ASIC catches software-based financial adviser in its net 06 August 2008 The Federal Court decision in ASIC v Oxford Investments serves as a reminder to financial services companies to ensure that any activities, events, tools or materials which may contain subjective interpretation of figures or information comply with the financial product advice regime.

Reforms to improve competitiveness of Australian MITs 06 August 2008 The Australian Government has announced a range of reforms designed to improve the competitiveness of Australian Managed Investment Trusts. This article outlines the details of those reforms and their likely impact on the managed investment sector.

Superannuation reforms: going beyond the traditional family 06 August 2008 On 28 May 2008, the Federal Government introduced a Bill to amend the Superannuation Industry (Supervision) Act 1993 (Cth) and the Income Tax Assessment Act 1997 (Cth) with effect from 1 July 2008 to remove discrimination against same gender couples and their children. If passed, these amendments will have wide ranging implications for superannuation trustees and their funds.

Industry News 06 August 2008 A summary of industry news and legislative developments from the past few months.

Hong Kong now an even more attractive place to do business with the PRC 01 August 2008 In addition to the low tax regime and certainty afforded by Hong Kong’s common law judicial system, from 1 August 2008 certain Hong Kong Court decisions will be recognised and enforced by PRC courts without revisiting the merits and vice versa. This is a very positive development for foreigners who are doing business with PRC entities because it will facilitate direct enforcement of a Hong Kong judgment against assets in PRC, without the need to relitigate in the PRC courts or litigate the dispute in the PRC in the first place.

construction law made easy 29 July 2008 Minter Ellison is delighted to introduce construction law made easy. construction law made easy by Minter Ellison is a website specifically designed to make life easier for construction, property and infrastructure industry professionals. Our online resource explains legal concepts in easy to use terms. We provide you with real life examples and links to current cases and legislation.

Security of Payment in South Australia 29 July 2008 The introduction of the Building and Construction Industry Security of Payment Bill could potentially over-ride the Worker's Liens Act, which has been in operation for more than a century. If passed, the Bill will have a much wider application than existing legislation by offering contractors additional entitlements.

Partnership approaches to meeting public transport needs 29 July 2008 If a future Australia is to have a world class public transport system, we must start exploring innovative ways to manage and procure transport infrastructure and services through harnessing substantial investment from the private sector.

Early Contractor Involvement 29 July 2008 The current boom in the engineering and infrastructure market has seen principals become more creative with project delivery models to help attract the best contractors and engineering resources available. Early Contractor Involvement is one such innovative project delivery method that has a strong emphasis on developing long-term relationships between parties.

10 tips for managing contractor performance 29 July 2008 Here are some useful tips to help facilitate the successful delivery of complex projects.

Introducing Hong Kong’s Race Discrimination Ordinance – What employers need to know 23 July 2008 After a decade of extensive consultation, drafting, consideration and fierce debate, Hong Kong’s Race Discrimination Ordinance was finally passed unanimously by the Legislative Council on 10 July 2008 and gazetted on 18 July 2008. It is anticipated that it will come into force in the first quarter of 2009.

Misleading or Deceptive Conduct – Lessons from the year to date 18 July 2008 The ACCC has continued its thematic approach to misleading or deceptive conduct in 2008, targeting comparative (or 'dual ticket') pricing, environmental or 'green' claims and the perennial issue of food labelling. What practical principles can business apply to minimise risks in these areas?

Misleading or Deceptive Conduct – Lessons from the year to date 18 July 2008 The ACCC has continued its thematic approach to misleading or deceptive conduct in 2008, targeting comparative (or 'dual ticket') pricing, environmental or 'green' claims and the perennial issue of food labelling. What practical principles can business apply to minimise risks in these areas?

VCAT cracks down on unfair contract terms 18 July 2008 Consumer Affairs Victoria has successfully challenged a number of payment, termination and release clauses commonly used in contracts by the fitness industry under the Fair Trading Act 1999. The case has wider implications for all businesses that provide on-going services to consumers.

Merger clearance processes: is formal clearance a viable alternative? 18 July 2008 It has now been 18 months since the introduction of a formal merger clearance system. However, we are yet to see a single application to the ACCC under that mechanism. Why has it not been utilised to date? In what circumstances would it present strategic benefits for merger parties?

