December 2007
| Inhouse Home Page | Inhouse Library | Inhouse Archives | Search This Site |
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 Generally, it is too onerous a task for us to check and update these and so if a hyperlink is no longer valid, please accept our apologies.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 Ministerial Council on Consumer Affairs has released a consultation package on a proposed national Finance Broking Bill. The consultation package is available at:
http://www.consumer.gov.au/html/download/Exposure%20Bill%20package_Nov07.pdf
APRA has released an information paper on its approach to the supervisory review process under the Basel II Framework. The paper can be viewed at:
http://www.apra.gov.au/ADI/upload/APRA_IP_PillarII_122007_v3.pdf
APRA has issued a second consultation package on proposed refinements to the general insurance prudential framework to recognise the differing risk profiles of insurers. The package can be downloaded from:
http://www.apra.gov.au/Policy/Refinements-to-general-insurance-consultation-package-Dec-07.cfm
APRA has also released revised guidelines for general insurers and authorised non-operating holding companies of general insurers to facilitate the authorisation of direct offshore foreign insurers. The guidelines can be downloaded from:
http://www.apra.gov.au/Policy/General-Insurance-Authorisation-Guidelines.cfm
APRA has released new reporting standards, forms and instructions for life insurers and friendly societies, to take effect on 1 January 2008. They are available on APRA’s website at:
http://www.apra.gov.au/Statistics/Life-Company-Prudential-Reporting-Framework.cfm.
APRA has released the final reporting requirements for the collection of data from discretionary mutual funds. The relevant documents are available at:
http://www.apra.gov.au/RFC/DMFs.cfm.
ASIC has issued a class order to allow the responsible entity of a registered scheme listed on the ASX to carry out on-market buy-backs of interests. It has also published a new Regulatory Guide 101: On-market buy-backs by ASX-listed schemes explaining the effect of the new class order. The Regulatory Guide is available at:
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/rg101.pdf/$file/rg101.pdf
ASIC has issued an updated version of Regulatory Guide 34 Auditor’s obligations: reporting to ASIC to include guidance for auditors of financial services licensees. It is available at:
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/rg34.pdf/$file/rg34.pdf
ASIC has announced a reduction in form lodging requirements for certain foreign-controlled small proprietary companies. Previously, these companies were required to lodge a form 384 with ASIC for each financial year they wished to take advantage of financial reporting relief under Class Order 98/98 Small proprietary companies which are controlled by a foreign company but which are not part of a large group. Now these companies will generally only need to lodge a form 384 for the first financial year they wish to take advantage of CO 98/98 relief. See Information Release 07-56:
ASIC has issued a class order providing operators of collective investment schemes authorised by the Monetary Authority of Singapore with conditional relief from the managed investment scheme registration requirements, Australian financial services license requirements, and certain financial product disclosure requirements in the Corporations Act. The relief will enable Singaporean collective investment schemes authorised by MAS to offer investments to retail clients in Australia. See Information Release 07-53:
ASIC has commenced civil penalty proceedings in the Supreme Court of Victoria against 6 former directors and officers of AWB Limited for allegedly contravening sections 180 and 181 of the Corporations Act (failing to act with care and diligence and failing to discharge their duties in good faith and for a proper purpose, respectively). See Media Release 07-332:
ASX has amended the form used by market participants in applying to have a person accredited as a level one accredited derivatives adviser. See Market Circular 720/07 and attachment:
ASX has amended its market rules and procedures regarding exchange for physical transactions. See Market Circular 738/07 and attachments:
AUSTRAC has launched a suite of tools to assist reporting entities to meet their new obligations. These include: (1) AUSTRAC Online, an information portal to help with lodging compliance reports; (2) AUSTRAC Regulatory Guide, a guide to assist reporting entities understand their obligations under the law; (3) AUSTRAC Typologies and Case Studies Report 2007, an inside perspective on current money-laundering and terrorism-financing methods and indicators; and (4) Introduction to AML/CTF, the first course in AUSTRAC's AML/CTF e-learning program. For further details, go to:
http://www.austrac.gov.au/files/launch_fact_sheet.pdf
SFE has updated its error resolution and electricity market operational policies. For details, see SFE Notice 170/07:
http://www.sfe.com.au/content/notices/2007/notice2007_170.pdf
For a general discussion of recent developments in employee relations law, see Allens Arthur Robinson, Focus: Workplace Relations - December 2007:
http://www.aar.com.au/pubs/pdf/wr/fowrdec07.pdf
The Federal government has announced further details of the policy implementation agenda for its workplace relations reforms. For a summary, see Freehills, Rudd Government Announces Further Details of its Workplace Reform Proposals - 18 December 2007:
http://www.freehills.com.au/publications/publications_7112.asp
Blake Dawson, Health & Aged Care Law Update - 3 December 2007 has an interesting discussion of a recent case holding that an employer and its employees were contractually bound by the employer's workplace policies. See:
Deacons, Legal Update: Superannuation Trustees Can Now Borrow For Investments! - 6 December 2007 explains how changes made to superannuation laws earlier this year, ostensibly to facilitate investment by superannuation trustees in instalment warrants, can be used to borrow funds for other types of investments. See:
AUSTRAC has conceded that the wording of an exemption to the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 has unintentionally exempted the issue of units in a managed investment scheme from the operation of the Act. For a discussion of the ramifications, see Minter Ellison, News Alert - The Partridge in a Pear Tree: AUSTRAC Concedes Exemption for Managed Investment Schemes - 14 December 2007:
Freehills, The Danger of Referring to Legal Advice – a Rich and Complex Vein - 19 December 2007 has a useful outline of the legal pitfalls in companies or their directors referring to the fact that legal advice has been taken in relation to a particular issue or dispute. See:
http://www.freehills.com.au/publications/publications_7114.asp
Amendments to the Evidence Act 1995 (NSW) will make important changes to the application of client legal privilege in New South Wales. When the amendments come into force, legal advice provided by overseas lawyers and by inhouse counsel will attract client legal privilege, as will documents prepared by a third party for the dominant purpose of obtaining legal advice. The circumstances by which client legal privilege can be lost will also be expanded. See Blake Dawson, Litigation Update - 17 December 2007:
A revised version of the Duties Bill 2007 (WA) has been introduced into the Western Australian Parliament, following public consultation. For details, see Freehills, Major WA Stamp Duty Reform Still Headed for 1 July 2008 Start Date - 21 December 2007:
http://www.freehills.com.au/publications/publications_7115.asp
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited [2007] HCA 61 has some useful High Court guidance on the difference between repudiation and renunciation of a contract and the classification of contractual terms for the purposes of determining the consequences of a breach. The decision can be viewed at:
http://www.austlii.edu.au/au/cases/cth/HCA/2007/61.html
Legal
professional privilege - inherent nature of claim such that inhouse counsel incapable of being sufficiently independent to attract privilegeIn Rich v Harrington [2007] FCA 1987, the Federal Court held that legal advice provided by the general counsel of PricewaterhouseCoopers to the partners of the firm concerning a discrimination action by a former partner did not attract legal professional privilege. In the court's opinion, it was inherent in the nature and significance of the claims against the firm and its leadership group that the advice of the General Counsel would not have "the objectively independent character necessary to support [a] claim of client legal privilege". The judgment can be viewed at:
http://www.austlii.edu.au/au/cases/cth/federal_ct/2007/1987.html
Copyright © 2008 Inhouse Legal Solutions Pty Limited ("ILS") ABN 16 003 663 456.
This newsletter is a summary only of the subject matter covered and is not intended to be, nor should it be relied upon as, a substitute for legal or other professional advice. It is made available without the assumption of a duty of care by ILS, or the officers, employees or agents of ILS who were involved in its preparation and without any representation or warranty as to accuracy or completeness. ILS is not responsible for, and gives no representations or warranties regarding, the source, quality, accuracy or completeness of the materials on any website to which a hyperlink is provided above.