October 2006
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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 Generally, it is too onerous a task for us to check and update these and so if a hyperlink is no longer valid, please accept our apologies.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 Intellectual Property Laws Amendment Act 2006 (Cth) has been enacted. It amends the Patents Act 1990, Trade Marks Act 1995, Designs Act 2003, Plant Breeder’s Rights Act 1994 and Olympic Insignia Protection Act 1987 to give effect to some outstanding aspects of the Government’s response to the Intellectual Property and Competition Review Committee’s report Review of the Intellectual Property Legislation under the Competition Principles Agreement and the Advisory Council on Intellectual Property's Review of Enforcement of Industrial Property Rights. The amendments made by the Bill also give effect to the first legislative changes to arise from the review of trade marks legislation concluded in 2005. For a copy of the Act and its explanatory memorandum, go to:
The Trade Marks Amendment Act 2006 (Cth) has also been enacted. It makes a number of practical changes to the Trade Marks Act to streamline the trade mark application process. For a copy of the Act and its explanatory memorandum, go to:
ACCC has released a mini-CD compilation of all its publications for small business entitled TPA matters for small business. See Media Release MR 242/06:
http://www.accc.gov.au/content/index.phtml/itemId/768052/fromItemId/2332
ASIC has released guidance, in the form of an FAQ on its website, on whether authorised representatives are obliged to refer to their AFS licensee in business documents. See Information Release IR 06-35:
http://www.asic.gov.au/asic/ASIC_PUB.NSF/byid/4A8D8AF4806A5D7CCA257213001F5375?opendocument
ASIC has announced that since superannuation clearing houses and electronic payment facilities are ordinarily financial products for the purposes of the Corporations Act (non-cash payments facilities), it expects providers of those services to comply with the licensing and disclosure provisions of the Corporations Act and will regulate them accordingly. See Information Release IR 06-34:
Just a reminder that, unlike the Corporations Act, the definition of "financial product" in the Australian Securities and Investments Commission Act extends to credit facilities, thereby empowering ASIC to bring unconscionable and misleading and deceptive conduct actions against finance providers. Using that power, ASIC has commenced proceedings against a Canberra-based mortgage broker and one of its employees alleging unconscionable and misleading and deceptive conduct in relation to the arrangement of lo-doc loans. ASIC alleges that the defendants breached the ASIC Act by arranging two lo-doc loans that the borrower could not afford to repay, misrepresenting the borrower’s financial position to the lender in the application forms and misrepresenting to the borrower what would be included in the borrower’s loan application forms. See Media Release 06-373:
http://www.asic.gov.au/asic/ASIC_PUB.NSF/byid/C0DA5C4E67923F68CA257214000F06AE?opendocument
ASX Markets Supervision has published its review of corporate governance reporting by listed trusts. The review is part of its examination of compliance by listed entities with ASX Listing Rules and the ASX Corporate Governance Council’s Principles of Good Corporate Governance and Best Practice Recommendations. It is available at:
http://www.asx.com.au/about/pdf/analysis_2005_corporate_governance_disclosures_listedtrusts.pdf
ASX has amended ASX Market Rules Procedure 5.2.3 Allocation of Orders through Open Interface Device to complement the introduction of new Derivatives Clearing System clearing id (cost centre) functionality and various other ASX Market Rules Procedures to reflect the commencement of the ITS Overnight Trading Session. See Market Circulars 503/06 and 504/06 and attachments:
ASX has reminded participants that every 2 years they are required to renew the accreditation of their ADA1 and ADA2 accredited derivatives advisers under Market Rule 8.8 and has prescribed Friday 15 December 2006 as the deadline to complete the renewal requirements, pay the relevant fees and have the renewal application processed. See ASX Circular 526/06:
A minor amendment has been made to the ASX Market Rule Procedures regarding the ADA renewal process. See ASX Circular 556/06 and attachments:
AUSTRAC has a new Information Circular No 45 concerning the US Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN) designation of Macau-based Banco Delta Asia as a financial institution of ‘primary money laundering concern’ under the USA PATRIOT Act. The Information Circular is available at:
http://www.austrac.gov.au/guidelines/circulars/info_circular_45.htm
For a discussion of recent developments in regard to directors' and officers' insurance policies, see Allens Arthur Robinson, Directors' and Officers' Insurance – A Changing Landscape – October 2006:
http://www.aar.com.au/pubs/pdf/insur/pap4oct06.pdf
For a general discussion of recent developments in employee relations law, see Allens Arthur Robinson, Focus: Workplace Relations - October 2006:
http://www.aar.com.au/pubs/pdf/wr/fowroct06.pdf
The WA Finance Brokers Control Act has finally been passed. The Act regulates finance brokers lending to residents of WA and, unlike finance broking regulations in other States, applies to all credit, not just UCCC regulated credit. See Gadens, Banking and Finance Vodcast - October 2006:
http://www.gadens.com.au/popVideo.asp?vidid=13
Allens Arthur Robinson, Focus: Corporate Responsibility – October 2006 discusses the Victorian Charter of Human Rights, which recognises and seeks to protect various human rights, including the right to life; freedom of movement, association and religion; freedom from forced work; freedom from torture and cruel, inhuman or degrading treatment; and the right to privacy and reputation. It also seeks to protect families as the fundamental group unit of society and children's right to protection and places new obligations on Parliament, the courts and public officials to act in accordance with the human rights set out in the Charter. See:
http://www.aar.com.au/pubs/pdf/ldr/focroct06.pdf
For a summary of the reforms introduced by the Trade Marks Amendment Act 2006 (Cth) (above), see Mallesons, Changes to the Trade Marks Act 1995 (Cth) - 18 October 2006:
http://www.mallesons.com/publications/2006/Oct/8645581W.htm
For a summary of the Government's new media legislation, see Mallesons, Key Media Ownership Reforms Passed - 18 October 2006:
http://www.mallesons.com/publications/2006/Oct/8650816W.htm
Cheerine Group (International) Pty Ltd v Yeung [2006] NSWSC 1047 confirms that a power of attorney given by a director of a corporation cannot confer authority on the attorney to appoint an alternate director or to exercise other directorial functions on behalf of the donor, even if the attorney is himself a director and the power of attorney is cast in very wide terms. The judgment can be viewed at:
http://cclsr.law.unimelb.edu.au/judgments/states/nsw/2006/september/2006nswsc1047.htm
ASIC v Maxwell [2006] NSWSC 1052 is the latest case on the meaning of "debenture" in the Corporations Act. It held that certain loan agreements were debentures and that an offer to enter into the loan agreements was an offer of securities for purposes of Part 6D.2 of that Act, requiring the offeree to be licensed and the offer to be the subject of a prospectus. The judgment can be viewed at:
http://cclsr.law.unimelb.edu.au/judgments/states/nsw/2006/october/2006nswsc1052.htm
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