Franchising issues before the High Court 18 July 2008 The uncertainty regarding the form vs substance of the Franchising Code of Conduct is nearing its conclusion, with the High Court hearing the final appeal in the Ketchell case. An analysis of the arguments heard by the Court give an insight into its potential outcome.

Third party access to Pilbara railways 18 July 2008 The National Competition Council has released draft recommendations to declare services provided by means of the Hamersley, Goldsworthy and Robe railways in the Pilbara region of WA, under Part IIIA of the Trade Practices Act. It follows the release of the WA government's own proposed third party access regime for the Pilbara railways.

Proposed amendments to Predatory Pricing – an overstated significance? 18 July 2008 The Federal government has introduced a Bill to reform to the misuse of market power provisions of the Trade Practices Act. The amendments primarily seek to clarify the specific prohibition against anti-competitive predatory (or 'below-cost') pricing in section 46(1AA), enacted by the former government in September 2007. This follows criticisms of the effectiveness of the section, and its inconsistency with the general misuse of market power prohibition in section 46. However, the amendments are unlikely to have a significant practical impact.

Mutual Recognition and Enforcement of China Mainland and HK Court Judgements 17 July 2008 From 1 August 2008 certain Hong Kong Court decisions will be recognised and enforced by PRC courts without revisiting the merits and vice versa.

An overview of the National Greenhouse and Energy Reporting System 16 July 2008 Following questions from our clients concerning the National Greenhouse and Energy Reporting (NGER) system, we have prepared a special edition of Climate Space to provide a briefing note which addresses operation of the system, the obligations it creates, and some key considerations for business. With the release of the Australian Government's green paper on the establishment of an Australian Emissions Trading Scheme, it is becoming increasingly clear that the NGER system is likely to be a key plank in the operation of the Australian ETS. As such, compliance with the NGER system is an important early step for large Australian businesses on the road to emissions trading.

The WTO: The boy who cried wolf 09 July 2008 Are we really entering the final stages of the World Trade Organization's long outstanding multilateral trade negotiations that were initially launched in Doha in late 2001? Or are we about to witness yet another example of world trade negotiators teasing us with a conclusion to the Doha Round?

WTO 'Hormones' panel issues report after EC complaint over US and Canada retaliation 09 July 2008 The World Trade Organization panel was asked to consider the legality of US and Canadian trade sanctions against the European Communities. The panel handed down its report in April, which contained a number of recommendations in relation to compliance.

New criminal offences for non-compliance with UN sanctions 09 July 2008 On 24 March 2008 the International Trade Integrity Act was introduced in response to the Inquiry into certain Australian companies involved in the UN Oil-for-Food Programme. The Inquiry's Report recommended that offences be created for individuals and companies acting contrary to UN sanctions that Australia has agreed to uphold.

Backgrounder: The WTO dispute settlement process 09 July 2008 Australia's participation in a growing number of World Trade Organization disputes either as a 'party' or so-called 'third party' raises some important questions on how WTO disputes work and how long they take to resolve?

WTO Update 09 July 2008 We highlight the developments that occurred in WTO dispute settlement between 31 January 2008 and 24 June 2008.

Productivity Commission Comments on the Impact of Biofuel Subsidies 09 July 2008 The Productivity Commission's recent examination on the Australian Government's subsidisation of biofuels such as ethanol fits into a wider international discussion about the merits of biofuels in the context of sharply rising international food prices.

The Trade Practices Act and carbon claims 09 July 2008 As Australians becoming increasingly aware of the impact their choices of consumer goods and services are having on the environment, many businesses are recognising the opportunity to differentiate themselves from their competitors on their 'green credentials'.

New Zealand concludes an FTA with China 09 July 2008 New Zealand has become the first developed country to secure a Free Trade Agreement with China. While the FTA provides for improved access for New Zealand producers and investors into China, it is primarily a strategic move to strengthen ties with the world's next superpower.

Anti-dumping measures on the decline 09 July 2008 New data released by the Productivity Commission in its Trade and Assistance Review 2006-07 highlights a historically low level of anti-dumping proceedings being initiated in Australia.

