Governance News 25 June 2018

60 mins  24.06.2018 Mark Standen, Siobhan Doherty, Kate Hilder
Governance News provides weekly summaries of key regulatory and governance developments in Australia and overseas.

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

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https://www.minterellison.com/articles/governance-news-25-june-2018

Diversity Navigation Show below Hide below

  • Pushing for gender equality makes financial sense says P&G: P&G's chief brand officer has told Bloomberg that the company's commitment to improving gender equality is designed to drive growth. 'If we just achieve equality in economic empowerment between women and men, it could add $28 trillion to world economy. That’s a lot of purchasing power' he said.
  • In Brief | New York City Comptroller Scott Stringer has reaffirmed his support for the LGBTQ+ community and his commitment to advancing LGBTQ+ equality ahead of the Pride March: equality initiatives listed by Mr Stringer in his statement include pushing pension fund investors to speak out against discrimination (and to call for corporate diversity efforts to explicitly include the LGBTQ+ community); and in response to the recent SCOTUS 'cakeshop' ruling, the introduction of new non-discrimination evaluations for investment managers seeking to do business with NYC pension funds. 'Here in New York City, we won’t stop until every person is free from hate and discrimination' he writes.
  • In Brief | Bloomberg writes that Goldman Sachs Group has launched a new program to fund more female entrepreneurs and investors. Reportedly it will invest $500m worth of firm and client capital in businesses and financial products run by women through an initiative called 'Launch with GS.' Separately Bloomberg reports that funding remains difficult to secure for US female tech founders with less than 5% of venture capital deals in Q1 2018, going to female founders.
  • In Brief | Efforts by California Public Employees’ Retirement System (CalPERS) to increase corporate board diversity are beginning to have an effect? Reportedly 1 in 5 US companies targeted by CalPERS in early July 2017 now have, or have concrete plans to have, women and minority board members.

Remuneration Navigation Show below Hide below

  • Setting the 'tone from the top'? The Governance Institute 6th annual board and executive remuneration survey results were released. The survey found that 30% of boards surveyed received no pay rise this financial year, a higher proportion than has previously been the case. 

Shareholder activism Navigation Show below Hide below

  • In Brief | US CEO views on shareholder activism: A New York Times survey of the CEOs who attended the Yale CEO Summit found (among other things) that 90% think activist shareholder campaigns often unfairly smear management teams and 72% think activist investors lead to excessive short-termism in financial thinking.

Meetings and proxy advisers Navigation Show below Hide below

  • In Brief | ASIC Commissioner John Price has reaffirmed the regulator's expectation that companies constructively engage with shareholders, including proxy advisers, in the interests of good governance: Mr Price said that 'in a period where corporate governance is increasingly under the spotlight, culture and conduct should be a key focus area for companies….One of the ways that companies can ensure they are on the right side of discussions about culture, conduct, and corporate governance, is to engage with their shareholders' (including engaging with proxy advisers).

Disclosure and reporting Navigation Show below Hide below

  • Top Story | ASIC's new focus on climate change risk disclosure - what does it mean for corporate boards? MinterEllison has prepared a guide on climate risk disclosure to assist boards and their committees - The climate risk reporting journey: a corporate governance primer.
  • Top Story | Companies take note: climate risk confirmed as a key ASIC priority both from a governance and a disclosure perspective.  
  • Top Story | Watch this space? The UK FRC has released a report on the potential impact of blockchain technology on the future of corporate reporting processes. It concludes that, whilst cost, complexity and lack of standardisation of blockchains might be inhibiting factors, the growing use of the technology means that 'those involved in corporate reporting processes need to consider its potential disruptive impact'.
  • Support for proposed review of existing continuous disclosure obligations? The AFR reports that the ASX has indicated its support for a review of existing requirements as recommended in the recent ALRC discussion paper: Inquiry into Class Action Proceedings and Third-Party Litigation Funders discussion paper.
  • In Brief | Consequences of failure to meet disclosure obligations: ASIC has restricted Henry Morgan Ltd (HML) from eligibility to issue a reduced content prospectus until 8 June 2019 due to HML's failure to lodge a financial report, directors' report and auditors' report within the timeframe required.

Markets and exchanges Navigation Show below Hide below

  • ASX has 'foreshadowed' an proposed changes to the ASX Listing Rules due to be released for consultation later this year.
  • In Brief | Saudi Arabia has reportedly been 'upgraded' by index provider MSCI to be included in its Emerging Market index for the first time following its semi-annual review, while Argentina also re-enters the index after being downgraded in 2009.

Regulators Navigation Show below Hide below

Australian Securities and Investments Commission (ASIC)

  • Top Story | ASIC's views on corporate culture: Address by ASIC Commission John Price at the Governance and Risk Management Forum.
  • Details of ASIC oversight of the Australian Financial Complaints Authority (AFCA) released: RG 267 Oversight of the Australian Financial Complaints Authority.
  • Latest ASIC red tape report released: Report 574: Overview of decisions on relief applications (October 2017 to March 2018).
  • Has ASIC 'taken the foot off the accelerator'? Federal government data reportedly shows ASIC is less active than at any time over the last three years in enforcing compliance and prosecuting misconduct writes The AFR.
  • In Brief | In his opening address to the Senate Economics Committee, Australian Securities and Investments Commission (ASIC) Chair James Shipton has given evidence of ASIC's 'strong enforcement record' and confirmed that the regulator uses 'every regulatory tool available' within the existing regulatory framework (including litigation). He also welcomed plans to strengthen the existing regulatory framework.

