July 2008
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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 Generally, it is too onerous a task for us to check and update these and so if a hyperlink is no longer valid, please accept our apologies.
For a copy of the Federal Government’s green paper on its proposed carbon pollution reduction scheme, go to:
http://www.climatechange.gov.au/greenpaper/report/index.html
For a copy of the draft report by the Garnaut climate change review, go to:
http://www.garnautreview.org.au/CA25734E0016A131/pages/draft-report
The Commonwealth, State and Territory governments have reached agreement for the Commonwealth to assume responsibility for regulation of all consumer credit. See:
The First Home Saver Accounts Act 2008 and the First Home Saver Accounts (Consequential Amendments) Act 2008 have now passed into law. For a copy of the Acts, go to:
APRA has released the final package of standards and forms for the authorisation and prudential oversight of providers of first home saver accounts. The package is available on the APRA website at:
www.apra.gov.au/Policy/First-Home-Saver-Accounts-July-2008.cfm .
ASIC has released consultation papers and draft regulatory guides aimed at improving disclosure to retail investors by unlisted mortgage schemes and unlisted property schemes. For a copy of Consultation Paper 99 Mortgage schemes – improving disclosure for retail investors and Consultation Paper 100 Unlisted property schemes – improving disclosure for retail investors, go to:
ASIC has signed a declaration of mutual recognition with the Hong Kong Securities and Futures Commission to facilitate the sale of retail funds to investors in each other’s market. See Media Release 08-152:
ASIC has released a report Enhancing Capital Flows into and out of Australia. For a copy, go to:
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/REP_134.pdf/$file/REP_134.pdf
ASIC has released a report outlining its decisions on applications for relief from the corporate finance, financial services and managed investment provisions of the Corporations Act between 1 December 2007 and 31 March 2008. It can be downloaded from:
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/REP_133.pdf/$file/REP_133.pdf
ASIC has issued an update of Regulatory Guide 108 No-action letters. For a copy, go to:
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/rg108.pdf/$file/rg108.pdf
A former CEO of a Queensland government-owed energy corporation has been charged with dishonestly using his knowledge of its business dealings for personal gain. It is alleged that he applied for 60,000 shares in the float of Perth-based company when he was aware that the board of the energy corporation had resolved to enter into a material contract with a subsidiary of the floating company. See Media Release 08-147:
http://www.asic.gov.au/asic/asic.nsf/byheadline/08-147+Former+executive+charged?openDocument
The ASX Market Rules and Market Rule Procedures have been amended to recognise ASX Online as a method for market participants to give notice to ASX, to make some minor administrative changes, and to standardise the notice requirements across the ASX rule books. See Market Circular 347/08 and attachments:
ASX is undertaking a consultation process with ASTC settlement participants and other stakeholders to obtain information on the likely impact on their operations and systems when settling across multiple trade execution platforms for ASX-listed securities. Its issue paper Impact of Multiple Trade Execution Platforms for ASX Listed Securities on the Operations and Systems of ASTC Settlement Participants and Other Stakeholders can be downloaded from:
AUSTRAC has released Public Legal Interpretation No. 4 of 2008 What constitutes a reporting entity. It is available at:
http://www.austrac.gov.au/files/pli_4_reporting_entity.pdf
For a general discussion of recent developments in employee relations law, see Allens Arthur Robinson, Focus: Workplace Relations - July 2008:
http://www.aar.com.au/pubs/wr/fowrjul08_02.htm
For a summary of the government’s green paper on carbon pollution reduction, see Mallesons Stephen Jaques, Government Releases Green Paper on Carbon Trading - 16 July 2008:
http://www.mallesons.com/publications/2008/Jul/9532702W.htm
The Basis Capital decision will have practical implications for the way in which units in registered schemes are issued and redeemed and will be of particular interest to fund administrators and scheme operators. For a summary of the decision, see Blake Dawson, The Basis Capital Decision - When the Back Office Comes to the Fore - 30 July 2008:
http://www.blakedawson.com/Templates/Publications/x_publication_content_page.aspx?id=52429
DLA Phillips Fox, Australian Retail Tenancy Legislation Guide - July 2008 has quite a useful summary of the current retail tenancy legislation around Australia. See:
http://www.dlaphillipsfox.com/content/upload/files/Aust_Retail_Leasing_interactive_Jul_08.pdf
The release of draft legislation changing the rules for public trading trusts is likely to cause a widespread review of the investment profile of funds. For further details, see Mallesons Stephen Jaques, Changes to Division 6C - Trading Trusts - 29 July 2008:
http://www.mallesons.com/publications/2008/Jul/9547859W.htm
In ASIC v GDK Financial Solutions Pty Ltd (in liq) (No 4) [2008] FCA 1071, the Federal Court considered the scope of ‘all moneys’ clauses in securities and whether they could secure a debt of a fundamentally different character from the debt specifically contemplated by the parties at the time they entered into the security. The decision can be viewed at:
http://cclsr.law.unimelb.edu.au/judgments/states/federal/2008/july/2008fca1071.htm
For those interested, the Federal Court decision in Evans v State of New South Wales [2008] FCAFC 130 declaring invalid the NSW government’s regulations making it unlawful to cause annoyance to participants in a World Youth Day event, can be viewed at:
http://www.austlii.edu.au/au/cases/cth/FCAFC/2008/130.html
In ASIC v Narain [2008] FCAFC 120, the managing director of a company that manufactured disinfectants caused the company secretary to publish a statement to the ASX claiming that its products offered a global solution to stop the spread of HIV and would also control and prevent SARS, influenza and the common cold. He was sued for engaging in misleading conduct in relation to shares in breach of section 1014H of the Corporations Act. The court at first instance dismissed the action, holding that the representations weren’t published by the managing director and were not made in relation to shares in the company. On appeal, the Full Federal Court reversed the decision on both counts. The case can be viewed at:
http://cclsr.law.unimelb.edu.au/judgments/states/federal/2008/july/2008fcafc120.htm
In Direct Share Purchasing Corporation Pty Ltd v AXA Asia Pacific Holdings Ltd [2008] FCA 935, the Federal Court found a fee of nearly $17,000 for the provision of a company’s register of members in electronic format to be unreasonable, even though that was the amount the company’s third party registrar charged it for the service. It found a fee of $250 would have been reasonable. The decision can be viewed at:
http://cclsr.law.unimelb.edu.au/judgments/states/federal/2008/june/2008fca935.htm
For another instalment in the Opes Prime saga, see Asia Pacific Links Limited v Opes Prime Stockbroking Limited [2008] FCA 998:
http://cclsr.law.unimelb.edu.au/judgments/states/federal/2008/june/2008fca998.htm
In Northern Territory v Arnhem Land Aboriginal Trust, the High Court held that a grant in fee simple under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) conferred rights on the grantees to exclude from tidal waters persons who wanted to fish in those waters, including those holding a licence under the Fisheries Act (NT). The decision can be viewed at:
http://www.austlii.edu.au/au/cases/cth/HCA/2008/29.html
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