December 2003
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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 Generally, it is too onerous a task for us to check and update these and so if a hyperlink is no longer valid, please accept our apologies.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 Treasurer has introduced the Corporate Law Economic Reform Program (Audit Reform and Corporate Disclosure) Bill into Parliament. The Bill implements the CLERP 9 proposals. For a copy of the Bill and its explanatory memorandum, go to:
http://scaleplus.law.gov.au/html/bills/0/2003/0/2003120506.htm
http://scaleplus.law.gov.au/html/ems/0/2003/0/2003120806.htm
The Financial Services Reform Amendment Act 2003 (Cth) and Financial Sector Legislation Amendment Act (No 1) 2003 (Cth) have passed into law. They make a number of technical changes to the FSR provisions in the Corporations Act and other legislation governing the financial services industry. For a copy of the Acts and their explanatory memorandum, go to:
http://scaleplus.law.gov.au/html/comact/11/6747/0/CM000080.htm
http://scaleplus.law.gov.au/html/ems/0/2003/0/2003070301.htm
http://scaleplus.law.gov.au/html/comact/11/6721/top.htm
http://scaleplus.law.gov.au/html/ems/0/2002/0/2003093001.htm
The Government has promulgated a number of regulations (the Corporations Amendment Regulations 2003 (No 9), (No 10) and (No 11)) making a series of technical changes and corrections to the regulations implementing the FSR reforms. For a copy of the regulations and their explanatory statements, go to:
http://scaleplus.law.gov.au/html/numrul/20/10015/top.htm
http://scaleplus.law.gov.au/html/ess/0/2003/0/20031223367.htm
http://scaleplus.law.gov.au/html/numrul/20/10016/top.htm
http://scaleplus.law.gov.au/html/ess/0/2003/0/20031223368.htm
http://scaleplus.law.gov.au/html/numrul/20/10017/top.htm
http://scaleplus.law.gov.au/html/ess/0/2003/0/20031223369.htm
A new Federal Act to regulate registered designs has been enacted. For a copy of the Designs Act 2003 (Cth) and its explanatory memorandum, go to:
http://scaleplus.law.gov.au/html/comact/11/6753/top.htm
http://scaleplus.law.gov.au/html/ems/0/2002/0/2003010303.htm
The Legislative Instruments Act 2003 (Cth) reforms the law relating to Commonwealth legislative instruments. Amongst other things, it establishes the Federal Register of Legislative Instruments and establishes improved mechanisms for Parliamentary scrutiny and periodic review of such instruments. For a copy of the Act and its explanatory memorandum, go to:
http://scaleplus.law.gov.au/html/comact/11/6745/top.htm
http://scaleplus.law.gov.au/html/ems/0/2003/0/2003062611.htm
The anti-spam legislation foreshadowed in our September Update has now passed into law. For a copy of the Spam Act 2003 (Cth) and its explanatory memorandum, go to:
http://scaleplus.law.gov.au/html/comact/11/6735/top.htm
http://scaleplus.law.gov.au/html/ems/0/2003/0/2003092501.htm
The New Business Tax System (Taxation of Financial Arrangements) (No. 1) 2003 (Cth) has been enacted. It removes the taxing point when traditional securities convert or exchange into ordinary shares. For a copy of the Act and its explanatory memorandum, go to:
http://scaleplus.law.gov.au/html/comact/11/6739/top.htm
http://scaleplus.law.gov.au/html/ems/0/2003/0/2003053007.htm
In a move that will please anyone who has suffered through the bidding process at a property auction, the ACCC has instituted proceedings against a real estate agent alleging that its advertising for the sale of a property was misleading and deceptive. The ACCC alleges that in advertisements appearing in various media the agent advertised the property at ‘price guide $600,000 plus buyers should inspect’ and later at ‘price guide $650,000 plus buyers should inspect’, which falsely represented the price at which the vendors of the property were prepared to sell and had instructed the agent to sell, the price at which the agent thought that the property would sell and the market value of the property. The property was passed in at auction for $781,000. See Media Release 257/03:
http://www.accc.gov.au/content/index.phtml/itemId/411073/fromItemId/2332
APRA has amended the prudential standard on the measurement of capital by authorised deposit-taking institutions to require certain types of capitalised expenses to be treated as intangible assets for prudential purposes. For details, see Media Release 03.78:
http://www.apra.gov.au/media-releases/03_78.cfm
The International Accounting Standards Board has published revisions of the accounting standards IAS 32 Financial Instruments: Disclosure and Presentation and IAS 39 Financial Instruments: Recognition and Measurement. The Australian Accounting Standards Board's equivalents of the two new standards are expected to apply to financial reporting periods beginning on or after 1 January 2005. See ASIC Media Release 03-412:
http://www.asic.gov.au/asic/ASIC_PUB.NSF/byid/50F72B3D65BA2057CA256E030082AC8A?opendocument
ASIC has released its guidelines for the inclusion of information relating to labour standards and environmental, social and ethical factors in the product disclosure statements of investment products. For a copy of the guidelines, go to:
ASIC has granted conditional relief from the AFSL licensing requirements to financial counselling agencies that may provide financial product advice as part of a financial counselling service. See Information Release IR 03-39:
http://www.asic.gov.au/asic/ASIC_PUB.NSF/byid/B83DD651922700CBCA256DFE001130EE?opendocument
