June 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 Generally, it is too onerous a task for us to check and update these and so if a hyperlink is no longer valid, please accept our apologies.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 Trade Practices Amendment (Australian Consumer Law) (No. 2) Bill 2010 has passed both Houses of Parliament. The Act and its explanatory memorandum can be viewed at:
http://www.comlaw.gov.au/comlaw/Legislation/Act1.nsf/0/88DDB3C4250F14BDCA25776200086CA7?OpenDocument
The Corporations Amendment (Corporate Reporting Reform) Act 2010 has passed into law. The Act imposes a new solvency based test for the payment of company dividends and introduces a number of new measures to improve the quality and reduce the regulatory burden of financial reporting. The Act and its explanatory memorandum can be viewed at:
Amendments have been made to the Corporations Regulations 2001 to prescribe the form and contents of short and simplified product disclosure statements for margin loans, superannuation products and simple managed investment schemes. For a copy of the Corporations Amendment Regulations 2010 (No. 5) and their explanatory statement, go to:
The Government has published a consultation draft of regulations providing that certain limited recourse borrowing arrangements will be treated as 'financial products' under the Corporations Act when entered into by regulated superannuation funds. The draft regulations can be viewed at:
http://www.treasury.gov.au/contentitem.asp?NavId=037&ContentID=1829
ACCC has published A guide to the unfair contract terms law, jointly with ASIC and the state and territory consumer protection agencies. It has also published information booklets for consumers and business entitled Consumers and unfair contract terms and Unfair contract terms, News for business. They can be viewed at:
APRA has released its response to submissions and final prudential standards to simplify the prudential reporting requirements for general insurers. They are available on APRA’s website at:
ASIC has re-issued all of its guidance notes for credit licensees to reflect changes to the National Consumer Credit Protection Act and Regulations since they were first released. You can download the updated Regulatory Guides 202-209 at:
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/rg202.pdf/$file/rg202.pdf
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/RG203.pdf/$file/RG203.pdf
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/RG204-1.pdf/$file/RG204-1.pdf
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/rg205a.pdf/$file/rg205a.pdf
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/rg206a.pdf/$file/rg206a.pdf
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/rg207a.pdf/$file/rg207a.pdf
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/rg208a.pdf/$file/rg208a.pdf
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/rg209.pdf/$file/rg209.pdf
ASIC has also published a package of new information sheets containing FAQs about the new national consumer credit regime, comprising Information Sheets 101 Does the new credit regime apply?, 102 Getting registered for credit, 103 Getting a credit licence, 104 Complying with your credit obligations, 105 Dealing with consumers and credit, 108 How much does a credit licence cost? and 109 Credit licensee offences: Prohibited dealings and unlawful authorisations:
In addition, ASIC has released and then re-released Pro Forma 224 Australian credit licence conditions. The latest version is available at:
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/pf224-June2010.pdf/$file/pf224-June2010.pdf
ASIC has released a consultation paper on unconscionable or unfair mortgage early exit fees. For a copy of Consultation Paper 135 Mortgage early exit fees: Unconscionable fees and unfair contract terms, go to:
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/cp135-1.pdf/$file/cp135-1.pdf
ASIC has released updated versions of Regulatory Guides 69 Debentures and unsecured notes – improving disclosure for retail investors and 156 Debenture and unsecured note advertising. The revised regulatory guides can be downloaded from:
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/rg69.pdf/$file/rg69.pdf
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/rg156-a.pdf/$file/rg156-a.pdf
ASIC has issued a consultation paper seeking additional public comment on a number of relief proposals that will permit certain indirect self-acquisitions by investment funds. For a copy of Consultation Paper 137 Indirect self-acquisition by investment funds: Further consultation, go to:
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/cp137.pdf/$file/cp137.pdf
ASIC has started daily reporting of aggregated short positions. The reports are published on the ASIC website at:
www.asic.gov.au/short-position-reports
The ASX Corporate Governance Council has released final changes to the Corporate Governance Principles and Recommendations about diversity, remuneration, trading policies and briefings. See ASX Media Release dated 30 June 2010:
