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Adoption of ASX Corporate Governance Principles and Recommendations 4th Edition

The ASX expects that governance practices are to be measured against the recommendations in the ASX Corporate Governance Council’s, Corporate Governance Principles and Recommendations 4th Edition (PDF 2MB) commencing with this financial year, 1 July 2020 to 30 June 2021.[1] For those ASX listed entities that chose not to adopt early the Principles and Recommendations in the 4th Edition, it is important to now review and where necessary revise, their corporate governance investor facing documentation, such as Board and Committee Charters and the Code of Conduct and other Policies (and any underlying governance practices to these charters and policies) in order to ensure that, where applicable, they are up to date with the 4th Edition.

The Corporate Governance Statement to be provided to ASX for this reporting season will need to be clear on whether the ASX-listed entity has continued to follow the Principles and Recommendations in the 3rd Edition for the financial year that has just passed, or whether the entity is reporting against the 4th Edition (on the basis of early adoption).

The technologisation of the AGM

As a response to COVID-19, the Treasurer announced on 5 May 2020 certain temporary amendments to the Corporations Act 2001 (Cth) which allow, among other things, companies to use technology for the purposes of holding AGMs (and other meetings) so to remove the requirement for physical attendance (Temporary Changes).[2] ASIC followed shortly after issuing guidance on AGMs held during the COVID-19 pandemic, effectively encouraging companies to hold virtual AGMs.[3]

The Temporary Changes are due to expire on 21 March 2021 after the Treasurer extended the measure on Friday 31 July 2020, so they can now fully accommodate the FY20 AGM season (for those entities with a 30 June year-end). The extension was announced after the recent aggressive spike in COVID-19 infections around the country.

Financial reporting

ASX-listed entities with balance dates up to and including 7 July 2020 can take advantage of the extended reporting and AGM timing relief provided by the regulators (Regulatory Relief).[4] Should an ASX-listed entity seek to rely on the extended reporting and AGM deadlines, then it will need to notify the ASX in advance of that deadline.

As a reminder, the following timelines apply:

Reporting requirement
Timing for lodgement with ASX ASX listing rules Commentary
Appendix 4E* (Preliminary final report) By no later than 31 August 2020. 4.3A; 4.3B; 4.3D There is an existing obligation under the ASX listing rules to immediately notify ASX if the ASX-listed entity becomes aware of any material circumstances which are likely to affect the results or other information contained in the preliminary final report.
Annual Documents**

By no later than 30 September 2020.

However, with the Regulatory Relief this deadline has been extended to 30 October 2020.

4.5.1; 4.5.2; 4.5.3

In order to obtain the benefit of the ASX Class Waiver for the extended reporting deadline, the ASX-listed entity must:

  • still lodge its Appendix 4E on time; and
  • at the same time of lodgement of the Appendix 4E, notify the market that it is relying on the extended reporting deadline in respect of its Annual Documents and that it will immediately notify the market if there is a material change between the results set out in its Appendix 4E and the Annual Documents.
Appendix 4G and Corporate Governance Statement

Typically, by no later than 30 September 2020 (if being lodged at the same time as the Annual Documents).

However, with the Regulatory Relief this deadline has been extended to 30 October 2020 (consistent with the extended deadline for submission of the Annual Documents).

4.7.3 and 4.7.4 and related commentary These documents are typically lodged with the ASX at the same time as lodgement of the Annual Documents (or otherwise at the same time as lodgement of the annual report).
Annual General Meeting

By the end of November 2020.

However, with the Regulatory Relief, by the end of January 2021.

   


* Except a mining and exploration entity or an oil and gas entity.

** Annual Documents means the annual financial report, directors’ report and auditor’s report.

Our KPMG Law Team work closely with ASX listed entities in relation to all aspects of their governance, reporting and compliance requirements, and would be pleased to assist you to get ready for your reporting season.

Footnote

[1] Note: for ASX-listed entities with a 31 December year-end, the Principles and Recommendations in the 4th Edition became effective for the financial year commencing 1 January 2020
[2] Corporations (Coronavirus Economic Response) Determination (No. 1) 2020
[3] ASIC guidelines for investor meetings using virtual technology.
[4] ASIC Corporations (Extended Reporting and Lodgment Deadlines – Listed Entities) Instrument 2020/451; ASX Class Waiver Decision – Extended Reporting and Lodgment Deadlines; 20-113MR ASIC to further extend financial reporting deadlines for listed and unlisted entities and amends ‘no action’ position for AGMs (Regulatory Relief). Note however, the Regulatory Relief in relation to the reporting deadlines is not extended to foreign companies.

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