Governance News 12 March 2020

60 minute read  11.03.2020 Mark Standen, Siobhan Doherty, Kate Hilder

This week's news features coverage of: 1) MinterEllison Partner Mark Standen's paper on the practical implications of extending the BEAR (the proposed FAR) into the superannuation sector; 2) the High Court's decision on the scope of the definition of 'officer' in s9 of the Corporations Act: Australian Securities and Investments Commission v King [2020] HCA 4; 3) the release of the final FFSP framework; and 4) the release of expert guidance for accountants and auditors on climate risk. 

In addition, the issue includes coverage of the Governance Institute's research into attitudes towards annual director elections and recent developments in shareholder activism; financial services; disclosure and reporting; and risk management (among others).

Full coverage of this weeks content is now available


Past issues are available

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https://www.minterellison.com/articles/governance-news-12-march-2020

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Directors’ and officers’ duties and liabilities Navigation Show below Hide below

  • Top Story | Who is an officer of a corporation?  High Court decision provides some clarity on the definition of 'officer' as defined in s9 of the Corporations Act
  • ALRC confirms it will not proceed with proposed recommendations to strengthen individual executive liability for wrongdoing

Boards and Directors Navigation Show below Hide below

  • Not for everyone? Governance Institute research into attitudes towards annual director elections has identified mixed views on the issue

Diversity Navigation Show below Hide below

  • Mandatory board quotas for women on the boards of European listed countries?  Reportedly the EU plans to revives plans to revive a draft 2012 directive
  • A success? KPMG study finds that the California law requiring at least one female director by the end of 2019 has improved board (gender) diversity and has not led to tokenism 
  • Gender parity on Russell 3000 boards by 2030? Equilar's latest Gender Diversity Index Q4 2019 predicts that gender parity will be achieved 18 years earlier than was predicted in Q4 2017
  • Facebook's board is now 40% women following the appointment of two new female directors 
  • In Brief | Addressing the superannuation (gender) gap: The SMH reports that the Victorian government has agreed to pay public servants their full superannuation entitlements while on parental leave as part of broader wage negotiations.  Separately, The SMH reports that banks, state governments and women's advocates have called on the federal government to consider requiring the super guarantee to be part of paid parental leave in submissions to the retirement income review as a means of addressing the gender superannuation gap

Remuneration Navigation Show below Hide below

  • Expert panel reportedly agrees boards need to rethink CEO pay in order to rebuild community trust
  • United Kingdom | The four top remuneration concerns for UK investors going into the AGM season
  • COVID 19 response: Airline CEOs announce cost reduction measures, including pay cuts, in response to the virus threat
  • High Pay Centre queries CEO pay at Janus Henderson?  

Shareholder Activism Navigation Show below Hide below

  • Rio Tinto's failure to set Scope 3 emissions reduction targets has reportedly prompted an activist group to flag plans to file a resolution calling for tougher targets 
  • Settlement reached after one week engagement? Twitter has reportedly agreed to makes board changes as part of an agreement with Elliott Management
  • Activists are increasingly adding social and environmental demands to the list of 'standard' changes they're pushing for 

Institutional Shareholders and Stewardship Navigation Show below Hide below

  • In Brief | Japan’s Government Pension Investment Fund, the California State Teachers’ Retirement System and the UK's USS Investment Management Ltd have released a joint statement underlining the importance they place, as asset owners, on long-term sustainable growth and calling on the companies in which they invest to improve their disclosures and enhance their integration of environmental, social and governance factors into their decision making processes

Other Shareholder News Navigation Show below Hide below

  • Parliamentary Inquiry to be held into Australia's class action system

Meetings and Proxy Advisers Navigation Show below Hide below

  • The Australian reports that State Street has flagged climate, gender diversity and culture as key concerns ahead of the AGM season
  • In Brief | COVID-19 is responsible for the spike in the use of online voting at AGMs? IT News reports that Swiss technology firm Sherpany has said that there has been a considerable uptick in the usage of both online voting at this year's AGMs and usage by company boards and executives of remote meeting facilities.  The firm reportedly attributes this primarily to the impact of both travel restrictions implemented by the Swiss government to contain the spread of COVID 19 and to investor's desire to avoid large gatherings for fear of infection

