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.  

In this Edition, we consider ASIC’s recent Market Integrity Update, its issuance of an infringement notice concerning a breach of continuous disclosure obligations, the Treasury’s consultation on supervisory levies and the introduction of a bill into Parliament requiring further monitoring of ASIC and APRA. In addition, we consider the recent bitcoin crash and what the future holds for cryptocurrency.

GOVERNANCE & REGULATION

Consultation on the recommendations for the Parliamentary Joint Committee report on litigation funding and class actions. In a previous edition of Boardroom Brief, we noted the release of a report on litigation funding by the Parliamentary Joint Committee on Corporations and Financial Services. The report contained 31 recommendations and highlighted the growth of litigation funding, the participation of international players in the Australian market and the frequency of abnormally high profits for class action law firms and litigation funders. The Committee found that greater oversight of the industry is required in order to ensure fair and reasonable outcomes for all class members. The Morrison Government has announced that it will now consult on the report recommendations, having already acted on Recommendation 29 by amending Australia’s continuous disclosure rules. See the Treasurer’s media release.

LEGAL

Liability for Climate Change Damage (Make the Polluters Pay) Bill 2021 (Cth) introduced. While unlikely to make it past the first reading speech, the introduction of the Climate Change Damage Bill by the Greens in the House of Representatives on 24 May 2021 will further escalate the debate over the pace of the clean energy transition and whether Australia is doing enough to hasten that transition domestically. The Bill provides that that major emitters of greenhouse gases, including fossil fuel producers and owners or operators of coal-fired power stations, will be liable for climate change damage if their emissions are greater than one million tonnes in any 12-month period that began on or after 1 September 2020. This would capture most of Australia’s major coal and gas producers. The Bill provides the Federal Court of Australia with the ability to grant an injunction requiring the major emitter to reduce or cease activities that may cause climate change damage in the future and determine the amount of damages the major emitter is liable for (a calculation which allows the court to assume the emitter’s share of the climate change damages is at least the same as their share of total global greenhouse gas emissions). Directors should note that legislative and judicial attempts to sheet home liability for the impact of climate change to large greenhouse gas emitters is likely to intensify over the coming decade, reinforcing institutional investor demands to seek out less carbon-intensive forms of business activity. 

ASX Listing Rules changes to come into effect on 5 June 2021. In a previous edition of Boardroom Brief, we noted that ASX had finalised a number of amendments to the Listing Rules through the release of its Consultation Response. The amendments, effective as of 5 June 2021, notably include the introduction of requirements for the cancellation, deferral or reduction of previously announced dividends, distributions or interest payments. Where an entity has announced it will make dividends, distributions or interest payments, it must immediately notify ASX of an intention to cancel or defer those payments. Where the entity has already nominated a record date for those payments, it may only cancel or defer them if (1) it would be contrary to law to make the payment on the announced date (an example might include where the paying company faces an imminent solvency issue) or (2) the entity has given ASX notice of the change on the business day prior to the ex date specified in the relevant announcement.

OVER THE HORIZON

Cryptocurrency not too elusive for tax time. The ATO has published a media release expressing its concern that many taxpayers believe their cryptocurrency gains are tax free or are only taxable when the holdings are cashed back into Australia dollars. Assistant Commissioner Tim Loh has stated the ATO will be writing to approximately 100,000 taxpayers with cryptocurrency assets explaining their tax obligations and urging them to review their previously lodged returns. This media release follows a recent announcement by the Biden administration that cryptocurrency transfers over US$10,000 be reported to the IRS.