October 2009
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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 Generally, it is too onerous a task for us to check and update these and so if a hyperlink is no longer valid, please accept our apologies.
Treasury has released draft regulations for public consultation implementing the Government's announcement that eligible emissions units under the Carbon Pollution Reduction Scheme will be financial products for the purpose of the Corporations Act 2001 and the Australian Securities and Investments Commission Act 2001. The draft regulations and commentary can be viewed at:
http://www.treasury.gov.au/contentitem.asp?NavId=002&ContentID=1652
Treasury has also released a further exposure draft of the regulations to implement the new disclosure regime for short sales. The draft regulations and commentary can be downloaded from:
http://www.treasury.gov.au/contentitem.asp?NavId=037&ContentID=1636
ASIC has modified Regulatory Guide 126 Compensation and insurance arrangements for AFS licensees to remove the requirement for the holders of an Australian financial services licence to obtain automatic run-off cover. Previously, licensees were required to obtain professional indemnity insurance policies that included 12 months automatic run-off cover from 1 January 2010. The revised Regulatory Guide can be viewed at:
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/rg126-1.pdf/$file/rg126-1.pdf
ASIC has released Consultation Paper 121 Facilitating online financial services disclosures. It can be downloaded from:
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/CP121.pdf/$file/CP121.pdf
ASIC has also released Consultation Paper 122 Superannuation forecasts: ASIC relief and guidance for super funds. It can be downloaded from:
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/CP122.pdf/$file/CP122.pdf
ASIC has released an updated version of Regulatory Guide 31 Acquisitions by a broker acting as principal for client facilitation purposes. It can be downloaded from:
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/rg31.pdf/$file/rg31.pdf
Minor amendments have been made to the ASX Market Rules to correct various oversights, typographical and numbering errors. See ASX Circular 353/09 and attachments:
The first phase in the improved disclosure of securities lending activity in the Australian equities market has come into effect. See ASX Circular 369/09:
Amendments have been made to the SFE Operating Rules to allow full participants who perform execution only business for their clients to be able to use the International Uniform Brokerage ("Give Up") Agreements without the need to include the SFE’s minimum terms, on the basis that the minimum terms will be included in a separate agreement between the client and the Clearing Participant. See SFE Notice 184/09:
http://www.sfe.com.au/content/notices/2009/notice2009_184.pdf
Amendments have also been made to the SFE Operating Rules to allow participants who have a genuine error in executing a pre-negotiated order or a block trade which has been allocated to the participant’s futures division error account, to be allowed to trade out of the error by way of a pre-negotiated business order or block trade. See SFE Notice 183/09:
http://www.sfe.com.au/content/notices/2009/notice2009_183.pdf
An application has been lodged with the High Court for special leave to appeal from the decision of the Queensland Court of Appeal in the Octaviar case. For details, see the joint Allens Arthur Robinson and Mallesons Stephen Jaques publications, Octaviar, round 3 – the saga continues. What should we do now? - 19 October 2009:
http://www.aar.com.au/pubs/baf/cubaf19oct09.htm
http://www.mallesons.com/publications/2009/Oct/10112207W.htm
For an analysis of the recent High Court decision in the Bofinger case (see below), see Allens Arthur Robinson, Focus: Mortgagee loses priority to guarantor – drafting of guarantees not wide enough to help it - 30 October 2009 and Focus: Drafting of guarantees after the Bofinger case - some thoughts - 30 October 2009:
http://www.aar.com.au/pubs/baf/fobaf30oct09.htm
http://www.aar.com.au/pubs/baf/fobaf30oct09_01.htm
Another piece of the legislative package for the reform of personal property securities laws in Australia, the Personal Property Securities (Consequential Amendments) Bill 2009, has been introduced into the Federal House of Representatives. For further details, see Blake Dawson, Banking & Finance Alert - 21 October 2009:
http://www.blakedawson.com/Templates/Publications/x_publication_content_page.aspx?id=56929
The NSW Court of Appeal has expressed doubts about the wisdom of banks incorporating the Code of Banking Practice into their customer contracts. See Blake Dawson, Retail Finance Alert - 20 October 2009:
http://www.blakedawson.com/Templates/Publications/x_publication_content_page.aspx?id=57009
The Australian Federal Government has recently introduced legislation into Parliament that will substantially increase the penalties for bribing foreign and Commonwealth public officials. See Allens Arthur Robinson, Focus: New anti-corruption legislation - 16 October 2009:
http://www.aar.com.au/pubs/ldr/foldr16oct09.htm
For a general discussion of recent developments in employee relations law, see Allens Arthur Robinson, Focus: Workplace Relations - 15 October 2009:
http://www.aar.com.au/pubs/wr/fowroct09.htm
For an update on the current status of the award modernisation process, see Freehills, Award modernisation update - 2 October 2009:
http://www.freehills.com.au/5416.aspx
Allens Arthur Robinson, Client Update: Australian Government's Response to ALRC Privacy Law Report - 20 October 2009 has an outline of the Government's first stage response to the ALRC's report on privacy law. See:
http://www.aar.com.au/pubs/priv/cuprivoct09.htm
The Government has released a discussion paper calling for submissions ahead of its review of the Do Not Call Register Act 2006 (Cth). For details, see Allens Arthur Robinson, Client Update: Review of the Do Not Call Register - 27 October 2009:
http://www.aar.com.au/pubs/cmt/cucmtoct09.htm
The Federal Court of Australia has ordered two companies and three individuals associated with those companies to pay fines totalling $15.75m for breaches of the Spam Act 2003 (Cth). See Freehills, $15m in Fines for Spam Breaches - 27 October 2009:
http://www.freehills.com.au/5483.aspx
The Federal Government has introduced into Parliament the final form of the legislation to reform the taxation of employee share and option plans. For further details, see Blake Dawson, Tax Bulletin - 22 October 2009:
http://www.blakedawson.com/Templates/Publications/x_publication_content_page.aspx?id=56935
The Government has circulated its proposed amendments to the national unfair terms regime in the Trade Practices Amendments (Australian Consumer Law) Bill 2009 currently before the Senate. For a summary of the proposed amendments, see Mallesons Stephen Jaques, Government Proposes to Delay Unfair Terms Commencement - 30 October 2009:
http://www.mallesons.com/publications/2009/Oct/10128604W.htm?signoff=true
In Bofinger v Kingsway Group Limited [2009] HCA 44, the High Court examined the rights of guarantors to be subrogated to a first mortgage and the impact that had on subsequent mortgages. The decision can be viewed at:
http://www.austlii.edu.au/au/cases/cth/HCA/2009/44.html
In Brookfield Multiplex Limited v International Litigation Funding Partners Pte Ltd (No 3) [2009] FCAFC 450, a majority of the Full Court of the Federal Court held that litigation funding agreements entered into in connection with two representative shareholder proceedings against Multiplex in the Federal Court constituted an unregistered "managed investment scheme". The contractual promise by participating shareholders to allow the litigation funder a financial benefit in the event of a successful resolution of their claims was held to constitute a contribution of money's worth. Those contributions were pooled by the participating shareholders for the benefit of the participants, the litigation funder and the law firm running the action so as to allow the class action to proceed. In this regard, the majority held that the requirement for pooling of contributions did not require a physical pooling of money in a common fund and it was sufficient if the promises by individual shareholders were contributed for a common purpose of prosecuting the scheme. The decision can be viewed at:
http://cclsr.law.unimelb.edu.au/judgments/states/federal/2009/october/2009fcafc147.htm
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