Regulator - November 2009
Mallesons’ Regulator Newsletter offers perspectives on current regulatory issues from the Market Regulation team.
Regulator - October 2009
Mallesons’ Regulator Newsletter offers perspectives on current regulatory issues from the Market Regulation team.
Mallesons’ Funds Overview 2009
Recent developments of Asian REITs and lessons from Australia
This article focuses on recent developments in the Asian REIT market as the effects of global financial crisis set in and examines how regulatory reforms along the lines of the more mature Australian REIT market could help ease these effects.
Regulator - October 2009
Mallesons’ Regulator Newsletter offers perspectives on current regulatory issues from the Market Regulation team.
Draft short selling disclosure regulations released - 2 October 2009
Following a period of public and targeted consultation with key stakeholders, the Minister for Financial Services, Superannuation and Corporate Law today released the much anticipated draft regulations for the permanent reporting and disclosure regime for short selling.
Australian carbon trading documentation launched - 10 September 2009
The Australian Financial Markets Association (AFMA) has launched its recommended form of Australian documents for domestic and international carbon trading. These documents (which are based on well-known international standards) are aimed at facilitating the growth of the carbon trading market in Australia. We look at answering ten key questions market participants may ask.
ASIC passporting relief notices due this month - 8 September 2009
If you are regulated by the UK FSA, the US SEC, Federal Reserve, OCC or CFTC, the Monetary Authority of Singapore, the HK SFC or the German BaFin and have been granted Australian licensing relief then this month you must lodge a notice with the Australian Securities and Investments Commission (ASIC) to continue providing financial services to wholesale clients in Australia.
ASIC passporting relief notices due this month - 2 September 2009
If you are regulated by the UK FSA, the US SEC, Federal Reserve, OCC or CFTC, the Monetary Authority of Singapore, the HK SFC or the German BaFin and have been granted Australian licensing relief then this month you must lodge a notice with the Australian Securities and Investments Commission (ASIC) to continue providing financial services to wholesale clients in Australia.
Tax issues pending Bamford appeal: ATO releases Practice Statement - 21 August 2009
The Commissioner of Taxation has released a Practice Statement PS LA 2009/7 (Practice Statement) regarding how the ATO intends to administer the rules relating to the taxation of trusts. The Practice Statement seeks to address how the law will be administered pending the outcome of the application for special leave to appeal to the High Court from the recent Full Federal Court decision in Bamford.
ASIC proposes radical reforms - 18 August 2009
The Australian Securities and Investments Commission has proposed some fundamental reforms to the Australian financial services industry. If adopted, the reforms would reshape the financial advice industry. Some would also have implications for the broader financial services industry and consumers.
Regulator - 2nd edition - 14 August 2009
Mallesons’ Regulator Newsletter offers perspectives on current regulatory issues from the Market Regulation team.
Government announces options paper to tackle legacy financial products - 5 August 2009
In the opening session of the Investment and Financial Services Association (IFSA) conference, the Minister for Financial Services, Superannuation and Corporate Law, the Hon. Chris Bowen MP, announced that an options paper will be released in coming weeks to tackle product rationalisations.
New margin lending regulation: 7 steps for advisers - 7 July 2009
Legislation regulating margin lending as a financial product has been introduced into Federal Parliament. This alert provides seven steps to help financial planners and others involved in advising on and distributing margin loans to develop a plan to comply with the new regime.
Regulator - 2 July 2009
Mallesons’ Regulator Newsletter offers perspectives on current regulatory issues from the Market Regulation team.
Unfair Contracts Bill: implications for financial services providers - 30 June 2009
Financial services providers will be regulated under a proposed national unfair contracts regime (“regime”) from 1 January 2010. The regime will apply to new contracts entered into after 31 December 2009, and also affect contracts that are varied after that date (but only to the extent of the variation). The first step will be to identify the affected products and services.
Important disclosure changes for unlisted retail managed funds - 25 June 2009
The Australian Securities and Investments Commission (ASIC) has released new policy which will result in important changes to the way unlisted retail funds keep their investors updated. Regulatory Guide 198 (RG 198) provides guidance on how the continuous disclosure rules in the Corporations Act apply to unlisted funds, as well as an alternative disclosure regime based on website disclosure.
