This is a service specifically targeted at the needs of busy non-executive directors (NEDs).  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 ASIC’s greenwashing civil penalty proceedings against Active Super, the Takeovers Panel’s revised guidance on deal protection and insider participation in control transactions, and progress in gender diversity for boards of ASX300 companies.  We also discuss the repeal of the Aboriginal Cultural Heritage Act 2001 (WA) and the Takeovers Panel’s reasons for its decision not to conduct proceedings in relation to the affairs of Benjamin Hornigold Limited.

In Over the Horizon, we examine the recent developments in China amid concerns the world’s second-largest economy has entered a period of economic stagnation.

GOVERNANCE + REGULATION

ASIC commences greenwashing case against Active Super.  On 11 August 2023, the Australian Securities and Investments Commission (ASIC) announced it has commenced civil penalty proceedings against LGSS Pty Limited (Active Super) alleging Active Super made misrepresentations that it is an “ethical and responsible superannuation fund”, despite having investments in some of the very industries it claimed to restrict, such as coal mining, oil tar sands, tobacco and gambling.  Active Super also claimed it had added Russia to its list of excluded countries, making representations from May 2022 that it would halt investments into Russian companies despite Active Super having holdings in Russian securities as at June 2023.  ASIC alleges the content featured Active Super’s website, disclosure documents and other social media platforms exposed its members to investments it claimed to restrict or eliminate and is seeking declarations, pecuniary penalties, adverse publicity orders and injunctive relief.  See ASIC media release.  Directors are reminded that tackling Greenwashing is one of ASIC’s to regulatory priorities for FY2024.

Takeovers Panel publishes revised guidance on deal protection and insider participation in control transactions.  On 8 August 2023, the Takeovers Panel (Panel) published a revised Guidance Note 7 (GN 7) in relation to deal protection and a revised Guidance Note 19 (GN 19) in relation to insider participation in control transactions.  The revisions to GN 7 and GN 19 come after a period of consultation in December 2022 on proposed amendments to the Panel’s Guidance Notes and the Panel’s response is contained in Public Consultation Response Statements for GN 7 and GN 19.  See Takeovers Panel media release.

ASX300 makes unprecedented progress in gender diversity.  On 7 August 2023, the Australian Institute of Company Directors (AICD) published its Gender Diversity Progress Report for March 2023 to June 2023 (Report).  The Report indicates that continuing progress is being made towards achieving parity in boardrooms, with the proportion of women on boards of ASX300 companies reaching an unprecedented high of 35.6%.  The top 20 ASX companies also showed strong performance during the period, with 40% of board seats now filled by women.  However, despite the increase, the Report also highlights areas of concern with the number of male-only boards in the ASX300 nearly doubling since the last report in March 2023.  The AICD also notes a renewed and stronger focus on “none and one” companies, with the possibility of investor groups voting against the appointment of male directors to boards with less than 30% female representation.  See AICD media release.

WA Government repeals the Aboriginal Cultural Heritage Act.  On 8 August 2023, in a widely anticipated move, the WA Premier, the Hon Roger Cook, announced the repeal of the controversial Aboriginal Cultural Heritage Act 2021 (WA) and the subsequent return to an amended form of the Aboriginal Heritage Act 1972 (WA) (AH Act).  The WA Government is yet to confirm what amendments will be made to the AH Act and the timing of any changes, and stakeholders across the mining industry await clarification.  See G+T Knowledge article.

LEGAL

Takeovers Panel publishes reasons for its decision not to conduct proceedings in relation to the affairs of Benjamin Hornigold Limited.  On 9 August 2023, the Panel published reasons for its decision not to conduct proceedings in relation to the affairs of Benjamin Hornigold Limited (BHD).  The Panel declined to conduct proceedings on an application by Dawney & Co Ltd (Dawney) who holds 12.04% of BHD shares and had alleged, among other things, that certain conduct of BHD’s directors and their related entities constituted an undisclosed association between those parties (see previous edition of Boardroom Brief).  The Panel considered whether there existed prior collaborative conduct through the simultaneous appointment of BHD directors, structural links through common directorships that exist in relation to BHD, and a shared goal through various share acquisitions to entrench the directors of BHD.  However, the Panel did not consider that these facts, in their circumstances, constituted an undisclosed association and declined to conduct proceedings in relation to Dawney’s application.  See Benjamin Hornigold Limited 12 [2023] ATP 10.

OVER THE HORIZON

China slips into deflation – the effect of ‘economic long COVID’ on the world’s second-largest economy.   China has slid into deflation, with the consumer price index falling by 0.3%, marking the first time the index has fallen in China since February 2021.  In addition, the producer price index dropped, for the tenth straight time, by 4.4% in July 2023.  This development has sparked concerns that China is entering a period of economic stagnation.  See news article.  Economic stagnation in China may have the positive effect of helping curb rising prices in other nations, such as Australia, as Chinese manufacturing becomes cheaper and more accessible.  However, it could also result in a fall in demand from China – the world’s largest energy, raw materials and food market – and Australia’s largest trading partner.  See news article.  Commentators blame China’s increasing disregard for commercial concerns and pursuit of interventionist policies during the pandemic as the cause of low appetite for illiquid investment and low responsiveness to supportive macroeconomic policies, dubbing this stagnation ‘economic long COVID’ (see, eg, opinion article).  Further, the recent executive order from US President Joe Biden prohibiting and limiting new US investment in China in sensitive technologies such as semiconductors, microelectronics, quantum information technologies and certain artificial intelligence systems – compounding recent US hesitancy to invest in China – may further worsen China’s economic outlook. The nature and quantum of any flow on effects to Australia’s economy are yet to be seen.  See news article.