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On 13 February 2014, Justice Davies of the Federal Court of Australia handed down her decision in Australian Securities and Investment Commission v Franklin, in the matter of Walton Construction Pty Ltd (in liq), dismissing an application by ASIC to remove the liquidators of the subject companies because of an apprehension that they may lack independence and impartiality. The decision provides useful guidance for insolvency practitioners in determining whether they satisfy the requirement of independence and impartiality and what needs to be disclosed in a DIRRI.
Recently the Australian Prudential Regulation Authority (APRA) released a package of governance measures for banks, and general and life insurance companies. The new measures include Prudential Standard CPS 220 Risk Management, which will commence on 1 January 2015.
The Federal Government has released the final report of the Productivity Commission's inquiry into the National Access Regime in particular Part IIIA of the Competition and Consumer Act 2010. While there are no changes to the regulatory framework or institutional arrangements, the report does recommend a package of reforms designed to ensure the scope of the Regime is confined to those exceptional circumstances.
The Victorian Government (government) has released its long awaited Unsolicited Proposal Guideline (Guideline). The Guideline provides a framework for the government's assessment and implementation of infrastructure proposals that originate directly from the private sector.
The Australian Law Reform Commission (ALRC) Final Report into Copyright and the Digital Economy (Final Report) is now publicly available, having been tabled in Parliament on 13 February 2014. The report was finalised after receiving more than 1,000 submissions and undertaking more than 100 consultations with stakeholders.
In the recent decision of Bondi Beachside Pty Ltd v Chief Commissioner of State Revenue  NSWCA 6 the New South Wales Supreme Court of Appeal has allowed the taxpayer's appeal against the earlier decision which in part affirmed a mortgage duty assessment issued under the Duties Act 1997 (NSW). If you have paid duty on the extension of a deferred note purchase financing arrangement, you may be entitled to a refund of the duty.
A further tranche of tax legislation to exempt 'IMR foreign funds' from Australian income tax has been released for public comment. Once enacted, this legislation will introduce an exemption from Australian tax for 'widely held' foreign funds and their investors. The IMR regime provides greater certainty to IMR foreign funds and investors around their Australian tax position. However, the key to accessing this certainty is in understanding and confirming that the IMR foreign fund is indeed eligible.
The Minister for Social Services, Kevin Andrews, confirmed that the federal government will move to abolish the Australian Charities and Not-for-profits Commission (ACNC), and replace it with a Centre of Excellence focused on education for not-for-profits, charitable bodies and for the community.
Details of the federal government's proposed amendments to the Future of Financial Advice (FOFA) regime have come to light with the release of a consultation draft of Bill and Regulations that give effect to the reforms announced on 20 December 2013.
From January to December 2013, the ATO/Commonwealth achieved an approximately 75% success rate in tax litigation in the Federal Court, Full Federal Court and the High Court of Australia.
The Department of Finance has released further tranches of draft rules under the Public Governance, Performance and Accountability Act 2013 (PGPA Act) for consultation. The PGPA Act is due to replace the Financial Management and Accountability Act 1997 and the Commonwealth Authorities and Companies Act 1997 on 1 July 2014.
With the announcement of a review of the Retail Leases Act 1994, the NSW Government has invited stakeholders to make their submissions by the 7 February 2014 deadline. We have identified the areas subject to review which may be particularly relevant to our clients in the list below.
The Queensland Court of Appeal has overturned the controversial decision of Agripower Australia Ltd v J & D Rigging Pty Ltd & Ors. The decision affects contractors carrying out 'construction work' on land the subject of a mining lease. It is now clear that those contractors may make an adjudication application in respect of the work pursuant to the BCIP Act.
On 28 December 2013, the Standing Committee of the National People's Congress announced the fourth set of amendments to the PRC Company Law, which will take effect on 1 March 2014. The amendments are intended to encourage investment and relax the requirements necessary to establish a company in China.
ASIC issued Class Order [CO 13/1621] on 7 January 2014 to exempt responsible entities (REs) from the application form requirements of section 1016A.
The Queensland Court of Appeal has overturned the decision of BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd & Ors  QSC 67, severing part of an adjudicator's decision affected by a jurisdictional error from the balance of the adjudicator's decision. The appeal decision benefits respondents to an adjudication if the adjudication decision contains a jurisdictional error.
The decision in Julstar Pty Ltd v Hart Trading Pty Ltd highlights the importance of documenting key representations made by the parties prior to entering into a franchise agreement or indeed any agreement. The Minister for Small Business, Mr Bruce Billson, has also indicated that the government welcomes the recommendations of Alan Wein on changes to the Franchising Code of Conduct.
The Coalition Government has announced that it will make good on its election promises to fix some of the problems of FOFA and more.
On 16 December 2013, ASIC announced the results of its review of 30 June 2013 financial reports. ASIC's comments should be carefully reviewed by everyone involved in the financial reporting of listed and other disclosing entities.
The second tranche of draft rules under the Public Governance, Performance and Accountability Act 2013 has been released for consultation by the Department of Finance. The two latest draft rules address Government Business Enterprises and material personal interests.