Corporations Legislation Amendment (Derivative Transactions) Bill 2012 close to passing

Yet another piece of corporate regulation is ready to see the light of day as the Corporations Legislation Amendment (Derivative Transactions) Bill 2012 has passed through all its parliamentary stages and is awaiting assent.

The legislation will enact measures that implement commitments made by the Australian Government and other G20 nations regarding the regulation of what are known as over-the-counter derivatives ('OTC?') for which there is a very substantial global market. for example at the end-2011 the Bank for International Settlements reported that total notional amount outstanding for OTC derivatives worldwide was $648 trillion. The global financial crisis highlighted structural deficiencies in the OTC derivatives market and the systemic risks that those deficiencies can pose for wider financial markets and the real economy.

In many countries, these structural deficiencies contributed to the build-up of large, insufficiently risk-managed, counterparty exposures between some market participants in advance of the global financial crisis; and a lack of transparency about those exposures for market participants and regulators. At the 2009 G20 summit, the Australian Government joined other nations in committing to substantial reforms to practices in the trading of the OTC derivatives market.

The three key G20 commitments the Government says this legislation addresses are the:

• reporting of OTC derivatives to trade repositories;


• clearing of standardised OTC derivatives through central counterparties; and


• execution of standardised OTC derivatives on exchanges or electronic trading platforms, where appropriate.

The effect of acting the commitments are according to the Government the:

• increased transparency in the OTC derivatives market for regulators, market participants and the public; and


• a reduction in counterparty credit risks and operational risks associated with OTC derivatives.

The Bill proposes to amend various financial laws including the

• Australian Prudential Regulation Authority Act 1998,


• Australian Securities and Investments Commission Act 2001,


• the Corporations Act 2001,


• the Mutual Assistance in Business Regulation Act 1992, and the


• Reserve Bank Act 1959


• to establish a legislative framework to implement the regulation of OTC derivatives reforms.

Once the Bill is assented it is intended to take effect on the 28th day after the Act receives Royal Assent. It should however be noted that while the amendments commence 28 days after assent, ASIC’s derivative transaction rule making power will not be enlivened unless and until the has Minister prescribes a derivative class in respect of one or more of the trade reporting, clearing or execution mandates.

In the second reading speech the minister also indicates that while trade repository licensing applications may be lodged from the date of commencement, subject to prescription or approval of the relevant form, ASIC would be unable to satisfy itself of the criteria for granting a licence until derivative trade repository rules setting out the operational requirements of a licensee are finalised. Prohibitions on the other hand will apply from the date of commencement on a person holding themselves out to be a licensed or prescribed facility for the purpose of any of the three mandates, when they are not a licensed or prescribed facility. Prohibitions on operating an unlicensed trade repository will only come into effect once regulations are made providing that specified classes of trade repository must be licensed.

Uniform Anti-discrimination is not a Free Speech Issue

At last some attempt at the Federal level is to be made to create effective and cohesive anti-discrimination laws. Much discussed in the last two years, the Attorney General has this week released draft legislation consolidating the five separate pieces of Federal anti-discrimination legislation into a single Act to be called Human Rights and Anti-Discrimination Act.

Although the law is yet to be introduced into Parliament, consultation closed earlier this year and the draft bill will cover issues and problems like:

1. Defining the levels of protections to the highest current standard, to resolve gaps and inconsistencies without diminishing protections.


2. Clearer and more efficient laws provide greater flexibility in their operation, with no substantial change in practical outcome.


3. Enhancing protections where the benefits outweigh any regulatory impact.


4. Voluntary measures that business can take to assist their understanding of obligations and reduce occurrences of discrimination.


5. A streamlined complaints process, to make it more efficient to resolve disputes that do arise.

This new legislation is aimed at a unified response to discrimination across Australia.

Already debate from some of the more predictable quarters has attacked the proposed law as an example of the Labor government attacking free speech. These glib critics refer to the Bolt Case and continue to argue that someone who attacks a persons race in forums where the people he attacks have no equal chance to respond or reply is exercising free speech. And they might be right if you equate "unfettered speech" and "free speech" but they are not the same. Free speech is a democratic right that comes with the responsibility not to have it abused unlike unfettered speech which has no rules and creates a jungle of abuse and innuendo without redress or defense.

Whose photo is it anyway? Privacy of subjects of photography subjects

“Australia must begin to seriously consider the law-reform question of how best to protect the private rights of photographed subjects.”

Or so says an article by Jessica Lake a doctoral student at Melbourne University in her thesis “Privacy and the Pictures”. The article after making interesting comments on the development of privacy law issues with respect to photographs. (particularly photos of women), looks at the use and misuse of pictures in Social Media like Facebook and at issues around images of women as they have developed in the US.

As Lake points out “One approach is to tackle ‘privacy’ law reform, but we could also look more closely at the operation of property law, particularly copyright, that automatically awards rights to an image to the photographer" rather "than the individual photographed"?

