Insights

28/08/17

Boardroom Brief: Week commencing 28 August 2017

Welcome to Edition 30 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.

KEY BOARDROOM BRIEF

Asia Region Funds Passport and Corporate Collective Investment Vehicle. The Government is seeking submissions on draft Asia Region Funds Passport (Passport) and Corporate Collective Investment Vehicle (CCIV) Bills and explanatory materials. The Bills will establish a regulatory framework for the Passport and CCIV regimes (see here and here). This legislation continues the Government’s work to implement arrangements set out in the Passport’s Memorandum of Cooperation between signatories Australia, Japan, Korea, New Zealand and Thailand. CCIVs will offer an internationally recognisable investment vehicle which can be readily marketed to foreign investors, including through the Passport. Treasury is also hosting a number of roundtable meetings to facilitate targeted consultation. Submissions close on 21 September 2017. See Treasury’s media release. See also media release by Minister for Revenue and Financial Services, the Hon Kelly O’Dwyer.

Strengthening Anti-Money Laundering and Counter-Terrorism Financing measures. The Anti-Money Laundering and Counter-Terrorism Financing Amendment Bill 2017 (Cth) proposes to amend existing legislation. Specifically, the Bill would strengthen Australia's capabilities to address money laundering and terrorism financing risks and generate regulatory efficiencies, including in some “grey” areas such as digital currencies and other physical, high value currencies such as bearer bonds, which can be used to shift substantial sums of money undetected. See the Minister for Justice, The Hon Michael Keenan MP’s media release for further information. As we know, even the humble $100 bill might be under threat, as the Government looks to tighten the money-laundering net. Indeed, we will look back on 2017 as representing a step-change in the seriousness of this issue, and Directors should consider a commensurate re-rating of regulatory compliance around the issue in their companies’ Risk Management Framework.

Disclosure relief for an offer to a director or secretary. ASIC has remade Class Order [CO 04/899] Definition of 'senior manager' modification which was due to expire ('sunset') on 1 October 2017. The new instrument, ASIC Corporations (Disclosure Relief—Offers to Associates) Instrument 2017/737, continues to provide disclosure relief for an offer of securities to a director or secretary. See ASIC’s media release.

ASIC enforcement report. ASIC has released its enforcement report for the period 1 January 2017 to 30 June 2017. The Report covers ASIC’s enforcement outcomes and provides an overview of ongoing areas of focus. The report also outlines ASIC’s approach to enforcement and how ASIC assesses the matters it investigates and take action on, as well as key matters completed over the past six months that have supported those processes and objectives. See ASIC’s media release.

Corporate finance regulation. ASIC has today published its report on the regulation of corporate finance issues, covering the first half of 2017. The report provides statistical data, highlights key focus areas, and includes relevant guidance about ASIC’s regulation of fundraising transactions, mergers and acquisitions, corporate governance issues, related party transactions and financial reporting. More information is available here. The report contains some interesting statistics on capital raising and control transaction activity. The key take-away for Directors is that there is a discernible trend towards increased intervention in corporate finance transactions by ASIC. We expect that trend will only gather momentum with ASIC’s transition to a “user pays” model this year.

THE WEEK AHEAD

Results season. August is the month when Directors and Audit Committee members tend to become bogged down in earnings releases. The consensus among the financial press was that this years’ results were uninspiring, with only a handful of notable exceptions on either the upside or downside. One topic that is clearly testing Directors relates to dividend policy and capital management more broadly. With more and more Australians relying on their portfolios for income, rather than capital growth, Directors need to ensure they are receiving clear advice on shareholders’ and the market’s expectations in this regard.

ASIC announces regtech showcase event. ASIC has announced that it will hold a showcase event on regulatory technology (regtech) on 18 September 2017 in Sydney. ASIC’s Regtech Showcase will see two key regtech topics examined in depth through panel discussions, commentary from a range of experts and floor discussion, being the future of regulatory reporting and understanding and meeting regulatory obligations. These sessions will have a focus on the regulatory framework administered by ASIC, but will also have reference to frameworks more generally. See ASIC’s media release. For Directors, developments in this space are worth monitoring, as regtech offer the tantalising prospect of using technology to streamline the process of compliance with the myriad statutory and other obligations imposed on the modern Director. CTOs and CIOs should be tasked with considering what kind of regtech products might be available to help lighten the compliance load for the Board and management.

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