Australian Federal Court excludes forwards from derivative regulation - 18 June 2009
In a recent decision, the Federal Court of Australia has made some unexpected findings that, if taken to their apparently logical conclusion, might be argued to exclude some common derivatives from the Australian financial services regulatory regime. It is an interesting result, particularly in the context of the current global focus of expanding regulatory reach.
Equity derivatives: Issues paper on proposed disclosure framework - 10 June 2009
The Federal Treasury has released an issues paper as part of the Government’s assessment of the existing ownership disclosure framework in light of the growing usage of both long and short equity derivative positions in the Australian financial markets. Any reforms which follow may have a significant impact on the Corporations Act substantial holding disclosure requirements as they apply to fund managers and others who enter into equity derivatives.
Bamford: Landmark decision in taxation of Australian trusts - 3 June 2009
The Full Federal Court today handed down the much anticipated decision in Bamford v Commissioner of Taxation. The case deals with the basis upon which beneficiaries of trusts should be assessed for tax purposes. The decision is of significant importance to those involved in the administration of trusts and the funds management industry more generally, particularly in the lead up to year end distributions.
Managed investment trusts and capital gains - Treasury Discussion Paper released - 1 June 2009
The Treasury has today released a Discussion Paper setting out further details of the long awaited changes to be made to the taxation of gains and losses on the disposal of certain investments by managed investment trusts (MITs). These changes were announced by the Government as part of the Federal Budget on 12 May 2009.
2009 Federal Budget measures - Significant changes for managed funds- 15 May 2009
In addition to the changes dealing with superannuation, the Federal Budget announcements contained significant changes, which are likely to have a widespread impact on the operation of managed funds in Australia and the global product which may be offered in Australia.
New mortgage rules for NSW - 7 May 2009
The Real Property and Conveyancing Legislation Amendment Bill 2009 was passed by the NSW Parliament on 6 May 2009. The Bill makes important changes to the law regarding the execution of Torrens title mortgages in NSW. It is a response to the growing threat of mortgage fraud - in particular, "identity theft" - as well as the growing number of claims against the Torrens Assurance Fund arising out of forged mortgages. The Bill will commence on a date to be proclaimed.
Court widens category of registrable instruments relating to charges - 10 March 2009
The Queensland Supreme Court handed down its decision in Re Octaviar Ltd; Re Octaviar Administration Pty Ltd [2009] QSC 37 last Friday, 6 March 2009. The decision is widely regarded as surprising because it appears to cut across current market practice.
ASIC takes further action on placements - 24 February 2009
The Australian Securities and Investments Commission accepted an enforceable undertaking from Droga Capital on 18 February 2009. It follows an investigation by ASIC into Droga Capital’s trading of securities in Flinders Mines Limited.
SFC revised advertising guidelines and enhanced disclosure requirements - 14 January 2009
The second half of 2008 saw revised advertising guidelines (Guidelines) and enhanced disclosure requirements (Enhanced Disclosure Requirements) being introduced by the Hong Kong Securities and Futures Commission (SFC). Issuers (Issuers) of SFC-authorised collective investment schemes (CIS) and all of the advertising materials for their CIS were required to comply with these guidelines and requirements from 1 January 2009.
New Australian short selling regime - 16 December 2008
The Corporations Amendment (Short Selling) Act 2008 became law on 11 December 2008. The three key measures include a legislative ban on naked short selling, a disclosure regime for permitted covered short selling, and clarification of the Australian Securities and Investments Commission's (ASIC) powers.
Australian Government releases guarantee scheme documents - 21 November 2008
The Australian Government (“Government”) has today published its guarantee facility under which Australian authorised deposit-taking institutions (“ADIs”) may apply to have deposit amounts over A$1 million and certain funding liabilities guaranteed by the Government. Foreign banks (“Foreign ADIs”) authorised to carry on banking business in Australia under the Banking Act 1959 may also apply to have certain deposits and funding liabilities held by Australian residents guaranteed by the Government.
NSW State Mini-Budget released - 11 November 2008
The Treasurer, the Hon. Eric Roozendaal MLC, has delivered the 2008-09 NSW Mini-Budget to the NSW Parliament today. The Budget seeks to support the State's tax revenue base by deferring some of the state taxes that were shortly due to be abolished and increasing the rate of land tax on certain premium properties.
