Australian Regulatory Compliance Review

Preparing for 2010

Thank you for reading our news services over the past year. On behalf of the Langes+ team I wish you a happy, successful and healthy 2010.

If you are taking an extended break, we look forward to talking to you on your return.

Langes+ services will be available over the holiday season.

Predictions for 2010? The one thing I can predict for 2010 (apart from a Commonwealth election) is more demands on directors and managers and more regulatory change.

Over the next few weeks ask yourself what is your most pressing challenge (business, legal or otherwise) that you'd like to overcome in the next year and think about whether you are adequately prepared.

Regulation of food safety

The Productivity Commission has published a draft research report on the Regulation of Food Safety.

The Report highlights the lack of uniformity in food safety standards and the administration and enforcement of food safety regulation in all levels of Australian government.

The Report also analyses meat, egg, dairy and seafood production.and import and export regulations.

The final report will be prepared after submissions have been received and will be forwarded to the overnment by 16 December 2009.

Bankruptcy Amendment Bill introduced

The Attorney-General, Robert McClelland,has introduced the Bankruptcy Legislation Amendment Bill 2009 into Parliament.

UPDATE: The Bill has been referred to the Senate Legal and Constitutional Affairs Legislation Committee. Its Report is due on 2 February 2010.

The Bill introduces a number of reforms, including:

• increasing the minimum amount for which a creditor can petition for bankruptcy from $2,000 to $10,000;
• increasing the stay period from when a declaration of intent to file a debtor’s petition is filed to when a creditor may commence action to recover debts from seven to 28 days;
• increasing the income, asset and debt thresholds to allow more people in financial distress to enter into voluntary debt agreements;
• introducing a more efficient and transparent process for fixing and reviewing trustee remuneration;
• strengthening the penalties for some offences, particularly those involving fraud; and enhancing powers for the Inspector-General in Bankruptcy to investigate possible offences.

Daylight saving starts this weekend

Daylight saving starts this Sunday 4 October in Australian Capital Territory, New South Wales, Victoria, South Australia and Tasmania.

All end on Sunday 4 April 2010.

Queensland, Western Australia and the Northern Territory do not have daylight saving.

Confused? Use ABC's Daylight Saving Calculator.

Draft personal bankruptcy reform bill released

Attorney-General, Robert McClelland, has released the exposure draft Bankruptcy Legislation Amendment Bill 2009 containing the Government’s proposed reforms to Australia’s personal bankruptcy laws for public consultation.

The proposed amendments will:

• increase the minimum debt for which a creditor can petition for bankruptcy from $2,000 to $10,000;
• increase the stay period from when a declaration of intent to file a debtor’s petition is filed to when a creditor may commence action to recover debts from seven to 28 days; and
• increase the debt, income and asset tests thresholds for debt agreements.

In addition, the Bill proposes to strengthen the penalties for some offences, particularly those involving fraud, to appropriately reflect the seriousness of the conduct and ensure the penalties align with similar offences in other Commonwealth, State and Territory legislation. It also strengthens powers for the Inspector-General in Bankruptcy to investigate possible offences.

It appears that the proposal to reduce the bankruptcy period for first time bankrupts is not being implemented.

The draft Bill will be open for public comment until Monday, 14 September 2009

Changes to rules for foreign investment in Australia

The Treasurer has announced reforms to Australia's foreign investment rules.

The Government will:

• Replace the four current lowest thresholds for private business investment with a single threshold of 15 per cent in a business worth $219 million. This means private foreign investment in Australian businesses below $219 million can proceed without review.
• Index the new unified threshold on 1 January every year to keep pace with inflation and to prevent foreign investment screening from becoming more restrictive over time.
• Abolish the existing requirement that private investors notify the Government when establishing a new business in Australia valued above $10 million.

The threshold of $953 million (indexed) for United States investment in non-sensitive sectors will remain.

The Government aims to introduce amending regulation in September 2009.

Recent changes to intestacy provisions in NSW

Changes to the legislation governing the administration of intestate estates (ie no will or the will is legally invalid) in NSW have recently been introduced. If you don't have a will or have children from more than one relationship it is timely to review your situation.

Under the former legislative provisions, the division of an intestate estate when the deceased dies leaving a surviving spouse and children depended on the value of the estate. When the deceased’s estate exceeded the statutory amount of $200,000, the deceased’s personal effects and household items, the statutory amount of $200,000 and one half of the remainder of the estate passed to the surviving spouse. The other one half of the remainder of the estate passed to the deceased’s surviving children. If the value of the deceased’s estate was less than $200,000, then the whole of the deceased’s estate passed to the surviving spouse. This was regardless of whether or not the deceased left any children from previous relationships.

