March 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 Generally, it is too onerous a task for us to check and update these and so if a hyperlink is no longer valid, please accept our apologies.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) Act (No. 1) 2010 (Cth) has now passed into law. For a copy of the Act and its explanatory memorandum, go to:
A Bill to implement the second stage of the Australian consumer law has been introduced into Parliament. For a copy of the Trade Practices Amendment (Australian Consumer Law) Bill (No. 2) 2010 (Cth) and its explanatory memorandum, go to:
The Government has finally promulgated the regulations needed to implement the national consumer credit regime that comes into force on 1 July 2010. For a copy of the National Consumer Credit Protection Regulations 2010, National Consumer Credit Protection (Transitional and Consequential Provisions) Regulations 2010, National Consumer Credit Protection (Fees) Regulations 2010 and their respective explanatory statements, go to:
And then quickly amended them! For a copy of the National Consumer Credit Protection Amendment Regulations 2010 (No. 1), National Consumer Credit Protection (Transitional and Consequential Provisions) Amendment Regulations 2010 (No. 1) and their respective explanatory statements, go to:
The long awaited Insurance Contracts Amendment Bill 2010 (Cth) has been introduced into Parliament. For a copy of the Bill and its explanatory memorandum, go to:
The Personal Property Securities (Corporations and Other Amendments) Bill 2010 (Cth) has also been introduced into Parliament. For a copy of the Bill and its explanatory memorandum, go to:
ACCC has released a draft publication entitled Australian Consumer Law: A guide to unfair contract terms. It can be downloaded from:
ACCC has updated its guide Small Business and the Trade Practices Act. The updated guide can be obtained from:
APRA has released a discussion paper containing proposals on supervising conglomerate groups (that is, groups with APRA‑regulated entities that have material operations in more than one APRA‑regulated industry and/or have material unregulated entities). The discussion paper can be viewed at:
APRA has released its final prudential standards on enhancements to the prudential framework for life insurance companies. The response paper and the prudential standards can be found on the APRA website at:
ASIC has announced that it intends to delay the commencement of short seller reporting obligations from 1 April 2010 to 1 June 2010, to allow short sellers more time to ensure they have the appropriate systems in place to meet those obligations. See Advisory 10-42AD:
http://www.asic.gov.au/asic/asic.nsf/byheadline/10-42AD+Short+position+reporting?openDocument
To assist short sellers and systems developers adequately prepare for the new reporting requirements, ASIC has also revised Information Sheet 98, now titled Short selling: Short position reporting. The revised information sheet can be downloaded from:
ASIC has released regulatory guidance for credit licensees and insurers about the compensation and professional indemnity insurance obligations under the National Consumer Credit Protection Act 2009 (Cth). For a copy of Regulatory Guide 210 Compensation and insurance arrangements for credit licensees, go to:
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/rg210.pdf/$file/rg210.pdf
ASIC has released Consultation Paper 132 Trustee companies: Financial requirement and conduct obligations. It is available at:
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/cp132.pdf/$file/cp132.pdf
ASIC has released changes to Class Order CO 09/425, which provides prospectus and product disclosure statement relief for share and interest purchase plans. It has also updated Regulatory Guide 125 Share purchase plans to reflect the changes to that Class Order. See Advisory 10-53AD:
ASX has amended the ASX Market Rules Procedure concerning excessive quote requests in the ASX ETO Market. See Market Circular 072/10 and attachment:
AUSTRAC has released Information Circulars No. 68 Changes to the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 and No. 69 Financial Action Task Force statement on identified jurisdictions with strategic deficiencies in their anti-money laundering and counter-terrorism financing regimes. They can be downloaded from:
http://www.austrac.gov.au/files/aic68_amlctf_act.pdf
http://www.austrac.gov.au/files/aic69_fatf.pdf
Austrac has released Public Legal Interpretation No. 10 Agency and the AML/CTF Act. It is available at:
http://www.austrac.gov.au/files/pli10_agency.pdf
AUSTRAC has issued a research report on the role of anti-money laundering and counter-terrorism financing compliance officers. It can be viewed at:
http://www.austrac.gov.au/files/surveyseries_comp_officer.pdf
