Governance News 4 September 2019

60 minute read (PDF download)  03.09.2019 Mark Standen, Siobhan Doherty, Kate Hilder

This week's issue has a focus on the financial regulators and features coverage of the release of APRA and ASIC's corporate plans and APRA's updated enforcement approach (among other developments).

Full coverage of this weeks content is now available. Past issues are available

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https://www.minterellison.com/articles/governance-news-4-september-2019

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

Boards and Directors Navigation Show below Hide below

  • Top Story | Guide to directors' voting recommendations in schemes 
  • A generational shift in ASX 50 CEOs?  A report from Apollo Communications has found that Generation X has taken over the reins of the ASX 50 and that the key challenge facing them is gaining stakeholder trust 

Remuneration Navigation Show below Hide below

  • Deloitte UK partners set for biggest payday in a decade?
  • In Brief | CEO pay in the asset management industry (may) be trending downwards? Under increasing scrutiny, and given the pressures of rising costs and adverse market movements, Asset Management CEO remuneration is reportedly coming under downward pressure according to The FT with eight CEOs in the US and ten at European fund companies seeing pay cuts last year

Other shareholder news Navigation Show below Hide below

  • The Australian reports that Harvey Norman Chair Gerry Harvey has cautioned that superannuation funds pushing for 'box ticking' corporate governance requirements risk losing money for their members by undermining the profitability of listed companies
  • Shareholders press US boards to split CEO and Chair roles? The number of combined CEO/Chair roles has fallen from 62% a decade ago to 46% this year according to The FT 

Disclosure and reporting Navigation Show below Hide below

  • ASIC has remade a 'sunsetting' class order [CO 09/425] to continue the effect of the previous instrument 

Regulators Navigation Show below Hide below

  • Top Story | Constructively tougher? APRA has updated its 'constructively tough' enforcement approach
  • Top Story | APRA Corporate Plan 2019-2023: The regulator is set to sharpen its focus on non-financial risk and superannuation
  • Engaging with ASIC: Hints from ASIC Commissioners John Price and Sean Hughes?
  • ASIC Corporate plan 2019-2023: Seven priorities to address 'drivers of harm'
  • Self-reporting a problem won't mean the regulator goes easier?  The ACCC has instituted proceedings in the Federal Court against Medibank Private Ltd 
  • AFCA could play a greater role in helping ASIC in the identification and reporting of conduct that may warrant intervention through the PIP?  AFCA's submission in response to ASIC's proposed approach to administering the product intervention power regime is strongly supportive of the proposed approach

Corporate social responsibility and sustainability Navigation Show below Hide below

  • HESTA has become the first superannuation fund to be certified as carbon neutral
  • The Australian Conservation Foundation has reportedly called on nine major listed companies to review their membership of the BCA over its climate stance
  • ACCR resolution at BHP: BHP is reportedly under pressure from investors to suspend membership of groups including the Business Council of Australia and the Minerals Council?
  • In Brief | The Australian reports that Whitehaven Coal plans to report against the Taskforce on Climate Related Financial Disclosures.  The Australian quotes an unnamed Whitehaven spokesperson as saying that the company's debut sustainability report — to be released in the next few weeks — will feature an entire section on climate change, including risk factors and mitigation measures
  • In Brief | The SMH reports that HESTA has reportedly called on oil and gas companies (including Woodside and Santos) to link executive remuneration pay to the reduction of scope 3 (customer) emissions.  Reportedly HESTA has said that it considers existing arrangements at both companies to be inadequate and will consider voting against resolutions at upcoming AGMs if the companies in question fail to take further action.  'We feel the time is right to take a strong position on this. We strongly suggest that this needs to occur…If we don't see that this year we will be considering our options….We have been prepared to vote strongly where we believe that is required'  HESTA CEO Debbie Blakey is quoted as saying
  • In Brief | The SMH reports that PwC will not be seeking more work with the COAL21 project, established to advocate for low-emission coal technologies, possibly due to criticisms from environmental groups about PwC’s work for mining companies 

