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January 31, 2008

Borrowing by superannuation funds

The Australian Financial Review has reported industry concern that a recent amendment to the Superannuation Industry (Supervision) Act 1993 (SIS Act) may have gone too far (story not available online). The change late last year introduced a new
exception to the prohibition on borrowing by superannuation fund trustees.

The change is contained in section 67(4A) of the  SIS Act entitled  Exception – Instalment Warrants .

Section 71(8) was also inserted containing an exemption to the in-house asset rules for Section 67(4A) arrangements.

Section 67(4A) sets out the conditions for the exception to operate. But there is concern that the exception may permit unintended arrangements.

The amendment did not specifically grant an exemption from the Regulation 13.14 prohibition on a Super fund trustee giving a charge on fund assets.

UPDATE 12 April 2008: ATO Alert

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Posted 31st January 2008 by David Jacobson in Financial Services, Superannuation

January 30, 2008

Queensland Freedom of Information Review

The Freedom of Information Independent  Review Panel has released a discussion paper reviewing Queensland’s Freedom of Information (FOI) laws.

The discussion paper is intended to raise the major issues that will be considered by the Panel in recommending ways to improve and modernise Queensland’s Freedom of Information Act 1992.

According to the Panel, "The discussion paper challenges core legislative presumptions and current paradigms in the administration of FOI to shake out what matters most and what resonates best in the problemsolving puzzle."

Public submissions close on 7 March 2008.

The Panel will jointly host a FOI Public Seminar with the Australian Law Reform Commission on 6 March 2008.

The panel is scheduled to submit its final report and recommendations for cabinet consideration by the end of May.

The government intends to introduce proposed changes to the state’s FOI laws before the end of the year.

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Posted 30th January 2008 by David Jacobson in Business Planning, Privacy

Privacy Commissioner calls for mandatory reporting of major data security breaches

The Australian Privacy Commissioner, Karen Curtis, has called for compulsory notification of major data security breaches by
Australian organisations.

In a submission by her Office to the Australian Law Reform Commission (ALRC)
in response to its Discussion Paper 72: “Review of Australian Privacy
Law”, she proposes that reporting would need to be proportional to the severity of the
breach.

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Posted 30th January 2008 by David Jacobson in Privacy

AML checklist for small business

Austrac has produced an AML/CTF checklist for small business.

Although the AML/CTF Act does not differentiate between the size of regulated entities, Austrac may consider the issue when deciding whether reasonable steps to comply have been taken in the context of its Policy (Civil Penalty) Principles.

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Posted 30th January 2008 by David Jacobson in Anti-money laundering

Societe Generale: rogue trader or poor systems?

Apart from the size of the loss (about €4.9 billion (US $7.2 billion)) attributed to the Societe Generale rogue trader Jérôme Kerviel, the most interesting aspect of the affair is the speculation over whether the Societe Generale Bank’s systems were defective and the flow of other information coming out of the French bank.

This story from The Economist asks whether Kerviel is an evil genius or folk hero.

Forbes has excerpts of transcripts of his police interview.

The fraud overshadowed the bank’s announcement of a €2bn loss from the US sub-prime mortgage crisis, in addition to €375m of writedowns. (FT.com)

The Times Online reports that the UK Financial Services Authority is quizzing banks operating in the UK  on their equity derivatives exposure, ahead of announcements relating to the Northern Rock collapse.

Other stories: The Australian, FT.com

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Posted 30th January 2008 by David Jacobson in Financial Services

January 28, 2008

Risk issues for 2008

Although we are starting the year with market uncertainty and credit tightening because of the sub-prime mortgage crisis, the larger issue is business judgment. How good are the risk management and decision-making processes of organisations which cannot calculate or understand the risks of the transactions they enter? And how do you know if a key customer or supplier is affected? In this note I identify 3 of the risks you need to manage.

The flow-on effects of the US sub-prime mortgage crisis for the Australian stock market and financial system were unforeseen, it seems, because of ambiguous or misleading disclosure to the market.

