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https://www.minterellison.com/articles/governance-news-6-march-2019

Governance News 6 March 2019

60 mins  06.03.2019 Mark Standen, Siobhan Doherty, Kate Hilder

Governance News provides weekly summaries of key regulatory and governance developments in Australia and overseas. This week's issue includes (among other things) updates on implementation of the Financial Services Royal Commission recommendations, an overview of APRA's 2019 policy priorities, and an overview of the recently released fourth edition of the ASX Principles and Recommendations.

 

Full coverage of this weeks content is now available


Past issues are available

Boards and Directors Navigation Show below Hide below

  • AICD governance agenda announced: The AICD has announced plans to issue additional guidance on remuneration and governance issues, a consultation on directors' duties and on measures to enhance accountability, and plans to issue stronger member code of conduct 
  • Leadership changes announced at BHP and ANZ 

Diversity Navigation Show below Hide below

  • Still work to do? Though there has been some progress towards gender parity in Australian workplaces, women remain underrepresented in leadership roles, and the systemic pay gap persists according to a WGEA/BCEC report
  • In Brief | Reportedly UK Business minister Kelly Tolhust has written to the directors of FTSE 100 companies calling for them to accelerate progress in appointing directors from ethnic minority backgrounds or risk government intervention.   Reportedly, FTSE 100 companies have been asked to have at least one BAME director by 2021, the FTSE 250 by 2024

Remuneration Navigation Show below Hide below

  • Voluntary ethnicity pay gap reporting in the UK: 15 UK organisations (including the BoE) have reportedly committed to reporting their ethnicity pay gaps
  • NAB has reportedly made changes to incentives for non-executive staff as 'another step' in a broader process review of remuneration structures

Shareholder Activism Navigation Show below Hide below

  • Recent developments: Climate activists have reportedly targeted QBE, Facebook is reportedly nearing a settlement with activists Elliott and Starboard, Caesars is also reportedly nearing a settlement with activist Carl Icahn

Other shareholder news Navigation Show below Hide below

  • Top Story | Revised ASX Corporate Governance Principles and Recommendations released: The controversial 'social licence to operate' terminology has been abandoned in the final version but the intent remains embedded?

Regulators Navigation Show below Hide below

  • Top Story | ACCC's 2019 compliance and enforcement priorities
  • APRA policy priorities for 2019 announced: APRA will focus on 'strengthening the prudential framework to lift the bar for industry in terms of governance, remuneration practices, and the management of non-financial risks'
  • Climate is a material risk? In her address to the ANU 2019 Climate Update, ASIC Commissioner Cathie Armour reiterated that climate remains an area of focus for ASIC and outlined the regulator's views on the issue
  • In Brief | ASIC reportedly plans to use AI to improve the way in which it identifies problematic financial advice and misleading internet advertisements for financial products.  However, the quality of data will first need to improve in order to the technology to be effective.  ASIC Commissioner John Price said 'What natural language processing does not do is transform poor-quality data into high-quality data, and that's a challenge not only for us but the industry more broadly'
  • In Brief | ACCC digital platforms inquiry update: The ACCC says it is continue to analyse issues about the digital advertising supply chain affecting Australian advertisers (including how advertising is verified on the 'major digital platforms' 
  • In Brief | The Chair of the UK Competition and Markets Authority has proposed a range of reforms to competition and consumer protection law and policy to 'increase the scope and speed at which the CMA can act to address new and emerging forms of consumer detriment' (eg challenges posed by the growth of the digital economy and declining public confidence in market competition).  These include proposals to enhance its powers to intervene in certain markets, business conduct and deals and strengthen individual and corporate accountability for non-compliance, while also limiting the checks on its activity under the appeal process

Financial Services Navigation Show below Hide below

Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (Financial Services Royal Commission) 

