The Essential Director Update_Alan Cameron
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The Essential Director Update_Alan Cameron
- 1. The Essential Director Update:13 Alan Cameron, AO
- 2. The Essential Director Update:13 Agenda • Social media, and IT governance • ASX Corporate Governance Council Principles • Bribery and Corruption • Sporting bodies • Updates • In the spotlight.. • Questions - minutes and meetings? 2
- 3. The Essential Director Update:13 Social media p8 • Seafolly v Madden • Fosters and Diageo • Linfox v Stutsel 3
- 4. The Essential Director Update:13 Social media p10 • ASIC advice for listed companies – Monitor well known social media feeds on a regular basis – And use social media to inform investors – But only after sending price sensitive material to ASX first – Unlike the US SEC 4
- 5. The Essential Director Update:13 Social media – some quirks? • Mike Smith of ANZ links in to social media and gives it a 'like' – but in global influencer program! – LinkedIn "hot", raising $1bn.. • SMH report, August 2013 – Facebook linked to a decline in wellbeing – “could be spreading unhappiness through society.” 5
- 6. The Essential Director Update:13 Are you LinkedIn? • Lucy Kellaway in AFR, 20 August 2013 – Of all the things about LinkedIn that I do not understand, this craze of “endorsing” one another’s “skills” is the most baffling. – Since last September an orgy of endorsing has been going on. As of the end of July the number had reached 2 billion. Every week 50 million more are being handed out. 6
- 7. The Essential Director Update:13 IT Governance p11 • IT now a critical issue for boards – Managing IT projects – NBN – BYOD – Cyber security – • Mandatory data breach notification - p6, from March 2014 • Physical security measures around notebooks, tablets and phones 7
- 8. The Essential Director Update:13 ASX Corporate Governance Principles p15 – Use of websites – Risk management – Disclose economic, environmental and social sustainability risks. – Commentary on acting ethically and responsibly • Employment of people with disability – Criteria for a director to be considered “independent” amended: • service on the board for more than 9 years as an indicator that a director may not be independent.. – Clawback policy and diversity issues 8
- 9. The Essential Director Update:13 Dominant CEOs in Australia • All gone? – possibly not • Leucadia National Corporation criticism of Andrew Forrest – Forrest's personality dominated the board; the other directors more inclined to follow his lead as to appropriate amount of equity, debt, leverage and the rate at which to expand, as opposed to our more conservative view. – Herb Elliott - "A false claim. Odd occasions when board had different view to Andrew – he always, after strong discussion, accepted board advice." – Ian Burston – "Twiggy always spoke his mind very eloquently and pursued the point relentlessly - .. domination.. is really just a personal view " 9
- 10. The Essential Director Update:13 This, is a dominant CEO - Steve Jobs – Thursday of first week back as CEO, convened board meeting to get board to lower exercise price of staff stock options. Directors balked, asked for time to do legal and financial study. – He said, "you don't do this, I'm not here on Monday." Next day, they agreed . – Jobs had won, but still said board had to resign, except for the chair – Board aghast, but could not afford for him to storm off, but nor was remaining a director very enticing. – So board acquiesced, all but chair agreed to leave, asking only for one more to stay – "to assist the optics". – Jobs said later "they were an awful board, a terrible board.." 10
- 11. The Essential Director Update:13 Bribery and corruption p16 • Tough new laws in the UK and elsewhere – UK and US laws often apply to non UK and non US companies • Australia – Criminal Code (Cwth) – bribery of foreign official carries 10 years, fines up to $1.7m for individuals, $17m for companies – Facilitation payments - still allowed in Australia • requires record keeping • defence [was] likely to be abolished – Bad report by OECD last year; AFP has signalled more enforcement 11
- 12. The Essential Director Update:13 Recent press or other reports.. • BHP Billiton, Rio, Redflex, AWB, Glaxo Smith Kline and JP Morgan Chase in China, Leighton • BHP Billiton – update • Consequences may not be "legal", but financial and reputational - World Bank sanctions on Sinclair Knight Merz, GHD 12
