Australian Regulatory Compliance Review

Is responsible lending discriminatory?

In Lomax v National Australia Bank Ltd (Human Rights) [2014] VCAT 348 the Victorian Civil and Administrative Tribunal dismissed a claim by a 66 year old customer of NAB that NAB engaged in age discrimination when his finance proposals were rejected. The Tribunal particularly reviewed ASIC’s Regulatory Guide 209.

The customer had applied for an injunction against NAB taking enforcement action in respect of a business line of credit account which was in default. NAB had already given the customer temporary hardship relief after his business fell into financial difficulty.

The customer said that the bank’s lending guidelines for a […]

Case note: leave to manage companies despite conviction

The Supreme Court of Tasmania in In re Gay [2014] TASSC 22 has given leave to a person convicted of insider trading (and therefore automatically disqualified from managing corporations for five years) leave to manage (and be a director of) two private companies involved in his family business.

The judgment discusses the requirements of section 206G of the Corporations Act and the principles to be applied to a grant of leave by a court.

After considering Mr Gay’s background and personal circumstances, ASIC’s objections and the interests of shareholders, creditors and employees of the two companies, Judge Pearce was […]

Competition Policy Review consultation

The Government’s Competition Policy Review has published an Issues Paper for comment.

The review is examining whether the current competition laws are working effectively to promote competitive markets, given increasing globalisation, changing market and social structures, and technological change.

The review will also look at whether the price signalling provisions of the Competition and Consumer Act should be retained, repealed, amended or extended from the banking sector to cover other sectors.

A draft report is due to be released in September 2014 with a final report scheduled for early 2015.

Case note: company receiver prevails over equipment lessor

One of the greatest risks for holders of security interests which are not registered on the Personal Property Securities Register is the risk that the grantor becomes insolvent and the insolvency administrator takes possession of the secured assets.

In White v Spiers Earthworks Pty Ltd [2014] WASC 139 decided competing claims to equipment.

Spiers sold its business to BEM and leased motor vehicles and trailers to it. BEM obtained finance and gave a charge over its assets to NAB. When BEM became insolvent NAB appointed a receiver. The receiver claimed possession of the motor vehicles and trailers. Spiers had not […]

APRA defines Tier 1 mutual equity interests

APRA has released the final amended Prudential Standard APS 111 Capital Adequacy: Measurement of Capital (APS 111), which allows mutually owned ADIs to issue Additional Tier 1 (AT1) and Tier 2 (T2) Capital instruments that will qualify to be included in Common Equity Tier 1 (CET1) Capital provided they meet the requirements in Attachments B, F, J and K of APS 111.

To qualify, the capital instruments must provide for conversion into mutual equity interests (MEI) in the event that the loss absorption or non-viability provisions in these instruments are triggered.

Conversion into ordinary shares is not […]

Privacy case note: disclosure of personal information in public place

Whilst cyber security receives constant publicity, the most obvious privacy breach risk is the disclosure of information in public areas, whether it is an office, a lift, a bus or an airport.

In ‘BO’ and AeroCare Pty Ltd [2014] AICmr 32 the Privacy Commissioner found that AeroCare interfered with the complainant’s privacy by collecting and disclosing the complainant’s sensitive personal medical information in the departure lounge of the Sunshine Coast Airport, in breach of the National Privacy Principles.

AeroCare was ordered to apologise in writing to the complainant, review its training of staff in the handling of sensitive personal information […]

By |April 16th, 2014|Privacy, Workplace|

Financial Services and Credit Responsible Manager CPD seminars

Our CPD seminars are taking place in Sydney on 6 May and Brisbane on 13 May. The seminar will focus on the most important regulatory issues affecting financial services responsible managers today including conduct risk, privacy and credit reporting.

Seats are limited. Book now.

Transition period ends on 30 June 2014
The transition period for responsible managers of credit licensees to hold relevant qualifications ends on 30 June (see ASIC RG206 and PF 224).

Licensees demonstrate organisational competence by having responsible managers with adequate skills and knowledge. In their license application applicants have to identify key people in […]

Draft Corporations Act changes released

Treasury has released an exposure draft of the Corporations Legislation Amendment (Deregulatory and Other Measures) Bill 2014 for comment.

If passed the Bill will amend the Corporations Act 2001 including:

  • removing the obligation of a company to hold a general meeting on the request of 100 shareholders;
  • removing the requirement to disclose the value of options granted to key management personnel, replacing it with a requirement to disclose the number of lapsed options and the year in which they were granted;
  • relieving unlisted disclosing entities from the obligation to prepare a remuneration report;
  • amendments to the test for the […]

ASIC admits performance failures

The Senate Economics Committee inquiry into the performance of ASIC has heard admissions of delays from ASIC’s Commissioners as well as a commitment to be more pro-active and transparent in responding to complaints.

This video (3:11) from ABC’s The Business describes ASIC’s admissions as a mea culpa in relation to frauds by employees CBA’s financial planning arm and shows the Commissioners giving evidence.

PPSA definition of “motor vehicle” amended

The Personal Property Securities Amendment (Motor Vehicles) Regulation 2014 has been registered. It will commence on 1 July 2014.

As foreshadowed when the Personal Property Securities Amendment (Deregulatory Measures) Bill 2014 was recently introduced the Regulation narrows the definition of motor vehicles by combining the two parts of the definition (ie requiring both speed and power output).

The current definition of motor vehicle in the PPS Regulations includes personal property that is built to be propelled, wholly on land, by a motor that forms part of the property and is capable of either a speed of at least 10km/h […]