IN AUSTRALIA Key regulations
DOING BUSINESS IN AUSTRALIA
OTHER KEY ISSUES:
THERE ARE A NUMBER OF OTHER LAWS THAT REGULATE ENTITIES CARRYING ON BUSINESS IN AUSTRALIA. THESE GENERALLY APPLY IRRESPECTIVE OF WHETHER A FOREIGN COMPANY CARRIES ON BUSINESS IN AUSTRALIA THROUGH A SUBSIDIARY COMPANY, OR DIRECTLY AS A REGISTERED FOREIGN COMPANY.
Court orders, including orders for divestiture. Following amendments to the CCA, making or giving effect to an
Contract law is one of the most important elements of
agreement containing a cartel provision is now a criminal
the Australian legal framework. It underpins almost all
offence, punishable with fines of up to A$10 million for
corporations and prison sentences of up to ten years for
Australian contract law is primarily based on common
law and equitable principles developed by the Australian
The Australian Competition & Consumer Commission is the
courts. These legal principles are supplemented and, in
body responsible for administering the CCA and is a vigorous
some cases, altered by Commonwealth, State and Territory and well-resourced enforcement body.
legislation (for example, the Competition and Consumer Act
2010 (Cth). International instruments (for example, United
PRIVACY AND SPAM
Nations Convention on Contracts for the International Sale of Goods) may play a role in the interpretation of the law
in some matters. Generally speaking, the principles of Australian contract law govern the formation, performance and discharge of legally enforceable promises made by the parties to a contract. These principles are complex and need to be carefully considered by parties which are negotiating a contract or seeking to enforce the terms of a contract which is governed by the laws of the Commonwealth or any State
The Privacy Act 1988 (Privacy Act) regulates the handling of personal information in both the private sector and the Commonwealth public sector in Australia, and the rights of individuals to access information held about them.
Specific rules exist in relation to credit providers and credit reporting agencies and the handling of tax file numbers.
Certain types of organisation are exempt from the Privacy
Act, most notably small businesses with an annual turnover of less than A$3 million who do not handle health
Contravention of the CCA can lead to substantial fines
Privacy Act also contains stringent rules for sensitive
for companies and individuals, injunctions and other
information, which includes information about a person's
DOING BUSINESS IN AUSTRALIA
racial or ethnic origin, religious beliefs or affiliations, sexual preferences or practices, or health.
Privacy reforms introduced by the Commonwealth Government also mean that the Privacy Commissioner has been given greater investigatory and enforcement powers, including the ability to seek civil penalties of up to A$2.1 million for a serious or repeated privacy breach. The Privacy Commissioner has power to initiate "own motion" investigations.
22 February 2018 sees mandatory data breach notification requirements become effective in Australia. Notification to the Privacy Commissioner's office AND affected individuals will be required for data breaches which are likely to result in serious harm. Serious harm is not just financial or economic harm; it could extend to things like reputational and emotional harm.
The Spam Act 2003 (Spam Act) prohibits the sending of unsolicited commercial electronic messages, which have an Australian link, whether to businesses or individuals. The Act relates to commercial email, instant messaging, SMS and MMS, but not faxes, internet pop ups or voice telemarketing or non-electronic messages (such as ordinary mail, paper flyers etc).
Commercial electronic messages may be sent with the consent of the recipient (which can be express or inferred), however they must clearly
identify the sender and contain a functional unsubscribe facility.
The Australia Communications and Media Authority (ACMA) is responsible for enforcing the Spam Act and it has the power to issue warning and infringements or prosecute breaches in the Federal Court. Civil penalties of up to A$1.1 million per day may apply to repeat corporate offenders.
DO NOT CALL REGISTER
The Do Not Call Register Act 2006 establishes a register, listing the telephone numbers of individuals who have opted out of receiving telemarketing calls. In most cases, it is an offence to make an unsolicited telemarketing call to a number on the register.
Australian laws regulating the
importation and exportation of
goods are extensive and becoming
increasingly more complex.
A person who wishes to carry on a financial services business in Australia is required to have an Australian Financial Services Licence (AFS Licence), or be appointed as an authorised representative, unless an exemption applies. This requirement falls under Chapter 7 of the Corporations Act 2001 (Cth) (Corporations Act).
DOING BUSINESS IN AUSTRALIA
The legal tests applied to determine whether a financial services business is being carried on in Australia are broad and an entity may need an AFS Licence even if it has no physical presence, such as an office or employees, in Australia. For instance, an AFS Licence may be required where the entity deals with, manages or administers property situated in Australia or has Australian clients.
ASIC is the principal regulatory authority having responsibility for administering and enforcing the financial services regulatory regime and for issuing AFS Licences. In order to obtain a licence, a number of criteria need to be satisfied and ASIC can require extensive proofs to substantiate an application for an AFS Licence. The foreign financial service provider must have (among other things):
adequate financial resources for the performance of the proposed activities;
competence, skills and experience to provide the relevant services; and
adequate systems for training and supervision of representatives.
