The Regulator Report lists recent changes, decisions and developments at the main New Zealand and Australian corporate, commercial and competition regulatory bodies and updates progress of legislation in New Zealand. This edition of the Regulator Report covers the period from 10 September to 7 October 2009.

The Treasury

Information for depositors and institutions - Extended Retail Deposit Guarantee Scheme
On 13 September 2009 the Crown Retail Deposit Guarantee Scheme Act came into force, providing legislative authority for the extension of the Crown retail deposit guarantee scheme. The Treasury has published information for depositors and institutions on the scheme, including eligibility criteria, policy guidelines, an application form for institutions, draft example Crown deeds of guarantee and questions and answers. No institutions have yet been approved for the extended scheme.

The Treasury has also released documents relating to the development of government policy on the extended Crown retail deposit guarantee scheme, including Cabinet material and Treasury advice to Ministers.
Click here for more
Click here to access related documentation

Guidance for Public Private Partnerships (PPPs) in New Zealand
The National Infrastructure Unit has released a document 'Guidance for Public Private Partnerships (PPPs) in New Zealand'. It outlines for government agencies, potential bidders and the public, the general direction and principles that will be adopted for PPPs, the processes that are to be followed and the rationale for them. It also provides a framework for assessing whether a PPP is to be preferred over other forms of procurement in any given situation.

Regulatory Impact Statement: Climate Change Response (Moderated Emissions Trading) Amendment Bill
The Treasury has released the regulatory impact statement prepared to support the consideration of the Climate Change Response (Moderated Emissions Trading) Amendment Bill.
Click here for more

AIL, NRWT and the bond market
Concerns have been raised that the current approved issuer levy (AIL) and non-resident withholding tax (NRWT) rules may be one factor hindering the development of New Zealand's corporate bond market. A discussion paper released by the Policy Advice Division of Inland Revenue and the Treasury examines the question of whether the AIL should apply at a zero rate (rather than the usual rate of 2%) on interest paid on corporate bonds which meet certain criteria ("qualifying bonds"). Suggested changes include:

• A "qualifying bond" would be a debt security that belonged to a group of identical debt securities that satisfied the widely held test or the stock exchange test.
• The widely held test would require:
• the debt securities to be held by at least 100 investors (who are not associated or who could not reasonably be expected by the issuer to be associated); and
• no person (or group of persons that the issuer could reasonably expect to be associated with each other) holds more than 10% of the debt securities (disregarding an underwriter for the first year).
• The stock exchange test would require the debt securities to be listed on a recognised stock exchange.

A debt security would not be a qualifying bond if it has been issued through a private placement that is limited to a select group of investors; or it has not been openly advertised to the target market during the book-build process; or it is an asset-backed security.

For more information see the issues paper, "AIL, NRWT and the bond market" and the government's media release. Submissions close on 30 October 2009.

The Reserve Bank of New Zealand

Reserve Bank Bulletin released
The September 2009 Reserve Bank of New Zealand Bulletin includes articles on:

• the minimum capital levels that the four largest banks in New Zealand need to hold under the Basel II international bank capital framework;
• Greater transparency in fiscal policy;
• A discussion on lessons that can be learned from the socio-economic and political aspects of the 1930s Great Depression;
• an interview with Michael Bordo, Professor of Economics and Director of the Center for Monetary and Financial History at Rutgers University in New Brunswick, New Jersey, about his research on financial crises, New Zealand's financial vulnerability, and challenges in handling the financial crisis;
• the text of a public speech by Howard Davies, Director of the London School of Economics, who looks at the various parties involved in the current crisis and asks: whodunnit?
• a speech given by Governor Alan Bollard in July 2009, about the recovery from the current crisis.

Click here to access this Bulletin

The Department of Internal Affairs

Auckland local governance: structure now in law
Legislation has now passed through Parliament establishing the shape of local governance under the new Auckland Council. The Local Government (Auckland Council) Act 2009 sets out the structure of the new Council and outlines the functions of each of two tiers of decision making within it – that of the governing body itself and a series of local boards. Bell Gully has prepared a diagram that outlines the governance structure. Click here to view it.

Ministry of Economic Development (MED)

Submissions received in response to disclosure regulations under the Financial Advisers Act 2008
MED has released 44 submissions it received on the Financial Advisers Act 2008: Disclosure Regulations Discussion Document released in June. The document sought feedback on proposals for regulations under the Financial Advisers Act which will specify the form and content of disclosure requirements for financial advisers under the new regime.
Click here for more

Review of the statutory framework for financial reporting
MED has released a discussion document on the Statutory Framework for Financial Reporting with the objective of creating "a financial reporting framework that is coherent, complete and consistent" and to have a system that "is as simple and clear as practicable". This discussion document should be read together with a companion discussion document released simultaneously by the Accounting Standards Review Board(ASRB) entitled Proposed Application of Accounting and Assurance Standards under the Proposed New Statutory Framework for Financial Reporting.

MED's document addresses issues relating to the policy and law of financial reporting, including:

• proposals to rationalise the institutional arrangements and the allocation of statutory responsibilities;
• a proposed statutory process for determining how the number of tiers of financial reporting and the qualifying criteria for each tier will be determined;
• preliminary views on whether each class of entity should be required to prepare financial statements and, if so, whether the statements will need to be audited and/or published or distributed in one way or another (e.g. filing with the Registrar of Companies); and
• some other issues with the financial reporting legal framework, such as whether the requirement to prepare parent-only financial statements should be retained.

The ASRB outlines how it would respond if Parliament were to enact the changes that are outlined by MED. In particular, it:

• makes proposals about the number of tiers and the qualifying criteria for each tier; and
• generally describes the nature of the financial reporting and assurance requirements tentatively proposed for each tier.

The proposals have the potential to align New Zealand's financial reporting requirements with those of Australia. The closing date for submissions on both documents is Friday 29 January 2010.

