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 consider the Taskforce for Nature-Related Financial Disclosures proposed new reporting framework, the Treasury’s Pre-election Economic and Fiscal Outlook and ASIC’s latest market integrity update.  We also consider the decisions made, and applications received, by the Takeovers Panel in the past two weeks.

In Over the Horizon, we consider the results of the Director Sentiment Index for the first half of the financial year and what it might reveal about market confidence.

GOVERNANCE & REGULATION

First draft framework released by the Taskforce for Nature-Related Financial Disclosures.  The framework released by the Taskforce for Nature-Related Financial Disclosures seeks to establish a method for companies to identify, assess and report on material nature-related risk and opportunities.  The framework is intended for global use by corporates and financial institutions of all sizes and structures.  It is modelled on the Taskforce for Climate-Related Financial Disclosures and is currently open for public comment with its final release anticipated in September 2023.  See the Taskforce’s summary of the framework.

Treasury releases Pre-election Economic and Fiscal Outlook 2022.  The Treasury is to release publicly the Pre-election Economic and Fiscal Outlook within 10 days of the issue of the writs for a general election and did so on the 11 April.  The Outlook concluded that there has been recent movement in some economic indicators, but notwithstanding this there will not be any material impact on the economic and fiscal projections has not materially changes since the release of the 2022-23 Federal Budget.  The paper considers the impact of significant events such as the COVD-19 pandemic, the Queensland and New South Wales floods, Russia’s invasion of Ukraine, and general market trends such as rising inflation, concluding that the Australian economy remains positive and resilient.  Key projections include unemployment rates falling to 3.75% in the September quarter of 2022 (and remaining at this level until the end of 2024-25) and the steadying of inflation beyond 2022 as supply chain pressures ease.  See Treasury’s release.

ASIC releases its April 2022 Market Integrity Update.  ASIC’s latest Market Integrity Update highlighted numerous key developments.  First, ASIC has extended its intervention order imposing conditions on the issue and distribution of ‘contracts for difference’ for a further 5 years, until 23 May 2027 as the results of its Report 724 demonstrated the underlying restrictions and conditions have been effective in reducing risk to retail clients.  Second, ASIC urges financial services licensees to be vigilant following recent trends in scam activity using stolen employee identifications to target consumers and offer fraudulent financial products.  Finally, ASIC reminds institutions to continue pursuing the active transition of all LIBOR contracts by the end of 2022.   See ASIC’s Market Integrity update.

LEGAL

Updates to the Virtus Health Takeovers Panel proceedings.  In a previous edition of Boardroom Brief, we considered the application made by CapVest Partners LLP (CapVest) in relation to the affairs of Virtus Health Limited (Virtus).  The application required the Panel to consider whether the requirements of Market Integrity Rule 5.13.1 were met by BGH’s proposal.  On 22 April, the Panel announced that it had received an undertaking from BGH regulating on-market trades by its broker above the bid price and announcements relating to those trades, and the Panel accepted that undertaking and declined to make a declaration of unacceptable circumstances in relation to that application by CapVest.  This morning, the Panel received a further application from CapVest seeking review of that decision.  The President of the Panel has made interim orders pending the review which effectively reinstate the prohibition on BGH acquiring Virtus shares on-market above the bid price unless and until announcements are made that the bid price is increased.  See the Panel’s media release relating to the initial undertaking and the media release relating to the review application and interim orders.

Panel declines to conduct proceedings. In a previous edition of Boardroom Brief, we considered an application made in relation to the affairs of Wollongong Coal Limited (Wollongong).  To recap, the application concerned the content of a revised independent expert’s report prepared in relation to Jindal Steel & Power (Mauritius) Limited’s (Jindal) compulsory acquisition of Wollongong.  The application was technical in nature, submitting the revised report related to “fair market value” instead of “fair value for securities” and querying whether the technical expert was a Competent Person for JORC purposes.  The Panel took a sensible approach and determined that, notwithstanding the above concerns, the information provided in the revised report provided shareholders of Wollongong with adequate information to come to an informed view on the compulsory acquisition.  The Panel therefore declined to conduct proceedings and reminded that if minority shareholders have further concerns, there is a separate Court process they can follow. See the Panel’s media release. 

Panel receives further application in relation to the affairs of Bullseye Mining. The Panel has received a further application from Au Xingao Investment Pty Ltd (Xingao) in relation to the affairs of Bullseye Mining Limited (Bullseye).  Bullseye is currently the subject of takeover bids by Emerald Resources NL (Emerald) and Xingao.  Emerald’s announcement on 21 April advised that it had a relevant interest in shares in Bullseye, representing a voting power of 49.29%.  Xingao submits to the Panel that Bullseye has, amongst other things, failed to register at least 10 share transfers by Bullseye shareholders and make supplementary disclosure about an executive of Bullseye – with the effect that the competing bids are not occurring in an efficient and informed market.  Xingao seeks interim orders restraining Emerald from processing acceptances under its bid in relation to any of the shares the subject of the alleged unregistered transfers.  Xingao also seeks final orders requiring Bullseye to register the unregistered share transfers, disclose whether any other share transfers have been lodged with Bullseye that remain unregistered and provide a Supplementary Target’s Statement in relation to the Xingao bid and issues raised in Xingao’s application.  See the Panel’s media release.

OVER THE HORIZON

Global uncertainty takes its toll on director sentiment. The Australian Institute of Company Directors (AICD) has published the results of its director sentiment index (DSI) for the first half of the financial year.  The global uncertainty experienced in the second half of 2021 appears to have taken its toll, with the AICD’s results demonstrating that director sentiment has fallen, but remains “cautiously optimistic”.  Most directors consider Australia’s economy is and will remain strong over the next 12 months, whereas current sentiment on Europe has dropped, with only 19% of directors considering it is in a strong economic position.  On the other hand, China and Western Australia have emerged as outliers to the general decreases in sentiment – with sentiment around these economies improving and remaining unchanged respectively.  In light of the upcoming Federal election, directors have identified economic management and performance (14%), climate change (13%) and long-term policy and direction (9%) as being the key drivers behind their votes, with healthcare, tax and employment (including skilled migration) also receiving notable attention.  The key themes revealed through these results appear consistent with broader market sentiment and concerns about the local and global outlook, and aspirations following the Federal election.  See the AICD’s media release.