May 2013 Highlights

Subtitle 4.9 Financial Services Regulation

Updated by David Parish, Barrister, 13 Wentworth Selborne Chambers

This Subtitle addresses the area of law concerning the regulation of financial services and products, as well as the regulation of financial markets. Financial services are principally regulated through Ch 7 of the Corporations Act 2001 (Cth) and include the operation of various financial products, including superannuation and retirement products, derivatives, insurance, and foreign exchange products. This update addresses the recent and extensive changes that been have adopted in the finance sector with the passage of the Corporations Amendment (Future of Financial Advice) Act 2012 (Cth), and the Corporations Amendment (Further Future of Financial Advice Measures) Act 2012 (Cth) which inserted new provisions into the principal Act. These provisions include the insertion of the "best interest obligations" that require the providers of financial advice to act in the best interest of the client. The discussion includes an updated analysis of the law regulating the financial markets, which have undergone significant changes with the addition of the Chi-X Australia market in 2011. The Corporations Amendment (Financial Supervision) Act 2010 (Cth) transferred the regulation of financial markets from the Australian Securities Exchange (ASX) to the Australian Securities and Investments Commission (ASIC) which allowed for the introduction of new finance markets, like Chi-X. In light of these changes the Subtitle engages in a full review of the new ASIC Market Integrity Rules (ASX Market) 2010, ASIC Market Integrity Rules (Chi-X Australia) 2011, as well as the ASX Operating Rules and Chi-X Operating Rules.

Subtitle 8.8 Government Contracts

Updated by Dr Nicholas Seddon, Special Counsel, Ashurst Australia

This Subtitle is addresses the law applicable to governments and government instrumentalities when they enter into contracts including their authority to enter into contracts, their intention to create legal relations, crown proceedings and crown immunities, how government contracts interact with future government action, the effect of competition and consumer legislation, the implications of the tendering process and the options for administrative review of government commercial decisions. This update includes the interaction of the Australian Consumer Law and the Competition and Consumer Act 2010 (Cth) with government contracts. Recent relevant cases including: Australian Competition & Consumer Commission v Baxter Healthcare Pty Ltd [2010] FCA 929; Telstra Corp Ltd v Minister for Broadband, Communications and the Digital Economy [2008] FCAFC 7; Williams v Commonwealth [2012] HCA 23 are also discussed.

Subtitle 25.1 Australian Domestic Laws

Updated by Perry Herzfeld, Barrister, New South Wales Bar and Victorian Bar and Thomas Prince, Barrister, New South Wales Bar

Subtitle 25.1 has been extensively re-written and expanded along with Subtitles 25.2 (covering interpretation of international law) and 25.3 (interpretation of private law documents), not to mention the introduction of Subtitle 25.4 (covering interpretation of judicial statements), which together form the newly re-launched Title, Interpretation and Use of Legal Sources, also available as a softcover book, the First Edition of Interpretation and Use of Legal Sources (forthcoming release in 2013). This new material brings together a collection of the principles, presumptions and maxims applicable to the interpretation of documents in Australian public law. In particular, there is detailed discussion of the principles relating to constitutional interpretation (covering the Commonwealth Constitution and State and Territory constitutions), statutory interpretation (including extrinsic material and retrospectivity) and the interpretation of subordinate legislation (such as regulations and rules of court). These are illustrated by references to the Interpretation Acts of each Australian jurisdiction and recent High Court pronouncements including Attorney-General (SA) v Corp of City of Adelaide [2013] HCA 3 and Monis v The Queen [2013] HCA 4, as well as longstanding case law.

Subtitle 25.2 International Law

Updated by Dr Stephen Tully, Legal Officer, Migration Review Tribunal and Refugee Review Tribunal

This update is issued as part of the newly relaunched Title, Interpretation and Use of Legal Sources. This Subtitle considers the role of international law in the context of Australian legal interpretation, and looks at the ways in which international law can be used for resolving questions about the content and interpretation of Australian law. In doing so, this Subtitle considers the sources of international law, including specially constituted international judicial bodies and courts that exercise international influence, the documents and instruments of the United Nations and other influential international organisations, treaties to which Australia is party (with particular reference to Vienna Convention on the Law of Treaties (VCLT) (1969) 1155 UNTS 331; 8 ILM 679; [1974] ATS 2), customary international law, and other sources of international law that have been used by Australian courts (eg soft law instruments and academic writing).

Subtitle 25.3 Private Law

Updated by Thomas Prince, Barrister, New South Wales Bar

This update is issued as part of the newly relaunched Title, Interpretation and Use of Legal Sources, and deals more closely with the interpretation of private legal documents, such as contracts, deeds, wills and trusts. This Subtitle examines the parallels and distinctions relating to, and restrictions on, the applicability of principles of statutory interpretation in construing private documents, including those concerned with the meaning of words, the relevance of context, and linguistic maxims of construction.

Subtitle 25.4 Judicial Statements

Updated by Perry Herzfeld, Barrister, New South Wales Bar and Victorian Bar

This update is issued as part of the newly relaunched Title, Interpretation and Use of Legal Sources. This Subtitle collects principles applicable to the interpretation of reasons for judgment, orders and practice directions of Australian courts. It considers the rules of precedent, the principles related to the interpretation of orders, the foundation and interpretation of practice directions, as well as questions of interpretation associated with the doctrines of res judicata (or cause of action estoppel) and issue estoppel.

Subtitle 31.1 Employment Remuneration and Superannuation

Updated by Caroline Hoetzer, Legal Editor, Thomson Reuters

This Subtitle explores what constitutes assessable income for tax purposes, including its common law meaning and that provided by operation of the Income Tax Assessment Acts of 1936 and 1997. Particular attention is paid to the specific provision under s 15-2 of the Income Tax Assessment Act 1997 (Cth) for certain receipts to be classed as assessable income, including allowances, gratuities, and bonuses. The taxation of non-cash benefits via the Fringe Benefits Tax Assessment Act 1986 (Cth) is also dealt with. The Subtitle covers recent significant changes in the relevant law, including: the 2009 introduction of new rules governing the taxation of benefits received under employee share schemes; the re-written rules on taxation of employment termination payments which mean that from 2007 a taxpayer can no longer rollover such payments into superannuation and thus defer tax liability; and, the phased-in increase in compulsory employer superannuation contributions from 1 July 2013.

Subtitle 31.11 International Aspects

Updated by Professor Kerrie Sadiq, Professor, QUT Business School, Queensland University of Technology

This Subtitle examines international aspects of the Australian tax system, including the taxation of residents receiving foreign source income and foreign residents receiving Australian-sourced income. The discussion of the taxation of residents and non-residents covers individuals, companies and trusts, and outlines the rules of residency. The Subtitle also explores Australia’s jurisdiction to tax, cross-border transactions, double tax agreements and anti-avoidance provisions, such as transfer pricing.

June 2013 currently planned updates (subject to change):

• 2 Administrative Law 2.6 “Remedies in Judicial Review”
• 2 Administrative Law 2.7 “Other Forms of Review and Appeal”
• 18 Finance, Banking and Securities 18.6 “Documentary Credits and Demand Guarantees”
• 31 Revenue Law 31.4 “Deductions”
• 35 Unfair Dealing 35.3 “Unfair Practices”