Recent cases considering management of ill or injured employees 01 July 2008 Our attached HR & IR Update examines two recent decisions dealing with the often complex issues that arise when dealing with ill or injured employees. It also includes an update on the on the increased unfair dismissal remuneration cap, the expiry of the Superannuation Choice of Fund default insurance exemption and the AIRC's model flexibility clause for modern awards.

Health and safety management arrangements – Have you made the necessary arrangements? 27 June 2008 The coverage of private sector licence holders took centre stage following the amendments made to the Occupational Health and Safety Act 1991 in March last year. As a result of the reform public sector employers will be required to meet additional compliance provisions to ensure that a safer working environment is provided for all employees.

Compensation for privacy breach by Government agency 27 June 2008 Government agencies who fail to adequately safeguard personal information from unauthorised access and use, may be exposed to compensation claims by complainants. Following a recent case heard before the Privacy Commissioner – agencies may be required to not only take steps to remedy a breach of privacy, but also compensate a complainant for loss suffered as a consequence of that breach, in order to adequately resolve a privacy complaint.

Legal Professional Privilege and Intra-Departmental Communication 27 June 2008 If legal professional privilege attaches to certain internal departmental communication, in what circumstances can the conduct of a Commonwealth employee be deemed to result in a waiver of that privilege? This is a question examined by the NSW Supreme Court in the recent decision of Sharjade Pty Ltd v RAAF Landings.

Integrating Governance, Risk and Compliance to achieve best practice 27 June 2008 Many Government agencies are investing substantial resources in 'best practice' policy frameworks and business systems to cover off the important organisational imperatives of governance, risk and regulatory compliance to ensure they match the relevant Australian Standards.

Cautious conditions: The benefits of email disclaimers 27 June 2008 Email has evolved to be the most efficient communication medium for government agencies. But with the expediency and convenience of online communication comes the potential for legal risks arising from breaches of confidentiality, copyright and privacy and the like. What steps can be taken to best manage these legal risks?

Australia Adopts UNCITRAL Model Law on Cross-Border Insolvency 20 June 2008 The Cross-Border Insolvency Act 2008 (Cth) has been passed by Australia's Federal Parliament and received royal assent on May 26, 2008. The introduction of the law will mean that Australia joins the other countries which have adopted the UNCITRAL Model Law, including Great Britain, Japan, the United States, Canada and New Zealand.

National Employment Standards Finalised 18 June 2008 On Monday, Deputy Prime Minister Gillard issued both the final National Employment Standards and a revised award modernisation request. Importantly, the Australian Industrial Relations Commission has been directed to establish an award for non managerial employees who are currently award free, but perform similar work to award covered employees.

Anti-money laundering for universities 17 June 2008 While universities may not be subject to any additional regulation under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), their international students may feel the affects of its implementation when seeking financial services while studying in Australia.

University of Western Australia v Gray – shifting sands of IP ownership by academics? 17 June 2008 A recent Federal Court decision is of particular significance to universities because it takes a narrow approach to the issue of when a university will be entitled to ownership of inventions developed by their academic staff.

Revamp of Victoria's tertiary legislative framework 17 June 2008 In early February this year, the State Government announced that it would conduct a full review of the Acts which govern Victoria's public universities. This announcement was made as part of the Premier's Statement of Government Intentions for 2008, which included a promise to 'modernise university governance'.

Outsourcing of IP Commercialisation Services – a New Trend? 17 June 2008 Over the past few years there has been a notable shift in the way universities and research organisations have approached commercialisation of their intellectual property. Some have had the budget and focus to establish in-house capacity. Others have sought to complement in-house skills with external collaboration and more recently we have seen movement towards full outsourcing of IP commercialisation services. This article gives an overview of some of the issues that usually appear in the course of negotiating an IP commercialisation outsourcing arrangement.

No appeal from Victorian County Court privacy decision 13 June 2008 This article discusses the aftermath of the recent decision of the Victorian County Court in relation to whether a common law duty of care exists between a broadcaster and member of the public.

Draft Voluntary Information Security Breach Notification Guide 13 June 2008 This article summarises the recent Draft Voluntary Information Security Breach Notification Guide issued by the Office of the Privacy Commissioner.

Anti-Money Laundering and Counter-Terrorism Financing 13 June 2008 In light of the imminent public release of the Australian Law Reform Commission's (ALRC) Final Report on Privacy, this article outlines the reform suggested by the ALRC in their Discussion Paper 72 on the "Review of Australian Privacy Law" in relation to anti-money laundering and counter-terrorism financing.

