Corporate and Regulatory
Companies permitted to hold virtual and hybrid members meetings during COVID-19
In March 2020, ASIC recognised that social distancing restrictions would generally prohibit the ability for public companies to hold face-to-face AGMs where required by the Corporations Act 2001 (Cth) (Corporations Act) and / or a company's constitution. However, without the ability to amend the Corporations Act or constitutions to facilitate the holding of virtual and hybrid AGMs, ASIC could only issue a 'no action' notice, meaning that ASIC agreed not to pursue companies for failing to hold face-to-face meetings.
The Federal Treasurer has now taken steps to temporarily amend the Corporations Act to allow all companies to hold virtual and hybrid AGMs and other members meetings between 6 May 2020 and 6 November 2020. The Corporations (Coronavirus Economic Response) Determination (No. 1) 2020 (Cth) (Determination) amends all meeting provisions in the Corporations Act, and any provision that allows members to enforce a provision in a company's constitution, to allow members meetings to be held without the need for physical attendance provided that the technology used for the meeting "gives all persons entitled to attend a reasonable opportunity to participate". Further, the Determination provides that for virtual and hybrid meetings:
- quorum and other participation and attendance requirements will be satisfied where persons participate virtually;
- votes must be taken via a poll using technologies that allow members to vote in real time and in advance of the meeting;
- any requirement to allow members attending the meeting to speak may be complied with through the virtual technology;
- proxies may be appointed using technologies specified in the meeting notice (and the Chair must treat duly appointed proxies in the same way that they would be treated at a face-to-face meeting;
- a notice of meeting and other information for the meeting may be provided to members via technology; and
- a notice of meeting must include information on how members can participate in the meeting (including voting, speaking and asking questions).
ASIC has also announced that where companies hold virtual or hybrid members meetings, ASIC will be paying particular attention to whether members are provided with a reasonable opportunity to participate in the meeting. This includes whether the technology platform for holding the meeting allows members to participate uninterrupted. Members should be given a reasonable opportunity to ask questions of the board and have the ability to engage in live voting following the conclusions of debates. If the company will select members' questions to answer in advance of the meeting, ASIC expects that this selection be done in a balanced and transparent manner. ASIC also expects that back-up solutions will be communicated to members in advance to accommodate for technical issues arising, but if these issues prevent members from being able to reasonable participate, ASIC expects that the meeting will be adjourned until the issues are resolved.
Depending on the success of these temporary amendments during the course of the 2020 AGM period, and any cost savings they provide for businesses that would normally have to accommodate large face-to-face meetings, we could see a movement for these amendments to be made permanent post COVID-19.
Corporations Act amended to allow electronic execution during COVID-19
In recognition of the challenges presented by social distancing restrictions on the ability for companies to execute documents with the use of a common seal, the Federal Treasurer has made temporary amendments to the Corporations Act to facilitate the use of electronic execution.
From 6 May 2020 to 6 November 2020, the Determination will permit companies to execute documents under section 127 of the Corporations Act without the use of a common seal. Companies may now execute corporate documents provided that they sign the document in accordance with the Electronic Transactions Act 1999 (Cth) and use a method that reliably identifies them and their intentions regarding the contents of the document. In practice, this means that directors may execute documents using either signature authentication software like AdobeSign, or by way of affixing an e-signature to the document followed by an email confirming that they have consented to their e-signature being affixed to the document. Alternatively, the Determination allows directors to sign either a copy or a counterpart of the document in a physical form, rather than countersigning the same version of the document as they ordinarily would. The Determination also allows parties to rely on section 129 of the Corporations Act to assume that a document has been validly executed where it appears to have been executed in line with these temporary amendments.
Provided that these temporary amendments prove favourable for both corporates and government, the Determination could turn into a trial run for making these amendments to the Corporations Act permanent post COVID-19.
