September « 2008 « Australian Regulatory Compliance Review from Langes+ Lawyers

September 5, 2008

ASIC v James Hardie directors update

ASIC has confirmed it is proceeding with a hearing of its civil action against seven former directors and three former company officers of the James Hardie Group in the NSW Supreme Court on 29 September.

ASIC also said that no criminal proceedings are proposed.

Among other things, the Court will be asked to consider whether the former directors and officers failed to discharge their duties with due care and diligence in that they, having regard to the information of which they were aware and which was available to them at the relevant times, did not take steps to ensure that James Hardie Industries Limited (JHIL) did not contravene its obligations under the Corporations Act with respect to disclosures made concerning:

the adequacy of funding to be made available in 2001 for victims of asbestos related diseases;
future plans relating to JHIL and partly paid shares issued by JHIL.

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Posted 5th September 2008 by David Jacobson in Corporations Act

What is a “flood” for insurance purposes?

The ACCC has refused authorisation of a proposal by the Insurance Council of Australia for a common definition of ‘inland flood’.

Consumer groups argued that the ICA’s definition would in fact increase consumer confusion about the meaning and nature of flood cover rather than improving consumer understanding. The ACCC is particularly concerned that the ICA definition of flood introduced a range of new concepts the legal implications of which are not clearly understood.

The definition of ‘inland flood’ proposed by the ICA was:

lnland Flood is the covering of land that is not normally under water by:
- water that overflows or escapes from a naturally occurring or man made inland watercourse (such as a river, creek, canal or storm water channel) or a water pool (such as a lake, pond or dam), whether it is in its original state or it has been modified; or
- water released from a dam whether it be accidentally released or intentionally released to control, mitigate, regulate, or otherwise respond to excess water, or
- water that cannot drain or run off as a result of water that is overflowing or escaping from an inland watercourse or water pool preventing the escape of water.

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Posted 5th September 2008 by David Jacobson in Insurance

September 4, 2008

Removal of same-sex discrimination from Commonwealth laws

Attorney-General Robert McClelland has introduced into Parliament the Same-Sex Relationships (Equal Treatment In Commonwealth Laws — General Law Reform) Bill 2008, containing the second stage of legislation removing same-sex discrimination from a range of Commonwealth laws.

The amendments will remove discrimination in areas including social security, taxation, Medicare, veteran’s affairs, workers’ compensation, and educational assistance.

In areas such as social security and taxation, the reforms will be phased in to allow time for couples to adjust their finances and for administrative arrangements to be implemented.

All changes are expected to be implemented by mid-2009.

Earlier this year, the Government introduced legislation to end same-sex discrimination in Acts governing Commonwealth superannuation schemes.

The Bill will amend the following Commonwealth Acts to achieve this purpose:

(more…)

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Posted 4th September 2008 by David Jacobson in Compliance

September 3, 2008

Privacy case notes 19-21 of 2008

The Privacy Commissioner has published three new case notes.

S v Health Service Provider [2008] PrivCmrA 19: a patient complained that sending their medical records and x-rays by general post was a failure to keep personal information secure.
T v Private Community Centre [2008] PrivCmrA 20: the complainant complained that the community centre used for the transfer of children between separated parents had not disclosed its videon surveillance policy. The Commissioner was of the view that the community centre had taken reasonable steps for the purposes of NPP 1.3 to ensure that the complainant was aware of the circumstances in which their personal information was collected, including by placing prominent signs on its premises, and by informing the complainant both verbally and in writing, that video surveillance would take place for security reasons. No Privacy Act breach had occurred.
U v Betting Agency [2008] PrivCmrA 21: The Privacy Commissioner became aware that a Betting Agency had access to consumer credit information files held by a credit reporting agency. The betting agency had accessed individuals’ credit information files on numerous occasions. The Commissioner was of the opinion that access by the Betting Agency to credit information files held by a credit reporting agency may be considered an offence under section 18S of the Privacy Act. Following a full investigation of this matter, the Commissioner was of the opinion that the Betting Agency did not intentionally contravene section 18S. The Commissioner took into consideration information provided by the Betting Agency that it ceased accessing credit information files after receiving advice from the Commissioner that this may be unlawful.

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Posted 3rd September 2008 by David Jacobson in Privacy

ASIC releases final guidance on disclosure by unlisted mortgage and property schemes

ASIC has released final regulatory guides aimed at improving disclosure to retail investors by unlisted mortgage schemes and unlisted property schemes:

In response to the submissions it received on the draft guides, ASIC has:

modified certain aspects of the benchmarks and disclosure principles and advertising guidance in the regulatory guides;
clarified the method of communication of the information to retail investors; and
modified the implementation timetables.

ASIC will also release companion investor guides for both sectors to assist investors in understanding the enhanced disclosure and make better informed investment decisions later this month.

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Posted 3rd September 2008 by David Jacobson in Corporations Act, Financial Services

September 2, 2008

Statutory Oversight of the Australian Securities and Investments Commission

The Parliamentary Joint Committee on Committee on Corporations and Financial Services has issued its 2008 report on oversight of ASIC.

The main issues that are considered in this report include:

the regulation of financial markets, particularly issues relating to short selling and margin loans;
ASIC’s strategic review;
ASIC’s response to recent property investment scheme collapses;
the regulation of financial planners and the introduction of professional indemnity insurance for negligent advice;
banking and credit regulation and the implementation of the government’s green paper proposals.

The answers to questions on notice are interesting.

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Posted 2nd September 2008 by David Jacobson in Corporations Act

September 1, 2008

Personal Property Securities Reform Regulations discussion paper

A discussion paper has been released on the regulations proposed to be made under the Personal Property Securities Bill.

The Bill would establish a national framework for the regulation and registration of security interests in personal property. This national framework would benefit businesses, individuals and consumers by delivering more certain, consistent, less complex and cheaper arrangements for the financing of personal property.

The Bill would also establish a single national online register of personal property securities (the PPS Register). The new registration system would help prospective purchasers and lenders to determine whether personal property may be subject to a security interest and would facilitate the resolution of priority disputes. The PPS Register would replace the more than 40 existing registers currently administered by Commonwealth, State and Territory agencies.

Submissions on the Bill were invited by 15 August 2008. In light of the public consultation on the Bill it is likely that there will be some refinement to various aspects of the Bill.

The development of the PPS Register is progressing on schedule for a commencement date in May 2010.

The deadline for submissions is 17 October 2008.

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Posted 1st September 2008 by David Jacobson in Financial Services, Personal Property Securities

Discussion paper released on creeping acquisitions law

The Assistant Treasurer and Minister for Competition Policy and Consumer Affairs, Chris Bowen MP, has released a discussion paper calling for public comment on the best way forward for a creeping acquisitions law.

Creeping acquisitions refer to the cumulative effect of a number of small, individual transactions, which when considered in isolation, might not be captured by the existing mergers and acquisitions test under section 50 of the Trade Practices Act.

Concerns about creeping acquisitions usually arise when a supplier with a substantial degree of market power looks to acquire smaller competitors.

In its Grocery Report the ACCC describes creeping acquisitions as a ‘series of acquisitions of smaller competitors over time which individually do not raise competition concerns, but which when taken together may have a significant competitive impact. Creeping acquisition might also refer to a player with existing market power making a small acquisition, even though the small acquisition does not substantially lessen competition in itself’. (xxi, Overview)

The closing date for submissions is Friday 10 October 2008.

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Posted 1st September 2008 by David Jacobson in Trade Practices