Australian Regulatory Compliance Review

Achieving product rationalisation for managed investment schemes and life insurance products

Treasury has released a proposals paper for consultation about a proposed product rationalisation framework for managed investment schemes and life insurance products. Product rationalisation is a process of converting or consolidating products of a similar nature into a single product with equivalent features and benefits. Its main purpose in this context is to remove outdated, so-called 'legacy' products by transferring investors into newer, more efficient products.

Submissions close on 26 February 2010.

ASX Corporate Governance Council gender diversity recommendations

The ASX Corporate Governance Council has announced proposed changes to the Corporate Governance Principles and Recommendations which will include a new recommendation requiring each listed entity (on an “if not, why not?” basis) to establish a diversity policy that includes measurable objectives relating to gender as set by the board of the entity. The policy must be disclosed to the market in full or in summary.

Other recommendations will require

• each listed entity to disclose in its annual report (on an “if not, why not?” basis) its achievement against the gender objectives set by the board of the entity.
• each listed entity to disclose in its annual report (on an “if not, why not?” basis) the proportion of women employees in the whole organisation, in senior management and on the board.

The Council expects to provide an exposure draft of the proposed changes to the Corporate Governance Principles and Recommendations for public consultation in early 2010 with an anticipated implementation date of 1 July 2010.

ASIC regulatory guide on schemes of arrangement

ASIC has released an updated Regulatory Guide 60 Schemes of arrangement (RG 60) and Consultation Paper 127 Schemes of arrangement: Statements under s411(17)(b) (CP 127).

Amongst other things ASIC is considering what future guidance might be provided regarding schemes which result in a reverse takeover if consideration for the members of the company proposing the scheme (the target company) is shares in the offeror company, and the scheme results in a change in control of the offeror company or has a material effect on control of the offeror company.

AWB update: ASIC v Lindberg

More than 3 years after the Cole Inquiry report into AWB's activities in the UN Oil for Food Program was published, ASIC civil proceedings against the former AWB CEO are still not resolved.

The latest decision in Re AWB Ltd (No 10) [2009] VSC 566 recaps the ASIC actions against Lindberg and the various rulings against ASIC.

AWB Index

UPDATE 17 December 2009: ASIC to appeal permanent stay of its second civil penalty case

AML draft rules released for comment

Austrac has released the following draft rules for comment until 15 January 2010:

• amending the definition of 'designated business group' to allow reporting entities that are either a representative or sub-representative of a money transfer service provider, and who provide a registrable designated remittance service through that provider, to form a designated business group.
• amending the rules in regard to customers who are not individuals. AUSTRAC currently requires that reporting entities should report both the 'holder of the account' and 'each other signatory to the account', when they relate to non-individual customers making threshold transaction reports. The amendments specify that in regard to non-individual accounts, reporting entities now need only supply details about the holder of the account, and the signatory to the account who is conducting the transaction.
• exempting reporting entities who provide risk only life policy interests in a superannuation fund. These draft AML/CTF Rules ensure that superannuation funds providing risk-only life policies are treated in the same manner under the AML/CTF Act as life insurers.

Australian Consumer Law stage 2

The Ministerial Council on Consumer Affairs (MCCA) has agreed to the final form of the Australian Consumer Law which will take full effect on 1 January 2011. It will introduce a single, national law for fair trading and consumer protection, which applies equally in all Australian jurisdictions, to all sectors of the economy and to all Australian consumers and businesses. The Commonwealth Government intends to introduce a Bill in early 2010.

The Australian Consumer Law will be based on the existing consumer provisions of the Trade Practices Act 1974, but will include:

• a new national unfair contract terms law, which is currently being considered by the Australian Parliament;
• a new national product safety legislative and regulatory framework;
• a new national consumer guarantees law, which will replace the provisions in 15 existing national, state and territory laws about implied warranties and conditions in consumer contracts for goods and services; and
• reforms drawing on best practice in state and territory laws.

Product Safety

MCCA agreed that the new national product safety law will:

• include a reporting requirement for suppliers to notify the appropriate product safety regulator when it becomes aware of consumer goods it has supplied that have been associated with a serious injury or death;
• apply the national product safety requirements to services related to the supply, installation or maintenance of consumer products;
• apply a threshold for product bans and product recalls to include goods which, through reasonably foreseeable use, will or may cause injury to any person; and
• allow product safety regulators to undertake a product recall where no supplier can be found to conduct the recall.

Consumer rights

There will be a single national law guaranteeing consumer rights in relation to their acquisition of goods and services. They will be based on existing implied conditions and warranties, which will be simplified and streamlined.

