Governance News 4 March 2020

60 minute read  03.03.2020 Mark Standen, Siobhan Doherty, Kate Hilder

Governance News provides a weekly wrap up of key governance, risk and regulatory developments in Australia and overseas. This week's issue features coverage of: a) recent activist campaigns; b) climate risk developments; c)  COVID-19 related threat developments; d) ASIC and APRA's recent updates on the implementation of Hayne recommendations and their progress on responding to Hayne referrals; and e) developments in the audit sector including the release of the PJC's interim report.

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https://www.minterellison.com/articles/governance-news-4-march-2020

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Diversity Navigation Show below Hide below

  • United Kingdom | Beyond board diversity: The Investment Association has cautioned 63 FTSE 350 companies over lack of gender diversity not only on their boards but in their leadership ranks and called for details of the actions each plans to take to improve
  • United Kingdom | Asset managers will reportedly vote against individual directors in an effort to encourage progress on gender diversity

Shareholder activism Navigation Show below Hide below

  • Governance concerns? Elliott is reportedly pushing for changes at Twitter having taken a $1bn stake 
  • SumofUs freedom of expression proposal defeated at Apple 
  • A second (potential) shareholder ESG proposal at QBE?
  • In Brief | Market Forces is calling on GE shareholders to push the company to exit coal and switch to investing in clean energy instead

Institutional shareholders and stewardship Navigation Show below Hide below

  • UniSuper members are reportedly calling on the fund to divest itself of fossil fuel stocks 

Markets and exchanges Navigation Show below Hide below

  • CHESS Replacement Tranche 2 Rule Amendments Consultation Paper released
  • In Brief | The ASX issued an update to Guidance Note 8 Continuous Disclosure: Listing Rules 3.1 – 3.1B on 28 February.  Among other things, the changes reflect the listing rule changes that came into effect on 1 December 2019,  the fourth edition of the Corporate Governance Principles and Recommendations that came into effect on 1 January 2020 and a number of recent Federal Court decisions 

Regulators Navigation Show below Hide below

  • ACCC 2020 compliance and enforcement priorities
  • Progress update on responding to Hayne Commission referrals and case studies and implementing Hayne recommendations: ASIC has released its latest regulatory and enforcement update 
  • Three FSRC recommendations implemented in full and seven more progressing: APRA has provided an update on progress towards implementing Hayne recommendations and acting on Hayne referrals
  • The Standing Committee on Economics tabled its report into the review of APRA's 2019 annual report
  • Guidance on how to produce documents to ASIC released

Financial Services Navigation Show below Hide below

  •  Senate Committee recommends the Bill proposing to ban cash payments of $10,000 be passed, subject to acting on other recommendations
  • 'Just trust us' isn't enough says CHOICE: CHOICE has announced plans to petition the Treasurer to act to standardise definitions in insurance contracts, including the definition of 'fire', to provide greater certainty to policy holders 
  • In Brief | The Banking Code Compliance Committee has issued a reminder that the 2019 Banking Code of Practice which addresses a number of Hayne Recommendations commenced 1 March 2020.  It is a condition of ABA membership that member banks with a retail presence in Australia are Code signatories.  ABA CEO Anna Bligh said that the industry has fulfilled its commitment to bolstering its Banking Code of Practice by implementing Commissioner Hayne's recommendations
  • In Brief | Win for ASIC: The Federal Court has found that AGM Markets Pty Ltd, OT Markets Pty Ltd and Ozifin Tech Pty Ltd engaged in systemic unconscionable conduct while providing over-the-counter derivative products to retail investors in Australia
  • In Brief | Overreach? The AFR is reporting that Professor Pamela Hanrahan has raised concerns about the scope of the government's proposed FAR regime on the basis the proposals go 'much further than the Commissioner recommended'.  In particular, The AFR quotes Professor Hanrahan as raising concerns about the proposed penalties under the regime, as well as concerns that the ability for the minister to determine which organisations are subject to the regime could mean that 'potentially 53,000 small businesses' will be affected 
  • In Brief | The fintech sandbox Bill — Treasury Laws Amendment (2018 Measures No 2) Bill 2019 —received Royal Assent on 26 February  

