January 2005
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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 Generally, it is too onerous a task for us to check and update these and so if a hyperlink is no longer valid, please accept our apologies.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 Attorney-General's Department has developed a new legislative database, known as "ComLaw", that will eventually replace the SCALEplus electronic database. The new database contains Commonwealth primary legislation, other ancillary documents and information and the new Federal Register of Legislative Instruments, which was established on 1 January 2005 under the Legislative Instruments Act 2003 (Cth) as the authoritative source for legislative instruments. You can access the new database at:
ACCC has accepted court-enforceable undertakings from Flight Centre to stop using its "Lowest Airfares Guaranteed" slogan and making claims that it used its global buying power to get better deals on airfares than those generally available to other travel agents. Its airfares were not always the lowest available and it did not have such buying power as it generally booked airfares for customers on an individual basis rather than buy airfares in bulk. Corrective measures required by ACCC include the publication of 44 corrective notices in 11 major newspapers, plus the display of A-3 sized corrective notices in the front window of each of its 500 plus retail outlets continuously for 4 weeks. See Media Release 017/05:
http://www.accc.gov.au/content/index.phtml/itemId/576713/fromItemId/2332
APRA has released a discussion paper and draft Prudential Standard for public consultation requiring life insurance branches registered in Australia to establish and operate a compliance committee. The discussion paper and draft standard can be downloaded from:
http://www.apra.gov.au/Policy/loader.cfm?url=/commonspot/security/getfile.cfm&PageID=8147
http://www.apra.gov.au/Policy/loader.cfm?url=/commonspot/security/getfile.cfm&PageID=8148
ASIC has issued a conditional exemption for securitisation special purpose companies and trustees from the requirement to obtain an Australian financial services licence in order for them to deal in and provide custodial services in relation to financial products as part of securitisation transactions. ASIC has also released a class order relieving certain overseas financial service providers dealing and making markets in foreign exchange contracts and derivatives with wholesale customers in Australia from the need to hold an Australian financial service licence. See Information Releases IR 05-01 and 05-02:
http://www.asic.gov.au/asic/ASIC_PUB.NSF/byid/735F3F5A86DB17CFCA256F8600007520?opendocument
http://www.asic.gov.au/asic/ASIC_PUB.NSF/byid/AB4A2CCBFEF0EAF9CA256F880006169D?opendocument
ASIC has issued an updated edition of Pro Forma 209 Australian financial services licence conditions following recent amendments to the Acts Interpretation Act 1901 (Cth) which affect the way it is able to incorporate, adopt or refer to other documents in licence conditions. The amendments to PF 209 come into effect immediately and apply to any AFS licence or licence variation issued by ASIC from 1 January 2005. See Information Release IR 05-03:
http://www.asic.gov.au/asic/ASIC_PUB.NSF/byid/D715845980345035CA256F89000DD6D5?opendocument
ASIC has brought criminal charges against 4 former foreign currency traders employed by National Australia Bank concerning their alleged unauthorised trading in foreign exchange and foreign exchange options between September 2003 and January 2004. See Media Release 05-17:
http://www.asic.gov.au/asic/ASIC_PUB.NSF/byid/BACA74A627713E25CA256F930083B74F?opendocument
ASX has announced a number of reforms to the structure of its equities market, including the removal of broker numbers, changes in the minimum price step for stocks priced between $0.50 and $2.00 from 1 cent to 0.5 cents, a trial of call auctions and market making for some mid and small cap stocks and an increase in the minimum block special size for some stocks. See Participant Circular 043/05 and attachment:
ASX has released a draft reporting code for the biotech industry for public comment. For a copy of the draft code, go to:
http://www.asx.com.au/markets/pdf/ASX_AusBiotech.pdf
ASX has publicly released a management letter it issued to Goldman Sachs JBWere concerning its role as a joint lead manager in the book build allocation of quoted securities of Just Group Limited. The letter contains some useful guidance on the proper conduct of book builds for offers and placements. A copy of the management letter can be viewed at:
The Tasmanian Supreme Court has recently held that an $8,000 per day liquidated damages provision in a project deed between the State government and a construction company was in fact a penalty and has required the sum to be repaid by the government. For an analysis of the case, see Allens Arthur Robison, Focus: Construction - January 2005:
http://www.aar.com.au/pubs/pdf/const/foconjan05.pdf
For a discussion of the implications of the findings and orders made against the former Chairman of One.Tel and the benefits and risks of directors making notes about issues arising in board papers and at board meetings, see Mallesons Stephen Jaques, On Board Update - 19 January 2005:
http://www.mallesons.com/publications/on_board_update/On_board_update_19_January_2005.pdf
For a general discussion of recent developments in employee relations law, see Allens Arthur Robinson, Focus: Workplace Relations – January 2005:
http://www.aar.com.au/pubs/wr/fowrjan05.htm
For a discussion of the impact of the recently released ASIC class order granting licensing relief to certain unlicensed offshore counterparties trading derivatives and foreign exchange contracts with Australian institutional counterparties (mentioned above), see Mallesons, Stephen Jaques, Banking and Finance Alert - 17 January 2005:
http://www.mallesons.com/publications/alerts/Banking_and_finance_alert_17_January_2005.pdf
THL Robina Pty Ltd v The Glades Golf Club Pty Ltd [2004] QSC 461 contains a useful analysis of the law regarding rights of first refusal in the context of a contract for the sale of a golf course which contained a clause to the effect that if the buyer intended to sell the golf course during its development period it had to first offer to re-sell it to the seller. The judgment is available at:
http://cclsr.law.unimelb.edu.au/judgments/states/qld/2004/december/2004qsc461.htm
In Kennedy v Wallace [2004] FCAFC 337, the Full Court of the Federal Court rejected an appeal against a decision that an aide-memoire prepared by the appellant before consultation with a person who was a foreign lawyer but who also had other capacities in the matter was not protected by legal professional privilege, agreeing with the trial judge that the appellant had not met the onus of showing that the document had been brought into existence for the dominant purpose of obtaining of legal advice. The Full Court, however, specifically disagreed with the finding of the trial judge that it was necessary in order to support a claim for privilege for communications with a foreign lawyer to adduce evidence as to the legal and ethical responsibilities of the lawyers in that legal system and the judicial or curial supervision of such matters. The judgment is available at:
http://cclsr.law.unimelb.edu.au/judgments/states/federal/2004/december/2004fcafc337.htm
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