August 2007
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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 Generally, it is too onerous a task for us to check and update these and so if a hyperlink is no longer valid, please accept our apologies.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 Corporations Amendment (Insolvency) Act 2007 has passed into law. It amends the Corporations Act to modernise corporate insolvency laws. For a copy of the Act and its explanatory memorandum, go to:
ACCC has released The Franchisee Manual, which it describes as a 'must read for all prospective franchisees'. For a copy, go to:
ACCC has released a series of publications for consumers about refunds and warranties for goods and services. They can be downloaded from:
ACCC and ASIC have issued a joint consumer publication, Dealing with debt: your rights and responsibilities, in 6 languages. The English version can be downloaded at:
APRA has released its proposed approach to the treatment of market risk under the Basel II Framework. For a copy, go to:
http://www.apra.gov.au/ADI/upload/Implementation-of-the-Basel-II-Capital-Framework-8-Market-risk.pdf
APRA has released a consultation package of proposals to maintain the prudential framework for life companies, including friendly societies, in the light of amendments being made to the Life Insurance Act 1995. It includes a discussion paper and a series of draft prudential standards and instructions. These are all available on APRA’s website at:
http://www.apra.gov.au/Policy/Life-Act-Project.cfm
APRA has released details on its proposed implementation of two aspects of the Basel II Framework: margin lending and recognition of external credit assessment institutions (credit rating agencies). It can be downloaded from:
http://www.apra.gov.au/ADI/upload/Guidelines_EACI_22Aug07.pdf
APRA has issued a discussion paper on proposed reporting requirements for consolidated general insurance groups. For a copy, go to:
ASIC has released a consultation paper on proposals to improve disclosure to retail investors in the $8 billion unlisted and unrated debenture market. It can be downloaded from:
Listed information technology services company, Raw Capital Partners Limited, has been fined $33,000 following an ASIC investigation into its alleged failure to properly inform the market about the loss of a significant IT service contract. See Media Release 07-207:
The ASX Corporate Governance Council released the 2nd edition of the Corporate Governance Principles and Recommendations. For a copy, go to:
http://www.asx.com.au/supervision/pdf/corp_governance_principles_recommendations_2nd_edition.pdf
ASX has updated the applications to be a DTR, to be a trainee DTR and to establish a special liability limit for a DTR, to reflect all products traded on the integrated trading system. See ASX Circular 466/07 and attachment:
AUSTRAC has released draft rules on threshold transaction reports, and a revised draft of its rules on ongoing customer due diligence. For a copy, go to:
http://www.austrac.gov.au/files/reportable_detail.pdf
http://www.austrac.gov.au/files/draft_aml_ctf_rules_ongoing_cdd_240807.pdf
SFE has granted full participants a partial exemption from Operating Rule 2.2.26(d) from the requirement to self report client segregated account breaches, for up to 5 breaches in any 30 day period involving bank fee charges that are not greater than A$200 or its equivalent in foreign currency. See SFE Notice 110/07:
http://www.sfe.com.au/content/notices/2007/notice2007_110.pdf
The Anti-Money Laundering and Counter Terrorism Financing Act 2006 currently covers a range of financial and gambling designated services. The government proposes to amend the Act to cover a range of activities usually undertaken by accountants, lawyers, providers of company or business services, jewellery dealers, real estate agents, directors, partners, trustees and nominee shareholders. See Mallesons, AML/CTF Act Tranche 2 - Will You Be Covered? - 14 August 2007:
http://www.mallesons.com/publications/2007/Aug/9061432W.htm
With an employer’s obligation under the Anti Money Laundering and Counter Terrorism Financing Act 2006 to implement an employee due diligence program and a training program to commence on 12 December 2007, such employee programs must now be a key part of all compliance plans. For tips, see Minter Ellison, Employer Due Diligence Program - Will You Be Ready? - 22 August 2007:
In the wake of the Cole Report on the UN Oil-for-Food Program, the Commonwealth Government has introduced the International Trade Integrity Bill 2007, which seeks to strengthen Australia’s response to breaches of UN sanctions and bribery of foreign officials by Australian companies and individuals. See Allens Arthur Robinson, Focus: Corporate Responsibility - August 2007:
http://www.aar.com.au/pubs/pdf/ldr/focraug07.pdf
For a general discussion of recent developments in employee relations law, see Allens Arthur Robinson, Focus: Workplace Relations - August 2007:
http://www.aar.com.au/pubs/pdf/wr/fowraug07.pdf
For a summary of the policy implementation plan for the ALP's "Forward with Fairness" industrial relations policy, see Blake Dawson Waldron, Employment Alert - August 2007:
http://www.bdw.com/publications/irca/irca29082007.pdf
Queensland industrial laws have recently been amended to strengthen worker protection following the enactment of the Federal Government's Work Choices legislation. For a summary, see DLA Phillips Fox, Employment Update - 6 August 2007:
http://www.dlaphillipsfox.com/vbscript/displaydoc.asp?ndocid=116457133
Freehills, Copyright: TV Guides go to Battle - 15 August 2007 summarises the recent decision of the Federal Court in the litigation between Channel 9 and Ice TV Guide litigation, holding that Channel 9 could not assert copyright in individual components of its program schedule. See:
http://www.freehills.com.au/publications/publications_6941.asp
In Community Association DP NO 270180 v Arrow Asset Management Pty Ltd, the Supreme Court of NSW held that a property developer was in a position similar to a company promoter and owed a fiduciary duty to the strata body corporate of the property it had developed. Accordingly, it was required to account to the strata body corporate for the proceeds of sale for the management rights over the strata complex. An argument by the developer that it had discharged its duty by disclosing to purchasers in sale documents that it intended causing the body corporate to enter the management agreement and the proposed terms of the agreement (including the annual fee) was rejected, with the court holding that the disclosure should also have mentioned the sale price received for the management rights. See Gadens, Property Update - August 2007:
http://www.gadens.com.au/Publications-View.asp?DocumentID=1186
The Tax Laws Amendment (2007 Measures No. 5) Bill 2007 was introduced into the Australian Parliament on 16 August 2006. The Bill contains the long awaited tax reforms to asset financing relevant to tax preferred entities, to be inserted in a new Division 250 of the Income Tax Assessment Act 1997. See Deacons, Legal Update: New Asset Financing Tax Rules Introduced - 20 August 2007:
http://www.deacons.com.au/NewsUpdates/Newsroom/LegalUpdates.cfm?objid=6152
The WA Government has released an exposure draft Duties Bill 2007, which is intended to rewrite the Stamp Act 1921 (WA) in its entirety. For a summary, see Corrs Chambers Westgarth: Western Australian Exposure Draft Duties Bill 2007 - August 2007:
The Supreme Court of NSW has lent its authority to the not uncommon practice of parties to legal agreements simply executing a signature page and forwarding that page to someone to attach to the balance of the agreement. The decision in Andrews v Racken Pty Ltd [2007] NSWSC 1010 can be viewed at:
http://cclsr.law.unimelb.edu.au/judgments/states/nsw/2007/september/2007nswsc1010.htm
The Supreme Court of NSW has found that a sponsoring broker and underwriter to a failed IPO breached its obligations under contract and under its duty of care to use its best endeavours to procure the minimum shareholder spread required for the issuer to be listed on the ASX. The decision in OzEcom v Hudson Investment Group [2007] NSWSC 719 can be viewed at:
http://cclsr.law.unimelb.edu.au/judgments/states/nsw/2007/august/2007nswsc719.htm
The High Court has upheld the ACCC's appeal against findings by the Full Federal Court that a corporation dealing with a government agency entitled to Crown immunity was protected from the operation of the Trade Practices Act 1974 by derivative Crown immunity. The decision in ACCC v Baxter Healthcare Pty Limited [2007] HCA 38 can be viewed at:
http://www.austlii.edu.au/au/cases/cth/HCA/2007/38.html
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