June 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 Generally, it is too onerous a task for us to check and update these and so if a hyperlink is no longer valid, please accept our apologies.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 Superannuation Legislation Amendment (Choice of Superannuation Funds) Bill 2005, which amongst other things imposes a penalty on employers who recoup from employees the costs of complying with their choice of fund requirements, received Royal Assent on 29 June 2005. For a copy of the Bill and its explanatory memorandum, go to:
ACCC has said that it will retain the current informal merger review process alongside the new formal merger clearance process expected to start later this year. See Media Release 159/05:
http://www.accc.gov.au/content/index.phtml/itemId/611351/fromItemId/2332
ACCC has extracted an undertaking from the Trading Post to stop using competitors' names and trademarks in sponsored links on the internet. A competitor had complained that the Trading Post had done this on the Google website to ensure that a link to the Trading Post's auto-trader website appeared adjacent to the search results whenever internet users entered the competitor's name as a search term. The ACCC asserted that this potentially contravened sections 52 and 53(d) of the Trade Practices Act as it misleadingly implied an association or affiliation between the Trading Post and the competitor. See Media Release 150/05:
http://www.accc.gov.au/content/index.phtml/itemId/610907/fromItemId/2332
APRA has released for consultation revised draft 'fit and proper' standards and guidance notes for authorised deposit-taking institutions, general insurers and life insurers. It has also released a discussion paper addressing submissions received on the original draft standards published in March 2004. The standards and discussion paper can be downloaded from:
http://www.apra.gov.au/Policy/Revised-Draft-Prudential-Standards-Fit-and-Proper-29-June-2005.cfm
ASIC and the ATO have released a booklet that outlines their compliance approach to super choice. For a copy of Choice of Superannuation Fund: Meeting your Obligations, go to:
ASIC has provided guidance to employers, and other individuals or organisations who are likely to talk with employees about superannuation choice, about the type and nature of information they can provide without holding an Australian financial services licence. See Media Release 05-154:
http://www.asic.gov.au/asic/ASIC_PUB.NSF/byid/0644171D0F3A8E6CCA25701C00205D2C?opendocument
ASIC has also provided guidance to advisers to help them comply with the Corporations Act when they give personal advice about switching super funds. See Media Release 05-176:
http://www.asic.gov.au/asic/ASIC_PUB.NSF/byid/7095BBEC9C47C9F6CA25702A0016380E?opendocument
ASIC has provided guidance to financial service providers about its compliance response to the Federal Government's Refinements to Financial Services Regulation proposals paper issued on 2 May 2005 and the enhanced fee disclosure regulations that were made on 10 March 2005. See Information Release IR 05-28:
http://www.asic.gov.au/asic/ASIC_PUB.NSF/byid/1352E9ED4685C48DCA257015001DE16C?opendocument
ASIC has extended from 1 July 2005 to 1 July 2006 the transitional relief provided to issuers of deposit products and general insurers under Class Order 05/683 from the dollar disclosure requirements. See Information Release IR 05-35:
http://www.asic.gov.au/asic/ASIC_PUB.NSF/byid/8E7C63859B6BBD02CA25702A0022D6F3?opendocument
ASIC has also extended the dollar disclosure relief provided in relation to Product Disclosure Statements for derivatives, foreign exchange contracts, general insurance products and life risk insurance products in Class Order 04/1431 to issuers of warrants that are securities. The extension has been effected under a new Class Order 05/682. See Information Release IR 05-36:
http://www.asic.gov.au/asic/ASIC_PUB.NSF/byid/F757747E5568B4F4CA257030001CF0CD?opendocument
ASIC has extended from 30 June 2005 to 30 June 2006 the current interim relief for superannuation trustees delaying the commencement of the product disclosure requirements in section 1012IA of the Corporations Act. See Information Release IR 05-31:
http://www.asic.gov.au/asic/ASIC_PUB.NSF/byid/62222E59E8424FE7CA25701B000D2AF5?opendocument
ASIC has provided conditional relief for providers of superannuation calculators from licensing, conduct and disclosure requirements. See Information Release IR 05-32:
http://www.asic.gov.au/asic/ASIC_PUB.NSF/byid/D67E1C084B0D4806CA257027002D8FD1?opendocument
ASIC has announced that it will give relief to facilitate changes to the scheme constitutions of listed registered schemes, and certain unlisted schemes, to remove the 'perpetuity clause' from their constitution without requiring a special resolution of members. This is to address concerns that such clauses would result in members' funds being treated as a liability rather than equity in financial statements prepared under new international accounting standards. See Information Release IR 05-29:
http://www.asic.gov.au/asic/ASIC_PUB.NSF/byid/3A16E5178E59D493CA25701800068669?opendocument
ASIC has further extended the interim relief for certain registered managed investment scheme constitutions giving the responsible entity of a scheme discretion to determine certain elements of the application and redemption prices for interests in the scheme. The relief was to expire on 30 June 2005 but will now continue until 31 December 2005. See Information Release IR 05-34:
http://www.asic.gov.au/asic/ASIC_PUB.NSF/byid/298D21B322D471B6CA257029001065FC?opendocument
