October 2007
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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 Generally, it is too onerous a task for us to check and update these and so if a hyperlink is no longer valid, please accept our apologies.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 Trade Practices Legislation Amendment Act (No. 1) 2007 has passed into law. It amends the Trade Practices Act 1974 and the Australian Securities and Investments Commission Act 2001 to implement the Government’s response to the March 2004 Senate Economic References Committee report entitled The effectiveness of the Trade Practices Act 1974 in protecting small business. For a copy of the Act and its Explanatory Memorandum, go to:
The Reserve Bank of Australia has taken action under the Banking (Foreign Exchange) Regulations 1959 to implement financial sanctions against Burmese regime figures and supporters. Any transactions involving the transfer of funds or payments to, by the order of, or on behalf of such persons are prohibited without prior approval of the RBA. See Media Release 2007-19:
http://www.rba.gov.au/MediaReleases/2007/mr_07_19.html
ACCC is scrutinising the use of environmental or 'green' claims in the marketing of goods and services. See Media Release 289/07:
http://www.accc.gov.au/content/index.phtml/itemId/802028/fromItemId/2332
APRA and ASIC have jointly released a discussion paper intended to streamline breach reporting by dual-regulated institutions. A copy of the discussion paper and the draft breach notification forms for use with the online reporting system can be downloaded from:
http://www.apra.gov.au/Policy/upload/Discussion-paper-Breach-reporting-4-10-07.pdf
http://www.apra.gov.au/Policy/upload/Form-Breach-reporting-notification-form.pdf
ASIC has released a new Regulatory Guide 69 Debentures - improving disclosure for retail investors, outlining its reporting benchmarks to improve disclosure to retail investors in the unlisted and unrated debenture market. It has also released Consultation Paper 94 Debenture advertising, which includes a draft regulatory guide on debenture advertising for issuers and publishers in that market. For a copy, go to:
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/rg69.pdf/$file/rg69.pdf
ASIC has released two regulatory guides updating its policy on independent expert reports - Regulatory Guide 111 Content of expert reports and Regulatory Guide 112 Independence of experts. For a copy, go to:
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/rg111.pdf/$file/rg111.pdf
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/rg112.pdf/$file/rg112.pdf
ASIC has released two new regulatory guides on the general obligations of Australian financial services licensees under section 912A of the Corporations Act - Regulatory Guide 104 Licensing: Meeting the general obligations and Regulatory Guide 105 Licensing: Organisational competence. For a copy, go to:
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/rg104.pdf/$file/rg104.pdf
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/rg105.pdf/$file/rg105.pdf
ASIC has obtained declarations in the Federal Court that a Canberra-based mortgage broker engaged in unconscionable, misleading and deceptive conduct in relation to the arrangement of two low-documentation loans. At the time the loans were arranged, the client was 20 and 21 years of age respectively, unemployed and of no fixed address. The broker arranging two low-doc loans for $356,025 and $401,897 that the borrower could not afford to repay and misrepresented the borrower’s financial position to the lender in the application forms. See Media Release 07-266:
ASIC has scored its first successful prosecution for share warehousing against 2 directors of the publicly-listed companies formerly known as Hallmark Gold NL and Welcome Stranger Mining Company NL. See Media Release 07-264:
ASX will begin trading in contracts for difference on Monday, 5 November 2007. The products available on the first day of trading will be 16 ASX equity CFDs. See ASX Media Release dated 24 October:
http://www.asx.com.au/about/pdf/mr20071024_cfd_launch_date.pdf
ASX has advised market participants of the capital liquidity requirements under ASX Market Rule S1A arising from exchange traded contracts for difference. See Market Circular 611/07:
AUSTRAC has released compliance reports to be used to assess the level of compliance against the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 by reporting entities. The compliance report format is available at:
http://www.austrac.gov.au/amlctf_compliance_report.html
AUSTRAC has also released draft AML/CTF rules relating to the reportable details for international funds transfer instructions under a designated remittance arrangement and the information required to be included in a suspicious matter report under section 41(3) of the AML/CTF Act. The draft rules can be viewed at:
http://www.austrac.gov.au/files/draft_amlctfrules_ifti_report_det_item3_4.pdf
http://www.austrac.gov.au/files/draft_amlctf_smrreport_det.pdf
SFE has released an updated SFE Operational Policies document which includes an additional section for the operational management of the ASX CFD products. For a copy, go to:
http://www.asx.com.au/supervision/pdf/sfe_operating_rules/sfe_operational_policies.pdf
For a general discussion of recent developments in employee relations law, see Allens Arthur Robinson, Focus: Workplace Relations - October 2007:
http://www.aar.com.au/pubs/pdf/wr/fowroct07.pdf
From 12 December 2007, all businesses regulated by Australia’s new anti-money laundering and counter-terrorism financing regime must consider the money laundering and terrorism financing risk posed by their employees and develop an employee due diligence program. See Blake Dawson Waldron, Employment, Remuneration & Benefits Bulletin - 22 October 2007:
http://www.bdw.com.au/Templates/Publications/x_article_content_page.aspx?id=24203
Blake Dawson Waldron, ASIC v Citigroup findings released - 24 October 2007 has a useful summary of Federal Court's decision in ASIC v Citigroup Global Markets Australia Pty Limited. Unfortunately, we are not able to include a link to the publication due to recent "upgrades" made to the BDW website. You will need to access the publication via a search from their publications page:
http://www.bdw.com.au/Templates/Publications/x_publications_landing_page.aspx?id=20141
A recent Federal Court case has considered when a distribution agreement or trade mark licence might also be a franchise agreement regulated by the Australian Franchising Code of Conduct. See Allens Arthur Robinson, Focus: Franchising - 26 October 2007:
http://www.aar.com.au/pubs/pdf/ip/fofoct07.pdf
Blake Dawson Waldron, Litigation Update - 12 October 2007 has some interesting observations in relation to the C7 litigation. Unfortunately, again, we are not able to include a link to the publication due to recent upgrades made to the BDW website. You will need to access the publication via a search from their publications page:
http://www.bdw.com.au/Templates/Publications/x_publications_landing_page.aspx?id=20141
In GMCG LLC v Agenix Limited [2007] QSC 309, the Supreme Court of Queensland has held that legal professional privilege was not waived by a note in a listed company's report to the ASX to the effect that the company had received legal advice that it had no liability whatsoever in respect of certain proceedings brought against it. It found that the note was intended to clarify why the company was treating the claim against it as a contingent liability rather than as an actual liability or provision. The decision can be viewed at:
http://cclsr.law.unimelb.edu.au/judgments/states/qld/2007/may/2007qsc309.htm
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