  • Update on the government's actions to implement the Financial Services Royal Commission's Recommendations 
  • The ABA 'has not yet reached a view' on whether to implement FSRC Recommendation 1.10 (amend the definition of 'small business' in the Banking Code')
  • The Treasurer has directed ASIC to investigate grandfathered conflicted remuneration
  • Not constitutionally valid?  The AIOFP has reportedly advised its members that it is prepared to challenge the constitutional validity of banning grandfathered commissions, separately the AFA has also said that any attempt to legislate a ban may lead to a constitutional issue
  • In Brief | 'ASIC’s enforcement approach will have at its centre a focus on deterrence, public denunciation and punishment of wrongdoing by way of litigation' ASIC Commissioner John Price has said
  • In Brief | ASIC's take on lessons from the Financial Services Royal Commission for the regulation of health practitioners: 'understanding how and why people have behaved, and what has enabled them to behave in this way provides some critical lessons for all regulators' ASIC states
  • In Brief | Sunsuper has reportedly announced it  has capped the fees payable to a financial adviser via a clients' superannuation account to combat unnecessary balance erosion.  The change is consistent with both ensuring compliance with the sole purpose test and with the fund's duty to act in the best interests of members, Sunsuper head of advice and retirement Anne Fuchs is quoted as stating

Insurers

  • In his address to the ICA Conference, Assistant Treasurer Stuart Robert outlined the government's proposed response to the Financial Services Royal Commission Recommendations as they apply to insurers
  • Consultation on government's proposed approach to implementing FSRC recommendation 4.8: the exclusion of insurance claims handling from the definition of 'financial service' (for both life and general insurance products)
  • No surprises for insurers in the FSRC recommendations? APRA Deputy Chair John Lonsdale has called on insurers to take the opportunity to proactively address concerns about products/services, advised (those who have not already done so) to undertake self-assessments and flagged that the sector can expect APRA to be 'less patient'
  • Suggested steps for general insurers to take now: ASIC Commissioner Sean Hughes has encouraged insurers to proactively implement the Financial Services Royal Commission's recommendations

Other Developments

  •  ASIC's latest report on its assessment of licensing and professional registration applications shows that less than half of the 2,879 applications considered during July 2017 to June 2018 were approved
  • In Brief | The Australian reports that Treasurer Josh Frydenberg has requested APRA consider whether it has 'appropriate powers' to ensure union appointed superannuation trustees do not pursue political objectives at the expense of members' best interests

Accounting and audit Navigation Show below Hide below

  • United Kingdom | The FRC has proposed changes to the going concern standard for auditors for consultation.  The aim of the reforms is to raise audit quality
  • United Kingdom | The FRC has issued a position paper setting out next steps for the post implementation review of the 2016 auditing and ethical standards.  The paper outlines how the FRC’s work on the standards responds to certain recommendations made by the Kingman Review, how proposals are being developed to support the Competition and Market Authority’s Market Study of the UK Statutory Audit Market; and how revisions made to the international Code of Ethics will be incorporated into the FRC Ethical Standard.  The paper also includes comments on the changes that will take place to UK law in the event that the UK exits the European Union with no deal or transitional period at 11pm on 29 March 2019
  • In Brief | The AFR reports that ASIC is considering whether it should publicly name accounting firms whose audit quality falls below benchmarks as part of its new regulatory approach.  Reportedly, ASIC has said it will consult widely on any changes, including with accounting firms and audit oversight body the Financial Reporting Council (FRC) 
  • In Brief | Shadow Treasurer Chris Bowen has reportedly said that if elected, the Federal Labor party will extend the AML/CTF rules to accountants, lawyers and real-estate agents  

Risk management Navigation Show below Hide below

  • Top Story | The implications of new Whilstleblower laws for industry
  • In Brief | The NSW ombudsman's annual report on whistleblower legislation has identified cases where managers in the NSW public sector are suffering from 'blind spots' about whistleblowers and instances in which they 'failed to appreciate that their actions may be perceived as a reprisal' against whistleblowers.  The report identifies a range of actions that public authorities, the ombudsman's office and the government can take to help managers ensure they make appropriate decisions
  • In Brief | According to media reports a former National Australia Bank executive is expected to be charged with more than 50 offences relating to an alleged $40 million fraud, after handing herself in to police following a whistleblower report.  NAB has issued a statement in response, stating that the bank is cooperating with the investigation and stating that it is 'the victim in this matter. Police have confirmed that no one at NAB is under investigation…and there is no suggestion of any wrongdoing by anyone at NAB'

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https://www.minterellison.com/articles/governance-news-6-march-2019

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