Governance News 16 October 2019

90 mins  15.10.2019 Mark Standen, Siobhan Doherty, Kate Hilder
Governance News provides a weekly wrap up of key governance, regulatory and risk developments in Australia and overseas.  

Key takeouts


This week's issue features (among other things):

  • Other Shareholder News:  Best to be cautious? High Court decision on the operation of s260A and what constitutes financial assistance 
  • Markets and Exchanges: Final changes to the ASX Listing Rules released
  • Shareholder Activism: Bucking the trend? Activist Insight's latest report has identified a global slowdown in activist activity in Q3 2019, though activity in Australia has continued to increase
  • Disclosure and reporting: No 'silver bullet' after all? A joint ASIC/AFM report details the limitations of disclosure and identifies a need for policy makers to rethink the role of disclosure as the 'default option' to protect consumers
  • Risk Management: Overview of ASIC Corporate Governance Taskforce report into director and officer oversight of non-financial risk
  • Risk Management: Overview of APRA Chair Wayne Byres' speech outlining the regulator's focus on transforming governance, culture, remuneration and accountability (GCRA) in financial institutions 

Full coverage of this weeks content is now available


Past issues are available

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https://www.minterellison.com/articles/governance-news-16-october-2019

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We provide weekly summaries of key regulatory and governance developments in Australia and overseas.

Diversity Navigation Show below Hide below

  • United States | Gender diversity fatigue? Most directors agree that gender diversity on boards is important, but they're sick of hearing about it according to a new PwC report
  • Canada | Yet to crack 20%? The total number of board seats occupied by women in Canada has increased to 17% in 2019 up from 11% in 2015
  • Mostly men with previous board experience: Heidrick and Struggles' latest report on the composition of European publicly listed company boards has identified that overall, most board appointments continue to go to men with previous board experience, but that viewed individually each country has a different approach to board diversity 
  • In Brief | Global diversity report finds there is a link between diverse leadership and shareholder returns: The 2019 edition of the CS Gender 3000 report looks at the link between gender diversity and superior company performance and how this is evolving over time.  The report is based on analysis of the gender diversity mix within the governance and executive leadership teams of over 3,000 companies across 56 countries

Shareholder activism Navigation Show below Hide below

  • Bucking the trend? Activist Insight's latest report has identified a global slowdown in activist activity in Q3 2019, though activity in Australia has continued to increase

Other shareholder news Navigation Show below Hide below

  • Top Story | Best to be cautious? High Court decision on the operation of s260A and what constitutes financial assistance 

Meetings and proxy advisers Navigation Show below Hide below

  • In Brief | Proxy adviser Institutional Shareholder Services (ISS) has released its 2020 benchmark voting policy for a two week comment period 7 October (submissions are due by 18 October).  ISS is requesting feedback from all interested market constituents on 17 proposed new policies or potential policy changes

Disclosure and reporting Navigation Show below Hide below

  • No 'silver bullet' after all? A joint ASIC/AFM report details the limitations of disclosure and identifies a need for policy makers to rethink the role of disclosure as the 'default option' to protect consumers
  • In Brief | ASIC has reminded all AFS licensees to lodge their annual financial statements and auditor reports by the due date (or face possible regulatory consequences): Noting that ASIC has observed a 'high rate of non-compliance' ASIC Commissioner Sean Hughes cautioned that the regulator will pursue AFS licensees who fail to comply with their reporting obligations and where appropriate, 'will consider taking action to suspend or cancel a licence.' Since October 2016, ASIC has suspended 9 AFS licences and cancelled 22 AFS licences for failing to lodge their annual financial statements and auditor reports

Markets and exchanges Navigation Show below Hide below

  • Top Story | Final changes to the ASX Listing Rules released
  • In Brief | UK listings have fallen to 10-year low in Q3 2019?  The FT Reports that the London listing market has suffered its quietest quarter in a decade.  The FT attributes this to the impact of persistent political uncertainty 
  • In Brief | The FT reports that Hong Kong Exchanges and Clearing has abandoned its £32bn offer for the London Stock Exchange Group, ending its attempt to create a global capital markets operator.  Reportedly, HKEX CEO Charles Li said the board had concluded an offer was not in the best interests of its own shareholders

Regulators Navigation Show below Hide below

Australian Securities and Investments Commission

  • ASIC performance review: ASIC will appear before the House Economics Committee on 16 October 
  • No excuse not to cooperate?  ASIC's new 'why not litigate?' approach is no excuse for companies failing to cooperate with the regulator says ASIC Commissioner John Price
  • Product intervention order challenged: Cigno seeks judicial review of ASIC's decision to make short term credit product intervention order

Australian Prudential Regulation Authority (APRA)

  • APRA has announced a number of new executive roles

Other Developments

  • United Kingdom | The FRC's new CEO and Chair have taken up their respective roles and have committed to progress the transition to the new regulator (which will replace the FRC)
  • United Kingdom | Why the delays? Delays in processing SFO cases largely come down to a failure to consistently implement existing processes according to HMCPSI report
  • In Brief | On track? IOSCO has released a Thematic Review report which concludes that most of the participating jurisdictions have implemented the necessary rules aimed at preventing the mis selling of complex financial products consistent with IOSCO standards

