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 the ACCC’s new guidance helping businesses to avoid “greenwashing” claims, the move by the UK’s Financial Stability Board to assign responsibility to the IFRS Foundation for the implementation of the ISSB Standards, and APRA’s new prudential standard targeting operational risk. We also examine a Federal Court judgement which both imposed $450 million in penalties on Crown and critiqued AUSTRAC’s aversion to litigation, as well as BHP seeking to challenge a landmark public holiday ruling in the High Court.
In Over the Horizon, we discuss a Parliamentary Joint Committee report recommending the most comprehensive review into Australian insolvency laws in 35 years.
GOVERNANCE + REGULATION
ACCC publishes draft guidance on improving businesses’ environmental and sustainability claims. On 14 July 2023, the Australian Competition and Consumer Commission (ACCC) published draft guidance to assist businesses in making robust environmental and sustainability claims and protect consumers from “greenwashing” (Guidance). The Guidance intends to address the conduct identified by the ACCC’s “greenwashing internet sweep” released in March 2023, which found that 57% of the businesses reviewed were making potentially misleading environmental claims. Directors should note the eight “good practice” principles for businesses outlined by the ACCC, being: (1) make accurate and truthful claims; (2) have evidence to back up claims; (3) do not omit or hide important information; (4) explain any condition / qualification to claims; (5) avoid broad and unqualified claims; (6) use clear and easily understood language; (7) ensure visual elements do not give the wrong impression; and (8) be direct and open about the business’ sustainability transition (see G+T Knowledge article). The ACCC is seeking feedback from businesses and other stakeholders on whether the Guidance improves their confidence in making environmental and sustainability claims. See Guidance. See also ACCC media release.
IFRS Foundation takes on responsibility of monitoring climate-related disclosures from TCFD. On 10 July 2023, the Financial Stability Board (FSB) announced it has asked the International Financial Reporting Standards Foundation (IFRS Foundation) to take over the monitoring of the progress on companies’ climate-related disclosures from the Task Force on Climate-related Financial Disclosures (TCFD), in anticipation of the International Sustainability Standards Board (ISSB) standards (IFRS S1: General Requirements for Disclosure of Sustainability-related Financial Information and IFRS S2: Climate-related disclosures, together the Standards) being applied worldwide from 2024. The FSB noted that the Standards fully incorporate the recommendations of the TCFD and so mark “the culmination of the work of the TCFD”. The ISSB will now cooperate with the IFRS Foundation to support the effective global implementation of the Standards (see previous edition of Boardroom Brief). See IFRS media release.
APRA finalises new prudential standard on operational risk. Directors of APRA-regulated entities should note that on 17 July 2023, the Australian Prudential Regulation Authority (APRA) released the new cross-industry Prudential Standard CPS 230 Operational Risk Management (CPS 230). CPS 230 is designed to strengthen the management of operational risk, respond to business disruptions, and manage risks from the use of service providers for all APRA-regulated entities. APRA Chair John Lonsdale noted that the need for CPS 230 arose following a number of recent operational risk control failures and disruptions, stating that CPS 230 “will ensure that regulated entities set and test controls and maintain robust business continuity plans to respond if disruptions do occur”. APRA also released a draft Prudential Practice Guide CPG 230 Operational Risk Management to assist regulated entities in complying with CPS 230. See APRA media release.
Crown ordered to pay $450 million in penalties in Federal Court proceedings. On 11 July 2023, the Federal Court of Australia (Federal Court) ordered that Crown Melbourne and Crown Perth (Crown) pay a $450 million penalty for contraventions of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth). Justice Lee ordered the $450 million be paid in three tranches over the next two years. The contraventions included a failure to have adequate risk management systems and controls in place, and not having adequate operational oversight from the casinos’ boards and senior management. Notably, Lee J opined on the fact that the Australian Transaction Reports and Analysis Centre (AUSTRAC) has never litigated a contested hearing and instead has always reached an agreement with companies that have engaged in misconduct. Justice Lee sounded “a note of caution” that regulators (including AUSTRAC) risk “being perceived as a soft touch” if they approach litigation “on the basis that [they] will not run to a contested hearing and always [reach] an agreement”. See AUSTRAC media release. See also Federal Court judgment and media article.
BHP seeks to challenge public holiday ruling in the High Court. Around 12 July 2023, BHP Group Ltd (BHP) filed a special leave application to the High Court of Australia (High Court) seeking permission to appeal a significant Federal Court decision, Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd  FCAFC 51, relating to the rostering of employees on public holidays. In that decision, the Federal Court held that employers are not permitted to require employees to work on public holidays unless the employer has first given the employees a reasonable request to work on the public holiday and there is no reasonable reason for the employees to refuse to work on that day. In submissions to the High Court, BHP argued that the Federal Court decision “will have a serious adverse effect on the ability of employers [in various industries] confidently to roster employees to work on public holidays” – an argument that the Mining and Energy Union refuted. The High Court has not yet decided whether to grant BHP leave to appeal. See media article.
OVER THE HORIZON
Parliamentary Joint Committee recommends the most comprehensive review into Australian insolvency law in 35 years. On 12 July 2023, the Parliamentary Joint Committee on Corporations and Financial Services released a report into Australian corporate insolvency law (Report) that concluded that the corporate insolvency system “is overly complex, difficult to access, and creates unnecessary cost and confusion for both debtors and creditors”. The Report recommends the Commonwealth Government “commission a comprehensive and independent review of Australia’s insolvency law, encompassing both corporate and personal insolvency”. Such a review (as recommended in the Report) would be the most sweeping review of Australia’s insolvency system since the 1988 ALRC Report 45. Industry associations have welcomed the call for a comprehensive review, underscoring a widespread belief that the current system is not fit for purpose. The Report also made numerous short-term recommendations, including that all the recommendations of the Review of the Insolvent Trading Safe Harbour be implemented, which would simplify and clarify the safe harbour provisions in the Corporations Act 2001 (Cth). The Report also recommended that new laws are needed to clarify the treatment of assets held in trusts during insolvency, which often cause disputes which increase liquidation costs. See Report. See also media article.