Indeed why shouldn't a ‘scantily clad’ woman be able to assert property rights for images of herself taken without permission. To quote Lake this anomaly "seem to remain so inexhaustibly fascinating?” Indeed even where the scantly clad woman is a future monarch of England caught without consent in a private moment.

The notion that people's photographic images can be used freely without little or no right to protest or prevent it seems a gross oversight by the legal system. Certainly property law in the form of copyright rather than pivacy law would seem to offer a better solution. Property being held by the subject of the photograph rather than the photographer is a solution to the problem of images being misused.

Guilt by Association Can Get You Sued: Google and Defamation

An Australian jury has found Google liable for damages following on a successful defamation action by a Melbourne man who argued that he had been defamed by the Search engine after it linked him wrongly to gangland crime. The man aged 62 claimed Google’s web and image search results had caused damage to his reputation such as to give rise to his action. The 62 year old  had already won a related case against Yahoo.

The facts giving rise to the case occurred in 2004, when the man was shot in the back by a man wearing a balaclava (a crime which was never solved). As a result of the attack a Google search for the man brings up images of other people who appeared in news reports and the man claims the pictures show murderers and a drug trafficker which could lead users to believe he was a criminal and could injure his reputation.

As a result of the suit Google was forced to cough up more than $200,000 in damages.

This case is certainly an interesting development and could open many other plausible assaults on the Google and other search engine providers, especially in these days when the first place people seek information about you is in a search engine like Google, Yahoo, Seek or even social media sites like Facebook and Linked Inn.

It becomes interesting to consider at what point in the context of the internet is the individual responsible for his fate and at what point does the Internet Service, Search Engine or Service become liable.

There is No Such Thing as a Private Remark

"What these continual eruptions are doing is they are putting people on notice that there is no such thing as a private remark anymore."

The above is a quote from a comment by Media Expert Jane Caro on the backlash that has recently been heaped on shock jock Alan Jones when he went too far even for him and the residents of Sydney or "Jones Town" reacted mostly through social media to let him know that his trashing of the female Prime Minister had gone to far.

The point is that people who make a public living out of public speaking need to realize that no matter how small the audience no matter how partisan the crowd it is no longer as easy or possible to brush off or play down what is or might have been said. Now by way of a smart phone all present at such speaking events have access to a camera and a recording device and the means to upload and make such supposedly "private comments" making them matters of publicly recorded fact in minutes,

In other words the days when the shock jock or the politician was the only one with access to the ability to publish are long gone. As Mitt Romney the US Republican Candidate recently discovered you may think you are talking to a room where you think none of the 47% you consider don't care for your views are not listening but you can be very certain they will hear about it these days.

People often talk about greater accountability for social media but in my view social media in a way is promoting greater accountability, It is requiring people in the public eye to exercise greater caution not through fear of inane industry regulation but through fear of public opinion and social retribution through posts to Twitter, Facebook and more and more places evolving on the web. It will be interesting to see how these trends develop.

The Smoke of War

"Blue is the Smoke of War,
White the Bones of Man”

…a haiku by Japanese 3rd century poet Pu Ui captures in a few words the desolation and the stench of war in few words and large images. It proves that throughout history there has never be a grand our purposeful battle, a war that could be viewed with favour.

Likewise Herotdous the Greek historian captured the cost of war when he writes …

"Peace is when sons bury fathers; War is when fathers bury sons..”

These are words of relevance these few days after five more Australian soldiers have been killed in Afghanistan. Again this conflict that was intended to be a quickly carried out mission to capture Bin Ladin has now drawn out 10 years and gone far past it's original purpose. A purpose completed last year in Pakistan (a completely different country) last year by US soldiers not involved in Afgahnistan. It seems fair to ask wh is his conflict continuing? Are we like the Russians before us deluding ourselves thinking Afgahnistan is a place that can be westernized and tamed into a Western style democracy. Will Australia linger with the Americans so long in Afgahnistan that it will see the same result for its efforts as was sen in Vietnam - a loss of face and embarrassing withdrawal having to admit defeat.

Time to end it!
This long and protracted war was never intended to continue for the ten long years. To some it may seem like some form of back down to say its time to leave but for many who recall prior and like encounters, for example: Korea and Vietnam it is exactly the kind of stubbornness that persists to the bitter end that cost even more in needless waste of life and loss of belief in democracy,

When the Tide Turns

There is a story about the English King who stood at the edge of the ocean and spoke to the rising tide ordering it to go back from where it came. This was done by the wise king because he wanted to show his subjects that some things are even beyond the power of kings to turn back,

Yet it seems the leadership of our nation believe that it is not only plausible to regulate the tide of humanity seeking lives better than those they escaped in their own lands. They believe that being less than humane and imprisoning people in detention centers will stem the tide of refugees. The reality is that it will not. Many will simply take the view that being in a detention centre simply puts them one step closer to their desired place of refuge and they will continue to come any way. They know that as it did before under the Howard Government detention on Nauru will simply result in the eventual granting of entry to Australia.

Onshore processing and quick open treatment of asylum seekers is the right and decent way to handle asylum seekers. It's what we agreed to under our international treaty obligations and we as our nation should honor our agreements.