September 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 Generally, it is too onerous a task for us to check and update these and so if a hyperlink is no longer valid, please accept our apologies.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 September.
ACCC has released for public comment proposed changes to its informal merger review process. For a copy of the proposed Guideline for Informal Merger Review, go to:
ACCC has issued a leaflet on country of origin claims made in relation to souvenirs. For a copy of the leaflet, go to:
APRA has released revised criteria for authorised deposit-taking institutions to qualify for the concessional risk-weighting of residential mortgage lending for capital adequacy purposes. The revised criteria ensure that the 50% risk-weight applies only to residential mortgage lending by ADIs which have adequate procedures to gauge the ability of the borrower to meet repayment obligations and to assess independently critical information in respect of the borrower. A copy of the revised prudential standard is available at:
http://www.apra.gov.au/policy/final_adi_standards/AGN112.1.pdf
ASIC has released version 6 of the AFS Licensing Kit, and reissued Pro Forma 209 Australian financial services licence conditions, addressing the introduction of new regulations and changes to ASIC policy. For a copy of the new kit (in 2 parts) and pro forma, go to:
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/PF209.pdf/$file/PF209.pdf
ASIC has issued a class order [CO 04/1055] to facilitate the provision of Financial Services Guides in time critical situations under the Corporations Act 2001 (Cth). See Information Release IR 04-46:
http://www.asic.gov.au/asic/ASIC_PUB.NSF/byid/39B022778A2A9902CA256F0F0006500B?opendocument
ASIC has issued a class order [CO 04/1063] to allow Australian Financial Services licensees to pay clients' money into a cash common fund. See Information Release IR 04-47:
http://www.asic.gov.au/asic/ASIC_PUB.NSF/byid/F9096C9168C95FCFCA256F16000C6386?opendocument
ASX has circulated to participants a letter from ASIC seeking feedback on proposals for relief from PDS requirements for executing brokers involved in acquiring derivatives on licensed markets. See ASX Participant Circular 467/04 and attachment:
SFE has also circulated to participants the abovementioned letter from ASIC seeking feedback on proposals for relief from PDS requirements for executing brokers. See SFE Bulletin 51/04:
http://www.sfe.com.au/content/bulletins/sfe/2004/sfe2004_051.pdf
SFE has announced the launch of Intra-Day Options on the spot quarter month of the SFE SPI 200 Index Futures contract. It has also announced that, subject to regulatory approval, d-cypha SFE Quarterly Base Load $300 Cap Futures and Options on Calendar (Cal) Year Base Load Strip Futures Products will be available for trading in November 2004. See SFE Bulletins 54/04 and 58/04:
http://www.sfe.com.au/content/bulletins/sfe/2004/sfe2004_054.pdf
http://www.sfe.com.au/content/bulletins/sfe/2004/sfe2004_058.pdf
For a discussion of the recent Supreme Court of Victoria decision in French v Queensland Premier Mines and Beckinsale, concerning whether the transfer of a mortgage also transfers the right to recover the debt, see Corrs Chambers Westgarth, Thank God It's Friday: Does the Transfer of a Mortgage Also Transfer the Right to Recover the Debt? - 24 September 2004:
Corrs Chambers Westgarth, The Role and Responsibilities of Directors on Board Sub-committees - 27 September 2004 examines the role of board sub-committees and suggests a number of practical measures that committee members can take to ensure that they are satisfying their legal obligations. See:
For a general discussion of recent developments in employee relations law, see Allens Arthur Robinson, Focus: Workplace Relations – September 2004:
http://www.aar.com.au/pubs/wr/fowrsep04.htm
For a useful analysis of the recent High Court decision concerning certified agreements in the Electrolux case, see Deacons, Legal Update: Landmark Ruling Represents Victory for Employers in Enterprise Bargaining - 8 September 2004:
http://www.deacons.com.au/news/article.asp?nID=617
For a summary of ASIC’s recent Policy Statement 181 on conflicts of interest, see Blake Dawson Waldron, i-on-FSR: Conflicts of Interest - September 2004:
http://www.bdw.com.au/publications/i-on-fsr/i-on-fsr092004.pdf
For an outline of the actions that need to be taken by managed discretionary account operators to comply with the new regulatory framework under ASIC Policy Statement 179, see Allens Arthur Robinson, Focus: Funds Management - September 2004:
http://www.aar.com.au/pubs/fmres/fofm28sep04.htm
Corrs
Chambers Westgarth, A Note of Caution Concerning Legal Professional Privilege
For In House Lawyers - 16 September 2004 summarises the recent decision in
Vance v McCormack, in which the ACT Supreme Court rejected a claim for
legal professional privilege by the Commonwealth and the Australian Defence
Force in respect of communications with lawyers employed in an inhouse unit, the
Defence Legal Service. The case highlights the need for inhouse counsel to hold
a current practising certificate or have a statutory right to practise conferred
by special legislation and to conduct their practice in a professionally
independent manner in order to claim privilege. See:
For an update on recent developments in privacy law with a particular emphasis on employment issues, see Blake Dawson Waldron, Privacy Update: Employment Focus - September 2004:
http://www.bdw.com.au/publications/privacy/privacy092004.pdf
In Rich v Australian Securities and Investments Commission [2004] HCA 42, a majority of the High Court held that because the civil penalty provisions in the Corporations Act 2001 (Cth) potentially lead to a disqualification of a director from office, they are penal rather than regulatory in nature and therefore attract the privilege against exposure to penalties (ie the common law rule that an order for discovery or for the administration of interrogatories in favour of the prosecutor should not be made where the proceeding is of such nature that it might result in a penalty or forfeiture). The full text of the judgment is available at:
http://www.austlii.edu.au/au/cases/cth/HCA/2004/42.html
In ASIC v Rich & Ors [2004] NSWSC 836, the NSW Supreme Court approved consent orders agreed between ASIC and the former non-executive chairman of One.Tel Limited ending civil penalty proceedings against him. The court ordered that he be prohibited from managing a corporation for 4 years and pay compensation of $20 million to One.Tel and ASIC's costs of $350,000. The full text of the judgment is available at:
http://cclsr.law.unimelb.edu.au/judgments/states/nsw/2004/september/2004nswsc836.htm
In Majestic Resources NL v Caveat Pty Ltd [2004] WASCA 201, the Full Court of the Supreme Court of Western Australia reversed a Master’s decision that, in an application by a member for an order to inspect the books of a company under section 247A of the Corporations Act 2001 (Cth), the court had no discretion to limit the scope of the books to be inspected. The Full Court held that section 247A requires the court to consider not only whether it is appropriate to make an order for inspection but also the width of such an order and therefore to consider which of the books of the company should be made available. The full text of the judgment is available at:
http://cclsr.law.unimelb.edu.au/judgments/states/wa/2004/september/2004wasca201.htm
Those interested in the report of the Special Commission of Inquiry into the Medical Research and Compensation Foundation, established by the James Hardie group to isolate its asbestos liabilities, can download a copy from the website of The Cabinet Office of the NSW Government at:
http://www.cabinet.nsw.gov.au/publications.html
In Macquarie Finance Limited v Commissioner of Taxation [2004] FCA 1170, the Federal Court held that the "interest" payable on certain stapled income securities was not deductible on ordinary principles but, if it were, the Commissioner was properly entitled to disallow the deduction under Part IVA of the Income Tax Assessment Act 1936 (Cth). The judgment, which contains an interesting exposition of some of the difficulties with the High Court’s recent decision in Hart’s case, is available at:
http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/federal%5fct/2004/1170.html
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.