November 2005
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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 Generally, it is too onerous a task for us to check and update these and so if a hyperlink is no longer valid, please accept our apologies.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 Corporations Act 2001 has been amended to clarify the scope of the potential personal liability of the directors of corporate trustees. The amendments address concerns following the decision of the South Australian Supreme Court in Hanel v O’Neill [2003] SASC 409. For a copy of the Corporations Amendment Act (No 1) 2005 and its explanatory memorandum, go to:
The Australian Workplace Safety Standards Act 2005 constitutes the Australian Safety and Compensation Council, which is to take over the role previously performed by the National Occupational Health and Safety Commission in declaring national standards and codes of practice on occupational health and safety matters. The Act and its explanatory memorandum can be downloaded at:
http://www.comlaw.gov.au/comlaw/management.nsf/lookupindexpagesbyid/IP200511314?OpenDocument
The Federal Government's first stanza of anti-terrorism laws has been enacted. For a copy of the Anti-Terrorism Act 2005 and its explanatory memorandum, go to:
An interesting example of the ACCC using its misleading and deceptive conduct powers to prevent the improper exploitation of a registered trademark. ACCC has extracted from Break Free Holidays an undertaking that it will cease threatening legal proceedings for alleged breach of trademark against third parties who use the word 'Schoolies' in circumstances where it has no right to do so. Break Free Holidays, which for reasons known only to IP Australia has managed to register the word 'Schoolies' as a trademark in 6 different classes, had apparently been threatening legal proceedings against people using that word irrespective of the context in which it was used. ACCC has warned that the holders of monopoly rights, such as the owners of trademarks, should not try to extend these rights by misrepresenting possible infringements or restrictions on use. See Media Release 275/05:
http://www.accc.gov.au/content/index.phtml/itemId/714644/fromItemId/2332
ACCC has published a guide on the effect of the Trade Practices Act 1974 on advertisements for job or business opportunities. A copy of the guide is available at:
APRA has issued the first of two consultation packages outlining its proposed prudential response to the adoption of International Financial Reporting Standards in Australia by authorised deposit-taking institutions. The consultation package (comprising the response to submissions, draft prudential standards and guidance notes and draft prudential reporting forms and instructions), is available on the APRA web site at:
http://www.apra.gov.au/ADI/loader.cfm?url=/commonspot/security/getfile.cfm&PageID=9595
http://www.apra.gov.au/Policy/IFRS-Draft-Prudential-Standards-and-Guidance-Notes-for-ADIs.cfm
http://www.apra.gov.au/Statistics/Draft-IFRS-reporting-requirements-ADIs.cfm
http://www.apra.gov.au/RFC/Draft-IFRS-reporting-requirements-RFCs.cfm
APRA has introduced a new prudential standard and authorisation guidelines for providers of purchased payment facilities, such as stored-value cards and internet-based payment systems or ‘electronic purses’. The standard and guidelines are available at:
http://www.apra.gov.au/policy/final_adi_standards/APS610.pdf
http://www.apra.gov.au/ADI/loader.cfm?url=/commonspot/security/getfile.cfm&PageID=9494
APRA and ASIC have jointly released a publication entitled Unit Pricing – Guide to good practice and a paper entitled Strategic unit pricing issues for the board and senior management, intended to provide guidance on unit pricing for the life insurance, superannuation and funds management industries. For a copy of the guide and paper, go to:
http://www.apra.gov.au/Superannuation/loader.cfm?url=/commonspot/security/getfile.cfm&PageID=9425
http://www.apra.gov.au/Media-Releases/loader.cfm?url=/commonspot/security/getfile.cfm&PageID=9431
ASIC has issued Class Order CO 05/1195 Simplified warning for oral general advice, which allows the providers of oral general financial product advice to give a shorter, simpler general advice warning. See Information Release IR 05-62:
http://www.asic.gov.au/asic/ASIC_PUB.NSF/byid/83CBEA30F1E4EE76CA2570C9000148DB?opendocument
ASIC has introduced a new Australian financial services licence application which it claims will reduce the amount of paperwork required to be submitted as part of a licence application by over 50%. The new AFS Licensing Kit can be accessed at:
http://www.asic.gov.au/asic/asic_polprac.nsf/byheadline/AFS+licensing+kit?openDocument
ASIC has released new Policy Statement 185 Non-cash payment facilities. You can download a copy at:
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/ps185.pdf/$file/ps185.pdf
The removal of broker identifiers on the ASX trading system, one of the key planks in the ASX's equity market reform project, took effect on 28 November 2005. A number of amendments to its market rules and procedures have now also come into effect as part of that project. See Participant Circular 617/05 and attachments:
ASX has released a revised Guidance Note on managed discretionary accounts. See Participant Circular 575/05 and attachments:
ASX has released a new Guidance Note on the entry of index arbitrage orders and on circumstances where the bulk authorisation of orders by automated order processing systems is appropriate. See Participant Circular 616/05 and attachment:
ASX proposes to amend Guidance Note 14 Trade Errors, Cancellations and Dealing Disputes. See Participant Circular 595/05 and attachments:
ASX has made some minor technical amendments to ASX Market Rules Procedure 23.3.1. See Participant Circular 602/05 and attachments:
ASX has released an exposure draft of proposed amendments to the ASTC Settlement Rules relating to CHESS depositary interests and foreign depositary interests. Submissions on the proposed amendments are due by 10 January 2006:
http://www.asx.com.au/supervision/pdf/rules_updates/exposure_draft_astc_cdi_fdi_nov_05.pdf
Amendments are planned to the Uniform Consumer Credit Code to clarify that it covers solicitor lending, vendor finance and instalment contracts. From next year, consumer credit contracts in NSW will also have to include all fees and charges in the calculation of their maximum 48% annual interest rate. See Mallesons, Changes Coming to Consumer Credit Law - 25 November 2005:
http://www.mallesons.com/publications/2005/Nov/8203406W.htm
The Natural Resources and Other Legislation Amendment Bill (Qld), which was introduced into the Queensland Parliament on 8 November 2005, will amend the Land Titles Act 1994 (Qld) to require a mortgagee to take reasonable steps to verify the identity of the person signing the mortgage. If it fails to do so, it will lose the protection of indefeasibility of title if the mortgage was fraudulently executed. See Minters, Mortgagees Must Verify Identity of Person Signing the Mortgage - 21 November 2005:
For a general discussion of recent developments in employee relations law, see Allens Arthur Robinson, Focus: Workplace Relations - November 2005:
http://www.aar.com.au/pubs/pdf/wr/fowrnov05.pdf
For a useful summary of the new national workplace relations system, see Blake Dawson Waldron, Industrial Relations and Employment Client Alert - November 2005:
http://www.bdw.com/publications/irca/irca112005.pdf
Allens Arthur Robinson, Focus: Insurance & Reinsurance - November 2005 has an interesting discussion of the recent Federal Court decision in AMP Financial Planning Pty Ltd v CGU Insurance Ltd and its impact on an insured's efforts to settle underlying claims without its insurer's indemnity determination. See:
http://www.aar.com.au/pubs/pdf/insur/foinsnov05.pdf
A discussion paper has been released by the Federal Government seeking comments on a proposal to introduce a national 'do not call' register. The proposal will obviously have a big impact on telemarketing organisations but, as someone who gets on average 3 unsolicited telemarketing calls a week (generally at meal times), will be welcomed by at least this member of the public. See Blake Dawson Waldron, Privacy Update - November 2005:
http://www.bdw.com.au/publications/privacy/privacy112005.pdf
The Duties and Land Tax Acts (Amendment) Act 2005 (Vic) will impose a land tax surcharge of 0.375% on top of the standard land tax rates on Victorian land held by certain trusts. See Minter Ellison, News Alert - Victorian Land Tax - Trust Surcharge - 25 November 2005:
The Federal Court has dismissed the Australian Retailers Association's application for a review of the Reserve Bank's decision to designate the EFTPOS system as a payment system under the Payment Systems (Regulation) Act 1998. The decision in Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707 is available at:
http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/federal%5fct/2005/1707.html
In Switchcorp Pty Ltd & Ors v Multiemedia Limited [2005] VSC 425, the Victorian Supreme Court has held that an ASX listed company waived legal professional privilege by announcing to the ASX that its lawyers had been instructed to vigorously defend a claim against it and had advised that the plaintiffs' claim would not succeed. The court found that this amounted to disclosing the substance of the legal advice received and was therefore inconsistent with the continued confidentiality of that advice. The decision can be viewed at:
http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/vic/VSC/2005/425.html
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