ASIC focuses on ratings agencies, credit default swaps & hedge funds - 11 November 2008
The Chairman of the Australian Securities and Investments Commission outlined ASIC's priorities in an address to the Australian Corporate Lawyers Association on 7 November 2008. The priorities centre on capital markets, retail investors and consumers and international capital flows.
Tax review of managed investment trust arrangements - 29 October 2008
The Board of Taxation has today released its long awaited “Review of the Tax Arrangements Applying to Managed Investment Trusts” discussion paper which reviews the current regime applying to trusts as collective investment vehicles and assesses possible alternative taxation models.
Federal Court delivers decision regarding meaning of “absolute entitlement” trust - 29 September 2008
The Federal Court of Australia delivered its judgment in the case of Kafataris v Deputy Commissioner of Taxation [2008] FCA 1454 (Kafataris’ Case) on 24 September 2008. The decision provides some guidance as to when a particular trust is likely to qualify to be treated as an “absolute entitlement” trust for tax purposes, particularly in the absence of any definitive or binding guidance from the ATO regarding this issue.
Managed Funds - changes to the eligible investment rules (Division 6C) - 26 September 2008
The Government has introduced into Parliament changes to the rules which govern the types of eligible investment business (eg. investing in land and securities) with which certain ‘public unit trusts’ need to comply in order to maintain their “flow through” character and prevent being taxed as companies (i.e. as public trading trusts - Division 6C).
ASIC bans naked and covered short sales from 22 September
The Australian Securities and Investments Commission (ASIC) banned covered short selling in the Australian market late on Sunday 21 September 2008. This followed an earlier move by ASIC on Friday 19 September 2008 to ban naked short selling and introduce reporting for covered short sales.
ASX market rule changes for the new AQUA market - 16 September 2008
Changes to the ASX market rules that establish the new AQUA market tailored for managed funds, ETFs and structured products, commenced on Monday 15 September 2008. The new platforms will significantly simplify the process for listing a structured product on ASX.
Reminder: ASIC passporting relief notices due this month
If you are regulated by the UK FSA, the US SEC, Federal Reserve, OCC or CFTC, the Monetary Authority of Singapore, the HK SFC or the German BaFin and have been granted Australian licensing relief then this month you must lodge a notice with the Australian Securities and Investments Commission (ASIC) to continue providing financial services to wholesale clients in Australia.
Final ASIC disclosure guidelines for unlisted property and mortgage trusts - 4 September 2008
On 2 September 2008, ASIC released Regulatory Guides 45 and 46, stating its view that responsible entities of certain unlisted property or mortgage schemes should cover eight “disclosure principles” in product disclosure statements and ongoing disclosure. ASIC has accommodated some industry submissions in finalising the draft guides released in July, but there was little movement on timing - in many cases, responsible entities have less than three months to comply.
Mutual Recognition Agreement between the US and Australia - 29 August 2008
This week the Australian Securities and Investments Commission, the US Securities and Exchange Commission and the Australian Minister for Superannuation and Corporate Law, entered into a mutual recognition arrangement. Initially it will be limited to certain national exchanges and broker dealers who deal with institutional clients.
Confirmation of product rationalisation - 8 August 2008
Today at the IFSA Conference, Geoff Miller from the Government Product Rationalisation Panel provided some insight into what the Government’s final product rationalisation proposal might look like.
WARNING: Period for holding application money - 7 August 2008
A recent landmark decision by the New South Wales Supreme Court raises serious practical issues for Australian and offshore funds and other financial product issuers who may receive application money in Australia more than one month prior to the issue date for the financial product.
ASIC continues to take regulatory action against foreign financial services providers - 5 August 2008
In recent weeks the Australian Securities and Investments Commission (ASIC) has written to certain offshore financial services providers threatening regulatory action for targeting Australian clients where those foreign providers do not hold an Australian financial services licence or rely on an appropriate exemption.
Australia-Hong Kong mutual recognition of retail funds - 8 July 2008
The Australian Securities and Investments Commission (ASIC) and the Hong Kong Securities and Futures Commission (SFC) have announced a regime to facilitate the offering of retail funds to investors in each other's market. The announcement opens up new investment opportunities in both markets.