- 13. The Essential Director Update:13 Importance of "corporate culture " • Criminal Code (Cwth) • Companies can commit criminal offences if they expressly, tacitly or impliedly authorise or permit the offence • Shown by proving – – board did it, or – a high managerial agent did – or – corporate culture directed, encouraged, tolerated or led to non compliance, or – company failed to create or maintain a corporate culture that required compliance with the law • An attitude, policy, rule, course of conduct or practice existing within the company generally or in the part where the activity occurs 13
- 14. The Essential Director Update:13 Parent company responsibility? • Reserve Bank, re its subsidiary Note Printing Australia and 50% owned affiliate, Securency (sub judice) • Independent report concluded • Bank processes for oversight and reporting, broadly consistent with usual practice at the time. • With the benefit of hindsight, could have been more oversight, which may have detected alleged illegal payments earlier, but the Bank's oversight at the time was not inappropriate. • Governor of RBA – with the wisdom of hindsight, older and more scarred as we now are, … there should have been more scepticism and questioning of management earlier 14
- 15. The Essential Director Update:13 Diversity • Improvements among top 200, (now 15.6%, and 22% in top 20)or "Glacial progress" (only 16% of new appointments this year are women) – • ASX CGC proposals – can report “Gender Equality Indicators” under the Workplace Gender Equality Act 2012 – disclose definition of “senior executive” – measurable objectives re-defined to include appropriate and meaningful benchmarks that are measured and monitored – relocated from principle 3 (ethical and responsible decisionmaking) to principle 1 (lay solid foundations for management and oversight) • 47 of Top 200 boards, still have no women. 15
- 16. The Essential Director Update:13 Remuneration issues • Say on pay more common throughout the world • Is the two strikes rule working ? First cycle last year – 108 companies had first strike in 2011; only 9 had second strikes in 2012 – Of those, three faced a spill. One board resigned; the other two survived the spill • Major changes in behaviour among listed companies such as Fairfax, Rio, Qantas, ComBank, and Perpetual • Flawed in principle; works in practice.. 16
- 17. The Essential Director Update:13 Directors' responsibilities Board approving statements –James Hardie p25 • High Court restored original findings; NSW Court of Appeal imposed penalties, less than before. • Court of Appeal added – Need for formality in decision making, trumps collegiality • "I think we are all agreed on that" – Consent to holding meetings by technology, must be renewed at every change 17
- 18. The Essential Director Update:13 Directors' responsibilities • Oversight of payments to directors continued p25 – Recent reports re Macquarie Generation, a NSW SOC • Fixing corporate errors, Weinstock v Beck p27 – Director acted as such for 30 years, but not validly in office • High Court restored earlier order remedying the breach. • Validation provision to be given a full or wide reading. • Expensive, and uncertain, remedy -so check the fine print. 18
- 19. The Essential Director Update:13 Personal liability reform p29 • Piecemeal reforms around Australia, as listed – Qld– 3800 offences by directors to be reduced to 260 – Some removal of reverse onus of proof provisions • Replaced by liability as an accessory, if the director aided or abetted the breach of law by the company • Recent manslaughter prosecution of employer in NSW – appears not to be "industrial manslaughter", but under usual criminal law • SA Industrial Magistrate critical of coverage of penalties for safety prosecution, by insurance – "undermines sentencing powers". Hillman v Ferro Con [2013] SAIRC 22. 19
- 20. The Essential Director Update:13 And some backward steps… • Cwth Migration Act amendments for liability of directors of companies employing "unlawful non-citizens" and "lawful non-citizens" • Directors personally liable if they knew or were negligent as to whether contraventions would occur; could influence conduct; and failed to take reasonable steps to prevent contraventions 20
- 21. The Essential Director Update:13 Superannuation and tax - new provisions p30 • Personal liability for company's unpaid SGC • Administration or liquidation won't discharge director liability for unpaid PAYG tax or SGC liabilities • Directors are being found liable for company not remitting PAYG amounts withheld – Action against former MP Belinda Neal, re Central Coast Mariners unpaid tax; she cross claimed against other directors, but case now settled. 21
