May 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 Generally, it is too onerous a task for us to check and update these and so if a hyperlink is no longer valid, please accept our apologies.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 Government has released for public comment an exposure draft of the Corporations Amendment (No. 1) Bill 2010, which will help to reduce predatory share offers by restricting access to share registers and increase the sanctions and investigatory powers for market offences, such as insider trading. It can be downloaded from:
http://www.treasury.gov.au/contentitem.asp?NavId=037&ContentID=1811
The Government has also released an exposure draft of the regulations needed to support the legislation that transfers responsibility for supervision of Australia's financial markets to ASIC. The draft regulations can be viewed at:
http://www.treasury.gov.au/contentitem.asp?NavId=037&ContentID=1805
The Government has introduced into Parliament a Bill to amend the merger control provisions of the Trade Practices Act to address the issue of “creeping acquisitions” and to clarify that more than one market may be relevant when reviewing a merger. The Bill will also enhance and simplify the unconscionable conduct provisions in the Trade Practices Act and the Australian Securities and Investment Commission Act. For a copy of the Competition and Consumer Legislation Amendment Bill and its explanatory memorandum, go to:
The Government has promulgated a second round of amendments to the national consumer credit regulations, this time mainly dealing with transitional issues. A copy of the National Consumer Credit Protection Amendment Regulations 2010 (No. 2) and National Consumer Credit Protection (Transitional and Consequential Provisions) Amendment Regulations 2010 (No. 2) can be viewed at:
The regulations needed to complete the regulatory framework for margin lending facilities and traditional trustee company services have been promulgated. For a copy of the Corporations Amendment Regulations 2010 (No. 3), Australian Securities and Investments Commission Amendment Regulations 2010 (No. 1), Corporations Amendment Regulations 2010 (No. 4) and Australian Securities and Investments Commission Amendment Regulations 2010 (No. 2), go to:
The Government has announced its intention to introduce legislation that will allow business owners to register their business names nationally instead of on a state by state basis. See medial release dated 11 May 2010:
http://minister.innovation.gov.au/Emerson/Pages/REGISTERINGBUSINESSNAMESTOBEMADEEASY.aspx
The Government has also announced its response to the Johnson Report, Australia as a financial centre: Building on our strengths. See media release dated 11 May 2010:
ACCC has released a major review of the Australian product safety recalls system and proposed new measures to improve the effectiveness of the product recall process in Australia. The review can be viewed at:
ACCC has released a new guide Professions and the Trade Practices Act explaining what the Act means for professionals and professional associations. It can be downloaded from:
APRA has released for consultation a discussion paper and proposed amendments to relevant prudential reporting standards and forms in relation to proposals to enhance the Basel II Framework in Australia. The discussion paper and the associated draft reporting standards and reporting forms are available at:
http://www.apra.gov.au/Policy/Enhancements-to-the-Basel-II-framework-in-Australia-May-2010.cfm
APRA has released a discussion paper describing its proposals to update the capital standards for general insurers and life insurers. The discussion paper is available at:
http://www.apra.gov.au/Policy/upload/GLI_DP_RCSGILI_032010_v7.pdf
ASIC has provided class order relief to help promote the issue of vanilla corporate bonds to retail investors and to facilitate offers of convertible notes to wholesale investors. See Media Release MR10-98:
ASIC has updated Regulatory Guide 165 Licensing: Internal and external dispute resolution and Regulatory Guide 139 Approval and oversight of external dispute resolution schemes to ensure that dispute resolution systems appropriately deal with consumer credit disputes. The updated guides can be downloaded from:
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/RG165.pdf/$file/RG165.pdf
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/RG139.pdf/$file/RG139.pdf