Financial Services Navigation Show below Hide below

  • Stop Press |  ASIC has commenced proceedings in the Federal Court of Australia against Bendigo and Adelaide Bank concerning unfair contract terms in small business contracts
  • The Insurance Council of Australia has outlined concerns about the proposed extension of UCT protections to insurance contracts in its submission on draft legislation, consumer groups have expressed strong support of the proposed changes
  • An opportunity for superannuation funds to better communicate the value of insurance in super to members and combat 'misinformation'?  A report from Metlife recommends superannuation funds take a more proactive approach to informing and educating disengaged members about their cover 
  • Not harder for small businesses to secure finance (despite perceptions to the contrary)?  The ABA says small business loan approvals are at 94% and there's no better time for small businesses to apply for loan.  ABA, COSBOA and CPA Australia have launched a website to assist prospective borrowers
  • 10% of borrowers who used a broker are in financial trouble within 12 months?  ASIC says the findings in ASIC REP 628 underline the importance of proposed broker reforms including the imposition of a best interests duty on brokers
  • Minister Jane Hume has issued a statement announcing the government plans to extend the deadline for existing financial advisers to comply with new professional/ethics/education requirements
  • AFCA has named 29 firms that have failed to pay complaint-related charges, in breach of AFCA membership requirements 
  • Increased transparency? APRA has finalised changes to its requirements for how superannuation licensees assess the outcomes they are delivering to their members (SPS 515), in addition, APRA has said it plans to publish additional superannuation fund performance data by the end of 2019, starting with MySuper funds 
  • In Brief | Fat cat/Fit cat superannuation funds report: Stockspot has released its annual report looking at the performance of Australia's largest superannuation funds.  The report rates funds based on how they performed (after fees) over five years compared to funds with similar risk.   The report lists the ten top performing (fit cat) funds and the bottom ten (fat cat funds) in an effort to encourage the public to engage with their superannuation; prompt funds to improve performance and lobby government to improve fairness and transparency
  • In Brief | ASIC has announced that Suncorp Life and Superannuation Limited (Suncorp) has recently completed a remediation program, to compensate Guardian Advice clients who had received poor advice.  In total, Suncorp paid $1.431 million
  • In Brief | The final report of the ACCC’s Foreign Currency Conversion Services Inquiry has found consumers are paying too much in foreign transaction fees: During 2017-18, individual consumers who used the big four banks to send IMTs in US dollars and British pounds could have collectively saved about AUD150 million if they had instead used a lower priced IMT supplier.  ACCC Chair Rod Sims said: 'consumers and small businesses tend to default to their usual bank to send money overseas, but this may not be the cheapest option. This is another example where consumers may end up paying more for their loyalty'

Accounting and audit Navigation Show below Hide below

  • United Kingdom | Room for improvement? Research from the UK Charities Commission has found that many UK charities are failing to provide an accurate and clear picture of their finances
  • United Kingdom | Sports Direct may potentially face an 'investor rebellion' at its September AGM as it faces the prospect of becoming the first UK listed business to fail to appoint an auditor? 
  • In Brief | Writing in The Australian, University of Sydney's Sandra van der Laan writes that the risk to independence arising from auditor also providing non-audit services to a client is a priority for the upcoming parliamentary inquiry into assurance quality.  Ms van der Laan argues the case for banning auditors from such work, arguing that it doing so would address potential conflicts of interest or threats to independence and be 'an easy win for the audit quality inquiry' 
  • In Brief | The Australian reports that a study by Chartered Accountants Australia and New Zealand Independent Auditors measuring retail investor confidence in the Australian capital markets, has found that 86% of the retail investors surveyed view independent auditors as having the most effective role in advancing protection for investors in public companies
  • In Brief | Too slow to switch auditors? The Australian reports that an analysis of ASX20 companies has found that the average tenure of auditing firms employed across the group is 22.4 years, with one outlier using the same firm for 65 years.  The Australian comments that the average term is longer than the maximum 20 years allowed under European laws and quotes Allan Fels as cautioning that the trend could lead to 'disastrous consequences' for consumers and industry.  'It’s clear that the tenure of audit firms in Australia is far too long. It’s about time it stopped. Auditors have an awesome responsibility. They are the stewards of the spending of billions of dollars and it’s crucial that this job is done properly. When it’s not done properly there are disastrous consequences for consumers, investors and businesses dealing with them. We need a higher level of improved stewardship' Mr Fels reportedly said

Risk management Navigation Show below Hide below

Whistleblowing

  • In Brief | Promoting a speak up culture: The Australian reports that AMP has appointed a whistleblower investigation officer as part of a broader $200m two-year program to strengthen risk and governance and controls.  The Australian quotes AMP CRO Jenny Fagg as saying that the appointment is an indicator of 'how seriously we take whistleblowing and to help people feel comfortable speaking up…  Our stakeholders, including our customers, expect us to manage our risk effectively and the commercial return on doing so is profound'

Technology, Cybersecurity and Privacy

  • Consumer Data Right | Extending the CDR to the energy sector: Treasury is consulting on the data sets and data access model that will apply to the energy sector
  • Consumer Data Right | The ACCC has released rules required to implement the CDR in the banking sector, separately, the government is consulting on the data sets and data access model that will apply to the energy sector
  • Banks and credit unions to potentially face fines over NPP security breaches?
  • Human error accounted for 34% of breaches according to OAIC's latest National Breaches Statistics Report

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https://www.minterellison.com/articles/governance-news-4-september-2019