New Tax Rules - Distributions of managed investment trust income to foreign investors - 27 June 2008
A new final withholding tax regime has been enacted (Tax Laws Amendment (Election Commitments No.1) Act 2008) which applies to distributions of Australian source net income from Australian managed investment trusts to foreign investors.
Professional investor or not? - 23 May 2008
If banks and financial intermediaries in Hong Kong are not yet re-assessing their offerings of “professional investor only” investment products and staff sale practices to customers, they should be.
High Court decision overturns GST treatment of forfeited deposits - 22 May 2008
In a unanimous decision, the High Court has held that GST does apply to a forfeited deposit. This overturns the earlier decision of the Full Federal Court, which specified that GST does not apply to a forfeited deposit.
Offshore funds - release of CFC/FIF issues papers - 21 May 2008
The Board of Taxation this week released issues papers on possible reforms to Australia’s foreign source income anti-tax-deferral regimes. The closing date for submissions in relation to the issues papers, and the earlier position paper released on 12 March 2008, is 20 June 2008.
Anti money laundering changes for securities dealing - 5 May 2008
On Friday 2 May 2008, the much awaited Anti-Money Laundering and Counter-Terrorism Financing Rule relating to securities dealing was made by the Acting CEO of AUSTRAC (Securities Rule).
Taxation review of managed investments – 26 February 2008
On 22 February 2008, the Assistant Treasurer announced that he had requested the Board of Taxation to review the taxation arrangements that apply to managed funds (Review).
Product Rationalisation - Treasury has released submissions - 8 February 2008
Treasury has released 17 of the 20 submissions it received in response to its product rationalisation issues paper.
First Home Saver Accounts - Consultation Paper released - 8 February 2008
The Federal Government has released its Consultation Paper on First Home Saver Accounts, which the Government anticipates will hold around $4 billion in savings after four years.
Managed investment scheme issuers are now subject to anti-money laundering laws - 30 January 2008
On Thursday 31 January 2008, the Anti-Money Laundering and Counter-Terrorism Financing Regulations 2008 will take effect under the Anti-Money Laundering and Counter Terrorism Financing Act 2006 (AML/CTF Act).
Anti-money laundering - AML/CTF Rules finalised - 2 April 2007
On 30 March 2007, the Australian Transaction Reports and Analysis Centre (AUSTRAC) made new Anti-Money Laundering and Counter-Terrorism Financing (AML/CTF) Rules under the AML/CTF Act 2006. These AML/CTF Rules relate to most AML/CTF obligations that commence on 12 June 2007 and on 12 December 2007.
AML/CTF Act has commenced - 14 December 2006
The Australian Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) has commenced. It received Royal Assent on 12 December 2006. Some key obligations under the Act commenced on 13 December 2006 as follows.
Australian Parliament passes AML/CTF Acts - 7 December 2006
On 7 December 2006, the Australian Senate passed the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) and the Anti-Money Laundering and Counter-Terrorism Financing (Transitional Provisions and Consequential Amendments) Act 2006. There are heavy penalties for non compliance.
Lessons from Australia as Asian REITs thrive - 12 April 2006
Recent developments in Hong Kong and Singapore are stimulating growth in REIT activity. But the regulatory environment can still be improved, argue John Sullivan and Hayden Flinn. This article was published in International Financial Law Review March 2006.
The Australian Government Future Fund: opportunities for investment managers - 5 April 2006
The Australian Government’s Future Fund aims to fully underwrite the Commonwealth’s unfunded public service superannuation liabilities. The liabilities are expected to grow to around A$140 billion by 2020. The Fund will be seeded with A$18 billion by 30 June 2006. The Fund presents opportunities for local and overseas investment managers.
Unit pricing for listed trusts - ASIC amends Class Order - 16 January 2006
ASIC (Australian Securities & Investments Commission) has released Class Order 05/1236 relating to the discretion which may be exercised by responsible entities of registered schemes when making decisions that affect unit pricing. The Class Order took effect on 23 December 2005. It affects pricing of units in listed and unlisted registered schemes (including units which are part of stapled securities).
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