November 2004
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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 Generally, it is too onerous a task for us to check and update these and so if a hyperlink is no longer valid, please accept our apologies.
With the Federal Parliament having only just returned following the election, there is no legislative news of note to report for November.
ACCC and ASIC have jointly released a brochure setting out their roles in the regulation of debt collection activities. A copy of the brochure can be downloaded at:
APRA has released an overview paper on the prudential implications of the adoption of International Financial Reporting Standards. The paper is available at:
http://www.apra.gov.au/adi/Other-Information-for-ADIs.cfm
http://www.apra.gov.au/General/Other-Information-for-GIs.cfm
http://www.apra.gov.au/Superannuation/Other-Information-for-Superannuation.cfm
http://www.apra.gov.au/Life/Other-Information-for-Life-Insurance.cfm
http://www.apra.gov.au/Friendly/Other-Information-for-Friendly-Societies.cfm
APRA has announced that it will implement the Basel II Framework in Australia from year-end 2007. ADIs will be required to meet the capital requirements of the Framework from 1 January 2008 and their prudential reporting for the quarter ended 31 March 2008 will be based on the requirements of the Framework. See Media Release 04.41:
http://www.apra.gov.au/media-releases/04_41.cfm
ASIC has released its revised policy on substantial holdings, reflecting the CLERP 9 amendments to the Corporations Act 2001 (Cth) and recent case law. The policy is contained in an addition to Policy Statement 159: Takeovers, compulsory acquisitions and substantial holdings. For a copy of the revised Policy Statement, go to:
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/ps159.pdf/$file/ps159.pdf
ASIC has invited public comment on its policy proposals about how trustees of superannuation entities deliver product disclosure information about available investment strategies to members. The proposed relief relates to both the section 1012IA disclosure obligation and to the general disclosure obligations in sections 1013D and 1013E of the Corporations Act 2001 (Cth). ASIC has also extended the deadline for superannuation trustees to comply with their s1012IA disclosure obligations until 30 June 2005 (which co-incides with the commencement of choice of superannuation fund legislation) to complete the policy development process and to allow time for the superannuation industry to transition. See Information Release IR 04-57 and the accompanying policy proposal paper:
http://www.asic.gov.au/asic/ASIC_PUB.NSF/byid/9683B8D25D0372E4CA256F49000A0D62?opendocument
No doubt in reaction to the Marsh & McLennan controversy in the US, ASIC has announced a campaign examining insurance brokers' remuneration practices in Australia. See Media Release 04-389:
http://www.asic.gov.au/asic/ASIC_PUB.NSF/byid/2DEB643BCC89AAC3CA256F5B007C04BB?opendocument
ASIC has issued guidance on statements of advice for Australian financial services licensees. See Information Release IR 04-61:
http://www.asic.gov.au/asic/ASIC_PUB.NSF/byid/7501BE74CA4463FACA256F5C0013647C?opendocument
ASIC has published a guide to help research report providers, including research analysts, manage conflicts of interest. A copy of the guide can be downloaded from:
ASIC has released fact sheets explaining the key features of five different types of retirement income stream products: allocated pensions and annuities; market-linked pensions and annuities; lifetime pensions and annuities; life expectancy pensions and annuities, and fixed term pensions and annuities. The fact sheets can be viewed at:
ASX has outlined the approach its risk management area will be taking in relation to the implementation of International Financial Reporting Standards by market participants for the purpose of its risk based and net tangible asset capital regimes and associated capital returns. See Participant Circular 604/04:
ASX has amended its Market Rules relating to managed discretionary accounts to reflect the obligations imposed upon market participants under ASIC Class Order 04/194 and ASIC Policy Statement 179. See Participant Circular 575/04 and attachments:
ASX has amended the ASX Market Rules Procedures and Appendices to reflect the changes last month to the Market Rules relating to responsible executives. See Participant Circular 564/04 and attachments:
Numerous minor amendments have been made to the ASX Market Rule Procedures and Appendices, primarily correcting formatting and typographical errors. See Participant Circular 567/04 and attachments:
ASX has withdrawn its Guidance Notes Ongoing Compliance During Transitional Period - Approved Representatives & Business Offices and Ongoing Compliance and Supervision - Responsible Executive Initial Qualifications & Continuing Education, both dated 11 March 2004. See Participant Circular 591/04:
SFE has released amendments to Operating Rule 6.3 and individual contract specifications and various determinations relating to the recently introduced Quarterly Cap Futures Contracts over Base Load Australian Electricity Futures Products and Calendar Year Strip Options over Base Load Australian Electricity Futures Contracts. See Participant Bulletin 67/04:
http://www.sfe.com.au/content/bulletins/sfe/2004/sfe2004_067.pdf
In time for the expiry of the December 2004 bond futures, SFE has introduced amendments to its operating rules to fix expiry concentration position limits applicable at the close of trading on the day prior to contract expiry and has also introduced enhancements to its 'exchange for physical' and block trading rules. See SFE Bulletin 76/04:
http://www.sfe.com.au/content/bulletins/sfe/2004/sfe2004_076.pdf
For an analysis of how the new Part VIIIAA of the Family Law Act 1975 (Cth) may affect the rights of credit providers, see Mallesons Stephen Jaques, Banking and Finance Alert - 23 November 2004:
http://www.mallesons.com/publications/alerts/Banking_and_finance_alert_23_November_2004.pdf
For a general discussion of recent developments in employee relations law, see Allens Arthur Robinson, Focus: Workplace Relations – November 2004 and Blake Dawson Waldron, Discrimination Bulletin - November 2004:
http://www.aar.com.au/pubs/wr/fowrnov04.htm
http://www.bdw.com.au/publications/discrimination/discrimination112004.pdf
