W1. Read the paragraph above this clause on page 29-30 again. Does this mean we don’t have to worry about compliance as long as we are a member of our organizing body ie they will look after everything for us?
Explain this concept, and include the difference between external and internal auditing and the roles of external and internal auditors (compliance personnel)
Answer- Yes it does mean that members do not have to worry about compliance requirements because the organization itself with the assistance of hired professional bodies takes care of the compliance needs for the members. Even the process of becoming a member involves certain compliance procedures that are taken care of by the organization. To be more specific the external compliance requirements are taken care of by the organization but some internal compliance requirements are addressed by the internal compliance department formed within an organization. This concept relates to the organic theory of a company which says that even though a company is a separate legal entity, but the actual functionaries of a company are the board of directors and head of various departments.
The internal auditors look at the financial position of a company and take care of the financial stability of the company whereas the external auditor team is hired to adhere to various compliance procedures imposed by law. The internal auditor team comprises of internal officials and members where the external auditor team comprises of hired third party professionals.
W2 What would be the application of the relevant code of practice in your industry to your role in the workplace?
Answer- For property law firms, the general code of practice involves various courses of action while also adhering to various legal obligations imposed by privacy laws and human rights laws. In legal practice, failure to comply with the code of conduct implies a failure to comply with laws and regulations applicable to such a profession. Apart from that, there are other regulations about workplace safety and health of employees that also need to be adhered to. To be more specific, the Australian Solicitor’s Conduct Rule provides ethical principles that guide the lawyers and solicitors on their law practice. In addition to that, the Law Society of Australia also introduced the Legal Profession Conduct Rule 2010 where legal practitioners are obligated to serve clients in the interest of justice, act competently, maintain confidentiality, avoid conflict of interest, comply with correct legal procedures and charge fair fees for the services rendered.
W3 Is it compulsory to use a letter of engagement?
Answer- It is not compulsory to use a letter of engagement, but it is good to use a letter of engagement to make the client aware of all the details of the service that is rendered. The letter of engagement is a good source for the client to understand how the service rendered toward then will be managed and the rights that are guaranteed under the service agreement. Usually, a letter of engagement includes details like, services that are part of the agreement and services that are not a part of the agreement, the right of the firm to make changes to the agreement as and when required, a person who is in charge of completing the agreement term, the tools that are used in the process, telephone number of those persons, payment period for the services, confidentiality clause, ways for termination of the agreement, etc.
W4 A. - Make a list of at least five Professional bodies associated with Financial Services
B. For your industry, find one thing your organization's representative body has lobbied for over the last year.
C. - CLERP started in 199..?. What does it stand for and what ‘number’ CLERP are we up to today?
D. - What are the two main objectives of the Trade Practices Act?
E. - Find the AUSTRAC website. What is their latest media release discussing?
Answer- Five Professional bodies associated with Financial Services are, The Australian Bankers Association, Australian Financial Markets Association, Financial Planning Association of Australia, Mortgage and Finance Association of Australia, and Australia Securities and Investment Commission.
The payment made to the law intern in property law firms is the factor for which the representative of our organization has been lobbying for over the last year. The government has no contribution to the payments made to the interns by the firm. Interns being the least paid people in this industry should be paid by the government considering the developmental stages of their professional career.
CLERP started in 1997. It stands for The Corporate Law Economic Reform Program which aims to review and regulate the corporate and business regulations in Australia. CLERP 9 which amended the Corporations Act 2001 was the recent reform done in 2004 which is about disclosure of corporate information.
The two main objectives of the Trade Practices Act are, to protect the market from anti-competitive behaviour which is aimed to facilitate competition. Another objective is to safeguard the consumers in relation to their rights against the marketed products.
The latest media release on the AUSTRAC website is talking about the launch of risk assessment in relation to money laundering and terrorism financing of the junket tour operations. AUSTRAC has assessed that the JTO sector in recent years has been facing various criminal threats and the chances of money laundering risks are high.
W5 Professional development is an important service provided by most professional and industry organizations. Go to the website or get a brochure from one of the three bodies that represent your profession. Find the CPD program, select one of the topics, and answer the following:
What is the name of the topic and which organization is presenting it?
What material will be presented or covered in the course?
When and where is the seminar occurring? Who would it be of interest to?
How much does it cost?
Does it count towards the professional development hours required by the body?
