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30/10/17

Boardroom Brief: Week commencing 30 October 2017

Welcome to Edition 39 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

New Junior Minerals Exploration Incentive (JMEI) update.  After much anticipation by the exploration industry, the Government has introduced a bill for the new Junior Minerals Exploration Incentive (JMEI) (previously referred to as the JMETC, which we reported on in edition 31 of Boardroom Brief when the Prime Minister first announced the incentive).  The JMEI allows greenfield minerals explorers to attract new capital investment by passing on a portion of their exploration deductions to their investors in the form of a tax offset.  However, the devil is in the detail, and explorers (and investors) may find that the program’s strict timeframes, yearly requirements and caps limit the program’s usefulness.  See G+T client publication The New Junior Minerals Exploration Incentive (JMEI): Explaining the mad rush.

Treasury consults on Treasury Laws Amendment (Whistleblowers) Bill 2017 - Exposure Draft.  Treasury has released an exposure draft of the Treasury Laws Amendment (Whistleblowers) Bill 2017 and supporting explanatory material to seek stakeholder views.  The Bill creates a single whistleblower protection regime in the Corporations Act 2001, to cover the corporate, financial and credit sectors, and creates a new whistleblower protection regime in the taxation law, to protect those who expose tax misconduct.  Submissions are due by 3 November 2017. See Treasury’s website and Minister for Revenue and Financial Services, the Hon Kelly O’Dwyer’s media release. Directors should be aware that the new laws will require many corporates without a whistleblower policy in place to undertake remedial action or face penalties.  With a number of recent high-profile allegations of misconduct emanating from whistleblower tip-offs, we can expect this issue to remain a priority for the Government. Minister O’Dwyer hopes the legislation will pass through Parliament prior to the Christmas recess.

Treasury consults on Enhanced Regulatory Sandbox.  Directors involved in the FinTech space should note Treasury’s release of exposure draft legislation for an enhanced regulatory “sandbox”, which will allow a broad scope of activities to be tested without the need to meet all the existing licensing requirements of ASIC.  The enhanced regime will help firms overcome the initial regulatory burden and costs of licensing that may otherwise hinder innovative offerings. The Bill extends regulation-making powers to enable an exemption from obtaining an Australian Financial Services Licence and/or an Australian Credit Licence under certain conditions for the purposes of testing financial and credit services and products. Consultation on the draft legislation (and explanatory memorandum) is due on 3 November 2017, and on the draft regulations (and explanatory statement) is due on 1 December 2017 — See Treasury’s website and the Treasurer of Commonwealth of Australia, the Hon Scott Morrison’s media release.  While the “sandbox” concept is useful to reduce compliance burdens on new companies, directors need to be aware that it does not provide safe harbour from directors’ duties or from insolvent trading legislation. 

Treasury consults on strengthening penalties for corporate and financial sector misconduct.  The Treasury has released a position paper on strengthening penalties for corporate and financial sector misconduct for public consultation as concerns have emerged in a number of forums that the penalties in the legislation administered by ASIC may not be effective and that they do not reflect community perceptions as to the seriousness of engaging in certain forms of misconduct.  The effect of the key positions put in the paper would be to expand the range of civil penalty provisions and to increase maximum civil penalty amounts in the Corporations Act 2001 and National Consumer Credit Protection Act 2009.  Submissions are due by 17 November 2017.  See Treasury’s website and Minister for Revenue and Financial Services, the Hon Kelly O’Dwyer’s media release.

THE WEEK AHEAD

Harper changes to competition law have received assent.  As reported in last week’s edition of Boardroom Brief, the balance of the most significant changes to Australia’s competition laws in over 40 years were passed by the Federal Parliament on 18 October 2017.  These reforms were assented to on 27 October 2017 and while there is no official word on commencement, it is expected that it will occur any day now.

Queensland State Election. As if the country needed any more political uncertainty, directors with operations in Queensland now face the uncertainty created by a snap poll in that State called by Premier Annastacia Palaszczuk for 25 November.  The election outcome is inherently hard to predict given the return to full preferential voting, an increase in the number of seats in the unicameral Parliament to 93, and new boundaries for most seats. 

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