Under the new provisions, when an individual dies intestate, leaving a surviving spouse and children, if all the surviving children are also the children of the surviving spouse, the whole of the deceased’s estate will pass to the surviving spouse, regardless of the value of the deceased’s estate. If the deceased left a surviving spouse and also a surviving child or children who are not also the child or children of the surviving spouse, then the spouse is entitled to the deceased’s personal effects and household items, a statutory legacy (which is the amount of $350,000 adjusted in accordance with the CPI index) and one half of the remainder of the estate. The surviving children who are not also children of the surviving spouse will be entitled to one half of the remainder of the estate.

Implications

These new developments in the intestacy legislation show a move in the law towards recognizing that family relationships have become increasingly complex and attempts to ensure that provision is made for children of the deceased from previous relationships. However, as these assumptions in the law may not reflect the intentions of individuals, this could lead to situations where individuals who the deceased did not want to provide for, end up receiving a substantial portion of the estate. These considerations highlight the importance of having a Will in place which sets out your intentions and making sure that you update your Will as necessary and particularly if family circumstances change.

If you would like to have your Will prepared or updated, our solicitors in both our Adelaide and Sydney offices are happy to discuss your particular situation with you and work with you to prepare or update your Will.

Author: Elaine Cheung (Sydney)

COAG Communique 2 July 2009

The Council of Australian Governments (COAG) meeting on 2 July 2009 focussed on further measures to overcome Indigenous disadvantage and the importance against the background of the global economic and financial crises of bolstering education, training and re-training efforts and securing further microeconomic and regulatory reform to enhance the economy’s future productive potential.

On the regulation front, COAG signed an Intergovernmental Agreement to underpin the establishment of national Australian Consumer Law, based on existing consumer protection provisions and new product safety regulation and enforcement regime, and a further IGA covering national business names registration.

New legislation review

Parliament is on a winter break and will next sit from 11 to 20 August 2009.

It's left us with some significant new Bills to review:

• Australian Consumer Law and Trade Practices Amendments
• National Consumer Credit Reform Package
• Personal Property Securities
• Financial services modernisation: margin loans, trustee companies and debentures
• Director and executive termination payment changes

On 1 July we'll have:

• tax changes
• changes to superannuation contributions concessions
• new unfair dismissal rules under the Fair Work Act

And we're waiting for:

• assent and commencement of the anti-cartel laws;
• a decision on the new rules for employee share schemes.
• further updating on COAG's reform program.

Commonwealth Government Ministry changes

Prime Minister Kevin Rudd has announced changes to his Ministry following the resignation of Joel Fitzgibbon and his replacement by Senator the Hon John Faulkner as Minister for Defence.

The changes include:

• Senator the Hon Joseph Ludwig will become Cabinet Secretary and Special Minister of State;
• The Hon Chris Bowen MP will enter Cabinet and be appointed Minister for Financial Services, Superannuation and Corporate Law, and Minister for Human Services;
• The Hon Dr Craig Emerson MP, Minister for Small Business, Independent Contractors and the Service Economy and Minister Assisting the Finance Minister on Deregulation, will also become Minister for Competition Policy and Consumer Affairs;
• Senator the Hon Nick Sherry will be appointed Assistant Treasurer;
• The Hon Brendan O’Connor MP will be appointed Minister for Home Affairs, replacing the Hon Bob Debus MP who is retiring at the next election;
• The Hon Warren Snowdon MP will be appointed Minister for Indigenous Health, Rural and Regional Health and Regional Services Delivery;
• The Hon Kate Ellis MP will be appointed Minister for Early Childhood Education, Childcare and Youth and will continue as Minister for Sport;
• The Hon Greg Combet AM MP will enter the Ministry as the Minister for Defence Personnel, Materiel and Science and the Minister Assisting the Minister for Climate Change;
• Senator the Hon Mark Arbib will enter the Ministry as the Minister for Employment Participation and the Minister Assisting the Prime Minister on Government Service Delivery;
• The Hon Maxine McKew MP will become Parliamentary Secretary for Infrastructure, Transport, Regional Development and Local Government;
• The Hon Gary Gray AO MP has been appointed Parliamentary Secretary for Western and Northern Australia;
• Jason Clare MP will be appointed as Parliamentary Secretary for Employment;
• Mark Butler MP will be appointed as Parliamentary Secretary for Health;
• Richard Marles MP will be appointed as Parliamentary Secretary for Industry and Innovation.