January 2009
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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 Generally, it is too onerous a task for us to check and update these and so if a hyperlink is no longer valid, please accept our apologies.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 Minister for Superannuation and Corporate Law has released details of the new national margin lending regulatory regime that is to be implemented by 1 July 2009. See media release 18 January 2009:
The Minister has also released a Treasury discussion paper on the Government's measure to provide an optional capital gains tax roll-over for superannuation funds that merge with other complying funds. The paper is available at:
http://www.treasury.gov.au/documents/1461/PDF/Discussion_paper.pdf
ASIC has extended the ban on covered short selling of financial securities until 6 March 2009 and has confirmed that certain naked short selling exemptions will continue after the Government’s law reform to ban naked short selling comes into effect. See Advisory AD09-02 and AD09-05:
Rules 3.6.3 and 3.6.6 have been re-instated in the published version of the ASX Market Rules, having been earlier inadvertently dropped. Amendments have also been made to Market Rules Procedure 3.6.3 to update the prescribed standards for compliance frameworks and to Market Rules Procedure 3.6.5 to update the qualification requirements for responsible executives. See ASX Circular 020/09 and attachments:
SFE has reminded all Participants of their self-reporting obligations under Operating Rule 2.2.10(b). See SFE Notice 011/09:
http://www.sfe.com.au/content/notices/2009/notice2009_011.pdf
The half-year reporting season is likely to bring increased scrutiny from ASIC at how companies account for the global financial crisis. For more details, go to Clayton Utz, Corporate Insights - 21 January 2009:
http://www.claytonutz.com.au/areas_of_law/controller.asp?aolstring=0&na=1933
A recent decision of the NSW Court of Appeal highlights the importance of a clear and prominent disclaimer in disclosure documents for capital raisings. For an analysis of the decision, see Mallesons Stephen Jaques, Ingot Capital Case - Implications for Investment Banks - 30 January 2009:
http://www.mallesons.com/publications/2009/Jan/9771363W.htm
Amendments have been made to the Evidence Act 1995 (Cth) to clarify that legal advice given by inhouse counsel or foreign lawyers is privileged. They also provide for privilege to attach to communications by non lawyer third parties for the dominant purpose of the client obtaining legal advice. See Blake Dawson, Litigation Update - 13 January 2009:
http://www.blakedawson.com/Templates/Publications/x_publication_content_page.aspx?id=54171
The Victorian Court of Appeal has found that a woman was entitled to equitable compensation for breach of confidence by her former partner, who showed a video of their sexual encounters to her friends, family and employer. The case also considers the torts of breach of privacy and of intentional infliction of harm causing mental distress. See Blake Dawson, Privacy Update - 8 January 2009:
http://www.blakedawson.com/Templates/Publications/x_publication_content_page.aspx?id=54161
A telecommunications provider has been fined $110,000 by ACMA for breaching the Spam Act 2003 (Cth) after allegedly sending 20,000 SMS messages without sufficient sender identification. See Freehills, Fines Imposed for SMS Spam - 14 January 2009:
http://www.freehills.com.au/4610.aspx
In an important decision for the managed funds industry, the Full Federal Court has held that rent, management fees and other charges payable under a managed investment scheme for the production of almonds are deductible to investors. See Deacons, Legal Update: Deduction for Agricultural Managed Investment Schemes? Yes! - 19 January 2009:
In Wurridjal v The Commonwealth [2009] HCA 2, the High Court rejected a constitutional challenge to the Howard government’s Northern Territory emergency response legislation. In so doing, it overruled its earlier decision in Teori Tau v The Commonwealth that the guarantee in section 51(xxxi) of the Constitution entitling a person to just compensation for the acquisition of property did not apply where legislation was enacted under the section 122 Territories power rather than under section 51. Consequently, the right to just compensation now extends to the Territories. The decision can be viewed at:
http://www.austlii.edu.au/au/cases/cth/HCA/2009/2.html
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