Accounting and audit Navigation Show below Hide below

  • Top Story | Audit Review update: The PJC's interim audit report makes ten 'substantive policy recommendations' to raise audit quality standards 
  • The FRC has called on the UK's largest audit firms to voluntarily move to ring-fence their accounting functions from their consulting functions
  • Accounting associations commit to global pledge calling on accountants across the world to use their skills and status in the fight against climate change
  • In Brief | First 'significant sale' of an advisory unit by a Big Four accountant? The FT reports that KPMG has completed the disposal of its UK pensions practice in response to enhanced scrutiny by regulators on auditing conflicts

Risk management Navigation Show below Hide below

Cybersecurity, Privacy and Technology

  • Human error is still a problem: OAIC's latest Notifiable Data Breach report finds cyber-attacks are the leading cause of notifications, but that in many cases the attacks include a human element
    Climate Risk
  • The FT reports that Barclays, HSBC and Standard Chartered could potentially face litigation if they do not phase out financing for fossil fuel projects
  • 'Climate trigger' Bill referred to the senate for inquiry 
  • Scope 3 emissions Bill introduced: On 24 February independent MP Andrew Wilkie introduced a private members Bill which proposes, among other things to amend existing carbon emissions reporting requirements
  • A Bill proposing to make 'major emitters' liable for climate change damage introduced into the House
  • JP Morgan Chase reportedly plans to stop lending to Arctic oil drillers and coalminers
  • Reuters reports that Catholic religious order, the Jesuits in Britain has committed to divest itself of its fossil fuel stocks by the end of 2020
  • Rio Tinto has announced plans to invest $1 billion over the next five years to support the delivery of its new climate change targets and a company objective for net zero emissions from operations by 2050
  • BP will reportedly exit lobby groups over differences in climate stance 
  • In Brief | The Bank of England has released its COP 26 agenda: The Bank said that the objective is 'that every professional financial decision will need to take climate change into account…to achieve net zero, every company, bank, insurer and investor will need to adjust their business models for a low carbon world'
  • In Brief | The Greens have introduced a Climate Emergency Declaration Bill.  In his second reading speech, Greens Leader Adam Bandt said that the Bill 'declares that we commit to secure a prosperous, jobs-rich future for ourselves and our children. This bill is an explicit acknowledgement of how much danger we are in... But this bill will be more than a declaration. All Public Service agencies will be responsible for acting in accordance with the declaration when developing, implementing, providing and evaluating policies. Agencies will be required to report on their compliance each reporting period. The bill will also establish a climate emergency war cabinet to guide the country through the rapid society wide and economywide response to the climate crisis'.  Independent MP Zali Steggal seconded the Bill

Other Developments

  • Financial regulators are prepared to meet the COVID-19 threat: ASIC says it has processes in place, APRA has reportedly asked entities to provide copies of their contingency plans
  • How should business respond to the COVID-19 threat? McKinsey has released a suggested checklist of actions for business to consider implementing 
  • In Brief | The RBA cut interest rates to 0.5%: In a statement the RBA said it took this decision to support the economy as it responds to the global coronavirus outbreak and will continue to monitor developments and to assess the implications of the virus for the economy.  The statement adds that the board is prepared to 'ease monetary policy further to support the Australian economy'
  • In Brief | The AFR reports that Attorney General and Minister for Industrial Relations Christian Porter has flagged plans to 'issue a discussion paper on the general issue of award complexity' in the 'coming months' in response to business concerns over the new timesheet rules for salaried workers 

Corporate misconduct and liability Navigation Show below Hide below

  • Backing away from proposals to strengthen the corporate criminal responsibility regime?  The Australian is reporting that the ALRC has scrapped proposed changes to individual director liability
  • UK's first trial of bank executives for misconduct during the 2008 Financial Crisis: Former Barclays executives have been cleared of all fraud charges in connection with capital raising arrangements agreed with Qatar Holding LLC and Challenger Universal Ltd in June and October 2008

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