Just before Christmas, Treasury released guidance in order to assist litigants and legal practitioners in relation to obtaining the consent of the Minister to rely on extraterritorial conduct in private proceedings commenced under s 12AC of the Australian Securities and Investments Commission Act 2001 and s 5 of the Competition and Consumer Act 2010 (the new name for the Trade Practices Act 1974 as of 1 January 2011).
The requirement of consent applies where:
- A person seeking damages for breach of the CCA or the ASIC Act seeks to rely on evidence of foreign conduct;
- A person seeks some other form of compensatory order – such as rescission of an agreement or transfer of property – in relation to such a breach and seeks to rely on evidence of foreign conduct.
In both cases, ministerial consent is required before making an application to the court.
The purpose of the provision, according to Treasury guidance, is to ensure that international relations are not disrupted by proceedings in Australian courts. This is principally because although the conduct complained of may be in breach of relevant Australian legislation, it may not be in breach of the laws of the foreign jurisdiction (and may in fact be expressly authorised by those laws).
The Assistant Treasurer and Minister for Financial Services and Superannuation, the Hon Bill Shorten MP, is the Minister ordinarily responsible for giving consent under s 12AC of the ASIC Act, and the Minister to whom a request should be directed in the first instance.
The request should:
· be in the form of a letter;
· be accompanied by a copy of the pleadings, with the letter identifying by reference to relevant paragraphs in the pleadings the conduct which was engaged in outside Australia (and upon which the applicant wishes to rely);
· state the section or sections under which consent is requested;
· be forwarded to other parties in the proceedings and also to Treasury; and
· include confirmation that the forwarding has occurred.
The complete guidance (which also sets out procedure for the provision of advice to the Minister on issues of foreign law) is available to download from the Treasury site. The guidance is current as at 1 January 2011.
Subscribers are referred to the annotations to s 12AC in Austin and Black’s Annotations to the Corporations Act at [ASICA.12AC] for more information.