Transborder Data Flows 13 June 2008 As we reported in our March 2008 edition, the APEC Data Privacy Pathfinder has been endorsed by APEC members. This article discusses how Australian businesses should approach the transfer of data to international entities, in particular to APEC and EU countries.

Final report from External Reference Group on 457 visas 11 June 2008 An External Reference Group (ERG) commissioned by the Federal Government to investigate Australia’s temporary skilled migration program recently delivered its final report. This Update outlines the recommendations of the ERG on 457 visas as well as the implications these will have on your business.

New ACCC merger bible 03 June 2008 The Australian Competition and Consumer Commission (ACCC) has released a draft of its revised merger guidelines which will amend the analytical framework applied by the ACCC when assessing whether a merger (or proposed merger) is likely to substantially lessen competition under section 50 of the Trade Practices Act 1974 (Cth).

Infrastructure Australia 03 June 2008 Mark Birrell, Special Counsel and leader of Minter Ellison's National Infrastructure Industry Group, has been appointed to the new Australian Government's inaugural Infrastructure Australia Board.

ASIC extends disclosure relief for rights issues 03 June 2008 In an effort to increase the opportunities for retail investors to participate in fundraising offers, the Australian Securities and Investments Commission issued Class Order 08/35 which ensures that non-traditional rights issue structures are covered by the existing prospectus and product disclosure statement exemption for rights issues.

Federal Budget 2008 03 June 2008 The new Australian Labor Government, in its first budget handed down on 13 May 2008, has been credited with presenting a cautious budget designed to control government spending and position Australia to ride out the possible shocks of an unstable world economic climate over the immediate future.

Chain of responsibility legislation in the heavy vehicle industry 21 May 2008 Historically, the enforcement of road transport legislation was aimed primarily at the driver and, in some circumstances, the operator of a heavy vehicle. It has now been recognised by the players in the road transport industry that driver and public safety is the responsibility of all those who participate in road transport activities.

Towards harmonisation 21 May 2008 Last week, in the 2008/2009 Budget, the Government announced it would provide more than $27 million over four years to finance the national harmonisation of occupational health and safety and other areas of business regulation.

Superannuation changes to take effect from 1 July 2008 21 May 2008 In last week's Budget, the Government announced a number of changes to fringe benefits tax that are likely to increase the cost to employers of providing certain benefits to employees. In addition, some important changes to superannuation will take effect on 1 July 2008. This Update looks at these changes and also a recent ATO decision that could have a significant impact (in relation to superannuation and taxation) for employees whose old contracts are renewed.

Liability for internet intermediaries in defamation 14 May 2008 In Mark Forytarz and Paul Castran v Google Australia Pty ltd and Destra Corporation Ltd, a case that could set a precedent for liability on the internet under Australia's new uniform defamation laws, two Melbourne real estate agents have sued Google Australia in the Victorian Supreme Court over allegedly defamatory statements posted by Neil Jenman on his blogsite and accessible via Google's search engine. The plaintiffs have also sued Destra Corporation Ltd, claiming it was the host of the blogsite.

A fundamental change in the law concerning 'consequential loss' 14 May 2008 The fundamental importance of technology to modern business means that a business may be exposed to significant losses should its technology fail – even where a failure is short term.

I like my First Life! Why do I need a Second Life? 14 May 2008 In the last 12 months or so, online virtual worlds have attracted a great deal of attention in the mainstream press. So why do people bother? Why are so many businesses, governments and educational institutions joining them? And what legal exposures do individuals and others face in this weird and wonderful virtual world? This article will explore these questions.

The rise of performance fees 06 May 2008 The increasing pressure on fund managers to perform, along with the ability of performance fees to align the interests of investors and fund managers, has lead to an increase in the use of performance fees across a wide variety of managed funds. This article looks at basic terms and methods of calculating performance fees, whilst a subsequent article will look at legal issues that may arise when implementing or evaluating performance fees.

Financial Services Legal Update News 06 May 2008 An update of the news around Financial Services from the past few months.

