Welcome to Edition 46 of Boardroom Brief.

This is a service specifically targeted at the needs of busy non-executive directors. 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.

With Christmas approaching, this will be the last Boardroom Brief for 2017. Gilbert + Tobin wishes all Directors a safe and relaxing holiday season.

Boardroom Brief will return in the first week of February 2018.

KEY BOARDROOM BRIEF

Treasury consults on Crowd-sourced equity funding regulations for proprietary companies. The Government has released exposure draft regulations with an accompanying explanatory statement providing further detail on the extension of the crowd-sourced funding (CSF) framework to proprietary companies. This is the next step in enabling proprietary companies to access equity crowdfunding, and follows the legislation introduced to the Parliament on 14 September 2017. The draft regulations also make refinements to the existing CSF regime for public companies, to add flexibility to the structure and contents of CSF offer documents in addition to requiring disclosure relevant to the proprietary companies, and make other minor changes to clarify the operation of the existing rules and modify the unsolicited offer provisions in the Corporations Act, which apply to all companies, to make these more flexible for proprietary companies with CSF shareholders.  Submissions are due by 2 February 2018. See Treasury’s website. Anecdotal evidence suggests a relatively low level of use of CSF in the first few months of implementation, and it will be interesting to see if this changes in 2018.

ASIC’s second marketplace lending survey shows the industry continues to grow in Australia. ASIC has released Report 559 Survey of marketplace lending providers: 2016–17 (REP 559). The report summarises the findings from ASIC’s survey of marketplace lending providers for the 2016–17 financial year, its second survey of the marketplace lending industry. See ASIC’s media release. As noted in previous editions of Boardroom Brief, innovation in the provision of lending products to small business is continuing at a rapid pace. This represents a tangible threat to a small but important part of established banks’ businesses. But it is also potentially an opportunity for Directors of large, membership based organisations looking to provide lending solutions to members. 

Listing Rule and Guidance Note amendments effective 1 December 2017. We have previously advised on these amendments which are now in effect. The new rules related to:

• reverse takeovers (Listing Rule 7.2 exceptions 5 and 6) plus ancillary amendments (Listing Rules 7.3.10 and 14.11.1)
   
• general changes to voting exclusions (Listing Rule 14.11) and to the definition of ‘associate’ (Listing Rule 19.12); and
   
• financial accounts to be provided by applicants seeking to list on ASX (Listing Rules 1.2 and 1.3).

In addition, changes to Guidance Note 1 Applying for Admission – ASX Listings, Guidance Note 4 Foreign Entities Listing on ASX and Guidance Note 12 Significant Changes to Activities also came into effect on 1 December 2017.

New Whistleblower laws introduced to Parliament. In Whistle while you work - Whistleblowing...culture, confidentiality and damages,we explore the draft Treasury Laws Amendment (Whistleblowers) Bill 2017, which creates a consolidated whistleblower protection regime in the Corporations Act 2001 (Cth) to cover misconduct in the corporate sector (with matching provisions in banking and tax codes). We expect to see a continued focus on Whistleblower protection as a key element of creating an appropriate “corporate culture”. Although “culture” is a very vague concept, it is already starting to creep into legislation, and Directors will need to give serious thought as to how corporate culture can be identified, measured, monitored and, if need be, altered.

THE WEEK AHEAD

ASX trading. For the first time this year ASX trading will not close early on 22^nd and 29^th December, which are both normal trading and settlement days. A little extra time for brokers to lock in some trading profits before Christmas or New Year festivities.

Trump and tax. For all the anxiety over the chaotic nature of his administration, US President Donald Trump will go into the New Year – at least statistically – with some notable achievements under his belt, with the Dow Jones index at a record high and unemployment at a record low. Now, it seems that a historic package of tax reforms which, among other things will slash the corporate tax rate in the US to 21% and cap the highest marginal income tax rate at 37%, will pass through Congress this week (you can find a summary of the plan here). Perhaps the most interesting question next year is whether the US will be able to maintain its momentum while also achieving a return to a normalised interest rate environment, given the Federal Reserve’s unexpectedly dovish approach in 2017. This will have critical ramifications for the growth outlook across the globe, including in Australia.