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25/09/17

Boardroom Brief: Week commencing 25 September 2017

Welcome to Edition 34 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. A short week this week as a result of the Queen’s Birthday holiday in Western Australia.

KEY BOARDROOM BRIEF

Insolvency director safe harbour reforms. Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Act 2017 (Cth) received Royal Assent on 18 September 2017. The safe harbour reforms commenced on 19 September 2017 and the changes to ‘ipso facto’ contractual rights will commence on a future date. As reported in last week’s edition of Boardroom Brief the Act is a significant step forward in Australian insolvency law reform and creates a safe harbour for company directors from personal liability for insolvent trading if the company is undertaking a restructure outside formal insolvency. The intention of the legislation is to drive cultural change amongst company directors by encouraging them to keep control of their company, engage early with possible insolvency and take reasonable risks to facilitate the company’s recovery instead of simply placing the company prematurely into voluntary administration or liquidation. See the Act which has just now been published on the Federal Register of Legislation.

APRA publishes its submission to the Productivity Commission’s Inquiry into Competition in the Australian Financial System. This submission focuses on APRA’s role in the financial system, potential indicators of competitive dynamics within the industries APRA supervises and its approach to balancing the objectives of financial safety and stability with considerations of competition and competitive neutrality. See APRA’s media release

WA stamp duty case recognises mining company has non-land goodwill. The case provides judicial recognition that in certain circumstances, contrary to the longstanding view of the Western Australian Commissioner, a mining company can have business goodwill in the stamp duty context. The decision sets out some helpful guidance on this vexed issue as well as how land should be valued in the stamp duty context. Both of these issues are in particular focus when assessing the stamp duty implications of the takeover of a mining company. G+T client’s publication discusses these developments in further detail Recent WA stamp duty case recognises mining company has non-land goodwill.

Australia grows to become Asia-Pacific’s second largest alternative finance market. Australia’s market grew more than 50 per cent over the last year, leapfrogging Japan, and now comprises over 30 per cent of the total Asia-Pacific alternative finance market. Alternative finance provides new business models for lending and other forms of finance including balance sheet lending, peer-to-peer lending, crowdfunding and invoice financing. The Government’s FinTech agenda is having a positive impact in making Australia a worldwide FinTech hub. The Turnbull Government’s strong support for FinTech has helped Australia become the second largest alternative finance market in the Asia-Pacific, with US$610 million raised in 2016. See Treasurer of Commonwealth of Australia, the Hon Scott Morrison’s media release

Fintech update: September 2017. G+T’s client publication Fintech Update: September 2017 examines legislative and regulatory developments occurring in the fintech space over the past month, including CSF (see below) and the extension of Australia's anti-money laundering and counter-terrorism financing regime to crypto-currencies such as Bitcoin. Many of these developments may be on the periphery for most Directors, but the rate of change is accelerating and it seems inevitable that more and more commerce will be transacted outside the traditional banking sector.

THE WEEK AHEAD

New Crowd-source Equity Funding legislation to commence. In previous Boardroom Briefs we explained the new Crowd-sourced Equity Funding (CSF) Rules which come into operation on 29 September. ASIC has now finalised two new regulatory guides: Regulatory Guide 261 Crowd-sourced funding: Guide for public companies, with a template CSF offer document to help companies prepare their CSF offers; and Regulatory Guide 262 Crowd-sourced funding: Guide for intermediaries. These guides are essentially the same as the prior drafts and are designed to assist public companies and intermediaries in using the CSF regime. ASIC Commissioner John Price said, “Crowd-sourced funding provides an opportunity for small to medium-sized businesses to access an alternate source of capital without the regulatory burden of traditional fundraising. ASIC's new guidance will help public companies and crowd-funding platform operators comply with their obligations under the CSF regime, while supporting investor confidence.” See the ASIC website for further information on crowd-sourced funding, including information on applications. See also ASIC’s media release

Treasury consults on 2018-19 Pre-Budget Submissions. The Assistant Minister to the Treasurer has called for submissions from individuals, businesses and community groups seeking their views regarding priorities for the 2018-19 Budget. Submissions are due by 15 December 2017. See Treasury’s media release.

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