- 22. The Essential Director Update:13 Listed Companies Continuous Disclosure p31 • New Guidance (GN8) – Abridged version for directors – “Immediately", means "promptly and without delay" – Use of trading halts • Must the board approve announcements? GN says – The courts acknowledge that it is appropriate for some particularly significant .. announcements to be considered and approved by the board before release (but) not legally necessary in all cases.. – Have delegations in place, plus a disclosure committee 22
- 23. The Essential Director Update:13 Newcrest Mining the Newman Report • Report by Maurice Newman, AC – ASIC investigating • 17 recommendations, including – Release external presentations to ASX – Broadcast events – Investor relations blackout period – Chair to meet investment community – Investor relations to report to board periodically • "Stifling communication may not be in spirit or letter of the law, but may be the prudent approach" 23
- 24. The Essential Director Update:13 Listed companies – other matters p 32 • Previous government's proposed remuneration amendments, deferred – Clawback arrangements, on an "if not why not" basis, therefore deferred – Now included in ASX CGC proposals • ASIC guidance on Operating and Financial Review – RG 247, on interpreting s299A of Corps Act – Applies to listed entities • ASX Fit and proper test for directors – Not retrospective.. 24
- 25. The Essential Director Update:13 Insider trading p35 • "Go to gaol, go directly to gaol" – ASIC v Khoo – 23 months, to serve 14 – Note successful appeal in R v Fysh • held not to be insider trading – But, John Gay of Gunns, fined, no gaol time • Still insider trading even if information was false – Mansfield v R, High Court decision 25
- 26. The Essential Director Update:13 Charities and NFPs p36 • ACNC now operating – but for how long? – Registration voluntary (and automatic for charities receiving tax benefits) – No tax concessions unless registered. – Present focus is on charities, not other NFPs • Governance standards – – – – Compliance mandated by regulation See two Standards quoted on p 38 Most charities already comply – see Myths on ACNC website AICD guidance for NFPs on its website • Abbott government policy to abolish ACNC – Replace with centre of excellence focused on innovation, education and best practice – "Nowhere has the mischief which requires this new monolithic regulatory structure, or that justifies the sweeping powers of the ACNC, been identified" - Kevin Andrews 26
- 27. The Essential Director Update:13 Sporting organisations p41 • Who would be a director of a sporting body! – Essendon Football Club – Cf NRL clubs - Cronulla Sharks, Newcastle, Wests Tigers, Manly, Melbourne Storm (several years ago) • Sports Governance Principles issued by Australian Sports Commission – Were "if not why not" – now mandatory • Re-organisation of Cricket Australia – Review by Argus and Crawford, to create single national body – Working well so far (sic) 27
- 28. The Essential Director Update:13 Switkowski report on Essendon Football Club– • Rec 8) Bad news must be passed up the line quickly. – Sometimes, organizations seem to have holding depots where issues await a fix while being shielded from upper management and the board. This is poor practice. – .. ask the question 'what's keeping you up at night?' and follow up and monitor action on concerns. Boards should not resile from detailed interrogation of operations, even when times are good. • Rec 9) Policies and Procedures should be reviewed and updated as required. – All policies, codes of conduct etc ..require annual endorsement by the board. 28
- 29. The Essential Director Update:13 Superannuation entities p42 • New requirements under Stronger Super reforms – Covenants, or deemed covenants, to • act honestly, exercise care, skill and diligence, • act in best interests of beneficiaries, • favour the beneficiaries in case of conflicts, • ensure duties are met despite conflicts and are not adversely affected by them, and • to comply with prudential standards re conflicts. • Standards on Super Governance issued by Financial Services Council retail super funds – Independence criteria • Independent chair • Majority independent directors • Quorum requires independents to be a majority of those present and voting • Directors should not hold multiple and competing positions on RSE boards • Cooper review, re industry funds – one third should be independent 29
