November 2008
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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 Generally, it is too onerous a task for us to check and update these and so if a hyperlink is no longer valid, please accept our apologies.
For a copy of Labor's Fair Work Bill 2008 and its explanatory memorandum, go to:
The government's proposed legislation to regulate covered short selling has been tabled in Parliament. For a copy of the Corporations Amendment (Short Selling) Bill 2008 and its explanatory memorandum, go to:
The Trade Practices Legislation Amendment Act 2008 has now passed into law. It amends the Trade Practices Act to address predatory pricing in section 46 and clarifies the meaning of the term ‘take advantage’ for the purposes of that section. For a copy of the Act and its explanatory memorandum, go to:
The government has published the form of the guarantee and applicable rules under which various authorised deposit-taking institutions may apply to have deposit amounts over $1 million and certain funding liabilities guaranteed by the Government. The documents can be found at:
http://www.guaranteescheme.gov.au/
The Federal Attorney-General has released a further draft of the Personal Property Securities Bill which he has referred to the Senate Standing Committee on Legal and Constitutional Affairs for comment. The revised draft reflects comments received on the initial draft released in May 2008 and can be viewed at:
The National OHS Review Panel has published its first report on model OHS laws, making recommendations on the priority areas of duties of care and the nature and structure of OHS offences, including defences. For a copy, go to:
ACCC has released the final version of its revised Merger Guidelines 2008. It can be downloaded from:
APRA has released a consultation package on proposed revisions to its requirements for the external auditor of an authorised deposit-taking institution. See Media Release 08.28:
http://www.apra.gov.au/media-releases/08_28.cfm
APRA has announced the start of a consultation with industry on the first of two proposed new statistical publications on life insurance and a new annual statistical publication that will include performance data on individual superannuation funds. See Media Releases 08.29 and 08.30:
http://www.apra.gov.au/media-releases/08_29.cfm
http://www.apra.gov.au/media-releases/08_30.cfm
For ASIC's latest position on short selling, see Advisory AD08-65:
ASIC has announced its first prosecution for some time for short selling. See Advisory AD08-53:
ASIC has announced class order relief to issuers of warrants offered under a PDS or Supplementary PDS covering two or more warrant products, from the requirement in the Corporations Act to notify ASIC when a warrant ceases to be available in certain circumstances. It has also released Regulatory Guide 197 Warrants: Out-of-use notices which further explains the relief given. For a copy of the new Regulatory Guide, go to:
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/rg197.pdf/$file/rg197.pdf
ASX has published further information for participants about the lifting of the ban on covered short selling for non-financial securities. It has also amended ASX Market Rules Procedures 19.6.1 and 19.6.2 to formalise changes to the short sale reporting requirements and ASX Market Rule 19 to assist in clarifying the information that is required to be reported to ASX in relation to short selling. See ASX Circulars 555/08, 561/08, 562/08 and attachment and 567/08 and attachment:
ASX has issued guidance to participants confirming that short sales that arise from the exercise of ASX exchange traded options do not breach the short selling requirements under the Corporations Act. See ASX Circular 583/08:
ASX has announced enhancements it proposed to implement following consultation with a broad range of market participants, end-users, software vendors and other exchanges and regulators to improve its "equity execution environment" and to ensure that ASX "stays at the forefront of a contemporary trade execution service offering". See ASX Circular 548/08:
AUSTRAC has released the 9th chapter of the AUSTRAC Regulatory Guide, setting out details of the new financial transaction reporting obligations that come into effect on 12 December. See media release dated 12 November 2008:
http://www.austrac.gov.au/21nov08.html
AUSTRAC has also released Public Legal Interpretation No. 7 of 2008 Significant cash transaction and threshold transaction reports. It can be viewed at:
http://www.austrac.gov.au/files/pli7_sctr_and_ttr.pdf
SFE has reminded participants of their obligations around initial margins and other deposits. See SFE Notice 178/08:
http://www.sfe.com.au/content/notices/2008/notice2008_178.pdf
For those who don’t want to read all 2,000+ pages of the recent Bell Group decision, Allens Arthur Robinson, Focus: Insolvency & Restructuring – November 2008 has a handy analysis of the main issues it addresses. Go to:
http://www.aar.com.au/pubs/insol/foinsolnov08.htm
For a summary of the key changes to be introduced by the Fair Work Bill, see Mallesons Stephen Jaques, The Tide Turns: What You Need to Know About the Fair Work Bill - 27 November 2008:
http://www.mallesons.com/publications/2008/Nov/9709415W.htm
And for a summary of the recommendations in the first report on the national review into model OHS laws, see Blake Dawson, Safety Matters - 10 November 2008:
http://www.blakedawson.com/Templates/Publications/x_publication_content_page.aspx?id=53577
For a summary of the new AML/CTF reporting obligations that commence on 12 December 2008, see Baker & McKenzie, Client Alert: Anti-Money Laundering and Counter-Terrorism Financing - November 2008:
A recent class ruling issued by the Commissioner of Taxation (CR 2008/61) has highlighted an important tax issue that may arise in relation to rights issues, share purchase plans, demergers and returns of capital. Specifically, if a company undertaking a transaction operates an employee share or option plan that is administered through a trust, and relevant employees participate in the transaction, then those employees may be worse off than other shareholders from an Australian tax perspective. See Mallesons Stephen Jaques, Tax Issues Affecting Rights Issues, Share Purchase Plans, Demergers and Returns of Capital - 28 November 2008:
http://www.mallesons.com/publications/2008/Nov/9710401W.htm
Owen J's magnum opus in The Bell Group Limited (in liq) v Westpac Banking Corporation (No 9) [2008] WASC 239 deals with a range of issues that are likely to become increasingly relevant in the current economic climate. This includes the duties of directors when a company is in financial difficulty, the parameters within which banks can take security when they are aware that a borrower is near insolvency and a range of issues on insolvent trading. The judgment can be viewed at:
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/wa/WASC/2008/239.html
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