ASIC launches action against Rio

THE Australian Securities and Investments Commission has joined the US Securities and Exchange Commission in launching proceedings against Rio Tinto, its former CEO Tom Albanese and its former CFO Guy Elliott.
ASIC launches action against Rio ASIC launches action against Rio ASIC launches action against Rio ASIC launches action against Rio ASIC launches action against Rio

Tom Albanese at Mining Indaba 2018. Image: Dave Hann Photography

Kristie Batten

The Federal Court proceedings relate to statements which ASIC alleges were misleading or deceptive contained in Rio’s 2011 annual report for 2011, which was signed off on and published on in March 2012.

Like the SEC proceedings, ASIC’s action relates to Rio’s ill-fated US$3.7 billion takeover of Riversdale Mining.

ASIC alleges that Rio engaged in misleading or deceptive conduct by publishing statements in the 2011 annual report, signed by Albanese and Elliott, misrepresenting the reserves and resources of the Mozambique coal assets acquired in the Riversdale deal.

The corporate watchdog said that by allowing Rio to engage in such conduct, Albanese and Elliott failed to exercise their powers and discharge their duties with the care and diligence required by law as directors and officers of the company.

ASIC is seeking declarations that Rio contravened s1041H of the Corporations Act 2001 and that Albanese and Elliott contravened s180 of the Corporations Act.

ASIC has sought from the court pecuniary penalties against Albanese and Elliott and that they be disqualified from managing corporations for such periods as the court thinks fit.

Elliott is a current director of Royal Dutch Shell, as well as a member of the British Takeovers Panel. Albanese is on the board of streaming major Franco-Nevada Corporation and was recently appointed to the advisory committee of Nevada

Investigations are continuing in relation to the circumstances surrounding the $3 billion impairment of the Mozambique assets in 2012, but ASIC said it would not be making any further comment at this time.

In October 2017, the UK Financial Conduct Authority announced it had fined Rio £27,385,400 for breaching transparency and disclosure rules by failing to carry out an impairment test and to recognise an impairment loss on the value of the coal assets in 2012.

That coincided with the launch of civil proceedings in the US.

ASIC thanked both overseas bodies for their assistance and collaboration over the matter.

Speaking at Mining Indaba last month, Albanese was unable to say much given the matter is still active..

“I feel the case is without merit and I’m going to vigorously defend it,” he said.

“Many of you in the room have worked with me and will know that I’ve always stood for transparency and strong ethics so I’ll leave it for you to be the judge.”