March 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 Generally, it is too onerous a task for us to check and update these and so if a hyperlink is no longer valid, please accept our apologies.
The Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 (Cth) has now passed into law. The Act can be downloaded from:
Another price fixing win for the ACCC. The Federal Court has found that FChem (Aust) Limited, Osmose Australia Pty Ltd and its former managing director engaged in price fixing in the timber preservatives industry and imposed penalties in excess of $2.5 million. See Media Release 082/08:
http://www.accc.gov.au/content/index.phtml/itemId/813996
APRA and ASIC have jointly released a new online breach reporting system for dual-regulated institutions. For details, see Media Release 08-03 and the new breach reporting portal:
http://www.apra.gov.au/media-releases/08_03.cfm
http://www.apra.gov.au/breach/
ASIC has changed Class Order 98/1418 Wholly-owned entities to allow more companies to claim the relief afforded to certain wholly-owned subsidiaries from the requirement to prepare financial reports. It has also issued a new Class Order 08/15 Disclosing entities – half-year financial reporting relief that relieves a disclosing entity from the requirement to lodge a half-year financial report and directors’ report during the first financial year of the entity, where that first financial year lasts for 8 months or less. See Information Release IR 08-08:
ASIC has issued a new Class Order 08/10 Share and interest sale facilities to facilitate the operation of facilities offered by some companies and issuers of interests in managed investment schemes that provide an easy and cheap way for members, especially those with small holdings, to dispose of their holdings at or near current market value. It has also released Regulatory Guide 161 Share and interest sale facilities explaining the relief in further detail and outlining its approach for sale facilities not covered by the class order. See Information Release IR 08-06 and the accompanying Regulatory Guide:
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/rg161.pdf/$file/rg161.pdf
Another win for ASIC on continuous disclosure. Listed mineral exploration company Centrex Metals Limited has paid a $33,000 fine following an ASIC investigation into its alleged failure to properly inform the market about the signing of a binding heads of agreement regarding the supply of hematite. See Media Release 08-50:
In light of recent market activity, ASIC has reminded market participants that deliberately spreading false or misleading information about listed securities to artificially provoke sales of securities and to reduce their market price is a criminal act. See Media Release 08-47:
http://www.asic.gov.au/asic/asic.nsf/byheadline/08-47+False+or+misleading+rumours?openDocument
ASIC has also taken on board comments that stock lending and short selling are contributing to the current market volatility and has issued a reminder to market participants of their disclosure obligations, particularly around lodging substantial holding notices in a timely manner. See Information Release IR 08-03:
A reminder from ASIC to Australian financial services licensees that the compensation requirements in section 912B of the Corporations Act 2001 commence for most licensees on 1 July 2008. Most licensees will comply with these requirements by obtaining professional indemnity insurance. Those licensees who are seeking ASIC’s approval for alternative arrangements will need to apply to ASIC for approval soon. See Information Release IR 08-10:
ASIC has released the preliminary study on the cost impact of the regulatory framework ASIC administers, which it commissioned from Chant Link & Associates late last year with the support of the Finance Industry Council of Australia. The study is one of ASIC’s Better Regulation initiatives. It can be downloaded at:
ASX's new Disciplinary Processes and Appeals Rulebook came into effect on 31 March 2008. It applies uniform disciplinary and appeal processes for participants in both the cash and futures markets across the ASX group and establishes a single peer review Disciplinary Tribunal that integrates the ASX, Australian Clearing House, and ASX Settlement and Transfer Corporation Tribunals with the SFE Business Conduct and Market Practices Committees. It also introduces a new breach notice process to streamline minor disciplinary issues and apply a fixed penalty of $2,000 for all such matters and increases the maximum penalty limit for the most serious market abuses, such as market manipulation, from $250,000 to $1,000,000. The new Disciplinary Processes and Appeals Rulebook can be found at:
http://www.asx.com.au/supervision/rules_guidance/disciplinary_rules.htm
ASX has released a public consultation paper on the regulatory regime for short selling. It is available at:
http://www.asx.com.au/about/pdf/short_selling_public_consultation_paper.pdf
ASX has also taken the opportunity to remind participants who short sell of their obligations under the current law and market rules. See Market Circular 120/08:
For a timely reminder of the bankruptcy law issues involved in buying distressed assets, see Mallesons Stephen Jaques, It May Not be a Bargain After All - Matters to be Aware of When Purchasing Distressed Assets - 28 March 2008:
http://www.mallesons.com/publications/2008/Mar/9369049W.htm
For a general discussion of Professor Garnaut's discussion paper on the design of an Australian emissions trading scheme, see Allens Arthur Robinson, Focus: Climate Change - March 2008:
http://www.aar.com.au/pubs/pdf/cc/foccmar08.pdf
For a general discussion of recent developments in employee relations law, see Allens Arthur Robinson, Focus: Workplace Relations - March 2008:
http://www.aar.com.au/pubs/pdf/wr/fowrmar08.pdf
For a summary of the key provisions in the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 (Cth), see Allens Arthur Robinson, Client Update: Workplace Relations - 28 March 2008:
http://www.aar.com.au/pubs/wr/cuwrmar08.htm
For a discussion of the upcoming award modernisation process, see Blake Dawson, Employment Alert Special Edition - March 2008:
http://www.blakedawson.com/Templates/Publications/x_publication_content_page.aspx?id=49143
The Ministerial Council on Consumer Affairs has released an exposure draft of the Finance Broking Bill 2007, a model national Bill to regulate finance broking. For details, see Allens Arthur Robinson, Focus: Regulation & Compliance - March 2008:
http://www.aar.com.au/pubs/pdf/baf/forcmar08.pdf
For a discussion of the ramifications of ASIC's changed policy on granting secondary sales relief in connection with offers of convertible bonds by Australian issuers into offshore institutional markets, see Mallesons Stephen Jaques, ASIC Changes Policy on Secondary Sale Relief for Convertible Bonds - 17 March 2008:
http://www.mallesons.com/publications/2008/Mar/9353782W.htm
Betfair Pty Limited v Western Australia [2008] HCA 11 contains the latest exposition by the High Court on the reach of section 92 of the Australian Constitution. The decision can be downloaded at:
http://www.austlii.edu.au/au/cases/cth/HCA/2008/11.html
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