Award modernisation process begins 30 April 2008 The Australian Industrial Relations Commission (AIRC) issued a Statement on 29 April 2008, laying down a proposed timeline for the AIRC’s award modernisation process. The AIRC’s Statement also identifies 19 priority industries, in relation to which it is proposed that the award modernisation process will be completed before Christmas 2008. Employers in the priority industries identified by the AIRC would be well advised to become involved in, or at least informed about, the award modernisation process.

International Tax Panel Update - April 2008 18 April 2008 This edition of International Tax Panel Update covers the Federal Election and our regular topics including international tax, indirect tax, tax administration and tax cases.

Cartels Overview 17 April 2008 This article Cartels Overview is an extract from The 2008 Asia Pacific Antitrust Review, a Global Competition Review special report - www.GlobalCompetitionReview.com.

Notice upheld despite uncertainty 14 April 2008 The decision of Precept Services Pty Ltd v Concrete Equipment Australia (Trading) & Anor outlines some of the key issues to consider when upholding the validity of a notice of claim of charge.

Can a Superintendent submit a payment schedule under the Security of Payment Act? - Bucklands Convalescent Hospital v Taylor Projects Group [2007] NSWSC 1514 14 April 2008 Can a Superintendent submit a payment schedule under the Security of Payment Act? This was the question thrown into the spotlight during a recent case heard before the NSW Supreme Court.

'But you didn't tell me that was there!' 14 April 2008 The recent case of BMD Major Projects Pty Ltd v Victorian Urban Development Authority raised some interesting issues for both owners and contractors when dealing with latent conditions claim. It also highlighted the need for contractors to take care when considering the wording of latent condition clauses and notice provisions in construction contracts.

Infrastructure road map – blueprinting Australia’s future 14 April 2008 The creation of Infrastructure Australia by the Rudd Government represents the first concerted attempt at national leadership in the prioritisation and delivery of public infrastructure. What will be the likely impacts of this new statutory body for Australia's construction industry?

OTHER INDUSTRY ISSUES: Impacts of the new Division 250 of the Tax Act 08 April 2008 For those operating in the energy and resources sector, the new Division 250 of the Tax Act has important implications for both existing and new contracts, particularly when dealing with Government entities and non-residents.

WATER: New regime proposed for the Murray-Darling 08 April 2008 Following an in principle agreement by the Council of Australian Governments on 26 March 2008, a water management plan for the Murray-Darling Basin could be one step closer.

OIL & GAS: The future of the gas industry in China 08 April 2008 China's draft Energy Law and first White Paper on energy, released at the end of 2007, are an attempt to address the inadequacy of current energy policies and strategies to support the country's strong energy demands, economic growth potential and environmental responsibilities.

WELCOME... and industry overview 08 April 2008 While the Australian Bureau of Agricultural and Resource Economics' latest annual review of the resources and energy sectors highlights some interesting growth statistics, on the flip side are some important issues that weigh heavily across the sector.

CLIMATE CHANGE: Trade rules and climate change 08 April 2008 Contrary to what some commentators might believe, the World Trade Organization can accommodate measures focussed on protecting the environment. But it does impose important disciplines on those measures when they impact on international trade.

MINING & MINERALS: Can exploration keep up with demand? 08 April 2008 In spite of Australia's strength as a resource exporter, there are clear signs that exploration is declining, and this is something that will significantly impact the sector in the short, medium and long term.

ELECTRICITY: NSW electricity privatisation, vertical integration and the TPA 08 April 2008 The Australian Competition and Consumer Commission's long-standing interest in the issue of vertical integration in the electricity industry has come to the fore, given the Owen Inquiry Report to the NSW Government and the government's response to its recommendations.

Transition to Forward with Fairness Bill to come into effect imminently 25 March 2008 The Senate passed the Workplace Relations Amendment (Transition to Forward with Fairness) Bill (Transition Bill), with some amendments that were proposed by the Government. The amended Transition Bill has also been passed by the House of Representatives, and is awaiting Royal Assent before it comes into effect.

Update on ALRC Report 17 March 2008 As we reported in the November 2007 edition of the Privacy Update, submissions in response to the Australian Law Reform Commission's 'Review of Privacy' closed on 7 December 2007. According to the ALRC website at the time of issue of this edition, the ALRC's final report and recommendations were due to be delivered to the Attorney-General on or before 31 March 2008.