Implementation of the Financial Services Royal Commission recommendations deferred
The Federal Treasurer announced on 8 May 2020 that in light of COVID-19, the government would defer all phases of implementing the recommendations from the Financial Services Royal Commission by 6 months. As a result of this deferral:
- all recommendations that were to be introduced to Parliament by 30 June 2020 will now be introduced by December 2020;
- all recommendations that were scheduled to be introduced to Parliament by December 2020 will now be introduced by 30 June 2021; and
- the commencement dates in all draft exposure legislation that were released prior to the COVID-19 outbreak will be extended by 6 months.
ASIC has similarly announced that it will be deferring the commencement of the mortgage broker reforms from 1 July 2020 to 1 January 2021 and the commencement of the design and distribution obligations scheme from 5 April 2021 to 5 October 2021.
In announcing the deferral, the government recognised that while there is a need to prioritise the consumer focused objectives of the recommendations, COVID-19 has presented a number of challenges for the financial services sector. This deferral is intended to allow financial services entities to focus their attention and resources to their respective COVID-19 responses and in planning for the post COVID-19 economic recovery.
Sports and Entertainment
The AHPPC statement of 5 May 2020 sets out a road map for the resumption of both community and professional sports in Australia. The AHPPC has prepared 15 principles for the resumption of sport and recreation activities. Click here to review the 15 principles. The AHPPC has also endorsed the Australian Institute of Sport's Framework for Rebooting Sport in a COVID-19 Environment, click here to access it. The AIS has prepared a staged guide for each sport and recreational activity which corresponds with the respective easing of government mandated restrictions relating to social contact. The regime requires that for the resumption of sports and recreational activities to occur, activity specific stringent, public and personal health measures will need to be observed.
The subsequent easing of restrictions announced by the Federal Government on 8 May and NSW government on 10 May indicate that elite and community sportspeople can resume organised training in groups no larger than 10 on 15 May 2020. The progression to further easing and the potential recommencement of pre-Covid-19 training regimes and resumption of competitions will be considered by the Federal Government before the end of May 2020.
Environment and Planning
NSW Planning System
On 30 April, Planning and Public Spaces Minister Rob Stokes announced that The Environmental Planning and Assessment Regulation 2000 had been amended to set out and clarify the requirements for all planning panels holding public hearings and meetings using telephone and video conferencing.
The announcement can be found at: https://www.dpie.nsw.gov.au/news-and-events/technology-keeps-participation-in-planning-system-during-covid-19.
The amendment will allow the Department of Planning Industry, and Environment, the Independent Planning Commission, Sydney district and regional planning panels, and local council planning panels to conduct and facilitate hearings and meetings electronically.
On 5 May 2020, Minister for Customer Service Victor Dominello announced that the NSW Government was investing $9.7 million to enhance its ePlanning platform.
The online platform allows homeowners and businesses to lodge their development applications online and will have access to up-to-date data to plan, track and improve assessment processes.
The funding (which aims to have all councils online from 1 July 2020) includes the following essential upgrades:
- expanding the digital services to improve integration between councils, state agencies and the Department;
- developing and implementing a service to allow applicants to lodge planning proposals in addition to DAs and process payments online;
- allowing the Land and Environment Court access to the system to assess and determine applications before the court;
- providing guidance, training and technical support to councils to get them on the system;
- developing comprehensive reporting and analytics to track progress; and
- upgrading the system to support increased demand.
It will be mandatory for all greater metropolitan councils to process all applications via ePlanning by the end of 2020.
Streets as Shared Spaces Program
On 8 May 2020, Planning and Public Spaces Minister Rob Stokes announced three trial "pedestrianisation" programs in an attempt to provide more space for social distancing.
The three trial programs include:
- Eastern Harbour City
- Central River City
- Western Parkland City
With the increasing demand for more public space, the Streets as Shared Spaces program not only offers more space for communities but also easy and safe access to it. The program also aligns with the NSW Government's target to increase the proportion of homes in urban areas within 10 minutes' walk of quality green, open and public space by 10 percent by 2023.
