February 2010
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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 Generally, it is too onerous a task for us to check and update these and so if a hyperlink is no longer valid, please accept our apologies.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 Federal government has introduced a Bill into Parliament to facilitate ASIC taking over responsibility for supervising financial markets in Australia. For a copy of the Corporations Amendment (Financial Markets Supervision) Bill 2010 and its explanatory memorandum, go to:
The Federal government has reintroduced its climate change legislation into Parliament. For a copy of the Australian Climate Change Regulatory Authority Bill 2010, Carbon Pollution Reduction Scheme Bill 2010, Carbon Pollution Reduction Scheme Amendment (Household Assistance) Bill 2010, Carbon Pollution Reduction Scheme (Charges-Customs) Bill 2010, Carbon Pollution Reduction Scheme (Charges-Excise) Bill 2010, Carbon Pollution Reduction Scheme (Charges-General) Bill 2010, Carbon Pollution Reduction Scheme (Consequential Amendments) Bill 2010, Carbon Pollution Reduction Scheme (CPRS Fuel Credits) Bill 2010 and Carbon Pollution Reduction Scheme (CPRS Fuel Credits) (Consequential Amendments) Bill 2010, go to:
The Federal government has announced the withdrawal of its guarantee for large deposits and wholesale funding effective 31 March 2010. See the Treasurer's press release dated 7 February 2010:
The Federal government has released a paper entitled Access to Registers and Related Issues which proposes changes to the law governing access to company share registers intended to stop predatory share offers to vulnerable shareholders. Under the proposed changes, companies will only have to provide access to their share registers when requested for a "proper purpose". The paper can be downloaded from:
http://www.treasury.gov.au/documents/1716/PDF/Access_to_registers_proposals.pdf
The Foreign Acquisitions and Takeovers Amendment Act 2010 has now passed into law. The Act and its explanatory memorandum can be viewed at:
Two further price fixing scalps for ACCC - penalties of $4 million for Singaporean companies in the paper supply industry and $1 million for an American company involved in international military defence training systems. See Releases NR 012/10 and NR 015/10:
http://www.accc.gov.au/content/index.phtml/itemId/912530
http://www.accc.gov.au/content/index.phtml/itemId/913110
APRA has published a prudential practice guide on the management of security risk in information and information technology by institutions it supervises. The guide can be downloaded from:
http://www.apra.gov.au/Policy/upload/PPG_PPG234_MSRIT_012010_v7.pdf
ASIC has released Consultation Paper 131 Proposed ASIC Market Integrity Rules - ASX and SFE Markets. It is available at:
ASIC has released Regulatory Guide 209 Credit licensing: Responsible lending conduct obligations. It can be viewed at:
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/rg209.pdf/$file/rg209.pdf
ASIC has issued a class order clarifying the relief available from licensing and managed investment scheme registration requirements for certain group purchasing bodies that arrange insurance cover for third parties. See Advisory 10-31AD:
ASIC has released an information sheet clarifying how credit ratings issued by licensed credit rating agencies can be used in Australia. It can be downloaded from:
ASIC has released a report outlining recent decisions on applications for relief between 1 April and 31 July 2009 from the corporate finance, financial services and managed investment provisions of the Corporations Act. It is available at:
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/REP184.pdf/$file/REP184.pdf
ASIC has advised that persons who issue or advise on margin lending facilities will be able to apply for an Australian financial services licence or a variation to an existing licence to authorise their margin lending activities from 1 February 2010 until 30 June 2010. See Advisory 10-12AD:
Amendments are to be made to ASX Market Rules to reflect ASIC's assumption of responsibility for the market integrity rules. See ASX Circular 071/10 and the accompanying proposed 2010 ASX Operating Rules framework:
ASX Market Rule Procedure 1.6.2 has been amended to formally recognise the use of email as a method of giving notice in writing to ASX. See ASX Circular 063/10:
AUSTRAC has published guidance on who has to submit a threshold transaction report to AUSTRAC when a customer of a reporting entity (say, a stockbroker) deposits physical currency directly into the reporting entity's bank account. See:
http://www.austrac.gov.au/threshold_transactions.html
Amendments are also to be made to the SFE Operating Rules to reflect ASIC's assumption of responsibility for the market integrity rules. See SFE Notice 029/10 and the accompanying proposed 2010 SFE Operating Rules framework:
http://www.sfe.com.au/content/notices/2010/notice2010_029.pdf
http://www.sfe.com.au/content/notices/notice2010_029a.pdf
