December 2008
| 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 Generally, it is too onerous a task for us to check and update these and so if a hyperlink is no longer valid, please accept our apologies.
For a copy of the government's white paper on carbon pollution reduction, go to:
http://www.climatechange.gov.au/whitepaper/report/index.html
The Corporations Amendment (Short Selling) Act 2008 has now passed into law. A copy of the Act and its explanatory memorandum can be downloaded from:
The Trade Practices Amendment (Clarity in Pricing) Act 2008 has also now passed into law. For a copy of the Act and its explanatory memorandum, go to:
The government's proposed legislation to criminalise cartel conduct has been tabled in Parliament. For a copy of the Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 and its explanatory memorandum, go to:
A new Act has been passed to facilitate a longer transition from the reporting requirements under the Financial Transaction Reports Act 1988 to the Anti-Money Laundering and Counter-Terrorism Financing Act 2006. For a copy of the Financial Transaction Reports Amendment (Transitional Arrangements) Act 2008 and its explanatory memorandum, go to:
The Assistant Treasurer has announced administrative changes to the government's foreign investment screening arrangements for acquisitions of residential real estate by foreign persons. For details, see:
The Same-Sex Relationships (Equal Treatment in Commonwealth Laws – Superannuation) Act 2008 has received Royal Assent. For a copy of the Act and its explanatory memorandum, go to:
Regulations have been made to facilitate the operation of the Financial Claims Scheme for insurance companies. For a copy of the Insurance Amendment Regulations 2008 (No. 2) and their explanatory statement, go to:
APRA has released a revised prudential standard on audit requirements for authorised deposit-taking institutions. The standard can be viewed on APRA's website at:
http://www.apra.gov.au/ADI/upload/APS-310-January-2009.pdf
APRA has issued a package that will establish the prudential framework for the supervision of general insurance groups domiciled in Australia. The prudential standards will become effective on 31 March 2009. Among other things, they will enable APRA to implement recommendations 38 and 39 of the HIH Royal Commission in relation to general insurers that operate as part of a corporate group. The new standards will also enable APRA to meet Insurance Core Principle 17 of the International Association of Insurance Supervisors, which requires insurance supervisors to supervise general insurers on a group basis and a solo basis. The standards can be viewed on APRA's website at:
www.apra.gov.au/Policy/Supervision-GI-Groups-December-2008.cfm
APRA is developing a principles-based framework for executive remuneration structures that will apply to APRA-regulated institutions to give effect to the Prime Minister's announcement in October that the government would be examining with APRA what domestic policy actions on executive remuneration would be appropriate to avoid excessive risk taking by Australian financial institutions. For further details, see Media Release 08.32:
http://www.apra.gov.au/media-releases/08_32.cfm
ASIC has issued a consultation paper inviting comment on proposals to increase the monetary limit for share purchase plan disclosure relief from the current $5,000 in any consecutive 12 month period to $15,000 and to make it a condition of the relief that a cleansing notice be lodged with the ASX. ASIC also proposes to extend the terms of the relief for the issue of interests in an ASX listed managed investment scheme under an interest purchase plan. For a copy of the Consultation Paper 103, go to:
ASX has released consultation papers request comment on proposals to enhance Australia’s equity settlement system and to deliver market efficiencies through the harmonisation and linking of central counterparty activities. The consultation papers are available on the ASX website at:
http://www.asx.com.au/about/pdf/consultation_paper_enhancing_equity_settlement_system.doc
http://www.asx.com.au/about/pdf/consultation_paper_harmonisation_linking_ccp_activities.doc
