March 2009

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 Generally, it is too onerous a task for us to check and update these and so if a hyperlink is no longer valid, please accept our apologies.

1. Legislative News

Draft emissions trading legislation

The Federal Government has released an exposure draft of the legislation for its proposed emissions trading scheme. The Carbon Pollution Reduction Scheme Bill and five other related draft bills can be viewed at:

http://www.climatechange.gov.au/emissionstrading/legislation/index.html

Golden handshakes

For a copy of the Treasurer's announcement on proposed changes to the law on golden handshakes, go to:

http://www.treasurer.gov.au/DisplayDocs.aspx?doc=pressreleases/2009/024.htm&pageID=003&min=wms&Year=&DocType=0

Corporate governance and financial performance

Treasury's Working Paper 2009-02 Corporate Governance and Financial Performance in an Australian Context examines the relationship between a company’s adoption of the ASX Corporate Governance Council’s Principles of Good Corporate Governance and Best Practice Recommendations and its financial performance in the areas of shareholder performance, operating performance and one year sales growth for the top 300 Australian listed companies. It can be downloaded from:

http://www.treasury.gov.au/contentitem.asp?NavId=035&ContentID=1495

Review of statutory implied warranties and conditions

For a copy of the Federal Consumer Affairs Minister announcement of a review of statutory implied conditions and warranties, see:

http://assistant.treasurer.gov.au/DisplayDocs.aspx?doc=pressreleases/2009/014.htm&pageID=003&min=ceb&Year=&DocType=0

Short selling disclosure consultation

Treasury has released a consultation paper entitled Short Selling Disclosure Regime, seeking input on a range of issues associated with the disclosure of short selling transactions. For a copy, go to:

http://www.treasury.gov.au/documents/1504/PDF/Consultation_paper.pdf

2. Regulator News

ACCC - guidance - warranties and refunds

ACCC has issued a guidebook entitled Warranties and refunds—a guide for consumers and business. It can be downloaded from:

http://www.accc.gov.au/content/item.phtml?itemId=322947&nodeId=3726f80476d39264236239280b6cf713&fn=Warranties%20and%20refunds.pdf

ASIC - policy - short selling of financial securities

ASIC has extended the ban on covered short selling of financial securities until 31 May 2009. See Media Release MR09-36:

http://www.asic.gov.au/asic/asic.nsf/byheadline/MR09-36+ASIC+extends+ban+on+covered+short+selling+of+financial+securities?openDocument

ASIC - policy - internet discussion sites

ASIC has released a consultation paper on the regulation of internet discussion sites that have commentary about financial products. For a copy, go to:

http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/Consultation-paper-104-Internet discussion sites.pdf/$file/Consultation-paper-104-Internet discussion sites.pdf

ASIC - enforcement - Opes Prime

For an interesting update on the steps ASIC has taken to bring the parties involved in the Opes Prime debacle to the negotiating table (including an assertion of a potential claim for compensation against ANZ and Merrill Lynch for being involved in a contravention of the managed investment provisions of the Corporations Act by Opes Prime), see Media Release MR09-37:

http://www.asic.gov.au/asic/asic.nsf/byheadline/MR09-37+Opes+Prime%3A+proposed+settlement+and+ANZ+enforceable+undertaking?openDocument

AUSTRAC - guidance - designated services

AUSTRAC has released chapter 11 of the AUSTRAC Regulatory Guide on the subject of designated services under the AML/CTF Act. It can be viewed at:

http://www.austrac.gov.au/rg_11.html

AUSTRAC - guidance - customer identification requirements

AUSTRAC has released Public Legal Interpretation No. 9 Customer identification requirements under the AML/CTF Act. For a copy, go to:

http://www.austrac.gov.au/files/pli9_customer_identification.pdf

3. Articles

Banking & Finance

The contentious Octaviar decision (see below) and its implications for secured lenders has generated considerable commentary this month. See, for example, Allens Arthur Robinson, Focus: Variation of Registered Charges and the Octaviar Decision - 13 March 2009, Blake Dawson, Banking & Finance Update - 20 March 2009, and Mallesons Stephen Jacques, Court Widens Category of Registrable Instruments Relating to Charges - 10 March 2009:

http://www.aar.com.au/pubs/baf/fobafmar09.htm

http://www.blakedawson.com/Templates/Publications/x_publication_content_page.aspx?id=54767

http://www.mallesons.com/publications/2009/Mar/9827853W.htm

Allens Arthur Robinson, Focus: Tabcorp Bonds Herald New Retail Debt Market - 31 March 2009 reviews the recent retail offering of corporate bonds by Tabcorp. See:

http://www.aar.com.au/pubs/cm/focm31mar09.htm

The Real Property and Conveyancing Legislation Amendment Bill 2009 has been introduced into New South Wales Parliament. It imposes duties on financiers, mortgagees and chargees exercising a power of sale and in preventing identity theft and forgery of mortgage and title documents. For further details, see Deacons, Legal Update: New Bill Imposes Duties on Financiers, Mortgagees and Chargees in New South Wales – What You Need to Know - 31 March 2009:

http://www.deacons.com.au/legal-services/banking-finance/legal-updates/legal-update.cfm?objid=6940

