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 discuss the Federal Government’s Bill seeking to modernise business communications, the release of draft legislation concerning off-market share buy-backs by listed public companies, and the Government of Western Australia’s Bill reforming directors’ liabilities.  Further, we look at Treasury’s options paper on future buy now pay later regulation, and proceedings commenced by ASIC for alleged unlicenced activities in relation to crypto-asset based products.

In Over the Horizon, we discuss the importance of critical minerals for Australia’s ambitions during the clean energy transition.

GOVERNANCE & REGULATION

Government introduces Bill to modernise business communications.  On 23 November 2022, the Federal Government introduced the Treasury Laws Amendment (Modernising Business Communications and Other Measures) Bill 2022 (Cth) (Communications Bill) to the House of Representatives.  The Communications Bill seeks to amend the Corporations Act 2001 (Cth) (Corporations Act) and various other pieces of Commonwealth legislation with the aim of modernising communication methods.  If passed, the Communications Bill will permit all documents under the Corporations Act to be signed or executed electronically, and a significant number of documents under the Corporations Act (other than those lodged with the Australian Securities and Investments Commission (ASIC), the Registrar or the Takeovers Panel) to be sent either electronically or by hard copy.  It will also introduce relief so that companies are not required to send documents to members where the contact details for those members are known to be incorrect.  Further, the Communications Bill seeks to amend various pieces of legislation to ensure that regulatory bodies under the portfolio of the Department of Treasury (Treasury) can hold hearings and examinations via technology and to permit the use of electronic payments.  Finally, the Communications Bill will replace provisions in Treasury laws requiring notices to be published in newspapers with a requirement to publish them in an accessible and prominent manner.

Off-market share buy-backs exposure draft legislation released.  On 17 November 2022, the Federal Government released the Exposure Draft – Treasury Laws Amendment (Off-Market Share Buy-Backs) Bill 2022 (Cth) (Exposure Draft).  The Exposure Draft proposes to give effect to the Federal Government’s 2022-2023 Budget integrity measure, discussed in a previous edition of Boardroom Brief, by aligning the tax treatment of off-market and on-market buy-backs undertaken by listed public companies so that no portion of the buy-back proceeds will be regarded as a dividend.  These amendments will apply equally to buy-backs of shares and non-share equity interests.  Further, the amendments proposed by the Exposure Draft will require listed public companies undertaking off-market buy-backs to debit their franking accounts for the part of the buy-back price not debited to the company’s share capital account.  Lastly, the Exposure Draft proposes to make distributions by listed public companies that are consideration for the cancellation of a membership interest in itself as part of a selective reduction of capital unfrankable.  Comments on the Exposure Draft are due by 9 December 2022.  See Treasury consultation page.

Government introduces Bill to reduce and standardise provisions on personal criminal liability on directors.  On 26 October 2022, the Western Australian Government introduced the Directors’ Liability Reform Bill 2022 (WA) (Directors’ Bill), which has passed the Legislative Assembly and is now before the Legislative Council.  If passed, the Directors’ Bill will reduce and standardise company officers’ and directors’ personal liability for company faults and offences (Derivative Liability).  The Attorney General, the Hon John Quigley, noted that the Directors’ Bill ‘strikes a balance between the need to reduce the regulatory burden on officers … and the need to hold officers responsible when corporations fail to comply with the law’ while bringing ‘Western Australia into line with other Australian jurisdictions’.  The Directors’ Bill will, if passed, completely remove Derivative Liability from 21 of the more than 60 Acts containing Derivative Liability provisions.  The Directors’ Bill does not affect the criminal liability of officers who have committed offences themselves, nor does it impose new obligations or create new offences for officers.  These changes will mean that officers and directors can focus on the more serious personal liability offences, ensuring that their attention is on their key responsibilities and that they are not overburdened with compliance obligations.

Government seeks feedback on a future regulatory framework for buy now, pay later (BNPL) arrangements.  BNPL products are not currently regulated under the National Consumer Credit Protection Act 2009 (Credit Act) because they fall under the exemptions available under the Credit Act.  These exemptions have supported the growth of BNPL arrangements but have created the potential for consumer harm due to the absence of consumer protections.  On 21 November 2022, the Treasury published an options paper titled ‘Regulating Buy Now, Pay Later in Australia’ and is seeking submissions on three broad options to address this unintended gap by aiming to provide an appropriate regulatory framework for BNPL arrangements in Australia that balances consumer protection while encouraging innovation in Australia’s financial services industry.  Comments on the options paper are due by 23 December 2022.  See Treasury consultation page.

LEGAL

ASIC commences proceedings for unlicensed activities in relation to crypto-asset based products.  On 23 November 2022, ASIC announced that it commenced civil penalty proceedings in the Federal Court against Web3 Ventures Pty Ltd trading as Block Earner (Block Earner).  ASIC alleges that Block Earner operated an unregistered managed investment scheme, and provided financial services in relation to crypto-asset products without an Australian Financial Services licence.  The proceedings against Block Earner are the latest development in a string of crypto-asset-related action by the regulator.  As discussed in a previous edition of Boardroom Brief, ASIC recently commenced civil penalty proceedings against BPS Financial Pty Ltd for allegedly making false, misleading or deceptive representations and engaging in unlicenced conduct in relation to a non-cash payment facility involving a crypto-asset token.  Commenting on ASIC’s action against Block Earner, ASIC Deputy Chair Sarah Court stated that ‘[s]imply because a product hinges on a crypto-asset, does not mean it falls outside financial services law’, and that ‘ASIC supports the development of an effective regulatory framework covering crypto-assets to protect consumers and investors’.  The first case management hearing is yet to be scheduled by the Federal Court.  See ASIC media release.

OVER THE HORIZON

Critical minerals competition key for Australia to achieve clean energy ambitions.  On 25 November 2022, Hon Jim Chalmers, the Treasurer of Australia, and Hon Madeline King, Minister for Resources and Minister for Northern Australia, stressed the importance of developing Australia’s critical minerals capacity in speeches to The Australian/PwC Critical Minerals Summit.  Mr Chalmers stated that ‘critical minerals could be the opportunity of the century’, and that the Federal Government is ‘determined to make sure that this historic opportunity translates into industrial strength, and long-term prosperity’.  Ms King echoed Mr Chalmer’s comments, stating that Australia’s critical minerals endowment provides it with ‘a remarkable opportunity’, and that ‘a great deal of the clean energy transition over the coming decades will ride on the back of critical minerals’.  However, Mr Chalmers also warned that Australia needs to ‘be clear-eyed about the fact that more and more, critical minerals will become a locus of geo-economic competition’.  International minerals supply chains are becoming increasingly diversified in the context of the clean energy transition, and Australia has a clear opportunity to position itself as a provider of choice in the global critical minerals market.