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 examine the findings of the Chief Executive Women (CEW) Senior Executive Census for 2022, consider the recent passing of climate change legislation, ASIC’s recent focus on product design, distribution and marketing laws and the WA Supreme Court’s decision regarding the commencement of proceedings relating to the Nex Metals takeover bid.

In Over the Horizon, we consider the RBA’s recent cash rate hike and whether it will have the predicted impact on consumer spending.

GOVERNANCE & REGULATION 

Chief Executive Women Senior Executive Census 2022 published.  Chief Executive Women (CEW), has published its Senior Executive Census 2022, which tracks the representation of women in the senior leadership teams of top public companies in Australia.  The Census confirms that representation of women in the most senior leadership roles in the nation’s top companies has gone backwards in the last year.  The findings of the Census include that only four women were appointed to CEO positions of ASX300 companies in the last year (out of a total of 28 appointments), more ASX300 companies have no women in their leadership teams than this time last year, and it will take 100 years to achieve at least a 40% representation of women in CEO positions of ASX 200 companies.  The CEW further identified specific actions for businesses, investors and government to consider, and states that its findings are both a “wake-up call” and a “remarkable opportunity to invest in equality”.  See CEW media release.

Climate legislation passes.  On 8 September 2022 the Climate Change Bill 2022 (Cth) and the Climate Change (Consequential Amendments) Bill 2022 (Cth) cleared the final hurdle when passed by the Houses of Parliament, with minor amendments from the Senate.  Labor’s climate bill, which includes the national targets of cutting emissions by at least 43% by 2030 (compared with 2005) and reaching net zero by 2050 cleared the Senate 37 votes to 30.  Under the new climate change legislation, the Minister must cause independent reviews to be conducted on its progress towards meeting the revised commitments.  The government will release a more detailed design proposal for the safeguard mechanism for feedback later this year and the reforms are expected to take effect from July 2023.  See Bill progress and document.

ASIC’s binary options ban extended until 2031.  ASIC has extended its product intervention order banning the issue and distribution of binary options to retail clients until 1 October 2031 through the ASIC Corporations (Product Intervention Order Extension—Binary Options) Instrument 2022/779.  As ASIC has noted, since it came into effect on 3 May 2021, the ban has been “fully effective in preventing retail clients from losing money trading binary options in Australia”.  ASIC’s extension of the product intervention order ensures binary option protections in Australia remain in line with those in force in comparable markets overseas.  On 5 September 2022, ASIC also published Report 736 (Response to submissions on CP 362 Extension of the binary options product intervention order), which summarises ASIC’s analysis of the impact of the order using data from five licensed binary option issuers.  See ASIC media release. Directors of financial service companies should note that ASIC has identified the administration of product design, distribution and marketing laws as a key strategic priority in 2022 – 2023.

LEGAL

The Supreme Court affirms limits on the statutory prohibition on commencing proceedings in relation to a takeover bid.  The WA Supreme Court in Metalicity Ltd v Allen [2022] WASC 291 considered the limits on the statutory exception in section 659B of the Corporations Act, which allows only a limited class of applicants to commence proceedings in relation to a takeover bid or proposed takeover bid, where the bid period is ongoing.  The Supreme Court proceedings had been brought by Metalicity Limited (Metalicity) in the context of a series of disputes between Metalicity and Nex Metals Explorations Ltd (Nex), particularly, the off-market takeover bid by Metalicity for all shares in Nex.  As noted in previous editions of Boardroom Brief, the transaction had led to frenetic regulatory activity: issues arising out of the proposed takeover had already been the subject of six separate applications the Takeovers Panel (see previous Takeovers Panel decision). In the Supreme Court action, Metalicity brought proceedings before the Supreme Court to challenge the validity of certain proxies lodged by certain shareholders  (and, therefore, the validity of such votes cast by those shareholders in relation to various director appointment and removal matters at two meetings of Nex Metals shareholders).  Further, Metalicity sought to characterise the commencement of the action as an attempt to enforce its rights as a shareholder of Nex rather than a bidder.  The takeover had closed on the day the application was heard before Justice Hill.  In that context, Justice Hill considered that the proceedings are not “court proceedings in relation to a takeover bid, or proposed takeover bid” and therefore found the Court did have jurisdiction to hear the proceedings.  See WASC decision.

OVER THE HORIZON

Is the end to interest rate hikes in sight? Unlikely.  In last week’s Over the Horizon, we considered two opposing outlooks for the remainder of a very turbulent 2022.  Perhaps of most interest is the implications of those outlooks for domestic interest rates.  In his 8 September speech, RBA Governor Philip Lowe noted that even with recent rate increases, ABS data confirmed that public spending is yet to slow, with Australians continuing to splurge on discretionary goods.  However, house price data is pointing to an ongoing correction.  UBS economists last week said a cash rate peak near 4% would be “too aggressive”, as it would likely crash the housing market and drive a recession.  It is widely tipped that the RBA will increase the rate for a sixth straight month in October to a more moderate figure around 2.6%, with the expectation that consumer spending will slow materially as the lagged impact of rate hikes hits home borrower cashflow.