This is a service specifically targeted at the needs of busy non-executive directors (NEDs). We aim to give you a ‘heads up’ on the things that matter for NEDs in the week ahead – all in two minutes or less.

In this edition, we discuss the publication of the third edition of Not-for-Profit (NFP) Governance Principles by the Australian Institute of Company Directors (AICD), the announcement of major reforms to Australia’s foreign investment framework, and proceedings commenced by the Australian Securities and Investments Commission (ASIC) against Magnis Energy Technologies Limited (ASX: MNS) (Magnis) and its managing director for alleged disclosure failures. We also examine the reasons for the Takeovers Panel’s decision to decline to make a declaration of unacceptable circumstances in relation to the affairs of Vintage Energy Limited (ASX: VEN) (Vintage), and the application to the Takeovers Panel in relation to the affairs of an unlisted company, Mount Isa Mines Limited (MIM). Further we examine the Federal Court of Australia’s finding that BPS Financial Pty Ltd (BPS) engaged in unlicensed conduct in relation to a non-cash payment facility involving crypto-assets. 

In Risk Radar, we examine the global movement against greenwashing and how recent news in aviation greenwashing indicates the increasing spotlight on this issue.

GOVERNANCE

AICD publishes updated NFP Governance Principles. On 2 May 2024, the AICD published the third edition of its NFP Governance Principles, which are a key source of guidance for directors of Australian NFP entities, including charities. Key updates in this edition reflect a greater focus in the current governance environment on organisational culture, stakeholders, and sustainability. Further, a governance checklist for smaller NFP entities has been introduced, together with case studies from various senior directors. See AICD article and AICD NFP Governance Principles.

REGULATION

Federal Government announces major reforms to Australia’s foreign investment framework. On 1 May 2024, the Federal Treasurer, Dr Jim Chalmers, announced the Federal Government’s plan to reform Australia’s foreign investment regime. The proposed changes do not affect the substance of what transactions are subject to Australia’s foreign investment regime, but rather target the process of applications and monitoring compliance going forwards. As discussed in a recent G+T Knowledge article, the two main areas of focus of the reforms are: (1) taking a more risk-based approach to the assessment of applications, to ensure that resources are devoted to the highest risk applications and capital can flow to low-risk transactions more quickly; and (2) further enhancing compliance. To support these changes and improve transparency, the Federal Government also released an updated foreign investment policy document outlining the new reforms in more detail. See Treasury media release and updated foreign investment policy document.

ASIC commences proceedings against Magnis and its chairman for disclosure failures. On 30 April 2024, ASIC announced that it had commenced civil penalty proceedings in the Federal Court of Australia against Magnis and its executive chairman, Mr Frank Poullas. ASIC alleges that Magnis did not make corrective disclosure in a timely manner after becoming aware that its self-described “flagship” lithium-ion battery manufacturing facility could not produce cells at a rate of 1 GWh per year (equivalent to approximately 10,000 cells per day), as previously claimed. ASIC further alleges that Mr Poullas breached his duties as a director by failing to ensure that Magnis met its disclosure obligations, and that both Magnis and Mr Poullas engaged in conduct that was misleading or likely to mislead. Magnis’ securities have been suspended from quotation on the ASX since 8 December 2023. See ASIC media release.

LEGAL

Takeovers Panel declines to make a declaration of unacceptable circumstances in relation to the affairs of Vintage. On 1 May 2024, the Panel announced it had declined to make a declaration of unacceptable circumstances in relation to the affairs of Vintage. As discussed in a previous edition of Boardroom Brief, Keybridge Capital Limited, a substantial shareholder in Vintage, sought a declaration of unacceptable circumstances on the basis that (among other things) a capital raising sought to be undertaken by Vintage was designed to frustrate resolutions at an upcoming requisition meeting. The review Panel did not consider there to be any reasonable prospect that it would make a declaration of unacceptable circumstances and, accordingly, decided not to conduct further proceedings. See Vintage Energy Limited [2024] ATP 5.

Takeovers Panel receives application in relation to the affairs of MIM. On 6 May 2024, the Panel received an application from a shareholder of MIM. MIM was undergoing an initial public offering (IPO) process which was overseen by Mr David Williams, Executive Chair and CEO of MIM. The applicant submits, among other things, that two directors of MIM insisted that Mr Williams resign and another shareholder requisitioned an in-person meeting to consider the removal of Mr Williams, in circumstances where the notice of meeting did not disclose to shareholders why they should vote in favour of the resolution nor why virtual attendance facilities were not provided. The Board of MIM resolved to terminate Mr Williams as Executive Chair and CEO. The applicant submits, in effect, that the series of events were targeted towards putting a stop to progressing the IPO and changing the composition of the Board and management of MIM, to the exclusion of other shareholders. A sitting Panel has not been appointed at this stage and no decision has been made whether to conduct proceedings. See Takeovers Panel media release.

Federal Court finds BPS engaged in unlicensed conduct in relation to a non-cash payment facility involving crypto assets. On 3 May 2024, the Federal Court of Australia published the reasons for Downes J’s decision in ASIC v BPS Financial Pty Ltd [2024] FCA 457. Justice Downes found that BPS had operated without an Australian Financial Services Licence and was not authorised to issue or provide financial advice about the Qoin Wallet, a non-cash payment facility which used a crypto-asset token called ‘Qoin.’ Her Honour also found that BPS had engaged in misleading or deceptive conduct concerning Qoin Wallet such as falsely representing that Qoin Wallet was officially registered, that Qoin Wallet could be used to purchase goods and services from an increasing number of Qoin Wallets, and that Qoins could be exchanged for other crypto-assets or currency. See ASIC v BPS Financial Pty Ltd [2024] FCA 457.

RISK RADAR

Overseas evidence points to major greenwashing crackdown. Greenwashing – the ‘practice of misrepresenting the extent to which a financial product of investment strategy is environmentally friendly, sustainable or ethical’ – once again takes centre stage in the spotlight of corporate regulatory concern and public focus. The past week has been marked by regulators doubling down on holding non-compliant entities to account around the globe, potentially heralding increasing international alignment on disclosure requirements. 30 April 2024 saw the European Commission and the Network of Consumer Protection Cooperation, led by Belgian, Norwegian and Spanish consumer affairs authorities, announce the launch of an investigation into 20 airlines, identifying several types of potentially misleading green claims – to the effect that CO2 emissions caused by a flight could be offset by climate projects or through the use of sustainable fuels, to which consumers could contribute by paying additional fees – in breach of European Union (EU) consumer law (see EU media release). These developments in the global greenwashing space serve only to underscore the key message in a speech by ASIC Chair Mr Joe Longo’s on 2 May 2024 that corporate regulators – including ASIC – are focussed on prosecuting inaccurate or misleading statements relating to greenwashing (see speech).