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October 7, 2007

Employment screening

The Anti-Money
Laundering and Counter-Terrorism Financing Act 2006
requires organisations affected by the Act to have an employee due diligence program for employees involved in the provision of designated services.

AS 4811—2006 Australian Standard Employment Screening may be a useful base for such a program.

The objective of the screening process is to reduce the risk of a potential security breach and to ensure the integrity, identity and credentials of personnel within an organization.

Employment screening, for the purpose of this Standard, is the process of verifying, with the consent of the individual, the identity, integrity and credentials of an entrusted person and should apply to any individual that is, or will be, entrusted with resources and/or assets.

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Posted 7th October 2007 by David Jacobson in Anti-money laundering, Compliance

Food regulation in Australia

I am generally aware of the multitude of laws and codes affecting food safety and packaging in Australia.
(for an overview see Food Legal and Food Standards Australia)

But I was surprised to recently note the existence of The Office of the Gene Technology Regulator and The
  Australian Pesticides and Veterinary Medicines Authority
, both of which have a role in regulating providers of our food.

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Posted 7th October 2007 by David Jacobson in Compliance

October 5, 2007

National Greenhouse and Energy Reporting Act 2007

The National Greenhouse and Energy Reporting Act 2007 received assent on 28 September.

It establishes a single, national framework for reporting greenhouse gas emissions, abatement actions and energy consumption and production by
corporations from 1 July 2008.

The Act lays the foundation for the Australian Emissions Trading System.

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Posted 5th October 2007 by David Jacobson in Compliance

September 30, 2007

ASIC consults on exemptions for rights issues

The Corporations Legislation Amendment (Simpler Regulatory System) Act 2007,
allows listed entities to conduct a rights issue without a prospectus
or product disclosure statement (PDS) disclosure.

ASIC has now released a consultation paper (pdf) seeking
comments on its proposal to widen the disclosure exemption for rights
issues to cover non-traditional features developed by issuers and their
advisers to raise capital more effectively.

ASIC’s proposal would extend the disclosure
exemption to rights issues that allow accelerated institutional
participation and other deviations from the ‘vanilla’ rights issue
format, provided there is, in substance, an equality of opportunity to
participate for all holders.

The exemption is
intended to benefit retail holders by encouraging listed entities to
use rights issues, rather than other forms of fundraising that exclude
retail participation (e.g. placements). 

For technical reasons, some rights issues would not
qualify for the disclosure exemption without ASIC relief and ASIC has
therefore proposed the widening of the exemption.

ASIC invites comments on the consultation paper by Wednesday 7 November 2007. 

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Posted 30th September 2007 by David Jacobson in Compliance

September 26, 2007

Client Legal Privilege and Federal Investigatory Bodies

The Australian Law Reform Commission (ALRC) has released a  Discussion Paper, Client Legal Privilege  and Federal Investigatory Bodies (DP
73), containing 42 proposals aimed at addressing lengthy and costly
disputes over client legal privilege in federal investigations.

The paper adopts the definition of client legal privilege formulated by Dr Sue McNicol:
It provides that, in civil and criminal cases, confidential communications passing between a lawyer and her or his client, which have been made for the dominant purpose of seeking or being furnished with legal advice or for the dominant purpose of preparing for actual or contemplated litigation, need not be disclosed in evidence or otherwise revealed. This rule also extends to communications passing between a lawyer or client and third parties if made for the purpose of actual or contemplated litigation.

The ALRC’s research identified 41 federal investigatory bodies—as well as Royal Commissions
that are established from time to time—that have coercive
information-gathering powers. Many of the laws governing these bodies
provide no guidance about whether client legal privilege applies wholly
or in part. In those laws that do address privilege, there is no
consistency of language or approach.

The ALRC proposes that where privilege applies, there should be a
consistent legal framework. Where Parliament determines that privilege
should be abrogated, this should be on the basis of clear
principles—that is, where there is a significant public interest, and
where legal advice is central to the matters being investigated. Where
it is abrogated, appropriate safeguards should be put in place about
the subsequent use of the information disclosed.

Other key proposals include:

  • to allow privilege to apply to advice on
    taxation law provided by accountants;
  • requiring parties claiming privilege to provide details of privileged documents and the basis of the claim; and
  • improved
    education and training for lawyers concerning their ethical
    responsibilities in relation to making privilege claims.

The ALRC is seeking community feedback before a final report is
completed in December 2007. Submissions close on 1 November 2007.

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Posted 26th September 2007 by David Jacobson in Compliance

September 14, 2007

Licence breach notifications

For both financial services licensees and superannuation licensees not only is it an offence to breach a licence term, it is also an offence not to report a material breach within a required time (in the case of financial services licensees, the obligation covers significant breaches, or likely breaches). (see s. 912D Corporations Act 2001 and s. 29JA of the Superannuation Industry (Supervision) Act 1993).

For RSE Licensees, APRA has released an online breach notification process.

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Posted 14th September 2007 by David Jacobson in Compliance, Financial Services

September 11, 2007

Takeovers Panel issues discussion paper on treatment of equity derivative holdings

The Takeovers Panel has released a draft Guidance Note, and discussion paper,
seeking public discussion and comment on the approach which the Panel
proposes as to when, and in what circumstances, the use of equity
derivatives may constitute unacceptable circumstances.

The Panel proposes that for control and substantial holding
disclosure purposes, at least, long equity derivatives (cash settled or
deliverable) should be treated the same as physical holdings of the
relevant securities. The Panel’s discussion Guidance Note indicates that:
when considering whether or not unacceptable circumstances
exist, the Panel will normally treat a person’s long equity derivative
interests and voting power in listed entities in a combined manner.

Responses are due by 7 December 2007.

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Posted 11th September 2007 by David Jacobson in Compliance

September 6, 2007

Best Practice Regulation Handbook

The Office of Best Practice Regulation has issued the Best Practice Regulation Handbook .

The Handbook sets out the Australian Government’s enhanced framework
for analysing regulatory proposals. It is intended to ensure that regulation is only
introduced after a rigorous examination of options and consequences.

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Posted 6th September 2007 by David Jacobson in Compliance

September 5, 2007

How effective is regulation reform?

Nicholas Gruen from Lateral Economics has released a report (pdf) he did for the Victorian Government in 2006 on Regulation and Innovation.

He argues that regulation reform has become too scientific and process-focussed rather than looking at outcomes which encourage improvement and innovation as well as compliance. A new approach to regulation should be more fully focused on continually optimising our regulatory systems in the way businesses continually improve their own production systems.

He gives the example of an organisation which did not update its regulatory requirements because to do so would require a new Regulatory Impact Statement.

He argues that measurement of compliance should be a basis for improvement and higher morale rather than a basis of punishment and that the social objectives of regulation should be achieved in ways that maximise the operating flexibility of those who are regulated.

If you’re interested you can listen to an interview Nicholas did on Radio National (it starts around the 37 minute mark).

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Posted 5th September 2007 by David Jacobson in Business Planning, Compliance

August 26, 2007

ACMA releases reality television review

ACMA doesn’t just monitor spam and marketing calls: it has released a review of regulatory issues affecting reality television.

Although the Commercial Television Industry Code of Practice and current regulatory arrangements were found to be
broadly effective, a number of matters have been raised in the Report
which require action (eg that a clause be included in the Code that prohibits the broadcast of
material presenting participants in reality television programs in a
highly demeaning or exploitative manner.)

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Posted 26th August 2007 by David Jacobson in Compliance
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