There are a number of licensing exemptions available under the Corporations Act, Corporations Regulations and under statutory instruments issued by ASIC. In particular, the following licensing exemptions may be available to certain foreign financial service providers:
custody and dealing situations involving property located in Australia where the clients are offshore;
services offered to Australian wholesale clients by foreign financial services providers who are regulated by an offshore regulator recognised by ASIC as having an equivalent supervisory regime;
provision of certain services to Australian clients where the services are arranged by an AFS Licence holder; and
provision of services to Australian clients where the service is provided from outside Australia and either the foreign financial services provider did not induce people in Australia to use its services, or the service relates to a financial product which was issued to the client following an application by or inquiry from the client or while the client was not in Australia.
The exemptions are generally subject to conditions and in some instances, an application to ASIC is required. A foreign financial services provider should enquire about the applicability of relief before relying on it.
The Corporations Act distinguishes between retail clients and wholesale clients. Generally, an AFS Licence is required whether financial services are being provided to wholesale or retail clients. However, there are significant additional disclosure and conduct requirements that apply where a person provides a financial service to retail clients. For example, a financial services provider must provide a Product Disclosure Statement when issuing, selling or recommending a financial product. There are also bans on certain types of remuneration for persons who provide financial services such as personal financial product advice to retail clients.
Strict conditions and obligations are imposed on entities affected by the Australian financial services regulatory regime. A breach of the AFS Licence regime can lead to criminal sanctions and give rise to other adverse consequences.
A foreign financial services provider wishing to operate in Australia should enquire about the impact of the Australian financial services regime on its business.
EXPORTS AND IMPORTS
Australian laws regulating the importation and exportation of goods are extensive and increasingly more so. These laws are designed with community protection, industry assistance and revenue raising front of mind. The importation or exportation of all goods into and out of Australia must be reported to the relevant authorities, usually prior to importation or exportation.
Imports may be subject to customs duties. However, concessional relief is available for certain goods providing the relevant regulatory requirements are met. Duties aren't imposed on exports.
Importation and exportation of certain goods is either prohibited or restricted. Further, to give effect to UN sanctions and those autonomously imposed by Australia, the export of certain goods and services to a number of countries and entities within those countries is prohibited.
Dual-Use Goods and Technologies
Regulatory approval is required for the export of certain dual-use goods and technologies, that is, goods and technologies having both a civilian and military application, as well as goods and technologies having sole military applications. Significant penalties can apply for breach of such restrictions and prohibitions, or for failing to accurately report importations and exportations, including forfeiture of the goods and fines.
DOING BUSINESS IN AUSTRALIA
As a member of the World Trade Organisation, Australia is a frequent user of a variety of trade measures, including the imposing of antidumping duties and countervailing duties on imported goods found to have been exported to Australia at dumped or subsidised prices. In addition, quarantine restrictions apply to a wide range of agricultural, food and other similar products.
FINANCIAL TRANSACTION REPORTS AND FOREIGN EXCHANGE
While there are no limits on the amount of funds that can be transferred into and out of Australia, certain transactions are subject to reporting requirements. These come under:
The Financial Transaction Reports Act 1988 (Cth) (FTR Act)
Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) (AML/CTF Act)
The AML/CTF Act and its associated rules, brings Australian laws in line with the recommendations on money laundering and counter terrorist financing standards established by the international Financial Action Taskforce on Money Laundering (FAFT).
The AML/CTF Act applies to those reporting entities who provide a "designated service". Financial services that are "designated services" include lending, providing custodial services, finance leasing, issuing interests in managed investment schemes, trading in securities and remittance services. It also includes gambling services and bullion dealing.
Generally, the AML/CTF Act regulates "designated services" when they are carried on through a "permanent establishment" in Australia, including a place in Australia where the entity carries on a business through an agent.
Reporting entities are required to (among other things):
have in place an AML/CTF compliance program;
conduct ongoing customer due diligence; and
report certain types of matters and transactions to the Australian Transaction Report and Analysis Centre (AUSTRAC) including international fund transfer instructions, suspicious matters and threshold transactions (being currency transactions in excess of AUD 10,000).
The FTR Act and the AML/CTF Act have many overlapping provisions. In such cases the AML/CTF Act provisions apply. As a result, the obligations under the FTR Act mainly apply to "cash dealers" who do not provide a designated service as defined in the AML/CTF Act. Cash dealers include trustees of unit trusts, financial corporations and derivatives dealers.
The FTR Act requires, (amongst other things):
cash dealers to formally report cash transactions of A$10,000 or more;
cash dealers to report suspect transactions (eg transactions suspected of being relevant to tax evasion and criminal activity); and
compulsory verification procedures for persons opening or operating accounts with financial institutions.
Some transactions between financial institutions and other persons qualify for exemption from the reporting requirements, subject to the keeping of an exemption register.
There are substantial fines and in certain cases criminal penalties for failure to comply with obligations imposed by the FTR Act and AML/CTF Act.
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