Answer- The topic is Impact of COVID-19 on CPD Compliance and the CPD program is presented by the Law Society of New South Wales.
There are various materials that will be presented and covered in the course like documents relating to regulatory updates, recent cases, new developments of emerging legal issues of property and conveyancing laws, etc. Private study materials will also be provided about research and various ways of preparing legal documents. Topics like voluntary administration of assets, liquidation of properties, etc. will also be covered in the course. The most important topic for the course will be the new compliance requirements that have been introduced due to COVID-19 guidelines by the Federal government.
The seminar will occur in two sessions in one day starting from 9:00 am to 5:15 pm at The Law Society of New South Wales, 170 Phillip Street, Sydney 2000 DX 362 SYDNEY. The seminar will interest all the property law firms and solicitors who are practicing conveyancing in the New South Wales region. As the course is organized by the Law Society, it is free of cost for the registered property law firms. It does not count towards the professional development hours required by the body.
W6 Write up a summary of the tasks you have completed over the last week. Then repeat the process with any improvements that you think you could make that would have given you and your organization a better result
Answer- Last week I completed a successful property transfer from Mr. Smith to Mr. Johnson situated at 61 Grandis Road, Corangula, New South Wales- 2440. The title deed was drafted in favour of Mr. Johnson with the affirmation from Mr. Smith with an agreed transfer price of $125,000 for the first installment and then further $225,000 towards the second installment and lastly the cost of stamp duty amounting to $16,000.
The process of property transfer could have been better if the price were negotiated more before the registration of the property was done with the Land Registry Service of New South Wales. The clearance certificate was delayed because of electronic dealings. This would have been avoided if the filing were done manually by visiting the Land Registry office in person.
1. Who is the main supervisor/regulator of your organization/industry and how can you contact them – if you are studying Conveyancing, answer this question for Conveyancing?
Answer- The main regulator for the conveyancing industry in New South Wales is the Office of the Legal Services Commissioner under the Conveyancers Licensing Act 2003. The Commissioner can be contacted by submitting an online enquiry.
2. Select a Code of Practice relevant to your organization to summarise the key points and include what would be the penalty for you and then, your organisation for a breach against the Code.
Answer- In New South Wales, The Conveyancer Licensing Regulation 2015 provides the codes of conduct for the conveyancers. It says that the licensed conveyancer must have relevant knowledge of all the laws and procedures. A conveyancer must act honestly and with fairness. There must be reasonable skill and diligence and also respect the fiduciary duties. They are expected to take work only with the required competence and maintain the confidentiality of the clients.
In case there is a breach of code of practice, under regulation 18, the license of the conveyancer can be terminated, and the service rendered by the conveyancer will be considered void unless otherwise is agreed with the client. On the other hand, the organisation will be obligated to not let the unlicensed conveyancer operate in the organisation which otherwise will attract legal sanctions by the Commissioner.
3. Research if there are any commercial software packages to monitor compliance for your industry. Summarise one of them, and describe how they would assist you
Answer- The commercial software package to monitor compliance for our industry is Leap Conveyancer which is a widely used software to help organisation engage in e-conveyancing. They keep track of all the important tasks and dates, conveyancing reports, e-signatures of clients and provide exclusive access to legal precedents.
4. Explain the following terms.
Common law is judge-made laws. It is the body of laws that are not written or codified but established in the form of legal principles from the judgment given by courts. Common law facilitates the decision making of a court when there is no proper legislation available or where the application of common law principles serves greater justice.
Negligence is the situation when a person fails to act in a reasonable manner or ethically that could have been exercised by another reasonable person. Negligence is recognized generally under the law of tort where a person fails to exercise reasonable care towards another person and because of which the other person performs suffers damage.
Contract law provides guidelines and regulations to manage the rights and liabilities of two or more persons who entered into a contract with each other.
5. Summarise and explain the following:
Financial Transactions Reports Act
Competition and Consumer Act
Stamp Duties Act
Code of Banking Practice
Answer- Privacy Act is aimed to promote the protection of confidential information of individuals and lays down the guideline following which Australian government agencies are expected to handle the personal information of its citizen.
The primary legislative aim of the Financial Transaction Reports act is to prevent tax avoidance and evasion and assist the government to detect financial crimes and money laundering activities.