Financial Services Navigation Show below Hide below

Insurance

  • Revised and enforceable insurance code of practice (with new sanctions for breach) on the way? 
  • Is the insurance policy delivering value for money? Reportedly, ASIC is expected to release its report into total and permanent disability insurance and life cover in the coming months
  • CommInsure charged with 'hawking' offences in connection with phone sales of life insurance products 
  • Implementing FSRC recommendation 4.2: Consultation on the proposed removal of the exemption for funeral expenses policies
  • APRA has proposed directions to integrate new accounting standard into the prudential framework and has sought feedback from insurers on their level of preparedness
  • ASIC is consulting on a proposal for using its product intervention power to address the 'significant consumer detriment' it considers results from the sale of financial products 'added on' to the sale or lease of a motor vehicle sold through caryard intermediaries

Superannuation

  • Independent review of the retirement income system announced 
  • Parliamentary Committee to scrutinise the superannuation sector over two days of public hearings as part of its ongoing review of the four major banks and other financial institutions
  • 'You can expect to feel a degree of discomfort': APRA Deputy Chair Helen Rowell's speech to the AIST cautioned superannuation trustees that APRA's increased focus on the superannuation sector will mean superannuation trustees should expect to feel a 'degree of discomfort'  
  • New factsheet for investors: ASIC has urged investors considering establishing their own SMSF to consider whether it's the right option for them
  • Proposed remake of sunsetting Unclaimed Money and Lost Members regulations released for consultation

Other Developments

  • Implementing FSRC recommendation 2.4 Grandfathered Commissions: Legislation that will end grandfathered conflicted remuneration payments to financial advisers has passed both houses
  • 'Accelerating' implementation of FSRC recommendation 2.10: A new disciplinary system and single disciplinary body for financial advisers to be established by 2021
  • ACCC investigation into interest rate pricing on residential mortgages announced
  • House Economics Committee to scrutinise the smaller banks for the first time: Public hearing to be held on 29 November 
  • Ineffective (or not)?  ASIC is seeking public views on school banking programs
  • APRA has proposed new measures to strengthen capital protection for bank depositors
  • In Brief | APRA is supportive of increased competition in the banking market (and therefore of challenger banks) but will not compromise standards says APRA General Manager, Regulatory Affairs and Licensing Melisande Waterford.  'Put simply: we want to encourage innovation; to welcome new entrants into the industry; to support competition. But we don't want to lower our standards and create risks for deposit-holders in order to do so….It's worth reminding ourselves that the statutory obligation to obtain a licence before commencing banking business is intended by design to act as a barrier to entry. There's a very good reason why only people with a pilot's licence are allowed to fly an aeroplane. And there's an equally good reason why no-one is allowed to simply set themselves up as a bank and start taking deposits. We believe that taking deposits is a weighty responsibility, and we are unapologetic about setting high standards for people who wish to do so' she said
  • In Brief  | The Reserve Bank of New Zealand has affirmed its climate strategy through the investment of US $100 million of green bonds.  The investment was made via the Bank for International Settlements' USD Green Bond Investment Pool (BISIP G1) and funded from its foreign reserves portfolio.

Accounting and audit Navigation Show below Hide below

  • United Kingdom | The FRC has released a revised and strengthened 'going concern' auditing standard
  • In Brief | The Financial Reporting Council (FRC) has commenced an investigation into the audit by EY of the financial statements of Thomas Cook Group Plc (Thomas Cook) for the year ended 30 September 2018. Thomas Cook went into compulsory liquidation on 25 September.  Reportedly, if EY is found to have provided unsatisfactory auditing it could face a fine of up to £10m, with the potential for both disciplinary hearings and the banning of at-fault accountants
  • In Brief | Strong public support for a stronger regulator? The UK Financial Reporting Council (FRC) has released the results of research conducted by BritainThinks, into public views on the regulation of corporate reporting, corporate governance and audit by the FRC and how this could be improved

Risk management Navigation Show below Hide below

  • A 'useful roadmap' for improving director and officer oversight of non-financial risk? ASIC Corporate Governance Taskforce report released
  • APRA Chair Wayne Byres has underlined APRA's focus on transforming governance, culture, remuneration and accountability (GCRA) in financial institutions
  • An independent survey of Lloyds' culture has reportedly identified a culture of sexual harassment
  • In Brief | The US Equal Employment Opportunity Commission (EEOC) has reportedly found 'reasonable cause' that seven US employers excluded women, older workers or both from seeing their job listings on Facebook through the use of targeted advertising (excluding them) in violation of the Civil Rights Act and the Age Discrimination in Employment Act.  The companies will reportedly face court proceedings (if they do not negotiate a settlement with the EEOC)

Restructuring and insolvency Navigation Show below Hide below

  • The Small Business Ombudsman has announced an inquiry into the insolvency system to be chaired by Senator John Williams, ARITA has reportedly dismissed the inquiry as a 'media stunt'

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https://www.minterellison.com/articles/governance-news-16-october-2019

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