Australia: Corporate Law News - February 2008

Last Updated: 11 February 2008
Article by Leigh Brown



Submission To ASIC On Proposed Multiple Market Operator Regime

The ASX has submitted a response to ASIC's Consultation Paper 95 Competition for market services - response to CP 86 and further consultation (CP 95). CP 95 was issued in response to applications lodged with ASIC by AXE ECN Pty Ltd (AXE) and Liquidnet Australia Pty Ltd (Liquidnet) for Australian market licenses to operate competing trading venues for ASX-listed securities.

The ASX submission considers a number of issues in relation to CP 95 including:

  • investor protection
  • self-regulation of market participants
  • legal issues arising from ASIC's proposal for licenses to be granted to a reporting facility prior to it operating as a trading facility and
  • changes to legislation required to address gaps in the current regulatory framework to sustain a multiple market operator environment.

The ASX submission can be accessed via the following link:

CP 95 can be accessed via the following link:$file/cp95_competition_for_market_services.pdf

Non-Voting Ordinary Shares - Discussion Paper Released

The ASX has released a public consultation paper in relation to non-voting ordinary shares. The paper puts forward a proposal to alter the listing-rules to allow quotation of non-voting ordinary shares, subject to certain safeguards.

The paper makes clear that the ASX has not formed a definite view on the proposal but has identified a need for review, particularly given developments in comparable overseas exchanges, many of which provide market access to non-voting ordinary shares.

Submission are due by 7 March 2008.

The ASX consultation paper can be accessed via the following link:


Draft Legislation Criminalising Serious Cartel Conduct

The Australian Government has released an exposure draft of the legislation to criminalise serious cartel conduct. If adopted, it will be a criminal offence to make, or give effect to, a contract, arrangement or understanding that contains a 'cartel provision' (ie, a provision that fixes prices, restricts outputs, allocates customers, suppliers or geographical areas or rigs bids between competitors) with the intention of dishonestly obtaining a benefit.

The proposed maximum punishment for such offences is: for individuals, five years imprisonment and a fine of $220,000;and, for corporations, the greater of $10 million, three times the value of the benefit from the cartel or, where the value cannot be determined, 10% of annual turnover. The draft legislation also creates equivalent civil offences for which dishonesty does not have to be proven.

Although prosecution of the new offences will be undertaken by the Director of Public Prosecutions (DPP) rather than the ACCC, a draft memorandum of understanding (MoU) between the DPP and the ACCC provides that the DPP will decide whether or not to commence criminal proceedings in accordance with Commonwealth policies and the recommendations of the ACCC. The ACCC may recommend the DPP not to commence proceedings if the offender meets the criteria in the ACCC's immunity policy.

The Government has also released a discussion paper in relation to the proposed legislation, which seeks input on whether dishonesty is an appropriate distinction between the criminal and civil offences, and whether telephone interception powers should be available to assist in the investigation of the proposed criminal offences. Submissions from interested partied are due by 29 February 2008. The draft legislation can be accessed via the following link:

The MoU between the DPP and ACCC can be accessed via the following link:

The Government discussion paper can be accessed via the following link:

Carbon Offset Claims Issues Paper

The ACCC has released an issues paper titled The Trade Practices Act and Carbon Offset Claims, which is intended to initiate consultations designed to provide guidance to consumers and businesses on claims made about carbon offsetting.

The issues paper comes in response to concerns about the growing number of marketing claims made about carbon offsetting, for example, in the marketing of cars, flights and household goods and services. The ACCC is particularly focusing on the potential for misleading or deceptive conduct given that consumers find it difficult to understand and verify such claims.

Submissions in response to the issues paper are due by 15 February 2008.

The issues paper can be accessed via the following link:


Interim Orders – Golden West Resources Limited 03 & 04

On 1 February 2008, the Takeovers Panel made interim orders on applications from Golden West Resources Limited (GWR) and Falak Holding LLC (Falak) in relation to the affairs of GWR. The applications from GWR and Falak pertain to a mistaken acceptance of Fairstar Resources Limited's (Fairstar) takeover offer for GWR by an agent of Falak, ANZ Nominees Limited (ANZ). Falak has a 7.98% holding in GWR.

Both GWR and Falak claim that the disputed acceptance gives rise to unacceptable circumstances, but at this stage only Falak has declared its intention to seek final orders reversing the legal effect of its mistaken acceptance.

Falak is reportedly conducting an investigation to determine how the mistake occurred.

The Takeover Panel's release in relation to the interim orders can be accessed via the following link:


High Court Publishes Its Reasons For Judgment In Alinta Litigation

On 31 January 2008, the High Court (Court) published its reasons for judgment in the matter of Attorney-General (Cth) v Alinta Limited [2008] HCA 2.

On 13 December last year, the Court unanimously held that the Takeovers Panel (Panel) in exercising its powers and fulfilling the functions conferred upon it by the Corporations Act 2001No. 50 (Cth) (Act) does not exercise the judicial power of the Commonwealth. The Court held that when declaring circumstances pertaining to the affairs of a company to be unacceptable circumstances, the Panel undertakes the non-judicial function of considering policy considerations relevant to the public interest.

A full copy of the Court's decision can be accessed via the following link:

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.