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 2023-27 Corporate Plan released by the Australian Securities and Investments Commission (ASIC), which outlines the regulator’s strategic priorities for the next four years, the 2023-24 Corporate Plan released by the Australian Prudential Regulation Authority (APRA), and the consultation process commenced by the Treasury in relation to the regulation of unfair trading practices.  We also examine the proceedings commenced by the Australian Competition and Consumer Commission (ACCC) against Qantas Airways Limited for advertising tickets for cancelled flights, and the Federal Court’s further consideration of evidentiary requirements in relation to schemes of arrangement in Re DDH1 Limited [2023] FCA 982.

In Over the Horizon, we discuss the effect of climate risk on the cost of capital, with the Federal Government set to acknowledge that climate change may affect the value of Government bonds.

GOVERNANCE + REGULATION 

ASIC identifies strategic priorities for 2023-27.  On 28 August 2023, ASIC released its 2023-27 Corporate Plan, which outlines its strategic priorities for the next four years.  The 2023-27 Corporate Plan states that ASIC’s focus has been shaped by key trends in the regulatory environment including climate risk, Australia’s ageing population, emerging digital technologies, volatility in the crypto-assets market and the uncertain economic environment.  ASIC’s strategic priorities for the next four years include reducing harm to consumers associated with product design and distribution, supporting market integrity and efficiency with respect to sustainable finance, protecting consumers to facilitate retirement outcomes, and focussing on technology risks associated with financial markets and services.  To deliver on these strategic priorities, ASIC intends to focus on six core strategic projects: scams, sustainable finance practices, crypto-assets, design and distribution obligations, cyber and operational resilience, and digital technology and data.  Directors of companies with exposure to these priority areas will need to ensure robust plans are in place for identification and management of non-financial risk.  ASIC’s Chair, Joseph Longo, states that ASIC’s new organisation structure, which came into effect in July this year, will substantially increase the regulator’s capacity to respond to emerging threats and challenges.  See ASIC media release.

APRA responds to emerging risks in 2023-24 Corporate Plan.  On 29 August 2023, APRA released its 2023-24 Corporate Plan, which is “designed to preserve the soundness and stability of the banking, insurance and superannuation industries”.  There is notable consistency with the priority areas identified by ASIC.  Key considerations that influenced the development of the 2023-24 Corporate Plan include factors which threaten the stability of the financial system (such as rising interest rates, higher inflation and ongoing geopolitical instability), the growing threat of cyber-attacks and scams, the increased frequency of natural disasters, which are reducing access to affordable insurance, and the expansion of the superannuation pool.  The 2023-24 Corporate Plan further indicates that APRA intends to deliver three key outcomes: protecting the safety and resilience of regulated entities, promoting confidence and stability in the financial system, and supporting the community to achieve good financial outcomes.  See APRA 2023-24 Corporate Plan and APRA media release.

Treasury launches consultation on regulation of unfair trading practices.  On 31 August 2023, the Treasury commenced a consultation process seeking submissions on the regulation of unfair trading practices.  Unfair trading practices can broadly be characterised as commercial conduct that is not covered by existing provisions in Australia’s consumer laws, but which can still result in significant harm to consumers and businesses.  ACCC Deputy Chair Mick Keogh states that “the introduction of an unfair practices prohibition would set an improved standard for business behaviour to guide and promote better conduct by businesses”.  This consultation process is the result of an agreement reached between the Commonwealth, state and territory consumer ministers in September 2022 that the Commonwealth would lead a public consultation on options to address unfair trading practices on behalf of all jurisdictions. Interested parties are able to submit a response up until 29 November 2023.  See Treasury consultation page and ACCC media release.

ACCC commences proceedings against Qantas for advertising tickets for cancelled flights.  On 31 August 2023, the ACCC announced that it had commenced proceedings in the Federal Court of Australia alleging that Qantas Airways Limited had engaged in false, misleading, or deceptive conduct by advertising tickets for more than 8,000 flights that it had already cancelled.  The ACCC alleges that the offending conduct occurred between May and June 2022, and that Qantas kept selling the tickets for an average of more than two weeks (and up to 47 days) after the cancellation of the flights.  Chair of the ACCC, Ms Gina Cass-Gottlieb, stated that “[c]ancelled flights can result in significant financial, logistic and emotional impacts for customers”.  Qantas has been the subject of significant media interest recently, with the airline caving into pressure to scrap the expiry date for COVID-19 refunds, and the Federal Government coming under increasing scrutiny for blocking Qatar Airways from expanding its services in Australia in “the national interest”.  See ACCC media release.

LEGAL

Federal Court provides further guidance on expectations in schemes of arrangement.  On 22 August 2023, the Federal Court of Australia published the reasons for Colvin J’s decision at the first scheme hearing in relation to the proposed acquisition of DDH1 Ltd (ASX:DDH) by Perenti Limited (ASX:PRN) pursuant to a scheme of arrangement.  Justice Colvin observed that the Court is not bound to approve a scheme where ASIC has no objection, and that it may be appropriate for matters to be raised with the Court even where they have been resolved in a manner that is acceptable to ASIC (e.g. potentially contentious matters, or matters that raise novel issues).  Further, Colvin J noted that the Court exercises its discretion in the context of a considerable history of deliberation by ASIC and the courts, and having regard to established practice and jurisprudence.  Applications seeking an order that a scheme meeting be convened should therefore focus on the unusual aspects of the case and characteristics which the Court will typically scrutinise in detail.  Finally, Colvin J listed the matters that the Court expects to be presented in an application for an order that a scheme meeting be convened.  This decision forms part of a recent series of cases seeking to reform the approach to schemes of arrangement, particularly in relation to evidentiary obligations such as Re Vita Group Ltd [2023] FCA 623 (discussed in a previous edition of Boardroom Brief) and Tesserent Limited (First Scheme Hearing) [2023] FCA 969 (also discussed in a previous edition of Boardroom Brief).  In this context, practitioners have been required to address the requirements of each of these cases when approaching the Court in relation to schemes of arrangement.  Justice Colvin’s decision will therefore serve as a useful checklist when preparing for a first scheme hearing.  See Re DDH1 Limited [2023] FCA 982.

OVER THE HORIZON

Federal Government set to acknowledge climate risk to bonds.  Climate change impacts continue to ripple through financial markets in a number of interesting ways.  Most recently, as part of a settlement intended to bring class action proceedings against the Commonwealth of Australia in the Federal Court of Australia to an end, the Federal Government has reportedly agreed to acknowledge that climate change is a systemic risk that may affect the value of Government bonds.  The proceedings were commenced in July 2020 by then 23-year-old law student Ms Katta O’Donnell, who alleged that the Federal Government had misled investors by failing to disclose the risk climate change poses to its bonds.  Lawyers acting for Ms O’Donnell stated that the proposed settlement, which is scheduled to be heard before the Federal Court of Australia in October 2023, would mark the first time a country with a AAA credit rating formally acknowledges that climate change is a systemic risk that could impact bonds.  The 2018 publication titled “Climate Change and the Cost of Capital in Developing Countries” commissioned by the United Nations Environment Programme identified that climate vulnerability has already increased the average cost of debt in developing countries.  However, this development may indicate that climate risks are also set to increasingly affect the cost of capital in developed countries, and there is growing speculation that climate change may impact on the ability of developed countries to service their debt.  See news article.