Anti-Money Laundering and Countering Financing of Terrorism Bill
The Anti-Money Laundering and Countering Financing of Terrorism Bill (as amended by the Foreign Affairs, Defence and Trade Committee) passed its second reading on 24 September. It is expected that the bill will complete the parliamentary process when Parliament resumes sitting next week. The select committee was of the view that the bill (as introduced) did not give sufficient emphasis to a risk-based framework for countering money laundering and the financing of terrorism and recommended amendments to align it more closely with Australia's anti-money laundering and countering financing of terrorism (AML/CFT) regime. Justice Minister Simon Power noted that "the select committee's recommendations have made the bill more operationally savvy by refining the requirements for existing customers, giving industry the opportunity to delay verification of a customer's identity, and allowing foreign politically exposed people to be identified through back-office functions". The bill represents the first AML/CFT reforms since 1996 and seeks to bring New Zealand into line with the international standards for AML/CFT frameworks, as set out by the Financial Action Task Force.
Click here to read the press release
Click here to read the select committee's report
Click here for Bell Gully's earlier commentary on the bill

Review of the Operation of the Credit Contracts and Consumer Finance Act 2003 (CCCFA)
The CCCFA came into force in 2005 and covers all forms of consumer credit in New Zealand. Recently the Ministry of Consumer Affairs conducted a review of the Act and has released its findings in a discussion document: Review of the Operation of the Credit Contracts and Consumer Finance Act 2003. The document outlines proposals to amend the CCCFA to improve its operation. It also looks at other legislative initiatives which have been or are being introduced in New Zealand and that are likely to affect the operation of New Zealand's consumer credit market. Feedback is sought through a series of questions on:

• the proposed enhancements to the Act in the areas of disclosure, access to hardship relief, credit limit extensions, and removal of unnecessary compliance costs;
• the reasonableness of fees and their use;
• securitisation of loans and the relationship with the Credit (Repossession) Act;
• fringe lending practices, interest rates caps and responsible lending.

Submissions close on 16 November 2009.
Click here for more

Trade Marks (International Treaties and Enforcement) Amendment Bill
The Foreign Affairs, Defence and Trade Committee has examined the Trade Marks (International Treaties and Enforcement) Amendment Bill and recommended it be passed with amendments. The bill is an omnibus bill to amend the Trade Marks Act 2002 and the Copyright Act 1994. The bill aims to give effect to the government's decisions to ratify the Singapore Treaty on the Law of Trade Marks, and to accede to the Nice Agreement Concerning the International Classification of Goods and Services for the purposes of the Registration of Marks, and the Madrid Protocol Relating to the Madrid Agreement. It also seeks to strengthen the existing enforcement provisions in the Trade Marks Act and the Copyright Act to deter counterfeiting of registered trade marks and piracy of copyright-protected works.
Click here to read the report

Submissions on Electricity Market Review
The government has received 128 submissions on its Ministerial Review of Electricity Market Performance which was released for public consultation on 12 August 2009. The review was conducted by the Technical Advisory Group appointed by the government in April 2009 with assistance by MED officials. The review team was asked to assess the performance of the electricity market, institutions and governance to date; identify problem areas; assess to the degree possible the costs and benefits of different reform options; and make recommendations to improve electricity market performance. The submissions have been made available on MED's website.
Click here to read the submissions
Click here to read Bell Gully commentary on the review
Click here to read the report. Note that the report comes in two volumes: "Improving Electricity Market Performance: Volume One - Discussion document" and "Improving Electricity Market Performance: Volume Two – Appendices".

Ultra-fast broadband investment initiative
On 16 September 2009, Communications and Information Technology Minister Steven Joyce announced the final design of the government's broadband investment initiative. The government's overall objective for the ultra-fast broadband investment initiative is to accelerate the roll-out of ultra-fast broadband to 75% of New Zealanders over 10 years, concentrating in the first six years on priority broadband users such as businesses, schools and health services, plus green-field developments and certain tranches of residential areas. Details on the government's proposal are set out in an overview document.
Click here to read the press release
Click here to read the Final proposal overview document

Facilitating the deployment of broadband infrastructure
Communications and Information Technology Minister Steven Joyce has released a discussion document on complementary measures the government is considering to facilitate the deployment of broadband infrastructure by local fibre companies and other telecommunications companies. Submissions on measures relating to access to support structures and services, access to land and Resource Management Act controls should be made to MED by 6 November 2009.
Click here for the full press release
Click here to access the discussion document
Click here for further details as well as details on upcoming workshops on the issues

New Zealand Energy Outlook
The MED has released the first stage of the 2009 edition of New Zealand Energy Outlook, a report with long-term forecasts on energy supply, demand, prices and energy sector greenhouse gas emissions. It is the first edition to release annual topic-specific articles rather than a three-yearly release of a single report.
Click here to read the report

Companies Office

Industrial and provident societies review
In preparation for the introduction of the Companies Office's Enterprise data system, the Registrar of Industrial and Provident Societies is conducting a review of the industrial and provident societies register. There are currently 299 societies registered under the Industrial and Provident Societies Act 1908. The main purpose of the review is to determine whether a society is still operating and to ask them to provide the Registrar with up-to-date addresses for the society.
Click here for further details

Ministry for the Environment

Further modifications to New Zealand's Emissions Trading Scheme
The government, with Maori Party support, has introduced the Climate Change Response (Moderated Emissions Trading) Amendment Bill. This bill amends the Climate Change Response Act 2002 by modifying the New Zealand Emissions Trading Scheme (ETS). It also provides further powers to make regulations and administer the principal Act as well as making technical drafting changes to add clarity to the principal Act. Some of the key changes proposed for the ETS include:

• Revised entry dates of 1 July 2010 for transport, energy and industrial sectors and 1 January 2015 for agriculture;
• A transitional phase until 1 January 2013 with a 50% obligation and $25 fixed price option for the transport, energy and industrial sectors that will half power price and fuel price increases;
• A production-based industry average approach to allocations for trade exposed, emissions intensive businesses;
• A two-tier system of allocations of 90% for highly intensive and 60% for medium intensive trade exposed businesses;
• A phase-out of industry support aligned with trading partners and the Government's long-term -50 by 2050 emissions reduction target;
• Incentives for afforestation created by a domestic and international market for carbon credits; and
• Enhanced transitional support for the fishing industry.