The Senate Legal & Constitutional Affairs Committee has recommended that the commencement of the Personal Property Securities Bill be delayed by at least 12 months to May 2011. See Hunt & Hunt, Personal Property Securities Bill 2008 Update - 23 March 2009:

http://www.hunthunt.com.au/PageSys/DocView.aspx?DocumentID=2165

Contract

Allens Arthur Robinson, Focus: Losing the Right to Terminate – Election and No Waiver Clauses - 23 March 2009 summarises a recent English Court of Appeal decision and its implications for the effectiveness of 'no waiver' clauses when breach and termination of a commercial agreement are separated by many months of contractual performance. See:

http://www.aar.com.au/pubs/const/foconstmar09.htm

Corporate Governance

For a summary of recent developments on executive remuneration, see Freehills, Executive Remuneration: Treasury Changes, Fels Review and More - 24 March 2009:

http://www.freehills.com.au/4782.aspx

Employee Relations

For a general outline of recent developments in employee relations laws, see Allens Arthur Robinson, Focus: Workplace Relations - March 2009:

http://www.aar.com.au/pubs/wr/fowrmar09.htm

For a summary of the amendments made to the Fair Work Bill as it passed through Parliament, see Freehills, Fair Work Bill Passes with Important Amendments - 23 March 2009:

http://www.freehills.com.au/4781.aspx

The Deputy Prime Minister has introduced into Federal Parliament the first of two Bills to govern the transition of Australian workplaces into the framework established by the Fair Work Act 2009. For a review of matters of direct and immediate interest to larger employers, see Blake Dawson, Employment Alert - 24 March 2009:

http://www.blakedawson.com/Templates/Publications/x_publication_content_page.aspx?id=54797

And see also Mallesons, The New Industrial Relations System - Top 10 Transitional Tips - 20 March 2009:

http://www.mallesons.com/publications/2009/Mar/9844388W.htm

Significant amendments to the Federal Disability Discrimination Act 1992 and Sex Discrimination Act 1984 have been proposed which will broaden the scope of anti-discrimination laws in those areas. For details, see Blake Dawson, Discrimination Bulletin - 17 March 2009:

http://www.blakedawson.com/Templates/Publications/x_publication_content_page.aspx?id=54679

Clayton Utz, Workplace Relations Insights - 26 March 2009 has an interesting summary of a recent case where an employer attempted to sue a leaving employee who took confidential information for breach of copyright. See:

http://www.claytonutz.com.au/areas_of_law/controller.asp?aolstring=0&na=1973

Environment

For a summary of the Carbon Pollution Reduction Scheme Bill, see Mallesons, Australian Government Releases Draft Emissions Trading Legislation - 11 March 2009:

http://www.mallesons.com/publications/2009/Mar/9829426W.htm

Information Technology

Mallesons, Full Court Rejects $3.2 Million Claim for Testing Back-up Copy of Software - 27 March 2009 summarises a recent Full Federal Court decision confirming that a software licensee was contractually entitled to create, install remotely, maintain and test a disaster recovery copy of licensed software. See:

http://www.mallesons.com/publications/2009/Mar/9847860W.htm

Privacy

For a summary of proposed changes to privacy and freedom of information laws, see Blake Dawson, Privacy Update - 26 March 2009:

http://www.blakedawson.com/Templates/Publications/x_publication_content_page.aspx?id=54805

Taxation

The Tax Laws Amendment (Taxation of Financial Arrangements) Bill 2008 received Royal Assent on 26 March 2009. See Deacons, Legal Update: Taxation of Financial Arrangements: Bill Receives Royal Assent - 30 March 2009:

http://www.deacons.com.au/legal-services/taxation/legal-updates/legal-update.cfm?objid=6939

A decision of the Full Federal Court has clarified the operation of the same business test where managers are involved in running a business. See Deacons, Legal Update: The Same Business Test Clarified - 24 March 2009:

http://www.deacons.com.au/legal-services/taxation/legal-updates/legal-update.cfm?objid=6929

The Australian insolvency landscape stands to be significantly affected by the recent decision of the Full Federal Court in Commissioner of Taxation v Bruton Holdings Pty Limited (in liq). The case confirms the ability of the Commissioner of Taxation, in certain circumstances, to leap-frog all other creditors in a liquidation, including secured creditors. See Freehills, The Bruton Holdings Decision - 26 March 2009:

http://www.freehills.com.au/4785.aspx

4. Cases

Banking & Finance - obligation to register a new "transaction document" as a variation of charge

To read the contentious Queensland Supreme Court decision in Re Octaviar Ltd; Re Octaviar Administration Pty Ltd [2009] QSC 37, go to:

http://cclsr.law.unimelb.edu.au/judgments/states/qld/2009/march/2009qsc37.htm

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