Overseas Developments

  • United States | 'The law may not prohibit all forms of lying but your culture should reject it' SEC Chair Jay Clayton has cautioned financial institutions.
  • United States | SEC has released its draft strategic plan for fiscal years 2018-2022 for a 30 day consultation period. Protection of the interests of 'main street investors'; an increased focus on cyber security risk and the 'modernisation' of disclosure are among the goals identified.
  • United States | SEC has fined Merrill Lynch $42m for misleading customers about trading venues.

Financial Services Navigation Show below Hide below

Superannuation

  • Protecting your super package legislation introduced: Treasury Laws Amendment (Protecting Your Superannuation Savings Package) Bill 2018. Among other things, the Bill proposes to introduce a range of reforms intended to 'protect against the undue erosion of superannuation balances through excessive fees and inappropriate insurance arrangements'.
  • Progress update | Superannuation Guarantee Amnesty Bill: Treasury Laws Amendment (2018) Superannuation Measures No 1) Bill 2018 has passed the House of Representatives and will now be considered by the senate.
  • In Brief | Superannuation industry critical of PC draft report? Media reports suggest that some superannuation industry stakeholders have raised concerns regarding various aspects of the productivity commission draft report into the superannuation sector at recent public hearings. Reportedly, ASIC counsel professor Pamela Hanrahan has called for a rethink of the current 'regulatory architecture'.

Banking

  • The Federal Court has separately approved the CBA/AUSTRAC and CBA/ASIC settlements.
  • In Brief | The US Commodities Futures Trading Commission (CFTC) has ordered JPMorgan Chase Bank to pay a $65m penalty for attempted manipulation of the US dollar ISDAFIX benchmark swap rates. JPMC has taken specified steps to implement and strengthen its internal controls and procedures relating to the fixing of interest-rate swaps benchmarks.
  • In Brief | The New York State Department of Financial Services (DFS) has announced that Deutsche Bank AG has agreed to pay a $US205m fine for 'unlawful, unsafe and unsound' conduct in its foreign exchange trading business. The bank also agreed to submit written plans and programs to improve senior management oversight, internal controls, risk management and internal audit functions to DFS as part of the consent order.
  • In Brief | APRA has released quarterly ADI performance statistics for March 2018; and released statistics on ADI property exposures for March 2018.

Insurance

  • In Brief | APRA Life Insurance Statistics released: The Australian Prudential Regulation Authority has released institutional level statistics as at December 2017 and separately, supplementary statistical tables as at December 2017.

Other Developments

  • In Brief | The Bank for International Settlements (BIS) annual economic report has questioned whether cryptocurrencies can 'play any role as money'. The report concludes that 'Cryptocurrencies cannot scale with transaction demand, are prone to congestion and greatly fluctuate in value. Overall, the decentralized technology of cryptocurrencies, however sophisticated, is a poor substitute for the solid institutional backing of money. That said, the underlying technology could have promise in other applications such as the simplification of administrative processes in the settlement of financial transactions. Still, this remains to be tested'. The AFR suggests this may signal the 'death' of bitcoin.
  • In Brief | Financial Adviser Standards and Ethics Authority (FASEA) has announced that Stephen Glenfield has been appointed to the role of CEO.
  • In Brief | Financial Elder Abuse campaign launched: The Australian Banking Association (ABA), National Seniors, the Council on the Ageing, the Older Persons Advocacy Network and the Finance Sector Union have launched a campaign calling on the public to write to their state or territory Attorneys General demanding change to 'empower bank staff to properly detect and safely report elder financial abuse'.

Accounting and audit Navigation Show below Hide below

  • United Kingdom | The UK Financial Reporting Council (FRC) has issued a statement in which it has called on 'The Big Four audit practices' to act to 'reverse the decline' in the quality of the most recent audit inspection results. In particular, the statement calls on KPMG to lift standards.

Risk management Navigation Show below Hide below

Supply Chain Risk

  • Top Story | Modern slavery & global supply chain reporting: Australia is moving closer to establishing modern slavery legislation, including a modern slavery reporting requirement writes MinterEllison Partner, Geraldine Johns Putra.

Whistleblowing

  • The US National Whistleblower Center (NWC) has formally requested Bank of England governor Mark Carney to remove a 2014 report entitled, Financial Incentives for Whistleblowers, from the BoE website within ten days on the basis that the principal finding in the BoE report, 'that reward laws do not increase the number or the quality of reports from whistleblowers is not true.'

Culture

  • #MeToo national inquiry announced: The Australian Human Rights Commission has announced a 12 month national inquiry into sexual harassment in Australian workplaces.

Other Developments

  • 'Deiselgate' | Audi AG CEO Rupert Stadler has reportedly been detained in custody (though not charged with any offence) in connection with a German investigation into his role in the alleged use of illegal software by VW to 'cheat' carbon emissions tests.
  • In Brief | JP Morgan Australia non-executive chairman Robert Priestley has resigned from the boards of the Australian Securities Exchange (ASX) and the Future Fund while the ACCC criminal cartel conduct investigation is resolved. ASX Chairman, Mr Rick Holliday-Smith commented: 'Rob’s decision to step down in these circumstances demonstrates his commitment to the highest standards of corporate governance. We understand the difficulty of his position, and appreciate that he has made a decision that puts ASX ahead of other considerations. Rob has been a valued member of the ASX board and we look forward to this matter being resolved'.

Full coverage of this week's content is now available


Past issues are available

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https://www.minterellison.com/articles/governance-news-25-june-2018

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