Financial Services Navigation Show below Hide below

  • Top Story | Super 2020: the BEAR necessities and a FAR horizon
  • Top Story |Final foreign financial services regime released
  • Unintended consequences? The AFR reports that superannuation fees have increased for some members following the government's protecting your super reforms 
  • FSC supports the passage of the Your Super, Your Choice Bill
  • Work test draft legislation released: Treasury is consulting on draft legislation aimed at helping Australians aged 65 and over to boost their retirement savings
  • AFCA says that complaints about home loans increased 20% between July and December 2019 
  • Financial advice fee consents and independence: ASIC is consulting on three draft legislative instruments ahead of the passage of draft legislation proposing to implement the government's response to Hayne recommendations 2.1, 2.2 and 3.3
  • Inquiry into Future Directions for the Consumer Data Right: Issues Paper released for consultation
  • United States | The CFPB has commenced proceedings against Fifth Third Bank in connection with (alleged) fake accounts 
  • In Brief | FFSP framework finalised: Following consultation, ASIC has released its new regulatory framework for foreign financial services providers (FFSPs) providing financial services to Australian wholesale clients.  The new framework replaces ASIC’s previous licensing exemptions for foreign providers
  • In Brief | Consumer group CHOICE has cautioned consumers against 'panicking' about the impact of COVID-19 on the share market and more particularly, has said consumers should not make drastic changes to the superannuation because of COVID-19.  Rather, CHOICE suggests it may be an opportunity for members to consider whether they are comfortable with the risk level of their super investments  
  • In Brief | The Super Guarantee Amnesty Bill — Treasury Laws Amendment (Recovering Unpaid Superannuation) Bill 2019 — received Royal Assent on 6 March.   Employers have six months to take advantage of the amnesty (it is set to expire in six months' time) 
  • In Brief | Smaller banks risk being swamped by relentless banking reforms? COBA has called on the Federal government 'to reconsider the approaching wave of banking regulation as the low interest rate environment squeezes competition'.  In light of the various 'sweeping changes' to the regulatory landscape, COBA asks that the government 'more systemically assess the cumulative cost burden of continuous regulatory change in banking, particularly on customer owned banking institutions' who would rather 'focus on customer service'

Accounting and audit Navigation Show below Hide below

  • Top Story | Climate Risk: Expert guidance on scenarios and assumptions that accountants and auditors might refer to in stress testing and scenario planning exercises 
  • The APESB has released a draft update to the auditor independence guide: feedback is due by 23 March
  • Response to the PJC Audit Inquiry Interim Report recommendations: The AFR reports that there are mixed views on how best to prevent conflicts of interest and concerns (from some quarters) about introducing digital reporting
  • In Brief | Introducing a version of the Sarbanes-Oxley regime in the UK? The FT reports that the UK government is planning to launch a second consultation on implementing the Kingman Report recommendations including introducing new requirements for company directors to be responsible for certifying the accuracy of financial statements and expanding the definition of a public interest entity.  No timeframes for the consultation are given

Risk management Navigation Show below Hide below

Whistleblowing

  • United States | The CFPB is pushing for the establishment of a whistleblower award program 
    Cybersecurity, Technology and Privacy
  • OAIC has commenced civil proceedings against Facebook in connection with its role in the Cambridge Analytica scandal
  • Time to work together to counter cyber-crime: Managing Director of Toll Thomas Knudsen has reportedly called for cooperation to address the growing threat 
  • TAFE data breach reportedly exposes 55,000+ student and staff files 

Climate Risk

  • The FT reports that ExxonMobil has reaffirmed plans to push forward with oil and gas projects and resisted calls to set emissions targets
  • Independent MP Zali Steggal plans to introduce the Climate Change Bill as a private member's Bill on 23 March
  • In Brief | EU to be climate neutral by 2050? The European Commission has proposed a new Climate Law which would: a) set a binding target of net zero greenhouse gas emissions by 2050; b) require EU Institutions and the Member States to take the necessary steps to meet the target; c) include measures to keep track of progress and adjust actions accordingly; and d) mandate a five year progress review in line the global stocktake exercise under the Paris Agreement

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