Given the development overhead added by the extent of the short selling changes, ASX has decided to introduce a split go-live timetable for the range of ITS enhancements previously announced to the market in November. Phase 1, which includes the ITS capacity and short selling changes, will occur on 28 March 2009. Phase 2, which includes the remaining ITS functionality changes, will occur in mid 2009 with a definitive date announced by the end of March 2009. See ASX Market Circular 608/08:
ASX has amended section 2.10 of the ASX Market Rule Procedures to reflect the inclusion of the ASX LIC Index as an 'Approved Index'. The index covers listed investment companies investing in domestic and international equities. See ASX Market Circular 615/08:
AUSTRAC has released its Typologies and Case Studies Report 2008, which draws on the combined knowledge of AUSTRAC's financial intelligence analysts and government partner agencies, to offer real-life examples of how commercial systems can be misused by criminal elements. It can be viewed at:
http://www.austrac.gov.au/typologies.html
AUSTRAC has also released Public Legal Interpretation No. 8 of 2008 Cross-border movements. It can be viewed at:
http://www.austrac.gov.au/files/pli8_cross_border_movements.pdf
The Victorian Government has introduced a Bill to extend the provisions in Part 2B of the Fair Trading Act 1999 (Vic), which prohibits the use of unfair terms in consumer contracts, to consumer credit contracts. See Allens Arthur Robinson, Focus: Consumer Credit – December 2008:
http://www.aar.com.au/pubs/baf/foccdec08.htm
New legislation in Queensland will extend the duty of care a mortgagee or receiver must take when disposing of property. See Allens Arthur Robinson, Focus: Banking & Finance – December 2008:
http://www.aar.com.au/pubs/baf/fobafdec08.htm
A recent NSW Court of Appeal decision dealing with the termination of a loan origination arrangement has given some useful guidance on the law of penalties. See Deacons, Legal Update: Penalty Clauses Clarified - 10 December 2008:
http://www.deacons.com.au/legal-services/banking-finance/legal-updates/legal-update.cfm?objid=6776
For a general discussion of recent developments in employee relations law, see Allens Arthur Robinson, Focus: Workplace Relations - November/December 2008 and Mallesons Stephen Jaques, Workplace (e)ssentials - December 2008:
http://www.aar.com.au/pubs/wr/fowrdec08.htm
http://www.mallesons.com/publications/update-combine.cfm?id=1569227
For a summary of the Federal Government's white paper on carbon pollution reduction, see Freehills, Emissions Trading in Australia - 16 December 2008:
http://www.freehills.com.au/4537.aspx
The Tax Laws Amendment (Taxation of Financial Arrangements) Bill 2008 has been introduced into the House of Representatives following the previous release of the exposure draft legislation in October. The Bill contains a comprehensive set of principles and rules for the tax-timing and character treatment of gains and losses from financial arrangements and represents Stages 3 and 4 of the TOFA legislative provisions. See Mallesons Stephen Jaques, TOFA Legislation Introduced into Parliament - 4 December 2008:
http://www.mallesons.com/publications/2008/Dec/9723265W.htm
Proposed changes to Victoria's stamp duty law will have far-reaching consequences that will impact on all taxpayers with dealings in dutiable property in Victoria. For details, see Allens Arthur Robinson, Focus: Stamp Duty – December 2008:
http://www.aar.com.au/pubs/tax/fosddec08.htm
In Agricultural and Rural Finance Pty Limited v Gardiner [2008] HCA 57, the High Court explores the different meanings of "waiver" in the context of contractual rights and whether the doctrine referred to as "waiver" exists in form of an election between inconsistent rights, forbearance, or abandonment or renunciation of contractual rights. The decision can be viewed at:
http://www.austlii.edu.au/au/cases/cth/HCA/2008/57.html
In Commissioner of Taxation v Sydney Refractive Surgery Centre Pty Limited, it was held that compensatory damages for defamation received by a corporation were not “income according to ordinary concepts” and therefore were not assessable under section 6-5 of the Income Tax Assessment Act 1997 (Cth), notwithstanding the fact that they were calculated solely by reference to lost profits attributable to the defamatory publications. The decision can be viewed at:
http://cclsr.law.unimelb.edu.au/judgments/states/federal/2008/december/2008fcafc190.htm
Copyright © 2009 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.