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 two Bills introduced by the Federal Government in relation to mandatory climate reporting and accelerating Australia’s transition to a net zero economy, and the passage of a Bill passed that establishes a designated complaints function for the Australian Competition and Consumer Commission (ACCC). We also examine a landmark greenwashing civil penalty action case in the Federal Court of Australia by the Australian Securities and Investments Commission (ASIC) against Vanguard Investments Australia Ltd (Vanguard), and two matters from the Takeovers Panel (Panel) in relation to the affairs of Vintage Energy Limited (Vintage) and Pact Group Holdings Limited (Pact Group).

In Over the Horizon, we consider green investment as the best source of long-term returns, and investors’ biggest concerns.

GOVERNANCE & REGULATION 

Government introduces Bill on mandatory climate disclosures and financial market infrastructure. On 27 March 2024, the Federal Government introduced the Treasury Laws Amendment (Financial Market Infrastructure and Other Measures) Bill 2024 (Cth) (Bill) into Parliament. Among other things, the Bill introduces a timetable for implementation of the sustainability-related disclosure framework adopted by the Australian Accounting Standards Board. Directors should note in particular the six-month delayed introduction of mandatory reporting for "Group 1” (largest) entities from 1 July 2024 to 1 January 2025. See Bill. See Treasury media release.

Government introduces two Bills on accelerating Australia’s shift to a net zero economy. On 27 March 2024, the Federal Government introduced the Net Zero Economy Authority Bill 2024 (Cth) (NZEA Bill) and Net Zero Economy Authority (Transitional Provisions) Bill 2024 (Cth) (NZEA Transitional Bill) into Parliament. The NZEA Bill seeks to establish the Net Zero Economy Authority (NZEA) as a standalone statutory authority to coordinate net zero efforts across the government and facilitate participation from public and private domains. The NZEA Transitional Bill enables the transition of the current interim agency – the Net Zero Economy Agency – into the NZEA as a standalone statutory authority. According to the Department of the Prime Minister and Cabinet, ‘the Authority will focus on supporting workers, communities, regions and industry to realise and share in the benefits of the net zero economy’. See NZEA Bill and NZEA Transitional Bill. See media release and joint media release.

Government passes Bill to establish the ACCC’s designated complaints function. On 26 March 2024, the Federal Government passed the Competition and Consumer Amendment (Fair Go for Consumers and Small Business) Bill 2024 (Cth) (CCA Bill). As discussed in a previous edition of Boardroom Brief, the CCA 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. The Federal Government has also published the exposure draft Competition and Consumer (Designated Complaints) Determination 2024, which sets out (among other things) matters to be considered by the Minister when approving a designated complainant and matters relevant to decisions to take no further action. See exposure draft and Treasury media release. Submissions on the exposure draft close on 11 April 2024.

LEGAL

ASIC wins landmark greenwashing civil penalty action against Vanguard. On 28 March 2024, the Federal Court of Australia published O’Bryan J’s reasons for the decision in ASIC v Vanguard Investments Australia Ltd [2024] FCA 308. Justice O’Bryan found that Vanguard had contravened the Australian Securities and Investments Commission Act 2001 (Cth) by making misleading representations about various environmental, social and governance (ESG) criteria that allegedly applied to their ‘ethically conscious’ index fund, when in fact certain securities in the index fund were from issuers that were not researched or screened against applicable ESG criteria. These representations were published a range of public communications including 12 product disclosure statements, a media release, Vanguard’s public website, a YouTube interview with Finance News Network (FNN) and a presentation at an FNN Fund Manager Event which was published online. A penalty hearing has been scheduled for the 1 August 2024. See ASIC v Vanguard Investments Australia Ltd [2024] FCA 308.

Takeovers Panel receives application in relation to the affairs of Vintage Energy. On 2 April 2024, the Panel received an application from Keybridge Capital Limited (Keybridge), a substantial shareholder of Vintage, in relation to a $8 million capital raising comprising a $1.3 million placement and a $6.7 million accelerated non-renounceable entitlement offer just prior to Vantage’s announcement that it had received a notice under section 249D of the Corporations Act 2001 (Cth) from Keybridge requisitioning a general meeting to remove the current Vintage Board. Among other things, Keybridge submitted that the capital raising is excessive, and that the placement was inappropriate given the board was facing potential removal under the section 249D process. Further, Keybridge considered that the capital raising resulted in an unacceptable change in control because (among other things) the entitlement offer ‘is non-renounceable and has arbitrarily restricted retail shareholders’ participation in a shortfall/top-up facility’. A Panel has not been appointed and no decision has been made on whether to conduct proceedings. See Takeovers Panel media release.

Takeovers Panel declines to conduct proceedings in relation to an application regarding the affairs of Pact Group. On 5 April 2024, the Panel declined to conduct proceedings in relation to an application made by certain Pact Group shareholders concerning the affairs of Pact Group. As discussed in a previous edition of Boardroom Brief, the application concerned an off-market takeover bid by Bennamon Industries Pty Ltd (Bennamon) for Pact Group’s shares. The applicants had submitted that Bennamon’s ninth supplementary bidder’s statement and an email sent to select Pact Group shareholders contained misleading and deceptive statements that coerced them into accepting Bennamon’s offer. On 3 April 2024, the Panel accepted undertakings from Bennamon to provide further disclosure and (subject to obtaining ASIC relief, which was granted) offer withdrawal rights to Pact Group shareholders. See Takeovers Panel media release. As a consequence of the undertakings and ASIC relief, the Panel concluded there was no reasonable prospect of a declaration of unacceptable circumstances and therefore declined to conduct proceedings. See Takeovers Panel media release.

OVER THE HORIZON

Renewable energy investors still wary of risk-return profile. On 25 March 2024, the Investor Group on Climate Change published its annual survey comprised of data collected across 63 asset owners and managers overseeing over $37 trillion on behalf of 14.8 million Australians. The survey results demonstrate continued focus by institutional investors on both the risks and opportunities posed by renewable energy, suggesting there is significant potential to tap private capital to help achieve the national decarbonisation objectives. However, the lack of tools to measure and report on the ‘green impact’ of investments remains a major concern for investors. See Policy media brief.