September 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 Generally, it is too onerous a task for us to check and update these and so if a hyperlink is no longer valid, please accept our apologies.
The government has released the final regulations and explanatory material on its proposed reforms to termination payments. They can be viewed at:
The government has announced a number of enhancements to, and a delay in the timetable for the implementation of, the national consumer credit protection legislation. See media release dated 17 September 2009:
The government has also released for public consultation the draft regulations setting out the proposed disclosure requirements and a sample product disclosure statement for margin lending facilities. They can be viewed at:
http://www.treasury.gov.au/contentitem.asp?NavId=037&ContentID=1627
The Workplace Relations Ministers' Council has released the draft model Safe Work Act 2009 and regulations for public comment. They can be downloaded at:
http://www.safeworkaustralia.gov.au/swa/ModelLegislation/Public+Comment.htm
Amendments have been made to the Native Title Act 1993 to give the Court a more central role in managing native title claims. For a copy of the Native Title Amendment Act 2009 and its explanatory memorandum, go to:
The regulations increasing the thresholds for review of foreign acquisitions have now been promulgated. For a copy of the Foreign Acquisitions and Takeovers Amendment Regulations 2009 (No. 1) and its explanatory statement, go to:
APRA has released a second consultation package on remuneration for authorised deposit-taking institutions and general and life insurance companies. The package is available on APRA's website at:
APRA has released for consultation proposals to enhance liquidity risk management by authorised deposit-taking institutions. The consultation materials are available on APRA's website at:
http://www.apra.gov.au/Policy/Enhancing-prudential-framework-for-ADI-liquidity-risk-management.cfm
ASIC has released Consultation Paper 115 Responsible lending, outlining its policy proposals for implementing the responsible lending obligations of credit licensees. It can be downloaded from:
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/cp115-.pdf/$file/cp115-.pdf
ASIC has released Consultation Paper 116 Exempt professional financial markets discussing the criteria for professional markets to obtain an exemption from the financial market licence provisions in the Corporations Act. It can be viewed at:
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/CP116.pdf/$file/CP116.pdf
ASIC is seeking public comment on whether to withdraw current class order relief that allows issuers of investment products to cite credit ratings in disclosure documents without the consent of credit rating agencies. See Consultation Paper 117 Consent to quote credit ratings in disclosure documents and PDSs:
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/cp117.pdf/$file/cp117.pdf
ASIC has also released Consultation Paper 118 Responsible handling of rumours, outlining some proposed principles and guidelines designed to assist market participants in dealing with market rumours. It is available at:
http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/cp118.pdf/$file/cp118.pdf
ASIC has issued a Class Order that allows short selling to hedge risk from market making activities. See Advisory AD09-182:
The NSW Supreme Court has found 8 directors of unrelated companies to have acted in breach of the Corporations Act by engaging in illegal 'phoenix' activity and that their legal adviser also contravened the Corporations Act by being involved in the directors' breaches. This case is the first time that ASIC has successfully prosecuted a legal adviser for aiding and abetting a breach of the Corporations Act. See Advisory 09-174AD:
Market Rule 7.11 has been amended to include the requirement for market participants to perform a reconciliation of the aggregate balance held in client segregated accounts and trust accounts in the time, form and manner set out in the ASX Market Rule Procedures. See ASX Circular 317/09 and attachments:
AUSTRAC has released Public Legal Interpretation No. 11 Electronic funds transfer instructions and international funds transfer instructions. It can be downloaded at:
http://www.austrac.gov.au/files/pli_11.pdf
AUSTRAC has also released Public Legal Interpretation No. 12 Notices to reporting entities. It can be downloaded at:
http://www.austrac.gov.au/files/pli_12.pdf
For a general guide to the new national consumer credit laws, as well as an update on changes to the timetable for the introduction of the laws, see Minter Ellison, National Consumer Credit Reform - September 2009 and Alert - Government Defers Commencement of National Consumer Credit Protection Bill - 22 September 2009:
For a discussion of the appeal court decision in Octaviar (below) and its ramifications, see the joint publication by Allens Arthur Robinsons and Mallesons, Octaviar - Was it all Just a Bad Dream? - 21 September 2009:
http://www.aar.com.au/pubs/baf/cubafsep09.htm
http://www.mallesons.com/publications/2009/Sep/10079870W.htm
The Productivity Commission has handed down its discussion draft report on executive remuneration in Australia. It is recommending a package of changes to the Corporations Act and ASX Listing Rules, including barring executives from sitting on remuneration committees, requiring that remuneration consultants report to boards independently of management, prohibiting directors and executives voting their shares and any undirected proxies on remuneration issues and strengthening shareholders' 'say on pay' by requiring boards to face re-election if shareholders' concerns on consecutive remuneration reports are ignored. The draft report can be downloaded from:
http://www.pc.gov.au/projects/inquiry/executive-remuneration/draft
For a general discussion of recent developments in employee relations law, see Allens Arthur Robinson, Focus: Workplace Relations - September 2009 and Mallesons Stephen Jaques, Workplace and Employee Relations Update - September 2009:
http://www.aar.com.au/pubs/wr/fowrsep09.htm
http://www.mallesons.com/publications/update-combine.cfm?id=1881317
For a summary of the draft model Safe Work Act and related materials released by Safe Work Australia intended to harmonise OH&S laws in Australia, see Blake Dawson, Safety Matters - 30 September 2009:
http://www.blakedawson.com/Templates/Publications/x_publication_content_page.aspx?id=56745
The Queensland Court of Appeal has overturned the controversial first instance decision in Re Octaviar Ltd; Re Octaviar Administration Pty Ltd [2009] QSC 37 ruling that a deed declaring a document to be a new transaction document for the purposes of, and whose liabilities were secured under, a charge constituted an amendment to the charge that required registration. The appellate decision can be viewed at.
http://cclsr.law.unimelb.edu.au/judgments/states/qld/2009/september/2009qca282.htm
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