Two years on, how is Safe Harbour being used?

September 2019 marks the two-year anniversary since the safe harbour legislation came into effect. It is timely to reflect on the recent panel session held at TMA Australia’s National Conference 2019 in Melbourne this month.

TMA safe harbour panel: Maria O’Brien (pictured at lectern) with panelists (left to right) Joseph Hayes and Lachlan Edwards.

The discussion on safe harbour was led by Maria O’Brien of Baker McKenzie, with panelists Joseph Hayes of Wexted Advisors, Lachlan Edwards of Faraday Associates, Andrew Bantock of FTI Consulting, Louise Petschler of Australian Institute of Company Directors and Genevieve Sexton of Arnold Bloch Leibler.

Key take-aways from the discussion:

  • the safe harbour provisions are being used and used effectively
  • the safe harbour provisions are being used particularly in the listed and larger (including not-for profits) space
  • there seems to be general consensus that the safe harbour provisions are not working in the SME space
  • there has as yet been no judicial consideration of the safe harbour provisions and so no clarity on some aspects of their operation
  • some of the issues arising in practice include around boards seeking guarantees from advisers that they are “in safe harbour”, attempts to cloak dealings with the advisers with privilege and disclosure
  • Safe Harbour is in its infancy – it took years for chapter 11 to be taken up in the United States – troubled times will tell its efficacy.

TMA safe harbour panelists (left to right) Andrew Bantock, Louise Petschler and Genevieve Sexton.

TMA Australia thanks our panelists for their involvement and especially our session sponsor, FTI Consulting.

Published 26-09-19 by Categories Uncategorized
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