Public Health and Wellbeing Infringements
The National Cabinet met on Friday 8 May 2020 to map out how the economy will be reopened, with the intention to have Australia's economy completely re-opened by July 2020. This will occur in three stages, contingent on Australia having adequate capacity to carry out testing, detect contact with confirmed cases and for the local health systems to respond to outbreaks. Under Stage One of the Roadmap to a COVIDSafe Australia (Roadmap), gatherings will increase to ten people in public places. Restaurants, cafes and shopping centres will re-open, as well as select other public spaces, such as libraries, community centres and playgrounds. However, a full return to the workplace is not envisaged until Stage 3 of this Roadmap. Similarly, while Australia and New Zealand discussed the implementation of a Trans-Tasman COVID-safe travel zone on 5 May 2020, this will not be considered more seriously until Australia reaches Stage 3 of the Roadmap.
Under Stage One, workplaces are required to develop a COVIDSafe plan (the National Cabinet has not yet announced details of what this will entail). The language has shifted from requiring employees to work from home to "work from home if it works for you and your employer". Flexible arrangements are still expected, as Australians are being asked to avoid peak hour public transport under Stage One.
The States and Territories will be implementing this Roadmap subject to their own planning and assessment of conditions. South Australia has implemented Stage One today (Monday 11 May 2020). In contrast, NSW has adopted a tailored approach in that it will implement Stage One on Friday 15 May 2020 but will not be permitting regional travel. Previously, NSW also granted an exemption to spas, nail salons, beauty salons, waxing salons and tanning salons. These businesses may now re-open for the purpose of selling goods only. Restrictions on the provision of such services continue. Queensland will also be commencing its Stage One lifting of restrictions on 15 May 2020, which will also allow recreational travel of up to 150km for day trips. Queensland has further announced that Stage Two will not occur until 12 June 2020. In contrast, the Northern Territory is well ahead of schedule, as most restrictions are anticipated to be removed by 5 June 2020.
Ahead of implementation of Stage One, which will see child care centres, primary and secondary schools re-open (subject to State and Territory planning), the National Cabinet has also adopted the Australian Health Protection Principal Committee statement on risk management for re-opening boarding schools and school-based residential colleges (AHPPC Statement). In particular, the AHPPC Statement sets out that as these facilities prepare to re-open, they need to ensure that they implement strategies to limit risk. These include reducing numbers of students at the facilities, meeting the current recommendations for physical distancing, infection prevention and control, and implementing arrangements for case identification, quarantine and contact tracing.
Despite the easing of restrictions, the National Cabinet has continued to remain concerned with the potential of an outbreak in the residential aged care sector. This is particularly the case in light of the highly publicised situation surrounding the Anglicare Newmarch House, which has recorded at least sixteen deaths. In this regard, the National Cabinet has endorsed a draft Code of Conduct on Pandemic Procedures for residential aged care facilities (Draft Code). The Draft Code has received wide endorsement from the peak bodies which represent aged care providers, who were also involved in its development. Similarly, the States and Territories have continued to amend and clarify their public health orders with regard to residential aged care facilities, including, most recently, Tasmania.
Queensland has also considered another area of concern in its public health orders, which was raised by the National Cabinet in April 2020. On 1 May 2020, the Seasonal Workers Health Management Plans Direction commenced, which requires operators of businesses that hire seasonal workers, such as agribusiness, commercial fisheries, labour hire firms and accommodational facilities, to have a health management plan in place. This health management plan needs to concern how the transmission of COVID-19 can be prevented among employees, seasonal workers and the community.
The orders and directions can be accessed at the following State and Territory websites (as at 11 May 2020):
- Victoria: https://www.dhhs.vic.gov.au/state-emergency
- Tasmania: https://coronavirus.tas.gov.au/resources
- Queensland: https://www.health.qld.gov.au/system-governance/legislation/cho-public-health-directions-under-expanded-public-health-act-powers
- NSW: https://www.legislation.nsw.gov.au/#/
- South Australia: https://www.covid-19.sa.gov.au/emergency-declarations
- Western Australia: https://www.wa.gov.au/government/document-collections/covid-19-coronavirus-state-of-emergency-declarations
- ACT: https://www.covid19.act.gov.au/help-and-advice/public-health-directions
Digital and Privacy Risk
Australian Cyber Security Centre (ACSC)
On 8 May 2020, the ACSC published an advisory warning to the health sector to ensure that their networks are protected from malicious cyber activity. With the outbreak of COVID-19, health information has increased in value and priority across the globe. As a result, there has been a significant increase of disruptions to health sector essential services due to cyber incidents. The ACSC warns that malicious cyber actors are actively targeting the health sector and have made a number of recommendations on preventative measures.