For an analysis of the ramifications of the Federal Court decision in Goodridge v Macquarie Bank Limited, see Mallesons Stephen Jaques, The Goodridge Case: new facts not new law - 24 February 2010 and Blake Dawson, Goodridge case [2010] FCA 67: Implications for Securitisation and Syndicated Loan Facilities - 15 February 2010:
http://www.mallesons.com/publications/2010/Feb/10249855W.htm
http://www.blakedawson.com/Templates/Publications/x_publication_content_page.aspx?id=57767
Allens Arthur Robinson, Implications of the Federal Court's decision in the Lehman Brothers collapse discusses the recent Full Court decision in City of Swan v Lehman Brothers Australia Ltd, in which it was held that section 444D of the Corporations Act does not authorise a deed of company arrangement that releases or compromises creditors' claims against third parties. It can be downloaded from:
http://www.aar.com.au/pubs/pdf/insol/pap26feb10.pdf
For the first time, a judge has exercised his discretion under the Corporations Act to provide a director with complete relief from penalty following a finding of insolvent trading. See Allens Arthur Robinson, Focus: Court completely forgives director's insolvent trading liability – 15 February 2010:
http://www.aar.com.au/pubs/insol/foinsolfeb10.htm
For a general discussion of recent developments in employee relations law, see Allens Arthur Robinson, Focus: Workplace Relations - 24 February 2010:
http://www.aar.com.au/pubs/wr/fowrfeb10.htm
A recent High Court decision is likely to fundamentally change the investigation and prosecution of alleged safety breaches in NSW. For further details, see Blake Dawson, Safety Matters - 4 February 2010:
http://www.blakedawson.com/Templates/Publications/x_article_content_page.aspx?id=57677
Allens Arthur Robinson, Focus: Database copyright in turmoil - Judge points to Canberra - 11 February 2010 analyses the ramifications of the decision in Telstra Corporation Limited v Phone Directories Company Pty Ltd. It can be viewed at:
http://www.aar.com.au/pubs/ip/foipfeb10_01.htm
The Treasurer has introduced new legislation into Parliament to amend various tax laws, including those relating to consolidated groups. For further details, see Mallesons Stephen Jaques, Consolidation changes introduced to Parliament... finally - 10 February 2010:
http://www.mallesons.com/publications/2010/Feb/10232897W.htm
Some important changes have been made to the concessional tax rules for managed investment trusts. See Mallesons Stephen Jaques, Important changes for capital gains & withholding tax for trusts - 10 February 2010:
http://www.mallesons.com/publications/2010/Feb/10232797W.htm
New regulations have come into force, back-dated to 1 July 2009, dealing with the valuation methodology for certain unlisted rights acquired under an employee share scheme. See Mallesons Stephen Jaques, Taxation of employee equity schemes - new valuation rules for unlisted rights - 12 February 2010:
http://www.mallesons.com/publications/2010/Feb/10236000W.htm
Goodridge v Macquarie Bank Limited [2010] FCA 67 has some important ramifications for lenders who seek to assign their rights to others. The decision can be viewed at:
http://cclsr.law.unimelb.edu.au/judgments/states/federal/2010/february/2010fca67.htm
In Roadshow Films Pty Ltd v iiNet Limited (No. 3) [2010] FCA 24, the Federal Court has held that iiNet was not liable for copyright infringements committed by those using its internet service. The decision can be viewed at:
http://www.austlii.edu.au/au/cases/cth/FCA/2010/24.html
In Telstra Corporation Limited v Phone Directories Company Pty Ltd [2010] FCA 44, the Federal Court has held that Telstra does not have copyright in its white and yellow pages phone directories as they are not original literary works. The decision can be viewed at:
http://www.austlii.edu.au/au/cases/cth/FCA/2010/44.html
For those interested, the decision in CSR Limited, in the matter of CSR Limited [2010] FCA 33, in which the Federal Court refused to convene a scheme meeting because of the potential impact of the scheme on asbestos claimants, can be viewed at:
http://cclsr.law.unimelb.edu.au/judgments/states/federal/2010/february/2010fca33.htm
In Australian Securities & Investments Commission v Soust [2010] FCA 68, ASIC obtained declarations that a former managing director of a company engaged in market manipulation and breached his duties to the company when he purchased shares in his mother's name on 31 December 2007, shortly before the close of the market for the calendar year, with a view to increasing the market price of the company's shares and thereby earning a larger bonus under his service contract. The decision can be viewed at:
http://cclsr.law.unimelb.edu.au/judgments/states/federal/2010/february/2010fca68.htm
Rickus v Motor Trades Association of Australia Superannuation Fund Pty Limited [2010] FCAFC 16 has some interesting guidance on deeds of indemnity and constitutional indemnities for directors. The decision can be viewed at:
http://cclsr.law.unimelb.edu.au/judgments/states/federal/2010/february/2010fcafc16.htm
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