So the first risk issue businesses need to consider is how good are your disclosure procedures and those of the businesses you deal with. If you are listed you need to review your continuous disclosure obligations. Even if your company is not listed, if you are a director or manager, are you satisfied you have identified key contracts and risks and understand them? Importantly, are you managing your liquidity risk? Have you reviewed your outsourcing arrangements?

The second risk is privacy and data security. Whether your data is electronically or physically stored, is it secure?

Could the UK Norwich Union Life fraud happen to you?

Do you have a data management and document retention system?

The third risk is errors from complex product packaging: whether you produce or sell consumer goods or financial products do you understand your products and market them accurately? The risk of misleading or deceptive advertising (no matter how innocent) or incorrect calculations or pricing is ongoing.

If you don’t have a risk management system in place how do you know whether these risks are  high or low risks for you?

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Posted 28th January 2008 by David Jacobson in Business Planning

Equine Influenza Inquiry

The inquiry into the outbreak of equine influenza in Australia in August of 2007 has been in progress since October 2007.

Hearings are expected to be completed in late February 2008. The report is to be provided to the government no later than 25 April 2008.

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Posted 28th January 2008 by David Jacobson in Business Planning

AML and managed investment schemes

Austrac has announced that it is anticipated that
regulations will take effect from late January 2008, designed to ensure
that companies who carry on a business of issuing or selling interests
in managed investment schemes are providing a designated service
under item 35 of table 1 in section 6 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006. The regulations will commence immediately upon being registered.

UPDATE 30 January 2008: The Anti-Money Laundering and Counter-Terrorism Financing Regulations 2008  wre made on 25 January 2008.

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Posted 28th January 2008 by David Jacobson in Anti-money laundering

January 25, 2008

NSW Government report on National Industrial Relations System

The NSW Government has released Working Together: Inquiry into Options for a New National Industrial Relations System (pdf) by Professor
George Williams.

The report is the result of an Inquiry to develop options for
a national system for the regulation of industrial matters that was based on greater harmonisation between the
States and Territories and cooperative federalism.

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Posted 25th January 2008 by David Jacobson in Business Planning

Mistaken electronic payments

What are your rights when your online funds transfer is credited to the wrong financial institution account (ie an account with a different account owner or account number than intended)?

The Banking Ombudsman discussed difficulties in recovering Internet banking payments when a mistake is made and the wrong account number is keyed in, despite the correct name being included in the on-screen instructions in a Bulletin(pdf) in 2003.

Why is there a problem? Can’t the transaction be reversed?

an electronic transfer is processed solely on the basis of the account number. This has the effect that, if the payer keys in the wrong account number the payment will be made but to the holder of the account number that has been keyed in. The mistake may only come to light when the intended recipient tells the payer that the payment has not been received. When the payer tries to find out where the payment has actually gone, he or she may be told that the recipient’s name cannot be released for reasons of confidentiality. Their bank may claim that it acted on the basis of the instructions it was given, that is, the account number.

The recipient’s bank may claim that it has no liability because it acted on the instructions it received from the payer’s bank. .. By the time the payer realises that the payment has gone astray, the recipient may have withdrawn and used the funds, with or without realising that there was a mistake.

Where the Banking and Financial Services Ombudsman has jurisdiction its approach is that "If the account name forms part of the instructions given by the payer to the paying bank then the bank will be in breach of mandate if it debits the account for a payment where the account name and number do not match, and will be liable to re-credit the account...

The receiving bank is in a position to check whether the account into which the payment was made matches the account name entered by the payer. It should do so as soon as it is alerted to the alleged mistake. It does not, in our view, breach its customer’s confidentiality if it merely confirms to the payer’s bank that the account number does not match the name provided by the payer.

The receiving bank is the recipient of a mistaken payment and on the face of it, where the mistake has been verified, it is liable to repay the funds, at least until the point in time that the funds have been withdrawn by its customer and it has, accordingly, accounted to its customer."

The matter could be complicated by specific account terms and conditions and whether or not the recipient has withdrawn the funds before the mistake is discovered.

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Posted 25th January 2008 by David Jacobson in Financial Services