Mallesons Stephen Jaques, Banking and Finance Alert - 15 November 2004 has a useful summary of ASIC's recently published policy statement on managing conflicts of interest and its guidance note on the same subject for research report providers. See:
http://www.mallesons.com/publications/alerts/Banking_and_finance_alert_15_November_2004.pdf
In Three Rivers District Council v Governor and Company of the Bank of England [2004] UKHL 48, the House of Lords unanimously held that a lawyer’s services may attract privilege if they are the expert services of a kind ordinarily provided by lawyers and are provided in a legal context, even if they do not directly involve advice on legal rights. See Mallesons Stephen Jacques, Dispute Resolution Alert - 18 November 2004:
http://www.mallesons.com/publications/alerts/Dispute_resolution_alert_18_November_2004.pdf
Allens Arthur Robinson, Managing Compliance in the Global Space – Transborder Data Flow – November 2004 discusses the increasing regulation of the transfer of data containing personal or sensitive information from an entity in one country to an entity in another jurisdiction. See:
http://www.aar.com.au/pubs/pdf/priv/pap30nov04.pdf
The private sector provisions of the Privacy Act 1988 (Cth) are being reviewed. The Federal Privacy Commissioner has released an issues paper and submissions are due on 22 December 2004. See Mallesons Stephen Jacques, Privacy Alert - 16 November 2004:
http://www.mallesons.com/publications/alerts/Privacy_Alerts/Privacy_law_alert_16_November_2004.pdf
For an outline of the key features of the new vendor land rich duty legislation tabled in the NSW Parliament this month, see Freehills, New South Wales Land Rich Vendor Duty - 12 November 2004:
For a summary of the recently released draft legislation covering the expiration of the GST transitional provisions for pre-existing contracts, see Blake Dawson Waldron, GST Bulletin - November 2004:
http://www.bdw.com.au/publications/gstbulletin/gstbulletin112004.pdf
For a discussion of the recent decision in Commissioner of Taxation v Amway Australia Ltd, allowing deductions for accommodation, travel and other incidental expenses for attendance at seminars, see Blake Dawson Waldron, Taxation Bulletin - November 2004:
http://www.bdw.com.au/publications/taxbulletin/taxbulletin112004.pdf
The current High Court continues its campaign to reinstate the primacy of written contractual obligations. In Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55, the Court unanimously rejected a contention by the respondents that their contractual relations were governed by an earlier oral agreement rather than a subsequent and inconsistent written loan agreement. The Court held that as there had been no allegation of mistake or claim to rectification, the respondents were bound by the written agreement. In Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52, the Court unanimously found an importer to be bound by a disclaimer and indemnity that had been signed by an agent on its behalf even though the agent had not read the document and had not conveyed its terms to the importer. The judgments are available at:
http://www.austlii.edu.au/au/cases/cth/high_ct/2004/55.html
http://www.austlii.edu.au/au/cases/cth/high_ct/2004/52.html
For those following the HIH saga, Rodney Adler has lost his appeal to the New South Wales Court of Criminal Appeal seeking a permanent stay of criminal proceedings brought against him by the Crown. The crux of Adler's argument was that because he had been penalised by ASIC under the civil penalty provisions of the Corporations Act 2001 (Cth), he had already been punished for the conduct in question and therefore the subsequent criminal proceedings were an abuse of process because of exposure to double jeopardy. The judgment in Adler v Director of Public Prosecutions [2004] NSWCCA 352 is available at:
http://cclsr.law.unimelb.edu.au/judgments/states/nsw/2004/october/2004nswcca352.htm
In IMF (Australia) Ltd v Sons Of Gwalia Ltd (Administrator Appointed) [2004] FCA 1390, the Federal Court has denied an application to use information in a company's register of members by a commercial litigation funder wishing to communicate with shareholders and former shareholders to invite participation in collective recovery action. The court held that the exception in section 177(1A) of the Corporations Act 2001 (Cth), which permits the use or disclosure of information in a company's register of members where it is relevant to the holding of the interests recorded in the register or the exercise of rights attaching to them, should be construed narrowly in order to protect the privacy of shareholders and was not applicable in this case. The judgment is available at:
http://cclsr.law.unimelb.edu.au/judgments/states/federal/2004/november/2004fca1390.htm
In Zhu v The Treasurer of the State of New South Wales [2004] HCA 56, the High Court gave the most detailed exposition to date on the 'justification' defence to the tort of interference with contractual relations. The case concerned a contract which authorised and obliged the plaintiff to sell memberships in an "Olympic Club" to residents of China. The Sydney Organising Committee for the Olympic Games interfered with the plaintiff's contract and sought to justify its conduct by reference to its obligations to protect intellectual property under the Olympic Charter and the contract by which Sydney hosted the 2000 Olympic Games. The Court held that this was not a sufficient justification to attract the defence. The judgment is available at:
http://www.austlii.edu.au/au/cases/cth/high_ct/2004/56.html
In Butcher v Lachlan Elder Realty Pty Limited [2004] HCA 60, a real estate agent published a brochure for the sale of a waterfront property that contained an inaccurate survey diagram obtained from the vendor's solicitors. The brochure included a disclaimer by the real estate agent as to the reliability of information obtained from other sources. The plaintiff purchasers sued the vendors and the real estate agent for misleading conduct. A majority of the High Court held that the agent did not engage in conduct towards the purchasers which was misleading. Whatever representation the vendor made to the purchasers by authorising the agent to issue the brochure, it was not made by the agent to the purchasers. The agent did no more than communicate what the vendor was representing, without adopting it or endorsing it. The judgment is available at:
http://www.austlii.edu.au/au/cases/cth/high_ct/2004/60.html
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