The key recommendations of the ACSC, which are equally relevant across all sectors, include:
- enabling multi-factor authentication;
- blocking macros and only allowing vetted and approved macros;
- updating devices with regular software patches to ensure any vulnerabilities are consistently fixed;
- making regular backups of critical systems and databases and ensuring these are separate from corporate computers and securely stored;
- raising awareness and educating staff members to mitigate the risk of attacks through email compromises;
- implementing email content scanning;
- implementing network segregation and segmentation so that any breaches can be effectively contained; and
- develop / update incident response plans to ensure that the organisation as an essential service especially during COVID-19 can be up and running as soon as possible following an incident.
The advisory can be found at: https://www.cyber.gov.au/threats/advisory-2020-009-advanced-persistent-threat-apt-actors-targeting-australian-health-sector-organisations-and-covid-19-essential-services.
Privacy Awareness Week
Privacy Awareness Week is an annual initiate by the Office of the Australian Information Commissioner (OAIC). This year's focus was on 'rebooting privacy'. The COVID-19 outbreak has resulted in a major shift for organisations to remote working, creating even more reliance on emails. With this in mind, Clyde & Co wrote an extensive article discussing the OAIC's current approach to email data handling practices (which is high on the agenda), and set out how organisations can 'reboot their privacy' to reduce their overall risk in respect of email usage. One key message is that if data does not exist, it cannot be misused.
Our recommendations for a more robust preventative ecosystem to appropriately deal with email data handling include:
- engaging in a data mapping exercise to identify the types of data being held, the statutory retention requirements, and where applicable, delete or de-identify data no longer in use;
- ensuring that sensitive personal information is stored securely, such as through secure file sharing applications (as opposed to emails);
- adopting journaling and archiving strategies to track and then remove emails from mailboxes to limit the potential for misuse should that mailbox be compromised; and
- ensuring that email security controls are properly implemented by external IT / managed service providers.
Our full article can be found at: https://www.clydeco.com/insight/article/paw-2020-reboot-your-privacy-by-improving-email-data-handling-practices.
Aged Care Visitor Access Code
An inevitable consequence of mandated social isolation is a deterioration in the mental and physical health of populations centres. Perhaps this is no where more acutely seen in the deterioration of mental health within the aged care community.
On 15 March 2020 the Australian Federal Government instituted rules around social isolation. These rules were then made enforceable by state governments the next day.
On 29 March 2020 the Federal Government released strong guidance about persons over the age of 70 self-isolating.
In order to assist in maintaining/improving the mental health of aged care residents a Visitor Access Code is being developed to ensure a nationally consistent visitation policy to residential aged care homes during the COVID-19 crisis.
The Code aims to apply a compassionate and consistent visitor policy that, at the same time, continues to minimise the risk of COVID-19. Some of the measures in the draft Code include:
- Visitors with any cold/flu or other COVID-19 symptoms cannot visit;
- Visitors may be required to stay for only short periods (a flexible and compassionate approach to visitor times should be enacted, including for people who work);
- Families and friends can deliver letters, parcels, gifts, food and communication devices;
- Residents can continue to use public spaces within the facility, including outdoor spaces;
- Access to medical and related services must be maintained, and the use of telehealth options utilised as appropriate; and
- Regular electronic (or other) means of communication will be utilised to ensure families and residents will be provided with regular and responsive communications.
The draft Code is currently endorsed by several leading consumer advocacy groups (Carers Australia, Council on the Ageing Australia etc) and aged care provider peak bodies (Anglicare Australia, UnitingCare Australia and Catholic Health Australia).
The draft code is currently the subject of community consultation and submission. Those with views on the draft code are encouraged to submit their recommendations by Thursday, 7 May 2020.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.