Submissions on the bill close on 13 October and the Finance and Expenditure Committee is due to report back on it on 16 November. It is the government's intention to pass the bill before the existing ETS comes into effect on 1 January 2010 and by the time of the Copenhagen climate change conference in December.
Click here to read the press release
Click here for a copy of the Bill
Click here for background information on the ETS

Electricity Commission

Consultation on dispatchable demand – options
The Electricity Commission has launched a Market Development Programme (MDP) to improve the performance of the electricity market. The MDP is designed to address two key areas of concern: supply security and electricity prices. The first in a series of consultation papers to be released as part of the MDP focuses on one element of the MDP, namely a consideration of high level options for a "dispatchable demand" regime. The ability of demand-side participants to respond actively to wholesale electricity market conditions is an important component of an efficient wholesale market. While there are existing mechanisms in place to encourage this response, several policy problems have been identified with those arrangements. The Commission considers that providing an opportunity for electricity users to elect to be "dispatched" may be one way to improve demand-side response in the electricity market to achieve greater efficiency and security. Accordingly, the Commission is consulting on four high level dispatchable demand options. Submissions on this consultation paper close on 16 November.

The Commission's MDP consultation papers that are being released at this time present high level options and as such there will be time to consider issues that arise from the current Ministerial review of the Commission during later stages of the MDP projects.
Click here for further details

Consultation on Part D: Issues and proposed options
The Electricity Commission has established the Part D Review project to carry out a fundamental review of part D of the Electricity Governance Rules 2003 (Rules). Part D of the Rules sets out the obligations on participants in relation to metering standards. It deals with the responsibility of participants in relation to the provision of metering installations, the testing of metering installations, ensuring a metering installation complies with a set of codes of practice, and the role of the reconciliation manager in relation to metering inaccuracies. Wholesale settlement requires accurate meters and data handling processes at every point of connection. The purpose of the Part D Review project is to provide a proposed new part D which is fit for purpose and future-proofed. This will enable the implementation of new technologies, avoid inhibiting the potential benefits available from advanced metering infrastructure and other future innovations. Submissions on the "Part D Consultation Paper - Issues and Proposed Options" released by the Commission as part of the review close on 9 November 2009.
Click here for further details

2009 Grid Planning Assumptions
As part of its duties in overseeing aspects of transmission investment, the Electricity Commission is required to publish a Statement of Opportunities (SOO). The SOO must include Grid Planning Assumptions (GPA). The GPA must include long-term peak and energy demand forecasts, and a reasonable range of credible future, high-level generation scenarios. The Commission has made significant progress in developing a new set of GPA and is now seeking participants' feedback. With regard to the demand forecasts, the Commission is currently reviewing the underlying model and therefore, most of the feedback sought in the 2009 GPA consultation paper is around input assumptions and methodology of the demand forecasts. The Commission has prepared a set of specific questions on the 2009 GPA and invites submissions on these questions in particular but also welcomes other comments. Submissions close on 23 October.
Click here for further details

Proposed availability and reliability index measures - interconnection asset services
The Electricity Commission has invited submissions on the consultation paper "Proposed availability and reliability index measures – interconnection asset services". This paper proposes index measures for the reliability and availability of the interconnection assets. Submissions close on 16 October 2009.
Click here for further details

Revision of Information System Definition document
The Electricity Commission is proposing a number of minor changes to the Information System Definition document (which defines the various information systems required by the Electricity Governance Rules 2003). The proposed changes are mainly for the purpose of clarification and are not intended to change existing information systems used for the conveyance of information under the Rules. Submissions close on 16 October.
Click here for further details

Electricity Commission's report on GPS
The Commission has published its report stating its achievements against the Government Policy Statement to 30 June 2009.
Click here to read the report

Securities Commission

Report on the effectiveness of the Securities Commission
In June 2009 the Securities Commission established an independent panel to review the effectiveness of the Commission. The terms of reference for the review included an evaluation of the Commission's securities regulatory work, its governance structures and practices, and its relationship with key stakeholders. The review was carried out by Michel Prada, former Chair of France's Securities Commission and Neil Walter, former Secretary of Foreign Affairs and Trade and former Chair of New Zealand's Environmental Risk Management Agency over the period 15 June to 31 August 2009. The Report on the Effectiveness of New Zealand's Securities Commission is now available on the Commission's website.

Commissioner for Financial Advisers, Securities Commission members announced
David Mayhew has been appointed the new Commissioner for Financial Advisers and will formally assume the role on 25 January from Annabel Cotton, who was appointed on a temporary basis. The commissioner will oversee the drafting, approval and implementation of a professional Code of Conduct for authorised financial advisers. This sets the minimum standards of competence, knowledge and skills, ethical behaviour, client care, and professional training requirements that authorised financial advisers must comply with. Simon Botherway and Mark Verbeist have been appointed as new members of the Securities Commission.
Click here for further details on these appointments

SECURITIES ACT EXEMPTION NOTICES

The following Securities Act Exemption Notices have been published for this period:

Securities Act (NZX-Share and Unit Purchase Plans) Exemption Amendment Notice 2009
This notice, which came into force on 25 September 2009, amends the Securities Act (NZX—Share and Unit Purchase Plans) Exemption Notice 2005 to:

• change the pricing condition that applies for a share purchase plan or a unit purchase plan to take into account the price paid by investors under a private placement; and
• increase the annual cap for offers under the principal notice from $5,000 to $15,000; and
• prevent the exemptions from applying if any securities of the NZX issuer have been suspended for five trading days or more within the last 12 months.

In its statement of reasons accompanying the notice, the Securities Commission states that the amendments have been made for the following reasons:

• the changes to the notice are consistent with changes recently made to the equivalent class order made by the Australian Securities and Investments Commission and maintain parity in trans-Tasman rules for share and unit purchase plans;
• the increased annual cap for offers under the notice will increase NZX listed issuers' ability to extend share purchase plans to retail investors at low cost. The $15,000 cap remains consistent with the policy objective of limiting the risk to individual investors by capping participation at a relatively modest amount;
• the conditions of the exemptions limit offers made under the notice to people who already hold securities of the same class as those being offered and require issuers to provide investors with certain important information about the offer. At the time the price for the new securities is set, the directors of the issuer must not have any information that is not publicly available and that would, or would be likely to, have a material effect on the price of the securities;
• the changes to the application and conditions of the exemptions increase protection for investors as follows:
• any issuer whose securities have been suspended from quotation for a period of more than five trading days in the preceding 12 months will not be able to use the notice, but will need to apply to the Commission for an individual exemption, allowing the Commission to assess the reasons for the suspensions and whether, at the time of the intended offer, the market appears to be fully informed about the affairs of the issuer; and
• the new condition concerning pricing applies where a share or unit purchase plan follows a private placement and requires that retail investors can subscribe for securities at a price no higher than that paid by the investors under the private placement.