ASIC has updated a number of its existing regulatory guides to cover traditional services by trustee companies and issued a new information guide INFO 106 Trustee companies: Minimum standards for trustee companies holding estate assets. See Advisory 10-93AD:
ASIC has announced that it will not be issuing its proposed regulatory guidance on responsible handling of rumours and corporations' management of confidential information. See Advisory 10-99AD:
SFE is upgrading its trading system to ASX Trade24 with an implementation target of the fourth quarter of 2010. See SFE Notice 069/10:
http://www.sfe.com.au/content/notices/2010/notice2010_069.pdf
Mallesons, A changing climate - Australia shelves emission trading plans - 10 May 2010 examines the Government's policy changes on climate change and the implications for emitters, the low carbon sector and carbon markets. See:
http://www.mallesons.com/publications/2010/May/10336229W.htm
A recent decision of the Full Court of the Supreme Court of Tasmania provides some useful guidance on what is required to contract out of proportionate liability legislation. See Mallesons, Are you contracting out of proportionate liability legislation? - 31 May 2010:
http://www.mallesons.com/publications/2010/May/10361117W.htm
A recent NSW Court of Appeal decision has considered the meaning of 'consequential loss' when used in an exclusion clause. See Gadens, Corporate Update - May 2010:
For the first time, a court has exercised its discretion to fully relieve a director from damages for insolvent trading. See Corrs Chambers Westgarth, Complete discretionary relief from insolvent trading penalty - 7 May 2010:
http://www.corrs.com.au/corrs/website/web.nsf/Content/Pub_TGIF_Relief_Insolvent_Trading_070510
For a general discussion of recent developments in employee relations law, see Allens Arthur Robinson, Focus: Workplace Relations - 10 May 2010 and Mallesons Stephen Jaques, Workplace (e)ssentials - June 2010:
http://www.aar.com.au/pubs/wr/fowrmay10.htm
http://www.mallesons.com/publications/update-combine.cfm?id=2177851
The Government has released draft legislation for its proposed paid parental leave scheme. The scheme will commence on 1 January 2011 and will have implications for all employers. See Blake Dawson, Employment Alert - 6 May 2010:
http://www.blakedawson.com/Templates/Publications/x_publication_content_page.aspx?id=58601
The Government has also announced proposed amendments to the Sex Discrimination Act 1984 (Cth). See Blake Dawson, Discrimination Bulletin - 10 May 2010:
http://www.blakedawson.com/Templates/Publications/x_publication_content_page.aspx?id=58641
For an analysis of what ASIC's class order relief mentioned above will mean for corporate bond markets, see Mallesons Stephen Jaques, ASIC releases Class Orders facilitating debt raisings - 12 May 2010:
http://www.mallesons.com/publications/2010/May/10340407W.htm
Some of the uncertainty surrounding the operation of the superannuation borrowing provisions may soon be clarified. See DLA Phillips Fox, Superannuation borrowing provisions to be amended - 28 May 2010:
http://www.dlaphillipsfox.com/content/upload/files/Superannuation_Update_DPF2227_May_2010_(U).pdf
For a summary of the Government's response to the Henry Tax Review, see Mallesons Stephen Jaques, Henry Review finally unveiled - 2 May 2010:
http://www.mallesons.com/publications/2010/May/10327789W.htm
Treasury has announced that it will be making a number of important changes to the taxation of managed investment trusts. See Mallesons Stephen Jaques, Government announces fundamental changes to the taxation of managed investment trusts - 10 May 2010:
http://www.mallesons.com/publications/2010/May/10335179W.htm
For an update on recent developments affecting the taxation of employee share schemes, see Blake Dawson, Employee share scheme valuation issues – the Board of Tax review and the Government's response - 31 May 2010:
http://www.blakedawson.com/Templates/Publications/x_article_content_page.aspx?id=58803
Nair v Arturus Capital Limited [2010] NSWSC 329 has some useful guidance from the New South Wales Supreme Court on the operation of section 200B of the Corporations Act, which regulates retirement benefits paid to directors and senior managers. The judgment can be viewed at:
http://cclsr.law.unimelb.edu.au/judgments/states/nsw/2010/april/2010nswsc329.htm
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