF/byid/379ADFA0098FD796CA25706E001612FC?opendocument
ASIC has issued its first infringement notice for a continuous disclosure breach, resulting in a penalty of $33,000 being imposed upon Solbec Pharmaceuticals Limited. See Media Release 05-223:
http://www.asic.gov.au/asic/ASIC_PUB.NSF/byid/646AA7B2A05182DBCA257050007B0E67?opendocument
ASX has amended ASX Market Rule 7.1, and made consequential amendments to Rules 2.10 and 29.3, to modify the requirements for market participants to have client agreements in place and to clarify the documentation that must be given to clients before orders are taken. In support of these rule amendments, ASX Market Rule Procedure 7.1 has also been amended and Appendix 7.1.4 to the ASX Market Rule Procedures has been introduced. See Participant Circular 384/05 and attachment:
ASX has amended the definition of "Authorised Person" in Market Rule 2.10 so as to bring within the definition all persons (not only natural persons) who are permitted by a trading participant to submit orders into the trading participant’s system for automated order processing. See Participant Circular 414/05 and attachments:
ASX has published a revised version of the Capital Liquidity Handbook, providing market participants with detailed guidance on the risk based capital requirements, particularly on the various calculations that need to be performed. See Participant Circular 429/05:
ASX has released further details of the changes to remove broker identifiers as part of its broader initiatives to restructure equities markets. See the summary of the equity market structural reforms on the ASX website and Participant Circulars 413/05 and 432/05:
http://www.asx.com.au/about/media/market_structural_reforms.htm
SFE has published guidelines on divulging information about the identity of market participants in the context of the new fully anonymous SFE market. See SFE Notices 108/05 and 112/05:
http://www.sfe.com.au/content/notices/2005/notice2005_108.pdf
http://www.sfe.com.au/content/notices/2005/notice2005_112.pdf
For a general discussion of recent developments in employee relations law, see Allens Arthur Robinson, Focus: Workplace Relations - August 2005:
http://www.aar.com.au/pubs/pdf/wr/fowraug05.pdf
The Long Service Leave (Amendment) Act 2005 (Vic), which comes into operation on 1 January 2006, makes significant changes to long service leave entitlements for Victorian employees. See Phillips Fox, Employment Update - 15 August 2005:
http://www.phillipsfox.com/vbscript/displaydoc.asp?ndocid=114987818
The
Full Federal Court has overturned the lower court ruling in Commonwealth of Australia v Vance
and held that in-house lawyers are not required to hold practising certificates
in order for confidential communications between them and their employers to be
privileged. See Allens Arthur Robinson, Focus: Commercial Litigation – August 2005:
http://www.aar.com.au/pubs/ldr/foldraug05.htm
The judgment of the Full Federal Court can be viewed at:
http://www.courts.act.gov.au/supreme/judgmentsca/vance1.htm
The Victorian Government is planning to introduce legislation in the spring session that will change the land tax treatment of properties held on trust. The final content of the legislation, which will apply from 1 January 2006, remains uncertain. See Phillips Fox, Tax Update - 8 August 2005:
http://www.phillipsfox.com/vbscript/displaydoc.asp?ndocid=114981795
The controversial NSW vendor stamp duty will be abolished from 2 August 2005. See Freehills, Vendor Duty is to be Abolished - 2 August 2005:
http://www.freehills.com.au/publications/publications_5163.asp
For those who are interested, the judgment in ASIC v Vizard [2005] FCA 1037 can be downloaded from:
http://www.austlii.edu.au/au/cases/cth/federal_ct/2005/1037.html
In Eastland Technology Australia Pty Ltd v Whisson [2005] WASCA 144, the Full Court of the WA Supreme Court has held that a deed of settlement entered into by a company releasing claims against a director for breach of fiduciary and statutory duty did not offend section 241 of the Corporations Act. The Court opined that this section does not prohibit a release as part of a bona fide compromise of a disputed claim. The decision can be viewed at:
http://cclsr.law.unimelb.edu.au/judgments/states/wa/2005/august/2005wasca144.htm
In Intergraph Best (Vic) Pty Ltd v QBE Insurance Ltd, the Victorian Supreme Court has ruled that a directors and officers liability insurance policy did not cover the legal costs paid by a company representing its directors and officers before a Royal Commission. The policy in question provided direct cover to directors and officers for claims against them arising out of the performance of their duties to the company. It also provided cover to the company to the extent that it was permitted or required to indemnify the directors and officers with respect to such claims. In this case, the directors and officers were not obligated to pay the costs of appearing before the Royal Commission and therefore the company was not entitled to an indemnity pursuant to policy. The decision can be viewed at:
http://cclsr.law.unimelb.edu.au/judgments/states/vic/2005/july/2005vsca180.htm
The Commissioner of Taxation has lost his appeal seeking to tax the profit derived by shareholders on the so-called "sell back rights" issued by St George Bank in 2001 as either income according to ordinary concepts or as a capital gain under CGT event H2. The decision in Commissioner of Taxation v McNeil [2005] FCAFC 147 can be viewed at:
http://cclsr.law.unimelb.edu.au/judgments/states/federal/2005/august/2005fcafc147.htm
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