ASIC has released a consultation paper seeking comment on a proposal that credit rating agencies be exempt from holding an Australian financial services licence under the Corporations Act. For a copy of the paper, go to:
ASIC has extended from 30 June to 31 December 2005 the interim relief provided under ASIC Class Order 05/680 from the requirement for actuaries to hold an Australian financial services licence. See Information Release IR 05-37:
http://www.asic.gov.au/asic/ASIC_PUB.NSF/byid/D2B8E010112037A3CA257030001A112D?opendocument
ASIC has recorded another successful insider trading prosecution, resulting in a 2½ year jail term for insider trading in shares of JNA Telecommunications Ltd. See Media Release 05-179:
http://www.asic.gov.au/asic/ASIC_PUB.NSF/byid/38E75DECFB3B75B9CA25702A002D975F?opendocument
ASIC has released the results of a review of the remuneration practices of general insurance brokers. The review did not find any evidence of the kind of systemic abuses uncovered in the United States recently. However, it did find that more than half the brokers reviewed had contingent remuneration arrangements in place and most of those brokers placed a significant proportion of their business with insurers that paid extra commissions based on the volume of business placed with them. For a copy of the review, go to:
Austrac has published guidance on the issues associated with the bribery of foreign public officials and the potential need for cash dealers to lodge suspicious transaction reports where they suspect that someone may have committed an offence under foreign bribery legislation. See AUSTRAC Information Circular No. 42:
ASX has issued a new Guidance Note 24 on related party dealings and the application of ASX listing rules 10.1 - 10.10. For a copy of the Guidance Note, go to:
http://www.asx.com.au/ListingRules/guidance/guidance_note_24.pdf
ASX has amended Market Rule 4.9 to change the form of audit report required to be lodged with ASX and the timing of lodgement of annual audited returns and other returns. The amendments are intended to reduce regulatory overlap and to improve supervisory efficiency. See Participant Circular 331/05 and attachments:
SFE has updated the prescribed contracts for pre-negotiated business orders (Rule 3.3), the block trade facility (Rule 3.4) and the exchange for physical facility (Rule 3.5). See SFE Bulletin 43/05:
http://www.sfe.com.au/content/bulletins/sfe/2005/sfe2005_043.pdf
For a general discussion of recent developments in employee relations law, see Allens Arthur Robinson, Focus: Workplace Relations – June 2005:
http://www.aar.com.au/pubs/wr/cu20jun05.htm
For a discussion of the Government's recent announcement regarding a new workplace relations system and the implications for employers, see Blake Dawson Waldron, Industrial Relations and Employment Client Alert - June 2005:
http://www.bdw.com/publications/irca/irca062005.pdf
The NSW Workplace Surveillance Bill, which regulates the surveillance of employees at work and deals with internet and email access, has now been passed. See Minter Ellison, New NSW Workplace Surveillance, Email and Internet Regulation - 27 June 2005:
For an excellent summary of the landmark decision of the US Supreme Court in MGM v Grokster, holding the providers of the Grokster and Morpheus peer-to-peer file sharing applications liable for intentionally providing a facility for third parties to breach copyright, see Blake Dawson Waldron, Media Update - July 2005 (while strictly speaking this is not a June 2005 publication - it having been published on 1 July 2005 - in our view it is better than the articles published by other firms in June):
http://www.bdw.com.au/publications/media/media072005.pdf
The Revenue Laws Amendment Bill 2005 (WA) will amend the stamp duty laws applying to unit trusts and land-rich companies and the corporate reconstruction concession. For a summary of the proposed amendments, see Freehills, Revenue Laws Amendment Bill 2005 (WA) - 23 June 2005:
http://www.freehills.com.au/publications/publications_5085.asp
The NSW government has introduced the State Revenue Legislation Amendment Bill 2005, which if passed will introduce duty on a transfer of a call option over dutiable property in circumstances where there is also a put option over the same property. See Freehills, Amendments to Duties Act (NSW): Transfer of Call Options - 14 June 2005:
http://www.freehills.com.au/publications/publications_5075.asp
In Asia Pacific Telecommunications Ltd v Optus Networks Pty Ltd [2005] NSWSC 550, the NSW Supreme Court rejected an application for an injunction against Clayton Utz to restrain them from acting for a defendant being sued by a related body corporate of a previous client. The case has an interesting discussion of the principles concerning conflicts of interest, duties of confidence and the so-called duty of loyalty owed by solicitors to clients. The decision can be downloaded at:
In Rivera v Australian Broadcasting Corporation [2005] FCA 661, the Federal Court rejected a claim by the applicant (a person in prison pending extradition to the USA to face trial for murder) that the broadcasting of a program by the ABC concerning law students working at Kingsford Legal Centre which discussed the applicant's extradition case was, amongst other things, a breach of Privacy Act 1988. It found that the broadcast fell within the exemption under sections 7(1)(ee) and 7B for acts done by a media organisation in the course of journalism. The decision can be viewed at:
http://cclsr.law.unimelb.edu.au/judgments/states/federal/2005/may/2005fca661.htm
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