For further background on these changes refer to this earlier Bell Gully article

Securities Act (Rights, Options, and Convertible Securities) Exemption Amendment Notice (No 2) 2009
This notice, which came into force on 1 October 2009, amends the Securities Act (Rights, Options, and Convertible Securities) Exemption Notice 2002 (the principal notice). The amendments arise from the recent introduction of the new simplified disclosure prospectus (SDP) regime which also came into force on 1 October. Under the new section 37A(1)(ab)(i) of the Securities Act, in the case of a security offered in a SDP a subscriber must receive a copy of the SDP before subscription. In the case of renounceable right issues, this requirement raises the same difficulty as for those securities required to be accompanied by an investment statement under section 37A(1)(a) of the Securities Act. As rights trade on a securities market (when renounced), it is not possible for the issuer of securities to ensure that an investment statement or a SDP (as the case may be) is given to the eventual subscriber. The principal notice already provides an exemption from the requirement to provide an investment statement in such circumstances and this exemption has now been extended to cover the new requirement relating to SDPs.

The notice also makes some additional technical amendments to the principal notice arising from the new Securities Regulations 2009.
For background information on the new SDP regime and the Securities Regulations 2009 click here

Securities Act (HSBC Overseas Banks) Exemption Notice 2009
This notice, which came into force on the 2 October 2009 and expires on 30 September 2014, relates to the ability of three banks operating overseas, HSBC Bank Australia Limited, HSBC Bank plc, and HSBC Bank USA, N.A. (the HSBC overseas banks), to offer call account facilities to people in New Zealand. It exempts the HSBC overseas banks from the following in respect of certain debt securities (call debt securities), subject to conditions:

• the trust deed and prospectus requirements of the Securities Act 1978 (the Act);
• the requirement in section 37A(1)(a) of the Act that, before the allotment of a security offered to the public for subscription, the subscriber has received an investment statement;
• regulation 14(1) of the Securities Regulations 1983 (the Regulations), which requires advertisements for debt securities to state either that the securities are secured or unsecured or the nature and ranking of the securities;
• regulation 17 of the Regulations, which prohibits the distribution of an advertisement containing an offer of securities unless a certificate that complies with the regulations has been completed at the time the advertisement is distributed; and
• certain other requirements of the Act and the Regulations.

Securities Act (Pyne Gould Corporation Limited) Exemption Notice 2009
This notice, which came into force on 6 October and expires on 31 December 2009, exempts Pyne Gould Corporation Limited (PGC) from section 37A(1)(b) of the Securities Act 1978 and regulation 7A(4) of the Securities Regulations 1983. The exemptions allow PGC to allot shares under an offer document that is misleading by reason of not referring to certain material events, so long as PGC has published updated information relating to the material events and their effect on the offer.

Securities Act (New Zealand Greyhound Racing Association Incorporated) Exemption Notice 2009
The Securities Act applies to offers to the public of shares in greyhounds, whether through a company or a syndicate (unless exempted under the Act). This notice provides exemptions from certain provisions of the Securities Act for issuers who have agreed to comply with a code of practice approved by the Securities Commission (the approved code of practice) and are registered with New Zealand Greyhound Racing Association Incorporated (Greyhound Racing NZ). The approved code of practice, which is administered by Greyhound Racing NZ, regulates the offer to the public of securities relating to greyhounds registered with Greyhound Racing NZ. The notice came into force on 25 September 2009 and expires on 30 September 2014.

SECURITIES MARKETS ACT EXEMPTION NOTICES

The following Securities Markets Act Exemption Notices have been published for this period:

Futures Contracts (Commonwealth Securities Limited) Exemption Notice 2009
Under this notice, which came into force on 11 September 2009 and expires on 30 September 2014, Commonwealth Securities Limited is exempted from the Futures Industry (Client Funds) Regulations 1990 in respect of its dealings in futures contracts made on or effected through a market operated by the Australian Securities Exchange.

Futures Contracts (IG Markets Limited) Notice 2009
This notice, which came into force on 2 October, declares that certain products offered by IG Markets Limited (the products) are agreements to which Part 3 of the Securities Markets Act 1988 applies. The products are particular kinds of contracts for difference in respect of shares and other securities.

Takeovers Panel

Annual Report 2009
The Takeovers Panel has released its 2009 Annual Report. The report notes that:

• Upstream takeovers: The most significant of the Panel's policy work during the year has been the review of the operation of the Takeovers Code in relation to upstream takeovers The Panel is currently analysing the submissions received on its discussion paper published in May 2009. It expects to publish the outcome of its deliberations in the first quarter of the 2009/2010 year.
• Schemes of arrangement: Progress on the Panel's recommendations to the government relating to changes to the Companies Act and the Takeovers Code for schemes of arrangements and amalgamations have been affected by the change of Government and there is no firm timetable for progressing the Panel's recommendations.
• Technical amendments: The Panel is currently working on a range of technical amendments to the law, the need for which has come to light in the course of Code transactions over the last few years.

Click here to read the full report

TAKEOVERS CODE EXEMPTION NOTICE

The following Takeovers Code Exemption Notice has been published for this period:

Takeovers Code (Abano Healthcare Group Limited) Exemption Notice 2009
This notice applies to acts or omissions occurring on or after 24 September 2009 and expires on 31 December 2010. The Takeovers Panel has granted exemptions, subject to specified conditions, for:

• ABA Nominee Limited (the nominee company), three trusts associated with Peter Hutson, Anya Hutson, and Scott Wright (the trusts), a company controlled by the trusts called Healthcare Industry Limited (Healthcare), and Abano Healthcare Group Limited (Abano) from rule 7(c) of the Takeovers Code (the Code) to the extent that the notice of meeting does not comply with rule 15(b) of the Code; and
• Abano from rule 15(b) of the Code in respect of the notice of meeting.

The nominee company, the trusts, Healthcare, and Abano intend to seek the approval of the Abano shareholders, in accordance with the Code, to the acquisition by the nominee company of HHL's Abano shares and to any increase in the voting control by the nominee company, the trusts, Healthcare, and Abano resulting from the entry into, and enforcement of rights under, a loan agreement and certain security arrangements.

New Zealand Exchange (NZX)

Real time announcements
NZX listed company announcements are now available in real-time on the NZX website, www.nzx.com. All NZX listed company announcements can be accessed, in PDF format, by users logged on to the My NZX service.

