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 introduction of legislation enabling consumers to make complaints to the Australian Competition and Consumer Commission (ACCC). We also examine the decision of the Takeovers Panel (Panel) to decline to conduct proceedings on an application from Ignite Limited (Ignite) in relation to its affairs, penalties imposed on Mazda Australia Pty Ltd (Mazda) for misleading and deceptive conduct, and a Supreme Court of Western Australia decision in relation to the receipt of adverse shareholder intention statements during schemes of arrangement.
In Risk Radar, we discuss the need for corporate executive oversight in preventing and tackling harms either by its own officers or outsiders in light of the recent Australian Tax Office (ATO) TikTok fraud scheme.
GOVERNANCE + REGULATION
Government introduces Bill proposing to enable consumers to make complaints to the ACCC. On 15 February 2024, the Federal Government introduced the Competition and Consumer Amendment (Fair Go for Consumers and Small Business) Bill 2024 (Cth) to the House of Representatives. The Bill seeks to amend the Competition and Consumer Act 2010 (Cth) to establish a designated complaints function which will empower consumers and small business advocates to submit complaints to the ACCC showing evidence of a significant or systemic market issue affecting consumers or small businesses. Following receipt of a designated complaint, the ACCC will have 90 days to publicly respond by stating what further action, if any, will be taken in response to the complaint. ACCC Chair, Ms Gina Cass-Gottlieb, welcomed the move, stating that the ACCC considers that the proposed changes will “reinforce public confidence in the responsiveness of the ACCC to the competition, consumer and fair trading issues significantly impacting the community”. The Government expects that the first designated complaints will be lodged with the ACCC from July 2024. See Treasury media release and ACCC media release.
LEGAL
Takeovers Panel declines to conduct proceedings on application from Ignite in relation to its affairs. On 14 February 2024, the Takeovers Panel released its decision to decline to conduct proceedings on an application dated 6 February 2024 from Ignite in relation to its affairs. As discussed in a previous edition of Boardroom Brief, Ignite’s application concerned the sale of shares in Ignite by Octavium Capital Investments Pty Ltd (Octavium) to Graham Newman Pty Ltd (GNPL) in circumstances where the number of shares sold by Octavium was the same number of shares acquired under Ignite’s entitlement offer. The Panel considered that Ignite had not provided sufficient evidence to support the allegation that Octavium and GNPL were associates, and that there was no suggestion in the circumstances that the dealings between Octavium and GNPL were uncommercial. See Takeovers Panel media release.
Federal Court orders penalties for Mazda for engaging in misleading and deceptive conduct. On 14 February 2024, the Federal Court of Australia published O’Callaghan J’s reasons for the decision in ACCC v Mazda Australia Pty Ltd (No 3) [2024] FCA 83, in which his Honour ordered Mazda to pay $11.5 million in penalties for engaging in misleading and deceptive conduct. In 2021, his Honour had declared that Mazda had made several false or misleading representations to nine consumers about their consumer guarantee rights for serious vehicle faults, including ignoring and rejecting valid requests for refunds or replacement vehicles and advising that Mazda could only offer repairs (see ACCC v Mazda Australia Pty Ltd [2021] FCA 1493). In the present decision, in addition to the penalty, O’Callaghan J also ordered Mazda to implement an Australian Consumer Law compliance program, publish a corrective notice on its website and notify vehicle dealers of the Federal Court’s findings. This decision is a timely reminder for boards to ensure staff are properly educated on consumer guarantee rights and to seek legal advice to ensure the reliability of consumer information which employees may dispense and on which customers may rely. See ACCC v Mazda Australia Pty Ltd (No 3) [2024] FCA 83. See ACCC media release.
Supreme Court finds adverse shareholder intention statement should not bar convening of scheme meeting or dispatch of scheme booklet. On 7 February 2024, the Supreme Court of Western Australia published the reasons of Lundberg J’s decision to make a declaration that receipt of adverse shareholder statements seeking to vote against the scheme of arrangement did not provide a reason for the Court to refuse to convene the scheme meeting or approve the scheme booklet for dispatch at the first court hearing. The proceedings related to a proposed scheme of arrangement by which Technology Metals Australia’s (TMT) shareholders would, if the scheme were approved, receive new fully paid ordinary shares in acquiring Australian Vanadium Limited (AVL). In making his decision, his Honour cited reasons including the following: (1) the adverse statements had been made prior to the publication of the scheme booklet and independent expert report; (2) not all of the ‘adverse’ shareholders were obligated to adhere to their adverse statements and could withdraw them and vote otherwise; and (3) the identities of the ‘adverse’ shareholders were disclosed in the scheme booklet; and (4) the adverse statements represented less than 17% of shareholders, which is not enough to defeat the scheme. See Technology Metals Australia Limited v Australian Vanadium Limited [2024] WASC 26.
RISK RADAR
The case for corporate executive oversight in social media use. It is commonplace for corporations to use social media to promote their businesses, especially in this era of booming technological advancement. However, in the current climate, companies are also becoming frequently targeted by cyber-attacks and, in some cases, their own officers are the perpetrators - whether by using social media platforms to advertise scams, using artificial intelligence (AI) technology without an adequate understanding of the data and security risks involved, or using deepfakes to impersonate others (e.g. using OpenAI’s recently released generative AI video tool, “Sora”). On 13 February 2024, Australian National Audit Office (ANAO) published its a report on the “GST TikTok scandal” that occurred in around May 2022, where more than 150 ATO officers were questioned in relation to the TikTok GST fraud scheme that went viral on the platform (and other platforms) and resulted in the payment of approximately $2 billion in bogus refunds, and the termination or criminal prosecution of 12 ATO employees. Many of the 150 employees were former staff who were not working with ATO at the time these TikToks were circulated, and some ATO staff were found to be victims of identity theft. The report revealed the ATO’s management and oversight of fraud control arrangements was effectively deficient in its ability to prevent, detect and respond to fraud in a timely manner and its internal risk framework was not fit for purpose and not operating as intended. The incident revisits the wider general conversation on the risks that social media promotion, generative AI and deepfakes pose to companies. Boards need to ensure that their company policies, procedures and risk frameworks related to social media, cybersecurity and AI are coherent and robust. See ATO media release. See ANAO report.
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