ASIC has published class orders relieving certain foreign financial services providers who provide specified financial services to wholesale clients in Australia from the requirement to hold an AFSL. The class orders apply to foreign financial services providers regulated by the UK Financial Services Authority (CO 03/1099), the US Securities and Exchange Commission (CO 03/1100), the US Federal Reserve Board and the Office of the Comptroller of Currency (CO 03/1101), the Monetary Authority of Singapore (CO 03/1102) and the Hong Kong Securities and Futures Exchange (CO 03/1103). See Information Release IR 03-41:
http://www.asic.gov.au/asic/ASIC_PUB.NSF/byid/79E6E017871F6B3CCA256E05000B39AE?opendocument
ASIC has published a class order (CO 03/1092) which permits two or more product issuers to prepare a joint product disclosure statement. See Information Release IR 03-42:
http://www.asic.gov.au/asic/ASIC_PUB.NSF/byid/65FB8B76F5749AA6CA256E05001CB1C6?opendocument
ASIC has announced that it will update PF209 and, upon application, vary the licence conditions of AFSL holders to allow entities within a corporate group to satisfy the cash needs requirement under Policy Statement 166: Licensing: Financial requirements without completing individual cash flow projections. See Information Release IR 03-44:
http://www.asic.gov.au/asic/ASIC_PUB.NSF/byid/A51C963391998202CA256E050077628E?opendocument
ASIC has granted conditional relief from the AFSL licensing requirements to intermediaries and product issuers providing, or advising on, offset accounts as part of a customer's loan package. The relief will only be available to financial services providers who belong to an ASIC-approved external dispute resolution scheme. See Media Release 03-388:
http://www.asic.gov.au/asic/ASIC_PUB.NSF/byid/A62541E9CFC44E07CA256DF6008186B2?opendocument
ASIC has formally approved the Mortgage Industry Ombudsman Service as the seventh consumer complaints resolution scheme to be approved under its Policy Statement 139. See Media Release 03-411:
http://www.asic.gov.au/asic/ASIC_PUB.NSF/byid/8282F74E4114AB14CA256E030081280C?opendocument
The ASX Corporate Governance Council has provided supplementary guidance to the interpretation of Principle 7 of the ASX Corporate Governance Council Principles of Good Corporate Governance & Best Practice Recommendations, dealing with certification of internal risk management and control frameworks. A copy of the Guidance Note is available at:
http://www.asx.com.au/about/pdf/Principle7_additionalguidance.pdf
Amendments have been made to the ASX Business Rules to increase the special crossings threshold for very liquid securities and to enable trading participants to advise the exchange of their net short sale position by 9am on the next trading day. See Participant Circulars 585/03 and 686/03 and attachments:
For a general discussion of developments in banking and finance law, see Allens Arthur Robinson, Finance & Banking Update - December 2003:
http://www.aar.com.au/pubs/baf/fabdec03.htm
For a useful reminder of the sources of directors' liability, see Blake Dawson Waldron, Corporate Governance Update - December 2003:
http://www.bdw.com.au/publications/governance/governance122003.pdf
For a discussion of the ramifications for business of the new anti-spam legislation enacted this month, see Freehills, Anti-spam Legislation has Consequences for Australian Business - 18 December 2003:
For a general update on recent developments in employee relations, see Allens Arthur Robinson, Focus: Workplace Relations - December 2003 and Blake Dawson Waldron, IR Bulletin - December 2003:
http://www.aar.com.au/pubs/wr/fowrdec03.htm
http://www.bdw.com.au/publications/ir/ir1203.pdf
For a summary of the impact of the new Designs Act 2003 (Cth), see Blake Dawson Waldron, Reform of Australian Designs Law: Design Registration Now More Valuable - December 2003:
http://www.bdw.com.au/publications/ip/ip122003a.pdf
For those interested in the final wash up of the litigation in State of Western Australia v Ward (the Miriuwung-Gajerrong claim), see Freehills, Landmark Native Title Case Settled - 9 December 2003:
For a summary of the changes to the law proposed in the Privacy Amendment Bill 2003, see Freehills, Privacy Act Amendments and Reviews: Update - 18 December 2003:
The Business Tax Review (Assessment) Act (No. 2) 2003 (WA) and Business Tax Review (Taxing) Act (No. 2) 2003 (WA) have passed into law. They make a number of significant changes to stamp duty laws in Western Australia, including the abolition from 1 July 2004 of stamp duty on leases, cheques, marketable securities and inter-related corporation vehicle transfers. See Corrs Chambers Westgarth, State Taxes Changes in Western Australia - 17 December 2003:
http://www.corrs.com.au/WebStreamer?page_id=4596
For a useful analysis of the High Court's ruling in Rural Press Limited v ACCC and the Federal Court's ruling in Australian Gas Light Company v ACCC, see Allens Arthur Robinson, Focus: Trade Practices - December 2003 and Focus: Competition Law – December 2003:
http://www.aar.com.au/pubs/comp/fotpdec03.htm
http://www.aar.com.au/pubs/comp/focldec03.htm
In Australian Gas Light Company v ACCC (No 3) [2003] FCA 1525, the Federal Court held that the partial acquisition of an electricity wholesaler by an electricity retailer would not be likely to have effect of substantially lessening competition in any market. It also held that AGL was entitled to declaratory relief to that effect, rejecting an argument by the ACCC that the court did not have jurisdiction to grant a declaration because the matter was hypothetical (ACCC was not proposing to seek an injunction if the deal proceeded, although it had made public statements opposing the acquisition and had threatened to seek divestiture if the transaction went ahead). The full text of the judgment can be viewed at:
http://www.austlii.edu.au/au/cases/cth/federal_ct/2003/1525.html
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