Australian Securities and Investments Commission (ASIC)

ASIC releases proposed guidance on regulation of clearing and settlement facilities
ASIC released proposed guidance on the regulation of clearing and settlement (CS) facilities for consultation. The guidance, "Clearing and settlement facilities: Australian and overseas operators", outlines when an Australian CS facility license is required and how Australian and overseas operators can apply for a licence. The guidance also details ASIC's approach to advising the Minister about applications for exemption from the requirement to hold a licence. Submissions on the proposed guidance close on 13 November 2009.
Click here for more

ASIC provides hedging relief to market makers
ASIC has issued Class Order [CO 09/774] that allows short selling to hedge risk from market making activities. Previous exemptions that allowed market makers to 'naked' short sell to hedge their long exposures were repealed on 8 January 2009 by the Corporations Amendment (Short Selling) Act 2008. The class order provides market makers with relief in limited circumstances from section 1020B(2) of the Corporations Act in relation to the sale of a security or managed investment product to hedge risk from market making activities.
Click here for more

ASIC releases Australian Securities Exchange market assessment report
ASIC has released its annual market assessment of Australian Securities Exchange Group (ASX). The report covers the period 1 January 2008 to 31 December 2008.
Click here for more

ASIC seeks comment on credit rating use in disclosure documents
ASIC is seeking public comment on whether to withdraw current class order relief that allows issuers of investment products to cite credit ratings in disclosure documents without the consent of credit rating agencies.
Click here for more

New Zealand Commerce Commission (NZCC)

Media releases

The NZCC has issued the following media releases:

Industry regulation and regulatory control

• Commerce Commission receives application for EIR Act exemption from Marko Bogoievski
  The NZCC has received an application from Marko Bogoievski seeking exemption from section 17 of the Electricity Industry Reform Act 1998 in relation to his nomination as Infratil Limited's alternate director of Auckland International Airport Limited while Lloyd Morrison is on medical leave of absence.
  Click here for more

Market behaviour

• Credit card settlements lower New Zealand business costs
  The NZCC has reached separate agreements with seven financial institutions settling the Commission's claims that they breached the Commerce Act, and ushering in a new competitive landscape for the credit card industry in New Zealand. The agreements with the financial institutions follow settlements reached in August with Visa and MasterCard that paved the way for interchange fees in New Zealand to be set by competition. The institutions that have reached settlements with the Commission are: ANZ National, ASB, Westpac New Zealand Ltd, Bank of New Zealand, Kiwibank/New Zealand Post, TSB Bank, and The Warehouse Financial Services Limited.
  Click here for more

Telecommunications

• Telecom complies with the Telecommunications Service Obligations
  The NZCC has advised the Minister for Communications and Information Technology that Telecom Corporation of New Zealand Limited has complied with all its Telecommunications Service Obligations quality measures for the 2008/09 financial year.
  Click here for more

• Commerce Commission reports to Minister on Sprint's compliance with Telecommunications Service Obligations
  The NZCC has reported to the Minister for Communications and Information Technology on Sprint International New Zealand Limited's performance in complying with the Telecommunications Service Obligations Deed for Telecommunications Relay Services for the period from 1 July 2008 to 30 June 2009.
  Click here for more

• Average broadband performance continues to improve
  The NZCC has released its report on New Zealand broadband quality for the three months to June 2009. The report examines the quality of broadband services provided by New Zealand's internet service providers.
  Click here for more

• Commerce Commission to investigate resale services
  The NZCC has announced that it will commence an investigation into whether the services Telecom Corporation of New Zealand provides to other telecommunications companies to be resold should be deregulated.
  Click here for more

• Commerce Commission releases final Telecom TSO cost calculation for 2006/07
  The NZCC has released its telecommunication service obligations (TSO) determination covering the 2006/07 year for Telecom's local residential telephone service. The final TSO cost is $61.36 million for 2006/07.
  Click here for more

• Commerce Commission releases final Telecom TSO cost calculation for 2007/08
  The Commerce Commission has released its telecommunication service obligations (TSO) determination covering the 2007/08 year for Telecom's local residential telephone service. The final TSO cost is $72.1 million.
  Click here for more

Australian Competition and Consumer Commission (ACCC)

ACCC media releases

The ACCC has issued the following media releases:

Mergers and acquisitions

• ACCC will not oppose proposed acquisition of Wyeth by Pfizer after proposed sale of animal health assets
  The ACCC has announced that it will not oppose the proposed acquisition of Wyeth Corp by Pfizer Inc after competition concerns were resolved by Pfizer's undertaking to sell certain Australian animal health assets.
  Click here for more

• ACCC not to oppose NAB's proposed acquisition of Challenger's mortgage management business
  The ACCC will not oppose the proposed acquisition of Challenger's mortgage management business by National Australia Bank, after concluding that it is unlikely to substantially lessen competition in the market for the supply of home loans.
  Click here for more

Market behaviour

• ACCC allows union to represent SA milk vendors in negotiations
  South Australia's milk vendors will be able to negotiate in groups with processors for another five years under an authorisation granted by the ACCC. The ACCC has concluded that such group bargaining is likely to result in better input into the contract-negotiation process and lower negotiation costs than if the vendors negotiate individually.
  Click here for more

• ACCC saves small business newsagents $20 million
  Prompt action by the ACCC has relieved many Australian small businesses of a potentially heavy financial obligation for useless equipment. Following the collapse of Bill Express in July 2008 close to 3000 small businesses found they were locked into up to 60 month rental contracts for bill paying technology which no longer worked. Small business owners rented the equipment from Technology Business International Pty Ltd. The Federal Court has declared that TBI and Bill Express had contravened the Trade Practices Act by engaging in exclusive dealing and misleading and deceptive conduct.
  Click here for more

• ACCC proposes to allow joint marketing by Gorgon Gas Project
  The ACCC has issued a draft decision proposing to allow joint marketing of natural gas to customers in Western Australia by the members of the Gorgon Gas project joint venture. The ACCC considers that features of the current WA domgas market are likely to create significant barriers to effective separate marketing and are likely to result in inefficient outcomes for the industry.
  Click here for more

