Australian businesses prepare for the new privacy regime
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The Retail Leases Amendment Act 2012 became law today, 20 November 2012. From tomorrow it will amend the Retail Leases Act 2003 (Vic) to remove the requirement to notify the Small Business Commissioner of new leases under section 25 of the Retail Leases Act. The passing the Amendment Act coincides with the release by the Small Business Commissioner of an updated version of the information brochure which must be provided by a landlord to a prospective tenant at the commencement of lease negotiations.
On 14 November 2012, the United States Department of Justice (DOJ), together with the Securities and Exchange Commission (SEC), issued a guidance note on the interpretation and enforcement of the US Foreign Corrupt Practices Act (FCPA). The guidance note will be particularly interesting for Australian businesses with an international presence or operations, given the potentially vast extra-territorial reach of the FCPA over non-US companies.
On 16 November 2012 the Assistant Treasurer issued an Exposure Draft and Explanatory Memorandum proposing changes to Australia's general anti-avoidance rule (GAAR). In this alert we discuss the concerns that are being addressed by the proposed reform, outline the proposals made in the Exposure Draft and EM and their practical implications
In reaching a decision in Mansfield & Anor v The Queen  HCA 49 the High Court has clarified the scope of Australia's insider trading laws and unanimously held that the provisions catch conduct by those trading based on information whether it is true or false.
In May 2012, the High Court reversed the NSW Court of Appeal's judgment in James Hardie and reinstated the trial judge's declarations that the non-executive directors breached their statutory duty of care and diligence. The Court remitted the case to the Court of Appeal to hear the directors' appeals on penalties and relief from contravention. Now the Court of Appeal has decided that the trial judge's approach to penalties was mistaken, and has substituted reduced periods of disqualification and lighter pecuniary penalties, while nevertheless stressing the seriousness of the contraventions. In the course of doing so, the Court has shed further light on what is expected of non-executive directors and how board meetings must now be conducted.
The Not-for-profit Sector Tax Concession Working Group has released a discussion paper on tax concessions for the not-for-profit sector, 'Fairer, simpler and more effective tax concessions for the not-for-profit sector'. Its stated purpose is to stimulate debate and feedback on federal tax concessions available to not-for-profit entities, but it is not intended as a position paper and does not make any recommendations to government.
The Ministry of Commerce of the People's Republic of China (MOFCOM) recently promulgated the Tentative Provisions on the Equity Contribution of Foreign Investment Enterprises (Provisions) which came into force on 22 October 2012 following a discussion draft issued in May 2011. The Provisions provide foreign investors with further clarity on capital contribution and flexibility for restructuring their businesses in China.
The Federal Government has introduced new eligibility criteria for the APEC Business Travel Card (ABTC) scheme that broaden the range of eligible organisations.
On 5 November 2012, the Australian Institute of Company Directors (AICD) announced some important changes to its rules for admitting new members and renewing membership. The 'Director Professional Development' (DPD) scheme will require most of the Institute's 32,000 members, and new applicants, to maintain 60 hours of suitable professional development education over a rolling three-year period.
The new requirement is a graphic indication of how far reflective thinking about the role of company directors has moved over the past 50 years. The very title of the new scheme implies that the representative body for Australian company directors now regards its membership as a profession, regardless of the size and significance of the company and the experience and training of its directors.
Tucked away in the Australian Government's extensive White Paper, Australia in the Asian Century, are some statements that reflect an arguably out-dated view about corporate governance. The Government advocates that by the year 2025, one-third of board members of Australia's top 200 publicly listed companies and Commonwealth bodies should have deep experience in and knowledge of Asia. But is the board the right place to inject this expertise? How is this qualification for board membership to be weighed against the more traditional ones? And perhaps most importantly, why does the White Paper assume that the remainder of the board will, and can, remain in the dark?
On 24 October, the Education Legislation (Amendment) Bill 2012 (the Bill) was second read in Victorian Parliament. If passed, the Bill will result in the abolition of the Victorian Skills Commission; modify contract law regarding VET funding contracts for the delivery of publically funded education, establish additional governance provisions for TAFE and adult education institutions, and introduce new governance arrangements for Victorian public universities.
ASIC has released a new consultation paper in relation to the Future of Financial Advice (FOFA) legislation. This paper focuses on approval of codes of conduct for the exemption to the opt-in requirement for ongoing fee arrangements. Consultation paper 191 (CP 191) invites public feedback with submissions due by 4 December 2012. At the same time, the Financial Planning Association (FPA) has released a consultation paper on changes to its code which in part seek to address the opt-in requirement.
The release of the Australia in the Asian Century white paper signals a sharp focus on agribusiness as a key strategic industry for Australia. The Australian Government has identified this sector playing a leading role in shaping our economic and political relationships in Asia in the coming years. This report cements our view that Australian agribusiness is a highly significant national industry with major growth potential, especially in the Asian export market. The sector is likely to experience a changing and fast paced legislative and policy environment in the coming years, as the government implements the objectives outlined in the White Paper.
Legislation to establish the Australian Charities and Not-for-Profits Commission has today been passed by the Senate with 34 government amendments, which have now been referred back to the House of Representatives for concurrence.
The Retirement Villages Amendment Bill 2012 (Bill) was passed by the Western Australian Parliament on 23 October 2012 and is awaiting assent.
On 11 October 2012 the Government introduced the Fair Entitlements Guarantee Bill. If passed, this Act will replace the current General Employee Entitlements and Redundancy Scheme (GEERS), an administrative arrangement which provides advances to employees to cover unpaid entitlements where their employer becomes insolvent or bankrupt. The Fair Entitlements Guarantee Act will enshrine this right to payment in legislation, and strengthen it in certain respects.
The Queensland Court of Appeal has endorsed a narrow interpretation of the 'mining exclusion' under the Building and Construction Industry Payment Act 2004 (Qld), particularly in the context of open cut mining.
The differing views expressed by the court on whether certain works are 'construction works' creates significant uncertainty for the industry.
The Federal Attorney-General has released a Discussion Paper seeking comment on whether to introduce laws to make notification of data breaches by government agencies and large private sector entities mandatory in Australia. The Government is calling for submissions by 23 November 2012, asking what the triggers should be and what penalties should apply for failure to comply. The Federal Privacy Commissioner has given his support to the Discussion Paper and a mandatory notification scheme.
Today, the ASX published a substantially revised and expanded consultation draft of Guidance Note 8, Continuous Disclosure: Listing Rules 3.1-3.1B (GN 8). It also published draft amendments (mostly minor) to the continuous disclosure Listing Rules themselves.
In determining that a litigation funding agreement between International Litigation Partners Pte (ILP) and Chameleon Mining NL (receivers and managers appointed) (Chameleon) is a credit facility under Chapter 7 of the Corporations Act 2001 (Cth) (Corporations Act), the High Court has taken a very broad interpretation of 'credit facility', which could, in turn, bring the regulatory treatment of a number of financial instruments, including swaps and other derivatives, into doubt.