September 2003
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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 Generally, it is too onerous a task for us to check and update these and so if a hyperlink is no longer valid, please accept our apologies.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 announced that the government intends to move amendments to the Financial Services Reform Amendment Bill 2003 when it is debated before the House of Representatives in October. For a copy of the proposed amendments and explanatory statement, go to:
http://www.treasury.gov.au/documents/697/PDF/draft%20amendments1.pdf
http://www.treasury.gov.au/documents/697/PDF/explanatory%20info.pdf
A Bill has been introduced into Parliament to regulate spam emails and to outlaw address-harvesting software and the use of harvested address lists. For a copy of the Bill and its explanatory statement, go to:
http://scaleplus.law.gov.au/html/bills/0/2003/0/2003091906.htm
http://scaleplus.law.gov.au/html/ems/0/2003/0/2003092501.htm
ASIC has released draft guidelines under section 1013DA of the Corporations Act for the inclusion of information relating to labour standards and environmental, social and ethical factors in the product disclosure statements for investment products. You can download a copy of the draft guidelines at:
ASIC has released Policy Statement 176 Licensing: Discretionary powers: wholesale foreign financial services providers, dealing with the entry into the Australian market of foreign providers of wholesale financial services who are regulated by overseas regulatory authorities. You can download a copy of the Policy Statement at:
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/ps176.pdf/$file/ps176.pdf
ASIC has varied Pro Forma 209 and Policy Statement 166 to provide greater flexibility to licensees in satisfying their cash needs requirements. Entities within a corporate group can now satisfy the cash needs requirement without preparing cash flow projections on an individual entity basis. ASIC has also varied Pro Forma 209 and Policy Statement 166 to permit all foreign exchange dealers, when applying for an AFSL, to elect either to comply with an adjusted surplus liquid funds requirement under Part F, or the $10 million tier one capital requirements under Part G. See Information Releases 03-26 and 03-27:
http://www.asic.gov.au/asic/ASIC_PUB.NSF/byid/F1B51CD0B3440B36CA256DAB001CB68A?opendocument
http://www.asic.gov.au/asic/ASIC_PUB.NSF/byid/8664DB0BB1FA4D99CA256DAC0008DF44?opendocument
ASIC has released updated versions of its industry guides for Australian financial services licence applicants. Copies of the new industry guides can be downloaded from:
http://www.asic.gov.au/asic/asic_polprac.nsf/byid/404BD1A00CB4C593CA256C78001FA37B?opendocument
ASX Business Rule 5B has been amended to change the insurance requirements for participating organisations and the reporting obligations in respect of claims, potential claims and circumstances that may give rise to claims. See Participant Circular 399/03 and attachment:
ASX has issued Guidance Note 04/03 on professional indemnity insurance to assist participating organisations understanding the new rules in this area. See Participant Circular 403/03 and attachment:
ASX has introduced a new Business Rule 7.3.1A to remove the requirement to have a retail client sign a risk disclosure declaration where the product disclosure statement requirements apply. It has also issued Guidance Note 3/03 to assist participating organisations prepare product disclosure statements for exchange traded options. See Participant Circular 400/03 and attachments:
SFE has issued an interpretation of the meaning of "client" confirming that it includes all persons or entities on whose behalf a participant deals and that the rules prohibiting post-allocation of trades to clients also apply to related bodies corporate and other divisions of participants. See SFE Bulletin No: 53/03:
http://www.sfe.com.au/Content/bulletins/sfe/2003/sfe2003_053.pdf
The Business Council of Australia has released a new code of conduct for annual general meetings. You can download a copy at:
For a discussion of some of the legal issues that may arise with the conversion of Australian Accounting Standards to International Accounting Standards, see Mallesons Stephen Jaques, International Accounting Standards Alert - September 2003:
For a useful summary of the rules around executive remuneration, see Minter Ellison, Executive Remuneration: Where Are We and Where Are We Headed? - 19 September 2003:
For a summary of the anti-spam legislation recently introduced into the House of Representatives, see Blake Dawson Waldron, IT & Telecommunications Legal Update - September 2003:
http://www.bdw.com.au/news/spam-bulletin.pdf
For a general update on recent developments in employee relations, see Allens Arthur Robinson, Focus: Workplace Relations - September 2003:
http://www.aar.com.au/pubs/wr/fowrsep03.htm
For a summary of ASIC's recently released draft guidelines for issuers of investment products relating to the disclosure of labour standards, environmental, social and ethical issues, see Allens Arthur Robinson, Focus: Capital Markets - September 2003:
http://www.aar.com.au/pubs/cm/focmsep03.htm
For an interesting discussion on the importance of aggregation clauses in insurance contracts (deeming claims arising from similar or related circumstances to be a single claim), see Allens Arthur Robinson, Focus: Insurance and Reinsurance – September 2003:
http://aar.com.au/pubs/pdf/insur/foinssep03.pdf
For a general update on recent developments in intellectual property law, including an interesting article on how to protect IP when re-launching brands, see Allens Arthur Robinson, Intellectual Property Bulletin – August/September 2003:
http://www.aar.com.au/pubs/pdf/ip/ipbullsep03.pdf
In Sutherland v NRMA [2003] NSWSC 829, the court exercised its power to amend the constitution of a company under the oppression provisions of the Corporations Act to remove age restrictions on the election of directors so as to permit a person who would otherwise have been disqualified to stand for election as a director. The full text of the decision can be downloaded at:
http://cclsr.law.unimelb.edu.au/judgments/states/nsw/2003/september/2003nswsc829.htm
I.F. Asia Pacific Pty Ltd v Galbally [2003] VSC 192 has an interesting discussion of the principles applied by the courts in determining the reasonableness of provisions in employment contracts restraining former employees from soliciting the employers’ clients. It confirmed that an employee could not be prevented from using information that was part of their general knowledge, skill and experience, even if that included information about such clients. The full text of the decision can be downloaded at:
http://cclsr.law.unimelb.edu.au/judgments/states/vic/2003/june/2003vsc192.htm
In ASIC v National Exchange Pty Ltd [2003] FCA 995, it was held that offers by National Exchange to purchase shares at a small premium to market payable in instalments over 15 years were misleading and deceptive. The case is notable not for any statement of legal principle but simply for seeing justice finally visited upon this scoundrel organisation. The full text of the judgment is available at:
http://cclsr.law.unimelb.edu.au/judgments/states/federal/2003/september/2003fca955.htm
In Australian Agricultural Co Ltd v AMP Life Ltd [2003] FCA 1038, an application by an unsuccessful tenderer for an interlocutory injunction to restrain a sale of shares in a pastoral company to the winning tenderer who had tendered a lower price, on the basis that it had been misled by the seller's conduct, was rejected as not raising a serious issue to be tried. The full text of the judgment is available at:
http://www.austlii.edu.au/au/cases/cth/federal_ct/2003/1038.html
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