• Supermarket agreement opens way for more competition
  The ACCC has announced that agreement had been reached with Coles Group Limited and Woolworths Limited to phase out all restrictive provisions in supermarket leases. Both companies have agreed that they will not include restrictive provisions in any new supermarket leases, and in the case of existing supermarket leases, they will not enforce restrictive provisions five years after commencement of trading.
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• ACCC allows PaintRight stores to bargain as a group with suppliers
  Member stores of the PaintRight banner group will be able to bargain as a group with suppliers after the ACCC concluded that the arrangements will benefit the public. PaintRight Ltd has notified the ACCC that it wants to negotiate with nearly 60 nominated suppliers on behalf of 56 stores operating under the PaintRight name.
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• ACCC proposes to allow collective waste management agreement between Sydney councils
  The ACCC proposes to allow certain Sydney councils to jointly tender and contract for the provision of waste transfer, disposal and processing services to their local government areas. The councils have developed the arrangements to stimulate investment in alternative waste technology facilities that are capable of transforming general waste into reusable products.
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• ACCC alleges price fixing by Queensland construction companies
  The ACCC has commenced legal proceedings alleging three construction companies engaged in price fixing and misleading or deceptive conduct in tendering for Government construction projects in Queensland. The ACCC has alleged that between 2004 and 2007 T.F. Woollam & Son Pty Ltd, J.M. Kelly (Project Builders) Pty Ltd and Carmichael Builders Pty Ltd were involved in a practice known within the building industry as 'cover pricing'.
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• Federal Court dismisses airline's appeal challenging ACCC investigation powers
  The Full Federal Court has unanimously dismissed an appeal by Singapore Airlines which sought to challenge the validity of compulsory investigation notices issued by the ACCC. The primary challenge to the notices was whether routes between two points wholly outside Australia could be within a "market in Australia". The Full Federal Court rejected that challenge and noted that "prices fixed for legs of a journey which take place wholly outside Australia may ultimately affect competition in a market in Australia".
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Telecommunications

• Tribunal grants exemptions for wholesale voice services
  The Australian Competition Tribunal has confirmed there is a case for winding back regulated access to Telstra's wholesale voice services in certain metropolitan and CBD areas, when and where competition has sufficiently developed. The Tribunal has varied the exemption orders made by the ACCC in August and October 2008 in relation to Telstra's supply of the local carriage service, wholesale line rental service and PSTN originating access service.
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Access

• ACCC issues position paper on water trading rules
  The ACCC has issued a position paper inviting submissions on the development of water trading rules advice. The Water Act 2007 requires the Murray Darling Basin Authority (MDBA) to develop a Basin Plan for the sustainable and integrated management of water resources in the Murray Darling Basin, including water trading rules. The MDBA has requested the ACCC's advice on the development of the water trading rules component of the Basin Plan.
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• ACCC reinstates interim approval following Hunter Valley coal industry agreement
  The ACCC has reinstated interim authorisation to Port Waratah Coal Services, the Newcastle Coal Infrastructure Group and the Newcastle Port Corporation, including for the port's coal queue capacity management system. This system will allow better management of the queue of ships waiting to load Hunter Valley coal.
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• ACCC approves grain port access arrangements
  The ACCC has formally approved CBH, GrainCorp and Ausbulk's grain port access arrangements. Ausbulk is the wholly owned subsidiary of ABB Grain that owns and operates the ports. The decision will ensure that there is fair and transparent access to grain ports operated by CBH, GrainCorp and Ausbulk, to the benefit of Australian farmers and wheat exporters.
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Consumer issues

• Telecommunications market leaders agree to raise the bar on clarity in advertising
  In a significant multi-party arrangement, telecommunications industry leaders Telstra, Vodafone Hutchison (operating under the Vodafone, 3 and Crazy John's brands), and Optus (also on behalf of Virgin Mobile) have given a court enforceable undertaking to the ACCC that they will review and improve their advertising practices so that consumers are better informed about the telecommunications products and services they offer.
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• ACCC leads international action against online scams
  Websites targeting consumers with misleading or fraudulent claims will be the focus of a coordinated international internet sweep. The ACCC will lead the International Consumer Protection and Enforcement Network to uncover and disrupt fraudulent websites offering consumers a quick fix for their problems.
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• Two-piece party horns recalled
  The ACCC has gained a product recall from a party horn supplier after tests revealed it to present a choking hazard for children under the age of three.
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• Smoking addiction therapists must prove claims
  Those wanting to quit smoking must be provided with accurate information from people selling these services, ACCC acting chairman Peter Kell has warned. ACCC investigations have revealed that some hypnotherapists and laser clinics are making unproven and misleading claims about the success rate of their smoking addiction treatments.
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• Franchise builder reviews practices after ACCC action
  The franchisor of G.J. Gardner Homes, Netdeen Pty Ltd, and its directors, have given court enforceable undertakings after an ACCC investigation into allegations that the franchisor had misled former franchisees. The investigation followed complaints that Netdeen made misleading representations about the benefits of the franchise to prospective franchisees between 2004 and 2006.
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• Court finds Australialink misled consumers and acted unconscionably over online directory service
  The Federal Court has declared that documents used by a company to solicit customers for its online business directory were likely to mislead businesses receiving them. The company also engaged in conduct likely to mislead or deceive and acted unconscionably in demanding payment for these services. Australialink, which is based on the Gold Coast, publishes a number of online business directories, including the Australian Business Pages Directory.
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• ACCC acts against backpacker travel agents for misleading price representations
  Three backpacker travel agents whose advertising breached the new component pricing law and contained misleading representations about the total price of packages have given court enforceable undertakings to the ACCC.
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• Big W recalls flammable children's nightwear
  Parents and carers have been urged to check children's sleepwear after Big W's recall of 27 styles incorrectly labelled as low fire danger. Woolworths Pty Ltd has undertaken an urgent voluntary recall following reports that showed it failed fabric flammability requirements of the mandatory standard for use of this label.
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• Telcos warned about mobile, wireless internet speed advertising
  The ACCC has issued an Information Paper to assist companies in complying with the consumer protection provisions in the Trade Practices Act 1974 when advertising mobile and wireless internet. "The ACCC is concerned by companies over-promising and under-delivering the speeds available on mobile and wireless internet, particularly in the context of network upgrades and increasing wireless internet subscriptions," ACCC chairman Graeme Samuel said.
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• Australian Bush Hat Co corrects country of origin claims
  The ACCC has accepted court enforceable undertakings from The Australian Bush Hat Co Pty Ltd in relation to misleading country of origin claims made about its hats. Between 2006 and 2009 ABHC represented that its Premium Selection and Statesman hats were manufactured in Australia when that was not the case.
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• Franchisor admits non-compliance with the Franchising Code and agrees to give franchisees a refund
  A franchisor which failed to comply with the Franchising Code of Conduct has agreed to release franchisees from their agreements and get refunds, if they so choose, ACCC chairman Graeme Samuel said. "The ACCC has accepted court enforceable undertakings from Australian Loans Management Pty Ltd and Active Money (Aust) Pty Ltd," Mr Samuel said.
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• Extra virgin olive oil now true to label
  Australian consumers can be more confident of the quality of the extra virgin olive oil they are considering buying after ACCC intervention. "Certain importers, distributors and retailers will now conduct more testing to verify that the extra virgin olive oil they supply is as claimed," ACCC chairman Graeme Samuel said.
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• Court finds Zanok Technologies, directors misled foreign IT job seekers
  Foreign students and IT graduates who paid for an IT course conducted by Zanok Technologies Pty Ltd were misled and deceived about the course and exploited by unconscionable conduct, the Federal Court has declared.
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Legislation round-up

