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In this edition, we consider insights gained from ASIC’s quarterly update and its newly published guidance for crypto-asset related investment products, ASIC’s concern over investment switching by directors and senior executives of superannuation trustees, as well as key dates for the new Director Identification Number regime. We also revisit the continuing applications before the Takeovers Panel in relation to the affairs of Gascoyne Resources Limited and PM Capital Asian Opportunities Fund. Finally, in this week’s Over the Horizon we look ahead to the landmark COP26 conference where political and industry leaders will meet to discuss the global response to climate change and the seismic regulatory shifts that could result from it.
GOVERNANCE & REGULATION
ASIC releases quarterly update and insight into regulatory approach. ASIC’s quarterly update looks back on some important regulatory reforms in the first quarter of the new financial year. ASIC used the update to reaffirm its move away from its prior ‘why not litigate?’ stance to facilitate the post COVID-19 economic recovery by taking a more ‘reasonable approach’ in regulation. However, in what might be seen as a reflection on the first few months of the new approach, ASIC also took the opportunity to note it would only take such reasonable approach where ‘industry participants use their best efforts to comply’ and, where firms are deemed not acting in good faith, ASIC ‘will not hesitate to enforce the law’. Another focus of the release was ASIC’s new requirements on breach reporting, and a reminder that publication of breach reporting data will commence late next year. See ASIC’s media release.
ASIC publishes new guidance for crypto-asset related investment products. ASIC has released good practices for market operators in Information Sheet 225 Crypto-assets (INFO 225) and Information Sheet 230 Exchange traded products: Admission guidelines (INFO 230). The publications concern admission, supervision, pricing, monitoring, disclosure and risk management of crypto-assets. Along with general advice on how to ensure compliance with existing regulatory frameworks, ASIC also noted entities that intend to hold underlying assets which include crypto-assets will need to hold an authorisation to do so. The release of these information sheets serves as a ‘go-ahead’ to cryptocurrency-backed ETFs, but ASIC approvals would currently only be available to those with a robust and transparent pricing mechanism, such as Bitcoin and Ethereum. See ASIC’s media release.
ASIC surveillance of personal investment switching by directors and senior executives of superannuation trustees sparks concern. ASIC has examined a sample of 23 trustees (including trustees of industry and retail funds) with a focus on personal investment switching by fund executives, where they move savings out of unlisted assets before the valuation of those investments take a hit. ASIC’s surveillance was focused on switching during the period of market volatility resulting from COVID-19, and has sparked concern as to trustees’ management of conflicts of interest. ASIC’s key concerns include (1) inadequate oversight of investment switching and related parties (which the new Director Identification Number regime discussed below may address to an extent), (2) lack of conflict management measures (noting almost half of the trustees did not have preventative controls in place, such as blackout periods) and (3) failure to identify investment switching as a risk. See ASIC’s media release.
Director Identification Number applications open. The new Director Identification Number regime applications have opened today. Directors appointed on or before 31 October 2021 must apply for a Director Identification Number by 30 November 2022. Directors appointed between 1 November 2021 and 4 April 2022 will need to apply within 28 days of appointment while those appointed from 5 April 2022 must apply prior to appointment. The regime seeks to enable regulators to track directors’ relationships and curb “phoenixing” – when a company deliberately evades paying its debts by shutting down and shifting its assets to another company. Apply and find more information on the Australian Business Registry Services DIN hub.
Takeovers Panel rebuffs continued applications in relation to the affairs of Gascoyne Resources Limited. As discussed in previous editions of Boardroom Brief, the Panel last week declined to conduct proceedings the subject of an application by Westgold Resources Limited. Westgold had sought final orders to amend Gascoyne’s scheme implementation deed to include a termination right in the event of a “superior proposal” and interim orders to defer or postpone the meeting scheduled for 27 October last week. The Panel declined to conduct proceedings on the basis Westgold’s offer was not a “superior proposal”. On 26 October, Westgold applied to the Panel for a review of that decision. The following day, the Panel declined to make the interim orders sought by Westgold. Finally, on 29 October the Review Panel declined to conduct a review, reinforcing the view that there is no reasonable prospect that it would make a declaration of unacceptable circumstances. The Review Panel will release the reasons for its decision in due course. In the meantime, Directors of companies considering acquisitions by scheme should consider whether a termination right is appropriate if a bid is made for the proponent (as opposed to the scheme company) which is conditional on the scheme not proceeding.
Takeovers Panel makes interim orders in relation to the affairs of PM Capital Asian Opportunities Fund Limited. Another application considered in previous editions of Boardroom Brief continues to develop (see the 18 October edition), with the Panel receiving an application from WAM to prevent PM Capital Global Opportunities Fund Limited (PGF) from acquiring any further interests in PM Capital Asian Opportunities Fund Limited (PAF). The Panel received an application from PGF last week to make interim orders to restrain WAM Capital Limited (WAM) from dispatching its bidder’s statement until alleged deficiencies in it were corrected. Last Friday, the Panel made the interim orders sought by WAM to prevent PGF from acquiring further interests in PAF without the consent of any member of the sitting Panel. The orders remain in effect for 2 months or until either the Panel makes further orders a determination of the proceedings, whichever is earliest. See the Panel’s media release.
OVER THE HORIZON
COP26 commences today, and potentially with it international regulation reforms for commercial firms. The United Nations countries will meet over the coming fortnight to discuss the global response to climate change. Commercial firms, lobbyists and activist groups will join the world’s political leaders in discussions which are expected, among other things, to finalise the Paris Agreement rules. The co-hosts of this year’s conference, the UK and Italy, have announced key outcomes sought at the conference. Those include securing a global net zero target by 2050, greater intergovernmental coordination and making available $100 billion in supporting finance. If nothing else, a natural result of these discussions is likely to be the beginning of more significant conversations around regulatory responses to climate change. The results of these conversations may include global or domestic reforms, opportunities and potential threats for commercial firms, especially those in the energy and resources sector. Gilbert + Tobin is following the conference and providing daily updates of the key outcomes. You can follow our coverage of the conference on our Clean Energy and Decarbonisation website.