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Abstract: Derivatives are listed and traded on financial markets (like the Sydney Futures Exchange), or they are traded person to person over-the-counter (OTC). Due to the world financial crisis of 2007/2008, derivatives have become household words, with calls for improved OTC regulation. There is no direct Australian regulation of OTC financial products. Instead, OTC derivatives are regulated indirectly by Australia's "three peaks" system of market regulation by the Australian Securities and Investments Commission (ASIC), the Australian Prudential Regulation Authority (APRA) and the Australian Competition and Consumer Commission (ACCC). In addition, there is industry self-regulation through the standards of trade associations like the Australian Financial Markets Association (AFMA) and ISDA. This regulation is underpinned with provisions for market misconduct at common law and under the relevant legislation. Data from the Australian Treasury confirms that Australian financial markets and financial products including OTCs are well-regulated, and that they may be less affected by the financial crisis than equivalent markets in some other countries.
securities regulation, fiinancial services regulation, OTC market regulation, Australia
Abstract: Since the 1990s many public law jurisdictions around the world have enacted, or are committed to enacting, legislation to protect public interest whistleblowers. Whistleblower protection has also been passed in corporate law, workplace relations law, consumer law and financial regulation. This paper provides an analysis of this legislation, and identifies several emerging issues for consideration. We identify a strong case for greater consistency in the legal thresholds and operational requirements imposed by whistleblower protection legislation, including recommendations for common tests and processes covering both the public and private sectors. In large part, the prospect for accelerating the transition towards more effective, less 'symbolic' regimes depends on a clearer consensus regarding the public importance of employee disclosures and the organisational advantages of open, proactive approaches to disclosure management.
whistleblower, protected disclosure, confidentiality, australia
Abstract: Australia's national securities commission - the Australian Securities and Investments Commission (ASIC) - sees the stockbroker's or investment adviser's obligation to act efficiently, honestly and fairly in s 912A(1)(a) of Australia's Corporations Act as both a stand-alone obligation that a broker or adviser (an Australian Financial Services (AFS) licensee) must satisfy, and an obligation that encompasses other obligations under their AFS license. A licensee may be in breach of its statutory obligation to provide services efficiently, honestly and fairly even if it is complying with all of its other specified obligations. This general obligation includes personal competencies, and imposes continuing obligations on the licensee and its representatives when providing financial services from the beginning of the relationship to its end. Included in the licensee's obligations are its duties as an employer to its employees, even if intermingled with other obligations regarding financial services. The obligation of acting efficiently, honestly and fairly parallels legal action under other sections in the Corporations Act. The importance of the test is that it triggers ASIC's administrative procedure of suspending, canceling or banning an offender for breach of the obligation to act efficiently, honesty and fairly. This can present potential problems because it allows ASIC to bypass specific provisions in the Corporations Act, avoid the decision whether to pursue civil or criminal proceedings, avoid briefing prosecutors and allows it to deal with the matter by means of the administrative process of suspending, canceling or banning a licensee for breach of the obligation to act efficiently, honestly and fairly. Even criminal activity such as false transfers, false entries, illegal trading and manipulation - which ASIC may classify as gross misconduct - can be dealt with administratively for failure to provide financial services efficiently, honestly and fairly. The test of whether financial services are provided efficiently, honestly and fairly is written in plain English. It is not encumbered with existing interpretations and its scope is not fixed, so it cannot become obsolete, and like the evolution of Trade Practices Act 1974 (Cth) s 52, the expected standard of the financial services licensee of efficiency, honesty and fairness will continue to evolve to meet new situations in the marketplace for financial services.
broker/client, good faith, fiduciary, australia
Abstract: The last 15 years have seen many developments in Australian public interest disclosure, or "whistleblower protection", legislation. Since 1991, every Australian public law jurisdiction has enacted or introduced such legislation, and in 2004 comparable provisions extended similar principles to Australian corporate law, and to a lesser extent workplace relations. This paper presents key results from a comparative analysis of these legislative regimes, focusing on five issues: who may disclose wrongdoing in the public interest, the types of wrongdoing that may be disclosed, protection of "public" as opposed to internal or regulatory whistleblowing, compensation mechanisms for aggrieved whistleblowers, and how to best achieve effect legal recognition of the obligations of all employers - public or private - towards employees who blow the whistle in the public interest. This analysis demonstrates the need for greater consistency in the key legal thresholds and operational requirements imposed by Australian whistleblower protection regimes, and the potential for common tests and processes covering both the public and private sectors. In large part, the prospect for accelerating the transition towards more effective, less "symbolic" regimes depends on a clearer consensus about the public importance of employee disclosures and the organisational advantages of open, proactive approaches to disclosure management.
whistleblowers, public interest disclosure, Australia
Abstract: This paper analyses whether there is a right to legal representation in Australia for parties appearing before tribunals, committees and other bodies. If legislation is silent on the issue of legal representation, or if a judge refuses to allow representation, this paper recommends that tribunals, committees and other bodies should err on the side of caution to allow legal representation.
lawyer and client, legal representation, tribunals committees and courts, Australia
Abstract: Since the 1990s Australia's nine jurisdictions have passed (or, in the case of the Northern Territory, proposed to pass) public sector whistleblower legislation. The legislation, which reflects different political origins and legislative aims, is not consistent in many respects and there are few common tests across the jurisdictions. This article analyzes two issues - who the Australian whistleblower can disclose to, and who the whistleblower can make protected disclosures about. The examination of these issues indicates inconsistencies in the public law whistleblower laws enacted since the 1990s. This inconsistency is not sensible in Australia's national economy, where an employee in one State can make a protected disclosure, but an employee in another cannot make the same disclosure.
This article supports the election commitment of the Rudd federal government in 2007 to introduce best practice federal whistleblowing legislation which will hopefully overcome shortcomings analyzed in this article.
Whistleblower, public inerest disclosure, confidentiality, Australia
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