The following is an overview of the status of all legislation promulgated during the period from 10 September 2009 to 7 October 2009 or currently before Parliament.

If you require any further information or advice on any of the legislation listed below, or would like our assistance with making a submission to a select committee on any bill, please contact your usual Bell Gully adviser.

New Acts

Act	Date Act is in force
Local Government (Auckland Council) Act 2009	Part 2 comes into force on the close of 1 November 2010. The rest of the Act came into force on 23 September 2009.
Student Loan Scheme (Repayment Bonus) Amendment Act 2009	1 April 2010
Taxation (International Taxation, Lift Insurance, and Remedial Matters) Act	Assented on 6 October 2009. See section 2 of the Act for details on its implementation.

New Regulations

Regulation	Date regulation is in force
Animal Products (Exemptions and Inclusions) Amendment Order 2009	Clauses 4 and 5 come into force on 31 March 2010. The rest of the order comes into force on 2 November 2009.
Bullseye Rules 2009	9 October 2009
Care of Children (Appointment of Additional Guardian by Parents) (Form) Amendment Rules 2009	1 November 2009
Climate Change (Liquid Fossil Fuels) Amendment Regulations 2009	1 January 2010
Climate Change (Other Removal Activities) Regulations 2009	1 January 2010
Climate Change (Stationary Energy and Industrial Processes) Regulations 2009	1 January 2010
Climate Change (Unique Emissions Factors) Regulations 2009	1 January 2010
Customs and Excise (Rules of Origin) Amendment Regulations 2009	22 October 2009
Dairy Industry Restructuring (Transfer of Export Licences) Amendment Regulations 2009	2 November 2009
District Court Rules 2009	1 November 2009
Education (Hostels) Amendment Regulations 2009	1 November 2009
Family Courts Amendment Rules (No 2) 2009	1 November 2009
Fisheries (Beach Cast Seaweed Area Prohibition) Amendment Notice 2009	26 October 2009
Fisheries (Interim and Annual Deemed Values) Notice 2003 Amendment Notice (No 2) 2009	30 September 2009
Fisheries (Quota Management Areas, Total Allowable Catches, and Catch Histories) Amendment Notice (No 2) 2009	30 September 2009
Fisheries (Total Allowable Catch) Notice 2009	30 September 2009
Fisheries (Total Allowable Catch) Notice (No 2) 1997 Amendment Notice 2009	30 September 2009
Fisheries (Total Allowable Catches) Notice (No 2) 1998 Amendment Notice 2009	30 September 2009
Fisheries (Total Allowable Commercial Catch) Notice 2009	30 September 2009
Futures Contracts (Commonwealth Securities Limited) Exemption Notice 2009	11 September 2009
Futures Contracts (IG Markets Limited) Notice 2009	2 October 2009
Goods Service Vehicle (Constructional) Amendment Regulations 2009	1 November 2009
Health Practitioners (Quality Assurance Activity – Royal Australasian College of Physicians MyCPD) Notice 2009	2 October 2009
Health Practitioners (Quality Assurance Activity – Royal Australian and New Zealand College of Radiologists Radiology Events Register) Notice 2009.	2 October 2009
Land Transport Amendment Act 2009 Commencement Order 2009	1 November 2009
Land Transport (Infringement and Reminder Notices) Amendment Regulations 2009	1 November 2009
Land Transport (Offences and Penalties) Amendment Regulations 2009	1 November 2009
Parliamentary Annuities Determination 2009	1 January 2009
Real Estate Agents (Audit) Regulations 2009	17 November 2009
Real Estate Agents (Complaints and Discipline) Regulations 2009	17 November 2009
Real Estate Agents (Duties of Licensees) Regulations 2009	17 November 2009
Real Estate Agents (Licensing) Regulations 2009	These regulations, except regulation 12, come into force on 17 November 2009. Regulation 12 comes into force on 1 July 2010.
Securities Act (HSBC Overseas Banks) Exemption Notice 2009	2 October 2009
Securities Act (New Zealand Greyhound Racing Association Incorporated) Exemption Notice 2009	25 September 2009
Securities Act (NZX – Share and Unit Purchase Plans) Exemption Amendment Notice 2009	25 September 2009
Securities Act (Pyne Gould Corporation Limited) Exemption Notice 2009	6 October 2009
Securities Act (Rights, Options, and Convertible Securities) Exemption Amendment Notice (No 2) 2009	1 October 2009
Sports Fish Licences, Fees, and Forms Notice 2009	1 October 2009
Takeovers Code (Abano Healthcare Group Limited) Exemption Notice 2009	This notice applies to acts or omissions occurring on or after 24 September 2009

New Bills

Bill	Date of introduction	Type of bill
Resource Management (Enhancement of Iwi Management Plans) Amendment Bill	24 September 2009	Member's
Subordinate Legislation (Confirmation and Validation) Bill	23 September 2009	Government

Bills sent to select committees

Bill	Select Committee
Climate Change Response (Moderated Emissions Trading) Amendment Bill	Finance and Expenditure
Education (Freedom of Association) Amendment Bill	Education and Science
Remuneration Authority Amendment Bill	Transport and Industrial Relations