http://www.asx.com.au/about/pdf/20100630_changes_to_corporate_governance_principles.pdf
A number of amendments to the Listing Rules came into effect on 1 June 2010. See Companies Update 06/10:
AUSTRAC has released for public consultation draft amendments to the requirements for the reporting of signatories and the reportable details for a person conducting a transaction who is not the customer, as well as clarificatory changes to the applicable customer identification procedures with respect to companies. The draft amendments can be viewed at:
http://www.austrac.gov.au/files/draft_rule_ch19.pdf
http://www.austrac.gov.au/files/draft_rule_companies.pdf
AUSTRAC has released its Typologies and case studies report 2010. It can be viewed at:
http://www.austrac.gov.au/files/typ_rpt.pdf
AUSTRAC is trumpeting the jailing of a 54 year old Sydney woman for 5½ years after pleading guilty to money laundering over $1.9 million through her money transfer business over a 2½ month period from November 2007 to January 2008. See media release dated 25 June 2010:
http://www.crimecommission.gov.au/media/acc_joint/2010/100625.htm
AUSTRAC has announced that it has accepted an enforceable undertaking from remittance business regarding its failure to have an AML/CTF program with adequate risk-based controls and systems to identify, mitigate and manage money-laundering/terrorism-financing risk. See media release dated 28 June 2010:
http://www.austrac.gov.au/28jun10.html
SFE is seeking to improve open interest reporting by amending SFECC Clearing Rules Procedure 46.5 from a Practice Note to a Direction. See SFE Notice 090/10 and attachment:
http://www.sfe.com.au/content/notices/2010/notice2010_090.pdf
http://www.sfe.com.au/content/notices/notice2010_090a.pdf
The circumstances in which a 'material adverse change' clause will trigger an event of default under security documents, and the lender's absolute discretion in determining such a change, has been analysed in a recent NSW Supreme Court decision. See Allens Arthur Robinson, Focus: When is it safe to rely on a 'material adverse change' as a default? - 7 June 2010:
http://www.aar.com.au/pubs/insol/foinsol7jun10.htm
For a summary of the recent changes to the laws governing the payment of dividends by Australian companies, see Allens Arthur Robinson, Focus: Changes to the dividend payment rules - 21 June 2010:
http://www.aar.com.au/pubs/cg/focgjun10.htm
For a summary of recent developments in employee relations law, see Freehills, Employee Relations Update - 4 June 2010 and Mallesons Stephen Jaques, Workplace and Employee Relations Update - June 2010:
http://www.freehills.com.au/6383.aspx
http://www.mallesons.com/publications/update-combine.cfm?id=2188356
For a summary of the changes made by the Senate to the Government’s paid parental leave bill, see Freehills, Paid Parental Leave Bill Passes Senate with important amendments - 22 June 2010:
http://www.freehills.com.au/6411.aspx
Blake Dawson, Financial Services Update - 30 June 2010 summarises the new shorter PDS disclosure regime for standard margin loans, superannuation products and simple managed investment schemes. See:
http://www.blakedawson.com/Templates/Publications/x_publication_content_page.aspx?id=59127
The Federal Attorney-General has announced that new legislation will be introduced into Parliament that will require disputing parties to take 'genuine steps' to attempt to resolve their differences before commencing litigation in federal courts and tribunals. See Allens Arthur Robinson, Client Update: Legislating 'genuine' attempts to resolve disputes before litigation - 7 June 2010:
http://www.aar.com.au/pubs/ldr/culdrjun10.htm
The Federal Government has released an exposure draft of the Australian Privacy Principles that are proposed to replace the National Privacy Principles and the Information Privacy Principles. See Allens Arthur Robinson, Focus: Exposure draft of Privacy Principles released - 28 June 2010:
http://www.aar.com.au/pubs/priv/foprivjun10.htm
The ATO has released further guidance on the taxation of employee share schemes. See Mallesons Stephen Jaques, Significant ATO guidance on taxation of employee share schemes - 18 June 2010:
http://www.mallesons.com/publications/2010/Jun/10383780W.htm
The Government has made changes to the proposed new managed investment trust provisions recently introduced into Parliament. See Mallesons Stephen Jaques, Government announces it will be relaxing “managed investment trust” rules - 21 June 2010 and Government passes amendments to gateway to managed investment trust concessions - 28 June 2010:
http://www.mallesons.com/publications/2010/Jun/10385817W.htm
http://www.mallesons.com/publications/2010/Jun/10393350W.htm
HNA Irish Nominee Limited v Kinghorn [2010] FCAFC 57 has some important guidance on the powers of preference shareholders to propose and vote on resolutions seeking to vary the rights attaching to their shares. The full text of the judgment is available at:
http://www.austlii.edu.au/au/cases/cth/FCAFC/2010/57.html
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