The High Court has granted special leave to appeal the judgment of the Queensland Court of Appeal in Re Octaviar. See Blake Dawson, Banking & Finance Alert - 12 March 2010:
http://www.blakedawson.com/Templates/Publications/x_publication_content_page.aspx?id=58017
For a summary of the changes in the final version of the National Consumer Credit Regulations 2010 vis-à-vis the exposure draft issued in November 2009, see Minter Ellison, Alert - Release of Consumer Credit Regulations and Credit Reform Register - 24 March 2010:
A recent decision of the Supreme Court of Queensland shows that making an agreement into a deed is not as easy as simply changing the execution block. See Norton Rose, 'Good deeds' - 19 March 2010 or Mallesons Stephen Jaques, To Deed or not to Deed - 18 March 2010:
http://www.nortonrose.com/knowledge/publications/2010/pub27398.aspx?lang=en-gb&page=all
http://www.mallesons.com/publications/2010/Mar/10277178W.htm
For a general discussion of recent developments in employee relations law, see Mallesons Stephen Jaques, Workplace (e)ssentials - March 2010:
http://www.mallesons.com/publications/update-combine.cfm?id=2076507
For useful summaries of the reforms proposed in the Insurance Contracts Amendment Bill 2010 (Cth), see Allens Arthur Robinson, Focus: Insurance Contracts Amendment Bill 2010 - 23 March 2010, Gadens, Insurance Update - March 2010 or Mallesons Stephen Jaques, Insurance Contracts Amendment Bill 2010 - 18 March 2010:
http://www.aar.com.au/pubs/insur/foinsurmar10.htm
http://www.mallesons.com/publications/2010/Mar/10278668W.htm
For a summary of the High Court’s recent decision in European Bank Limited v Robb Evans of Robb Evans & Associates (link to case below), see Norton Rose, High Court Warns: Receivers should not give 'usual undertaking as to damages' lightly - 17 March 2010:
http://www.nortonrose.com/knowledge/publications/2010/pub27352.aspx?lang=en-gb&page=all
Baker & McKenzie, Do not circulate! Protecting legal privilege - 10 March 2010 is a webcast with some useful guidance on preserving legal professional privilege on documents. It can be downloaded from:
For a summary of the High Court’s recent decision in Commissioner of Taxation v Bamford (link to case below), see Mallesons Stephen Jaques, Landmark decision on the taxation of trusts: the High Court hands down decision in Bamford - 30 March 2010:
http://www.mallesons.com/publications/2010/Mar/10292769W.htm
The ATO has released an interpretative decision (ID 2010/61) regarding the meaning of a “real risk of forfeiture” under the new rules relating to the taxation of employee share schemes. See Mallesons Stephen Jaques, Taxation of employee equity schemes - ATO provides guidance regarding "real risk of forfeiture" - 12 March 2010:
http://www.mallesons.com/publications/2010/Mar/10271881W.htm
For a brief summary of the contents of the Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 (Cth), see Allens Arthur Robinson, Focus: Australian Consumer Law Bill passed by Parliament - 23 March 2010:
http://www.aar.com.au/pubs/comp/focompmar10_01.htm
For an analysis of how that Act will affect property developers, see Norton Rose, Australian Consumer Law: Unfair Contracts and the Challenges for Developers Ahead - 25 March 2010:
http://www.nortonrose.com/knowledge/publications/2010/pub27455.aspx?lang=en-gb&page=all
And for a summary of what is in store if the Trade Practices Amendment (Australian Consumer Law) Bill (No. 2 ) 2010 (Cth) passes into law, see Mallesons Stephen Jaques, What? No more "TPA"? Minister Emerson Introduces Phase Two of the Australian Consumer Law into Parliament - 18 March 2010 and Total Recall (of the TPA): New National Product Safety Regime - 18 March 2010:
http://www.mallesons.com/publications/2010/Mar/10278192W.htm
http://www.mallesons.com/publications/2010/Mar/10278446W.htm
The expert panel on the proposed reforms to the unconscionable conduct and franchising provisions of the Trade Practice Act 1974 (Cth) has released its report to the Government, paving the way for sweeping reform in this area. See Mallesons Stephen Jaques, Government supports proposed reforms to unconscionable conduct and franchising provisions - 3 March 2010:
http://www.mallesons.com/publications/2010/Mar/10258620W.htm
European Bank Limited v Robb Evans of Robb Evans & Associates [2010] HCA 6 has some important guidance from the High Court as to the scope of the “usual undertaking as to damages”. The decision can be viewed at:
http://www.austlii.edu.au/au/cases/cth/HCA/2010/6.html
Commissioner of Taxation v Bamford [2010] HCA 10 likewise has some important guidance from the High Court on how trusts should be treated for taxation purposes. The decision can be viewed at:
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2010/10.html
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