Bills open for submissions

Bill	Select Committee	Closing date for submissions (2009)	Report due date
Antarctica (Environmental Protection: Liability Annex) Amendment Bill	Foreign Affairs, Defence and Trade	15 October	20 February 2010
Climate Change Response (Moderated Emissions Trading) Amendment Bill	Finance and Expenditure	13 October	16 November 2009

Bills waiting on report back from select committees

Bill	Select Committee	Report due (2009)
Antarctica (Environmental Protection: Liability Annex) Amendment Bill	Foreign Affairs, Defence and Trade	20 February 2010
Arms Amendment Bill (No 3)	Law and Order	26 February 2010
Biosecurity Amendment Bill	Primary Production	6 November
Children, Young Persons, and Their Families (Youth Courts Jurisdiction and Orders) Amendment Bill	Social Services	27 November
Cluster Munitions (Prohibition) Bill	Foreign Affairs, Defence and Trade	28 January 2010
Crimes (Provocation Repeal) Amendment Bill	Justice and Electoral	19 October
Education (Freedom of Association) Amendment Bill	Education and Science	23 March 2010
Education (Polytechnics) Amendment Bill	Education and Science	13 November 2009
Franklin District Council (Contribution to Funding of Museums) Amendment Bill	Local Government and Environment	30 April 2010
Infrastructure Bill	Transport and Industrial Relations	13 November 2009
Inquiries Bill	Government Administration	28 January 2010
Land Transport (Driver Licensing) Amendment Bill	Transport and Industrial Relations	30 June 2010
Limitation Bill	Justice and Electoral	4 February 2010
Marine Reserves Bill	Local Government and Environment	30 December 2010
Marine Reserves (Consultation with Stakeholders) Amendment Bill	Local Government and Environment	30 December 2010
Methodist Church of New Zealand Trusts Bill	Finance and Expenditure	6 November
Motor Vehicle Sales Amendment Bill	Commerce Committee	30 December
Patents Bill	Commerce	5 November
Private Security Personnel and Private Investigators Bill	Justice and Electoral	30 March 2010
Public Works (Offer Back of and Compensation for Acquired Land) Amendment Bill.	Local Government and Environment	17 December
Radio New Zealand Amendment Bill	Commerce	24 December
Regulatory Improvement Bill	Commerce	12 November
Remuneration Authority Amendment Bill	Transport and Industrial Relations	16 November
Sale and Supply of Liquor and Liquor Enforcement Bill	Justice and Electoral	30 June 2010
Sale of Liquor (Objections to Applications) Amendment Bill	Social Services	30 June 2010
Search and Surveillance Bill	Justice and Electoral	4 February 2010
Sentencing and Parole Reform Bill	Law and Order	30 November
Student Loan Scheme (Exemptions and Miscellaneous Provisions) Amendment Bill	Education and Science	30 November
Sustainable Biofuel Bill	Local Government and Environment	29 January 2010
Taxation (Consequential Rate Alignment and Remedial Matters) Bill	Finance and Expenditure Committee	16 November
Waikato-Tainui Raupatu Claims (Waikato River) Settlement Bill	Māori Affairs	31 December

Bills waiting for second and/or third readings

Bill	Links to select committee reports/SOPs
Anti-Money Laundering and Countering Financing of Terrorism Bill	Report of the Foreign Affairs, Defence and Trade Committee
Aquaculture Legislation Amendment Bill (No 2)	Report of the Primary Production Committee
Children, Young Persons and Their Families Amendment Bill (No 6)	Report of the Social Services Committee
Corrections (Contract Management of Prisons) Amendment Bill	Report of the Law and Order Committee
Criminal Investigations (Bodily Samples) Amendment Bill	Report of the Justice and Electoral Committee
Cultural Property (Protection in Armed Conflict) Bill	Report of the Government Administration Committee SOP 38
Dog Control Amendment Bill (No 2)	Report of the Local Government and Environment Committee
Domestic Violence (Enhancing Safety) Bill	Report of the Justice and Electoral Committee
Education Amendment Bill	Report for the Education and Science committee
Electricity (Continuance of Supply) Amendment Bill	Report of the Commerce Committee
Gambling Amendment Bill (No 2)	Report of the Government Administration Committee SOP 23 SOP 65
Gangs and Organised Crime Bill	Report of the Law and Order Committee SOP 51
Immigration Bill	Report of the Transport and Industrial Relations Committee
Insolvency Amendment Bill	Report of the Commerce Committee
Judicial Matters Bill	Report of the Justice and Electoral Committee
Land Transport (Enforcement Powers) Amendment Bill	Report of the Transport and Industrial Relations Committee
Legal Services Amendment Bill	Report of the Justice and Electoral Committee
Maori Commercial Aquaculture Claims Settlement (Regional Agreements) Amendment Bill	Report of the Maori Affairs Committee
Oaths Modernisation Bill	Report of the Government Administration Committee SOP No.103
Palmerston North Showgrounds Act Repeal Bill	Report of the Local Government and Environment Committee
Privacy (Cross-border Information) Amendment Bill	Report of the Justice and Electoral Committee
Public Health Bill	Report of the Health Committee
Rail Network Bill	Report of the Government Administration Committee
Regulatory Responsibility Bill	Report of the Commerce Committee
Reserves and Other Lands Disposal Bill	Report of the Primary Production Committee
Residential Tenancies Amendment Bill	Report of the Social Services Committee
Sentencing (Offender Levy) Amendment Bill	Report of the Justice and Electoral Committee
Serious Fraud Office (Abolition and Transitional Provisions) Bill	Report of the Law and Order Committee
Settlement Systems, Futures, and Emissions Units Bill	Report of the Commerce Committee
Social Assistance (Payment of New Zealand Superannuation and Veterans Pension Overseas) Amendment Bill	Report of the Social Services Committee
Therapeutic Products and Medicines Bill	Report of the Government Administration Committee
Trade Marks (International Treaties and Enforcement) Amendment Bill	Report of the Foreign Affairs, Defence and Trade Committee
Trade (Safeguard Measures) Bill	Report of the Foreign Affairs, Defence and Trade Committee
Trustee Amendment Bill	Report of the Justice and Electoral Committee
Unit Titles Bill	Report of the Social Services Committee
Vehicle Confiscation and Seizure Bill	Report of the Transport and Industrial Relations Committee
Waka Umanga (Māori Corporations) Bill	Report of the Māori Affairs Committee
Whakarewarewa and Roto-a-Tamaheke Vesting Bill	Report of the Māori Affairs Committee SOP 64