Other changes include:

• a single national law covering unsolicited sales practices, including door-to-door selling, telephone sales (to the extent not already covered by the Do Not Call Register Act 2006) and other forms of direct selling which do not take place in a retail context.
• fundamental rules for lay-by sales transactions.
• when a business promises to give a consumer a gift or a prize, they should be supplied to the consumer as described and within a reasonable time of the promise being made.
• goods with multiple prices displayed should be sold at the lowest displayed price unless the seller chooses to withdraw them from sale.
• false or misleading testimonials about goods and services are specifically prohibited.
• demanding payment for unsolicited advertisements is prohibited and, in this regard, any document seeking payment for unsolicited goods, services, advertisements or directory entries shall include a statement that it is not a bill payable by the consumer. The Australian Consumer Law will also clarify that a consumer is not liable for unsolicited services.
• Under the Australian Consumer Law, there will be a single national power for the making of information standards about goods or services.
• The Australian Consumer Law will entitle consumers to receive a receipt for goods or services supplied above a certain value where businesses are not already required to give a tax invoice to a consumer under the GST law. The requirements will be consistent with those already in place in the GST law.
• The Australian Consumer Law will also entitle consumers to request an itemised bill for services.

Personal Property Securities: draft amendments to Corporations Act

The Attorney-General's Department is seeking comments on the exposure draft of the Personal Property Securities Bill (Corporations and other Amendments Bill) 2009.

The exposure draft Bill proposes amendments to the Corporations Act 2001 consequential on passage of the Personal Property Securities Act to:

• close the Register of Charges under Chapter 2K
• amend the terminology of the Corporations Act in line with the PPS functional approach
• where appropriate, to include PPSA retention of title property within the definition of property in the Corporations Act (in line with the PPSA functional approach)
• maintain existing rights (that is, to ensure the amendments do not interfere with certain existing rights under the Corporations Act), and
• provide appropriate transitional and application arrangements.

Submissions are sought by no later than 22 January 2010.

Business regulation update: COAG December 2009

The Communique from the Council of Australian Governments’ Meeting on 7 December 2009 includes a "Report Card" on business regulation and competition reform.

It covers progress on:

• national licensing system for air conditioning and refrigeration mechanics, building and building-related occupations; electrical; land transport (passenger vehicle drivers and dangerous goods only); maritime;
  plumbing and gasfitting; and property agents.
• credit reform
• local government and planning
• national construction code
• chemicals and plastics regulatory reform
• food regulation
• directors' liability
• reform of the Legal Profession;
• regulatory reform of the Not for Profit sector including implementing a Standard Chart of Accounts; and
• retail tenancy.

ASIC consults on corporate bonds

ASIC has released Consultation Paper 126 Facilitating Debt Raisings to assist with the development of a sustainable listed corporate bond market in Australia.

The Consultation Paper proposes relief from long form prospectus requirements subject to the following conditions:

• the companies are listed and have a good continuous disclosure history – e.g. they have not been suspended for more than five days over a period of 12 months;
• the bonds offered are simple, vanilla bonds offered to retail and wholesale investors at the same price; and
• the size of the bond offer is at least $100 million to maximise the prospects of a liquid secondary market.

Comments are due by 19 February 2010.

ASIC has also developed a guide on investing in corporate bonds, which covers what corporate bonds are, how they work, what the risks are and provides a checklist of things to look for when investing.

ASIC issues policy guidance on margin lending licensing

ASIC has released policy and regulatory guidance to assist issuers and advisers of margin lending facilities comply with new licensing, conduct and disclosure requirements, following the passage of the Corporations Legislation Amendment (Financial Modernisation) Act 2009 (the Act).

The Act, amongst other things, makes margin lending facilities a financial product and requires that issuers and advisers of margin lending facilities hold an Australian Financial Services Licence (AFSL).

In addition, the regime imposes new responsible lending requirements on issuers of margin lending facilities and clarifies responsibility for providing notification of margin calls.

Under the Act, issuers and advisers will have a 12-month transition period from commencement of the Act until the new requirements take effect (commencement of the relevant sections have not yet been proclaimed). During the first six months of the transition period, existing margin lenders and advisers of margin loans will be required to apply for an AFSL authorisation.

A number of ASIC's existing regulatory guides have been amended to take into account the inclusion of margin lending facilities as a financial product.

The updated policy and regulatory guidance comprise:

• Updates to Regulatory Guide 2 AFS Licensing Kit: Part 2 — Preparing your AFS licence application(RG 2) and Regulatory Guide 3AFS Licensing Kit: Part 3 — Preparing your additional proofs (RG 3)
• Update to Regulatory Guide 146Licensing: Training of financial product advisers(RG 146);
• Update to Regulatory Guide 166Licensing: Financial requirements (RG 166)
• Update to Pro Forma 209 Australian financial services licence conditions(PF 209)
• Regulatory impact statement