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 discuss the ACCC’s compliance and enforcement priorities for 2023-24 and proceedings brought by ASIC against a credit provider company and one of its directors. We also discuss ASIC’s continuing crackdown on inadequate material business risk disclosures in annual reports, and the Takeovers Panel’s decision in relation to the affairs of AIMS Property Securities Fund which resulted in a referral to ASIC for further investigation.
In Over the Horizon, we look at the third attempt by a Federal Government to introduce new financial accountability regulations for the banking, superannuation, and insurance sectors.
GOVERNANCE & REGULATION
ACCC releases 2023-2024 compliance and enforcement priorities. On 7 March 2023, Gina Cass-Gottlieb, Chair of the Australian Competition and Consumer Commission (ACCC), announced the release of the competition and consumer watchdog’s 2023-24 compliance and enforcement priorities. These priorities include consumer, product safety, fair trading and competition concerns in relation to environmental claims and sustainability, consumer and fair trading issues relating to manipulative or deceptive advertising and marketing practices in the digital economy, and promoting competition and investigating allegations of anti-competitive conduct in the financial sector, with a focus on payment services. Ms Cass-Gottlieb noted that the energy sector would be the focus of much of the ACCC’s compliance and enforcement efforts in the coming year, and that the ACCC’s focus on environmental claims and sustainability is broadening beyond consumer and fair trading issues to include competition law and product safety considerations. This focus complements ASIC’s efforts to curb misleading conduct in relation to sustainable finance, including greenwashing, as noted in our recent G+T Knowledge Article. See ACCC media release.
ASIC commences court proceedings over alleged unlicensed credit activity and breaches of directors’ duties. On 9 March 2023, ASIC announced that it commenced proceedings against Green County Pty Ltd (Green County), Max Funding Pty Ltd (Max Funding), and a director of both of these companies for alleged unlicenced credit activity, breaches of directors’ duties, and other breaches of consumer credit laws. ASIC alleges that Green County and Max Funding failed to make reasonable inquiries in relation to the purpose of various loans which caused Green County to provide personal loans to various borrowers in circumstances where neither defendant was licensed to provide personal loans or act as an intermediary. ASIC further alleges that a director of both of these companies breached their duty of care and diligence as a director by failing to take reasonable steps to avoid the companies being in breach of the National Consumer Credit Protection Act 2009 (Cth) and the National Credit Code. ASIC Deputy Chair, Sarah Court, reiterated that directors have a “fundamental responsibility to take reasonable steps to ensure that their organisations have systems in place to comply with the law”. The date of the first case management hearing is yet to be scheduled. See ASIC media release.
ASIC remains focussed on improving disclosure of material business risks. On 10 March 2022, ASIC announced that inquiries as part of its ongoing financial reporting surveillance program have resulted in a further six listed entities disclosing material business risks in their 31 December interim financial reports. These disclosures were made in response to concerns by ASIC that these entities had not properly disclosed these risks in the operating and financial review (OFR) section of the directors’ report. Directors are again reminded to ensure that the OFR section of the directors’ report is subject to the same rigour and scrutiny as the financial accounts. ASIC continues to closely review annual reports on a risk-based approach to ensure entities are properly complying with their disclosure obligations. See ASIC media release.
Takeovers Panel declines to make a declaration of unacceptable circumstances in relation to the affairs of APW and refers matter to ASIC for further investigation. On 6 March 2023, the Takeovers Panel announced that it decided not to make a declaration of unacceptable circumstances in relation to the affairs of AIMS Property Securities Fund (APW). The application concerned whether three unitholders – a director of APW and their two siblings – were associates. The director, via their control over the Consolidated AIMS Group, held a relevant interest in 43.17% of the units in APW. The Panel considered that the alleged association had limited potential for any control effect in relation to APW, even if it was made out by the applicants, and ultimately held that a declaration of unacceptable circumstances was not appropriate. Notably, however, the Panel raised concerns over recent acquisitions of APW units by AIMS Investment Group Holdings Pty Ltd (an entity in which the concerned director of APW has a relevant interest). The Panel referred this matter (among others) to ASIC for further investigation. The Panel will publish its reasons for its decision in due course. See Takeovers Panel media release.
OVER THE HORIZON
Third time lucky for Financial Accountability Regime? On 8 March 2023, the Federal Government introduced the Financial Accountability Regime Bill 2023 (Cth) (Bill) to Parliament, which seeks to establish the Financial Accountability Regime (FAR). The FAR replaces and broadens the existing Banking Executive Accountability Regime in line with the recommendations of the Hayne Royal Commission. The Bill is largely similar to the Financial Accountability Regime Bill 2022 (Cth) introduced last year, which did not pass through Parliament, and which was covered extensively in a G+T Knowledge Article. Among other things, the Bill will require that at least 40 percent of the variable remuneration of directors of “accountable entities” (which includes most banks, insurance companies, and RSE licensees) be deferred for at least four years. If the Bill is passed, the FAR will apply to the banking industry six months after the Bill receives royal assent, and to the superannuation and insurance industries 18 months after the Bill receives royal assent. The Bill appears to have bipartisan support, and is expected to pass into law without significant delay.