Competition and consumer act are aimed to regulate the market and relationship between the suppliers, seller, buyers, and manufacturers. It also provides the consumers' rights with some of its provisions.
The purpose of the Stamp Duties Act is to allow the government to collect certain charges in relation to production and documents and transactions. It is basically the charges imposed by the government for the services rendered to society.
The Code of banking practice provides the standard of practice that is followed in the Australian banking sector in order to promote ethical banking practice and safeguard the money of the community.
The Occupational Health and Safety requirements are meant to provide a set of regulations under Workplace health and safety laws. The OHS requirements are provided to ensure a safe workplace for the workers and set out the duties and liabilities of the employers as well as employees.
6. Explain the purpose of an internal audit and how it would assist in maintaining workplace regulatory compliance.
Answer- The internal audit team is responsible to provide financial assurance and assess the financial risk for an organisation. The purpose of an internal audit is also to guide the organisation about governance and internal control. This is the way in which it assists the workplace regulatory compliance.
7. List and summarise three sources of information for obtaining up to date information in regard to the regulations of the Australian Financial Services Industry.
Answer- The three sources for obtaining up to date information about the Australian financial services industry are:
Australian Securities and Investment Commission- The securities and investment commission provide information about the stock market which enables the organisation to be aware of the stock prices and the market value of companies.
Council of Financial Regulators Annual Report- The report from the council gives the framework based on which the financial authorities of Australia functions. Along with the council, the Reserve Bank of Australia publishes monetary policies, stability reports of the financial system, etc. for more information.
Financial Services reform report- This body has been providing various information about the financial service industry in Australia where various regulatory rules, company rules, expert reports, law reforms etc. keeps the community and concerned persons aware of all the information necessary.
8. How does your organisation ensure that regulatory requirements are adhered to in its daily processes?
Answer- In our organisation, the legal compliance team is responsible to take care that regulatory requirements are adhered to in its daily operations. The compliance team is provided with adequate information by the internal audit team. The information is reviewed and checked whether they comply with the regulatory requirements every day.
9. Why are stipulated timelines important for meeting statutory requirements?
Answer- The statutory requirements imposed by the authorities are supposed to be adhered to by the organisations within a given timeline. This is because the reviewing process done by the authority becomes easier and comprehensive when they have information on all the organisation at one place at the same time. This is the reason why statutes always provide a timeline for compliance with the given requirements. Another reason is that it is important to avoid any penalty that can be imposed for non-compliance within the given timeline.
10. What are the possible ramifications for you and your organisation should these statutory timelines not be met?
Answer- The provisions provide a specific timeline for meeting the compliance for a reason and not adhering to the same attracts both civil and criminal legal sanctions for a company and its employees.
The first ramification is fine which can be imposed by various government bodies statutory timelines are not met depending on the degree of delay.
Termination from Australia Stock Exchange is another ramification that a company might suffer due to compliance with the statutory timeline.
Termination of insurance is another ramification that an organisation might face in case of non-compliance with the statutory timeline
When it comes to meeting OHS requirements with a guideline, if a company fails to do so, there are criminal consequences under the WHS act that can be imposed by the commission.
Lastly, the most important ramification in case of non-compliance with the statutory timeline is over the charge of tax liability.
11. As part of your compliance requirements, it is important to ensure that you maintain up to date knowledge in regards to the regulations of the Australian Financial Services Industry. Why?
Answer- It is important to be up to date with the regulations of the Australian financial services industry because there are various changes that are made at intervals which affect the compliance requirements for most organisation. For example, for a property law firm, it is important to complete an audit and file its financial statement with the securities exchange and commission in order to meet the regulations. Now in case, there is a change in the regulatory framework, the organisation must be aware of the change and implement the same before filing the financial statement of the organisation. The financial service industry is controlled by several authorities, which is why there are several changes and amendments made to the framework. Thus, important to be up to date with the same.
12 ….and how does your organisation do this?
Answer- Our organisation hires an external team of auditors, who along with the internal team of auditors completes a complete review of the financial statutory requirements and files the financial statement with the help of the accounts team. The organisation has also subscribed to financial services related magazines and newsletters to be aware of all the updates regulatory framework by the authorities.
