The Do Not Call Register Legislation Amendment Bill 2009 has been introduced into Parliament.

If the Bill is passed, the Do Not Call Register will be expanded to enable all Australian telephone and fax numbers to be registered by all persons, including individuals, businesses, government and organisations.

The main elements contained in the Bill are:

• a provision that makes all Australian telephone and fax numbers eligible to register on the Do Not Call Register;
• a prohibition on sending unsolicited marketing faxes to an Australian number which is registered on the Do Not Call Register, subject to certain exemptions;
• a requirement that agreements for the sending of unsolicited marketing faxes must require compliance with the Act. This requirement is aimed at organisations which may contract with another party to provide fax marketing services on their behalf;
• civil penalty provisions for breaches of the new provisions;
• the introduction of ‘registered consent’ which will give all new registrants the option of consenting to receive telemarketing calls or marketing faxes relating to particular industry classifications at the time of listing their number on the Register. The default position will continue to be that registrants are opting out of all telemarketing calls and marketing faxes, unless they take positive action to opt-in to receive certain types of telemarketing calls and marketing faxes. Registrants will be able to change their options at any time if they later choose to opt-out of these calls/faxes;
• conferring powers on the Australian Communications and Media Authority (ACMA) to make a determination setting out the industry classifications for the purposes of enabling registrants to choose the telemarketing calls and marketing faxes they wish to receive (if any);
• conferring powers on the ACMA to make a determination or determinations about the circumstances in which consent will be inferred for unsolicited telemarketing calls and marketing faxes to business numbers. This is a reserve power and there will be no change to the existing inferred consent provisions under the Act; and
• consequential amendment to Part 6 of the Telecommunications Act 1997, to allow the fax marketing industry to make industry codes, and the ACMA to make industry standards for the ‘fax marketing industry’, consistent with the existing arrangements which allow codes and standards to be made for the telemarketing industry. The ACMA will have the power to make an industry standard relating to the fax marketing industry.

It is anticipated that these arrangements will be in operation during the second half of 2010.

The Fair Work Amendment (State Referrals and Other Measures) Bill 2009 was introduced into Parliament in October but as at 27 November, the Bill is waiting for Senate approval.

The Bill will extend coverage of the Fair Work Act to unincorporated private sector businesses, charities and State Government bodies.

However it is reliant on referral of powers laws from the States.

Treasury has prepared an issues paper concerning various options for clarifying the scope of the unconscionable conduct provisions of the Trade Practices Act 1974 (TPA).

The issues paper is part of a process which will examine two options for clarifying the application of the TPA’s unconscionable conduct provisions:

1. The first option is the introduction in the TPA of a list of examples of conduct that is universally agreed to be unconscionable.
2. The second is the introduction of a statement of principles of unconscionable conduct.

If the panel is satisfied that either or both of these options would make the provisions more effective, it is then to consider the content of a list of examples or statement of principles.

The panel has also been asked to consider issues associated with conduct in franchising relationships and, in particular, whether specific inappropriate conduct can be identified and — if the panel considers it necessary — whether measures can be introduced into the Franchising Code of Conduct to prevent them. The panel will conduct its work on possible amendments to the Franchising Code of Conduct as a separate process.

Submissions close on 18 December 2009.

The Personal Property Securities Bill and the Personal Property Securities (Consequential Amendments) Bill 2009 were passed by Parliament on 26 November 2009 and are awaiting assent.

The new law will set up a national register of personal securities and change security types and procedures.

It will replace more than 70 different pieces of Commonwealth, State and Territory law.

It is proposed to commence in May 2011.

The Minister for Financial Services, Superannuation and Corporate Law, Chris Bowen MP, has released draft legislative amendments to provide a free superannuation clearing house service to small businesses. The measure is designed to reduce the cost to small businesses of complying with their superannuation obligations.

The free superannuation clearing house service for small business will be delivered through Medicare Australia. The service will be available to eligible small businesses (those with less than 20 employees) from July 2010.

The draft legislation will amend the Superannuation Guarantee (Administration) Act 1992, the Retirement Savings Accounts Act 1997 and the Superannuation Industry (Supervision) Act 1993.

Comments on the draft legislation are open until 23 December 2009.

Background here.

UPDATE: Corporations Amendment Regulations 2009 (No. 9) commenced on 25 November 2009

One of the most difficult roles of a director is to determine whether the company is insolvent.

ASIC has released a Consultation Paper outlining proposed guidance to directors on their duty to prevent insolvent trading: Consultation Paper 124 Directors’ duty to prevent insolvent trading: Guide for directors (CP 124).

ASIC's draft Regulatory Guide refers to the core principles that a director:

• must keep him or herself informed about the financial affairs of the company and regularly assess the company’s solvency;
• immediately on identifying concerns about the company’s viability, should take positive steps to confirm the company’s financial position and realistically assess the options available to deal with the company’s financial difficulties;
• should obtain appropriate advice from a suitably qualified person; and
• should consider and act appropriately on the advice received in a timely manner.

The draft guide sets out defences and contains guidance including information about ASIC’s approach to insolvent trading and some of the factors ASIC will take into account, and the evidentiary material it will look at, in assessing whether there has been a breach of the insolvent trading provisions.

ASIC is seeking feedback on these proposals by 22 January 2010.