This is a service specifically targeted at the needs of busy non-executive directors (NEDs).  We aim to give you a ‘heads up’ on the things that matter for NEDs in the week ahead – all in two minutes or less.

In this edition, we discuss the publication of a climate change science guide for directors published jointly by the Australian Institute of Company Directors (AICD) and the Commonwealth Scientific and Industrial Research Organisation (CSIRO), and the report on greenwashing supervisory practices released by the International Organisation of Securities Commissions (IOSCO).  We also take a look at the Federal Government’s support of recommendations made by the Australian Competition and Consumer Commission (ACCC) regarding the risks that digital platforms pose to consumers, small businesses and competition, and the penalty handed down to Australia and New Zealand Banking Group Limited (ANZ) by the Federal Court of Australia in relation to ANZ’s breach of its continuous disclosure obligations in relation to its $2.5 billion capital raise.

In Over the Horizon, we take a look at the key observations and commitments Australia – the world’s third largest exporter of fossil fuels – made at 28th United Nations Climate Change Conference (COP28).

GOVERNANCE

AICD and CSIRO publish snapshot climate science guide for directors.  On 4 December 2023, the AICD in partnership with CSIRO, released the Climate Change Science Snapshot 2023: an overview for Australian Company Directors to provide directors with an overview of the latest climate science informed by CSIRO, Australia’s chief scientific body. The document aims to inform boardroom discussions on the need for climate scenario analysis and transition planning.  AICD notes that ‘as much as possible, Australian directors should be seeking to have their organisations use the best available scientific data and expertise to inform their climate governance approach’.  Directors are encouraged to consider the document as a useful resource when assessing their duties as directors, particularly in light of the pending introduction of mandatory climate-related disclosure regimes (see previous edition of Boardroom Brief).  See AICD media release and Snapshot.

IOSCO publishes report on supervisory practices to address greenwashing.  On 4 December 2023, the IOSCO released its Supervisory Practices to Address Greenwashing: Final Report. The Report provides an overview of the initiatives used to address greenwashing in various jurisdictions in line with IOSCO’s first set of Recommendations from 2021, second set of Recommendations from 2021, and IOSCO’s subsequent Call for Action in 2022 (see previous edition of Boardroom Brief).  The Report notes the challenges hindering those recommendations being implemented, including gaps and inconsistencies concerning the notion of greenwashing, the classification of sustainability-related products and evolving regulatory approaches.  In particular, IOSCO also notes that while most jurisdictions have supervisory mechanisms in place to address greenwashing in the area of asset management, more cross-border cooperation and knowledge exchange is necessary to ensure market integrity and investor protection.   See IOSCO media release and Report.

REGULATION

Government supports ACCC Digital Platform Services Inquiry recommendations in principle.  On 8 December 2023, the Treasury released its Government Response to the ACCC Digital Platform Services Inquiry to the ACCC’s recommendations set out in the ACCC’s Digital Platform Services Inquiry interim report (see previous G+T knowledge article).  The ACCC had previously made 4 recommendations to address the harms digital platforms pose to consumers, small businesses and competition: (1) economy-wide consumer measures (eg, an economy wide prohibition against unfair trading practices and the strengthening of unfair contract terms laws); (2) digital platform specific consumer measures (eg, mandatory internal dispute resolution standards to ensure accessibility); (3) additional competition measures (eg, a power to make mandatory codes of conduct for digital platforms); and (4) targeted competition obligations (eg, targeted obligations to address, eg, unfair dealings with users).  The Government supported all 4 recommendations in-principle. Minister for Communications, the Hon Michelle Rowland noted that ‘This work builds on measures the Albanese Government is taking to strengthen regulatory frameworks for digital platforms, including our strong action on scams and proposals to improve transparency of digital services’. See Treasury media release and Government Response to ACCC inquiry.

LEGAL

Federal Court determines penalty for ANZ’s breaches of its continuous disclosure obligations during $2.5 billion capital raise. On 8 December 2023, the Federal Court of Australia ordered that ANZ pay a penalty of $900,000 for breaching its continuous disclosure obligations during its $2.5 billion institutional share placement in 2015 (see previous edition of Boardroom Brief). The Federal Court declared that ANZ had contravened the Corporations Act in failing to notify the Australian Securities Exchange that approximately $754 million to $790 million of the $2.5 billion of ANZ shares offered in the placement were to be acquired by underwriters rather than investors. The decision represents a landmark case for ASIC, confirming that a significant take-up of shares by underwriters (in a share placement) must be disclosed to the market and investors.  Directors should note that, had such a contravention occurred today, the maximum penalty could be anywhere between $15 million to $780 million. ASIC Deputy Chair Ms Karen Chester observed that ‘listed entities should see today’s penalty decision as a strong and purposeful warning to fully meet their continuous disclosure obligations’.

OVER THE HORIZON 

Fuelling the phase out of fossil fuels.  From 30 November 2023 to 12 December 2023, more than 190 governments convened in Dubai at the 28th United Nations Climate Change Conference (COP28) to take steps towards agreeing on policies to limit rising global temperatures and adapt to climate change impacts.  The discussions have centred around the world’s ongoing reliance on fossil fuels and what can be done to achieve the goal of limiting the global temperature increase to 1.5°C above pre-industrialisation levels, which underpins the Paris Accord adopted at the 2015 United Nations Climate Change Conference.  While delivering Australia’s national statement at COP28, Minister for Climate Change and Energy the Hon Chris Bowen considered that while Australia had made ‘more progress … in 12 months than [Australia had] in 10 years’, it was clear that ‘[Australia] need[s] to end the use of fossil fuels in our energy systems’. COP28 has played a part in catalysing what seems to be a potentially accelerated phase out of fossil fuels in Australia: among other things, COP28 saw Australia commit to sign the Glasgow Statement adopted at the 2021 United Nations Climate Change Conference, joining 39 other countries in ending international public investment into climate polluting projects. Minister Bowen noted Australia’s commitment to no longer finance international oil, gas and coal projects is ‘really aligning our international financing efforts, whether it be aid or loans or other things, on the global decarbonisation effort’.