October 2004
| Inhouse Home Page | Inhouse Library | Inhouse Archives | Search This Site |
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 Generally, it is too onerous a task for us to check and update these and so if a hyperlink is no longer valid, please accept our apologies.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 prorogued for the election, there is no legislative news of note to report for October.
ACCC's new processes for reviewing merger proposals informally have commenced operation. The processes are outlined in the ACCC's Guideline for Informal Merger Reviews, which can be downloaded at:
ACCC has released an updated guide to unconscionable conduct law. For a copy of the guide, go to:
ASIC has extended the date for compliance with the dollar disclosure regime from 1 January 2005 to 1 March 2005. See Information Release IR 04-50:
http://www.asic.gov.au/asic/ASIC_PUB.NSF/byid/3C9B1CDC308B5F39CA256F26000461CD?opendocument
ASIC has two issued class orders relieving wholesale futures commission merchants, introducing brokers, commodity pool operators and commodity trading advisors who are registered with the US Commodity Futures Trading Commission and who are members of the US National Futures Association, and German banks registered with the German Bundesanstalt für Finanzdienstleistungsaufsicht, from the requirement to hold an Australian financial services licence. This class orders are substantially similar to the relief announced on 23 December 2003 for certain foreign financial services providers regulated in the US, UK, Singapore and Hong Kong. See Information Releases IR 04-52 and 04-55:
http://www.asic.gov.au/asic/ASIC_PUB.NSF/byid/E220444EB1BA7718CA256F3200099502?opendocument
http://www.asic.gov.au/asic/ASIC_PUB.NSF/byid/9FA36B47B13693A5CA256F3A001D24E9?opendocument
ASIC has called for comments on a proposal to grant class order relief relating to the constitutions of registered managed investment schemes. The proposed relief would allow the responsible entity of a scheme to retain limited discretion to charge entry and exit fees and make an allowance for certain transaction costs in some cases. The relief would also allow a responsible entity to determine the recognition and timing, or method of valuation, of amounts affecting the value of scheme interests, if various conditions were met. See Information Release IR 04-49:
http://www.asic.gov.au/asic/ASIC_PUB.NSF/byid/E1685CAF619C2CB1CA256F200001D289?opendocument
ASIC has issued a class order relieving standard employer-sponsored superannuation products from the requirement to lodge a notice stating that a Product Disclosure Statement or Supplementary PDS is 'in-use' under the Corporations Act 2001 (Cth). See Information Release IR 04-54:
http://www.asic.gov.au/asic/ASIC_PUB.NSF/byid/53CA414372725A17CA256F390018D27E?opendocument
ASIC has issued a guidance booklet on the breach notification requirements for holders of Australian financial services licences. For a copy of the booklet, go to:
ASIC has issued a guidance booklet entitled Your Money, to help people get more from their money, make smarter decisions and avoid expensive mistakes. For a copy of the booklet, go to:
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/Your_money.pdf/$file/Your_money.pdf
ASX has issued an exposure draft outlining proposed amendments to the Listing Rules dealing with debt listings, chairman's open proxies, exchange traded funds and dividend record dates, as well as deleting redundant provisions and correcting technical matters. The rule amendments are proposed to take effect on 1 March 2005. Comments are due by Monday 22 November 2004. For a copy of the exposure draft, go to:
http://www.asx.com.au/about/pdf/ExposureDraftMiscellaneousListingRuleAmendmentseffective1Mar.pdf
ASX has published a revised Companies Update that provides guidance for listed entities on their continuous disclosure obligations on the adoption of Australian equivalents to International Financial Reporting Standards. For a copy of the update, go to:
http://www.asx.com.au/about/pdf/AIFRSCompaniesUpdateOctober2004.pdf
ASX has amended its Market Rules to clarify the nature of the responsible executive’s role. See Participant Circular 529/04 and attachments:
ASX has released replacement Guidance Notes on Product Disclosure Statements for Exchange Traded Options and ASX Approach to Privacy Laws, reflecting terminology changes in the new ASX Market Rules. It has also amended its recently issued Guidance Notes on Monitoring Compliance - Investigations to reflect changes to the law with regard to legal professional privilege and Ongoing Compliance and Supervision – Responsibilities of Responsible Executives to reflect amendments to the ASX Market Rules in this area. The amended Guidance Notes can be downloaded from:
Responding to recent market feedback, SFE has announced it will extend Operating Rule 3.3 (pre-negotiated business orders) to SPI 200 options, intra-day options and custom market futures/options. It will also implement anonymous trading in all SFE equity products in the first half of 2005. See Participant Bulletin 61/04:
http://www.sfe.com.au/content/bulletins/sfe/2004/sfe2004_061.pdf
Corrs Chambers Westgarth, Thank God It's Friday: Attaining a Fixed Charge Over Book Debts - 1 October 2004 discusses the recent English Court of Appeal decision in National Westminster Bank plc v Spectrum Plus Ltd, holding that a particular charge over book debts operated as a fixed, rather than a floating, charge. See:
IFSA has updated its Blue Book (Corporate Governance: A Guide for Fund Managers and Corporations), to reflect the CLERP 9 amendments to the Corporations Act and the release by the ASX Corporate Governance Council of its Principles of Good Corporate Governance and Best Practice Recommendations. For a copy, go to:
For a general discussion of recent developments in employee relations law, see Allens Arthur Robinson, Focus: Workplace Relations – October 2004:
http://www.aar.com.au/pubs/wr/fowr29oct04.htm
A recent NSW Supreme Court decision is a timely reminder of the danger of inadvertently disclosing the substance of legal advice to opponents. In Ashfield Municipal Council v RTA, the Council wrote to the RTA mentioning that it had received advice from senior counsel that the RTA’s plan to commence drilling on land within the Council’s boundaries was unlawful. It was held that despite a statement in the letter that the disclosure was not to be taken as waiving privilege, by disclosing the substance of the advice, the Council had in fact waived it. See Corrs Chambers Westgarth, Thank God It's Friday: Waving (sic) Privilege Goodbye - 8 October 2004:
Allens Arthur Robinson, Focus: Privacy - October 2004 discusses some recent overseas court decisions pointing to the emergence of a new common law right to privacy. See:
http://www.aar.com.au/pubs/priv/foprioct04.htm
For a summary of the obligations of employers and trustees of superannuation funds under the new "choice of funds" legislation, see Allens Arthur Robinson, Focus: Superannuation – October 2004:
http://www.aar.com.au/pubs/fmres/fosoct04.htm
Western Ventures Pty Ltd v Resource Equities Ltd [2004] WASC 222 confirms that when giving notice of a resolution to adopt a new constitution, the directors of a company are obliged to forward a statement to shareholders setting out the material changes to their rights as shareholders that will occur if the resolution is adopted. The judgment is available at:
http://cclsr.law.unimelb.edu.au/judgments/states/wa/2004/october/2004wasc0222.htm
In Masu Financial Management Pty Ltd v FICS (No 1) [2004] NSWSC 826, the NSW Supreme Court upheld the legality of the Financial Industry Complaints Service (FICS) scheme for dealing with complaints against member financial services organisations, ruling that the protective jurisdiction of FICS should be characterised as administrative or arbitral rather than judicial and that the scheme therefore did not infringe the provisions of the Constitution requiring separation of administrative and judicial powers. The judgment is available at:
http://cclsr.law.unimelb.edu.au/judgments/states/nsw/2004/september/2004nswsc826.htm
Copyright © 2004 Inhouse Legal Solutions Pty Limited ("ILS") ABN 16 003 663 456.
This newsletter is a summary only of the subject matter covered and is not intended to be, nor should it be relied upon as, a substitute for legal or other professional advice. It is made available without the assumption of a duty of care by ILS, or the officers, employees or agents of ILS who were involved in its preparation and without any representation or warranty as to accuracy or completeness. ILS is not responsible for, and gives no representations or warranties regarding, the source, quality, accuracy or completeness of the materials on any web site to which a hyperlink is provided above.