13. How would a professional organization association help with compliance?
Answer- A hired professional organisation helps a company to detect violation of prescribes rules and regulation and guide the company to ensure that all the regulatory requirements are met within the given time frame. This protects an organisation from unwanted fines and penalties being imposed by the concerned authorities. The compliance process is not an overnight process, rather it is an ongoing continuous process whose adherence is taken care of by the professional organisation. This consistent compliance helps the company to maintain a secured growth and goodwill in the market and the eyes of law.
14. Source and summarise the AMLCTFR and the role of AUSTRAC
Answer- The aim of the Anti-money laundering and Counter-Terrorism Financing Act 2006 is to prevent the laundering of money and financing of terrorism. It imposes several obligations on an organisation which is expected to be met in order to ensure that the organisation is free from financial frauds and has no connection with terror funding. The financial sector, the gambling market, and the securities market are monitored with the help of this legislation.
AUSTRAC is the body that is responsible for detecting financial crimes and abuse of the financial system so that the community is safeguarded from financial frauds. It provides intelligence data that provides information about potential financial frauds that might be taking place, or which might take place in the future and provides measures to mitigate the same.
15. Write down a list of some of the decisions you make as part of your daily tasks within the Financial Services Industry.
Answer- The list of decisions are as follows:
Be updated about the recent changes made to the regulations
Be fair in dealing with the customers
Discourage money laundering and activities which has the potential to fund terrorism.
Meet compliance requirements imposed by the financial services authorities.
Provide an accurate statement of advice to the clients regarding financial products and services.
16. How do you ensure that you are up to date with changes to the legislation relevant to what you have listed in your answer above?
Answer- The following are the factors that can be followed to be up to date with the changes to the legislation:
Using alert services
Monthly legislative updates
Money laundering legislation amendments.
Participating in conferences, seminars, government training, etc.
17. Explain the two ways laws are made in Australia.
The two main sources of law in Australia are statutory laws and common laws.
Statutory laws are made by the creation of bills that are presented to the Governor-General for royal affirmation. Bills are passed in both the Houses of Parliament where the concerned ministers brief the members of the houses about the scopes and aims of the legislation and review the prospects and effects on the community. After such a bill gets a pass from the houses, the affirmation of the Governor-General makes it enforced legislation.
On the other hand, there is a decision given by the judges in a court which serves as a principle to be followed as a precedent for other cases. This is called common law or judge-made laws. The ratio decidendi is the principle developed from the decision of the court.
18. List and briefly explain the hierarchy of the court system and why it is important in your state, what is the county court jurisdiction?
Answer- In the state of New South Wales, the lowest court is the Local Court which was previously called the Courts of Petty Session established under the Local Courts Act 2007. Another lower court is called the Magistrates court. Then comes the District court. This District court in the state of Victoria is called the county court. In NSW, the District Court was established under the District Court Act 1973. Lastly, there is the Supreme Court which was established under the Supreme Courts Act 1970. It is the most superior court generally in Australia. Further, there is the Federal Court of Australia and the High Court.
19. List and explain the six legal aspects of a contract and explain who you would seek for advice if you needed guidance and how you would go about it.
Answer- The following are the six legal aspects of a contract:
Offer- This is the first step in the formation of a contract where the offeror makes an offer to the offeree to be accepted or for making a counteroffer.
Acceptance- This is the second step where the offeree is supposed to accept the offer and communicate the same to the offeror.
Meeting of mind- This is the third aspect where the parties to a contract should have the same intention and must have a mutual affirmation for the same
Consideration- This is the exchange for something based on which the terms of the contract will be performed. It can be monetary and specific performance. Without a valid consideration, a contract is not valid.
Capacity- The parties to a contract must have the capacity to enter the contract. This means that the parties need to be at least 18 years of age and need to have a sound mind that is capable of understanding the scope and nature of the contract.
Legality- The object of the contract or the product or service that is to be exchanged under the contract must be legal. This means any illegal object will make the contract null and void.
20. Explain what is meant by the ‘adversarial system of justice’
Answer- An adversarial system of justice has various factors based on which it is termed this way. First, in an adversarial system, there must be two opposing parties. Second, there must be an independent neutral body that will hear the dispute between the two opposing parties and decide following some given laws and regulations. The adversarial system is intended to bring out a competitive nature that bounds the parties to present strong and debatable arguments. This system ensures that the truth comes into the picture and something reasonable can be determined. In this system, the judges and the jury play the most important role to decide upon the matter after hearing both sides.
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