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 Treasury’s competition policy review, and the Treasury’s consultation paper in relation to the Independent Review of the Franchising Code of Conduct.  We also discuss the Takeovers Panel’s reasons for its decision to make a declaration of unacceptable circumstances in relation to the affairs of The Market Herald Limited, and the Panel’s interim orders made in connection with the application it received in relation to the affairs of Bullseye Mining Limited.

In Over the Horizon, we examine Australia’s 40-year economic outlook as reported in the 2023 Intergenerational Report published by the Treasury.

GOVERNANCE + REGULATION

Treasury announces competition policy review.  On 23 August 2023, the Treasurer, Dr Jim Chalmers MP,  announced that the Commonwealth Government is undertaking a broad-ranging review of Australian competition policy.  The review will run for the next two years and will consider “competition laws, policies and institutions to ensure they remain fit‑for‑purpose for the modern economy, with a focus on reforms that would increase productivity, reduce the cost of living and/or lift wages”.  Notably, initial issues to be considered include merger reform proposals put forward by the Australian Competition and Consumer Commission (see G+T Knowledge article) and contractual arrangements that may stifle labour mobility (such as non-compete clauses).  Rather than issue a single report, the Treasury will publicly consult and release issue papers on specific reform topics.  See Treasury webpage and media release.

Treasury publishes consultation paper in relation to franchising review.  On 22 August 2023, the Treasury published a consultation paper (Consultation Paper) seeking feedback to inform the Independent Review of the Franchising Code of Conduct announced last week (see previous edition of Boardroom Brief).  The Consultation Paper notes that the review “will examine the current state of regulation and key issues for consideration under five broad themes”: the scope of regulation, issues before entering into a franchising agreement, enduring obligations in franchise relationships, ending a franchise agreement, and enforcement and dispute resolution.  Directors of companies involved in franchise relationships are encouraged to consider whether their company should submit a response to the Consultation Paper.  Responses can be submitted up until 29 September 2023.  See Treasury webpage and Consultation Paper.

LEGAL

Takeovers Panel publishes reasons for its decision to make a declaration of unacceptable circumstances in relation to the affairs of The Market Herald Limited.  On 23 August 2023, the Takeovers Panel (Panel) published reasons for its decision to make a declaration of unacceptable circumstances in relation to the affairs of The Market Herald Limited (TMH).  The Panel made a declaration of unacceptable circumstances on 19 May 2023 (see previous edition of Boardroom Brief) finding deficiencies in TMH’s disclosure during two entitlement offers of an association between a TMH non-executive director and his father, as well as two further associations which the Panel concluded had an aggregated control effect which was not disclosed to shareholders.  These undisclosed associations lead to multiple violations of substantial holder provisions in the Corporations Act 2001 (Cth) (Corporations Act).  The Panel also noted further deficiencies in two of TMH’s entitlement offer booklets, which lacked disclosure about conditions related to a vendor loan and the relevant funding sources.  The Panel made significant orders, including corrective disclosure orders for the impugned directors and TMH, divestment of certain shares, a restriction on certain acquisitions and that TMH appoint at least two independent directors in accordance with the process prescribed by the Panel.  The latter is a novel exercise of the Panel’s broad powers under the Corporations Act and evidences a willingness by the Panel to take on a “supervisory” role through its orders (see previous edition of Boardroom Brief).  The Panel also ordered that TMH pay costs.  See The Market Herald Limited [2023] ATP 7.

Takeovers Panel makes interim order in relation to the affairs of Bullseye Mining Limited.  On 22 August 2023, the Panel made an interim order in response to an application received in relation to the affairs of Bullseye Mining Limited (Bullseye) (see previous edition of Boardroom Brief).  Bullseye is an unlisted public company with over 50 shareholders that is currently the subject of an off-market takeover bid by Emerald Resources NL (ASX:EMR) (Emerald).  The interim order restrains Emerald from processing any acceptances received from certain Bullseye shareholders under Emerald’s takeover bid for Bullseye.  This order is intended to maintain the status quo until the Panel can properly consider the application.  See Takeovers Panel media release.

OVER THE HORIZON 

2023 Intergenerational Report predicts slow-down in economic growth.  In what was a very busy week, on 24 August 2023 the Treasury released the 2023 Intergenerational Report (Report), which projects the outlook of the economy and the Australian Government’s budget to 2062-3.  Similarly to other advanced economies, the Report predicts that Australia’s economy will grow at a slower rate over the next 40 years than it has in the past, with an average growth rate of 2.2% per year (down from 3.1% over the last four decades).  The Report considers five major forces affecting the coming decades: population ageing, technological and digital transformation, climate change and the net zero transformation, rising demand for care and support services, and geopolitical risk and fragmentation.  The Report notes that the drastically changing social and industrial landscape, both in Australia and globally, demands that the Australian Government takes advantage of the opportunities presented by the next 40 years of economic transformation.   As noted by the Treasurer, “[w]e don’t just want to be shaped by the forces influencing our economy, we want to own our future”.  See the Intergenerational Report and the Treasurer’s media release.