- 30. The Essential Director Update:13 Family companies • Weinstock v Beck – discussed earlier • Kelly v Commissioner of Taxation [2013] FCAFC 88 – Must be an employee of trustee of family trust, to pay super • Rinehart Family • Bob Jane family company dispute [2013] VSC 406 – Were payments gifts, or loans? – Be clear at the time, check the minutes, and the accounts, and be consistent! • Mandie family (The Australian, 26 September) – Alleged refusal to accept family member was a director – And complaints about how board meetings were held 30
- 31. The Essential Director Update:13 Updates - 1 • ABC Learning – Last year, only successful action was disciplinary, against auditor – Now, former CFO accused of "authorising false or misleading information" • Class actions – GPT settles for $75m., claim for misleading conduct and breach of continuous disclosure obligations. – Great Southern case before Vic Supreme Court 31
- 32. The Essential Director Update:13 Updates - 2 • ASIC v Ingleby – ASIC appealed reduced penalty on former CFO of AWB – Vic Court of Appeal has restored original penalty • Bridgecorp decision in NZ – Gave priority to secured creditors over proceeds of D&O policy; overturned on appeal – Also rejected by NSW Court of Appeal in Chubb v Moore. • LATE NEWS - William Buck (Perth) – Oppression suit among members of an accounting firm – order for winding up – "commercial lunacy" - Kenneth Martin J – NB – firm to continue to operate 32
- 33. The Essential Director Update:13 APRA's expectations of boards • Supervisors of financial firms around the world are increasing their level of engagement with boards. • Themes include – Professionalism of the board – Risk governance – risk appetite statement; authority of risk management function; independent assessment – Flow of information to the board – Values and risk culture – Executive remuneration arrangements • Requirement for separate risk committee 33
- 34. The Essential Director Update:13 In the spotlight.. • ASIC – Senate committee inquiry re Com Bank planners – Criticism following court loss in Opes Prime, perceived failure to act on overseas bribery, insider trading "failures" (Gay, Fysh) – "Offspring of Wallis" inquiry • State Owned Corporations – NSW Review of legislation – Public Governance, Performance and Accountability Act 2013 (Commonwealth) – Macquarie Generation – NBN 34
- 35. The Essential Director Update:13 Independent directors • Research said to show that companies with majority of independent directors lost $70 bn in value compared with other listed companies – "Their relative ignorance combined with lack of incentive to monitor, a fatal combination for company performance" – independence from management, or from owners ? • Directors behaving well – Resignations on principle - Leighton Holdings; APN News and Media – Not critical of those who stayed in each case – Graham Cubbin – the independent director who demanded explanations re Cascade Coal 35
- 36. The Essential Director Update:13 Minutes, and board meetings generally • Read pro forma / draft minutes ! – "the Board notes that it received the following papers.. Each director confirms that he/she has read the above materials and has made due enquiry of the relevant author if required." – For whose benefit exactly? • Emerging best practice – Minutes that are not too short, not too long – Note important matters discussed – Circulated to board within 7-10 days – Consider a log of outstanding items, and an anniversary review of decisions taken the previous year – Note comings and goings, or adjourn every hour or so 37
- 37. The Essential Director Update:13 More on meetings.. • Electronic board papers – Not a panacea! • Keeping your board papers – Not usually.. • Remote attendance – Not a panacea either! • Committees – Attending committees you don't belong to.. • Reliance on others, in light of Centro – You cannot rely on other people unquestioningly.. 38
- 38. The Essential Director Update:13 Next year's agenda? • Review of financial system likely to be underway • ASX CGC Principles • Bid rigging – appeal in Norcast v Bradken • • • • • • • Prospectus issues Overseas bribery cases Family companies Not-for-profit cases Diversity and remuneration State Owned Corporations Sporting bodies 39
- 39. The Essential Director Update:13 Quote of the day.. Directors of public companies are not now appointed on the premise that a directorship is a sinecure in which reasonable competence is a desirable but not a necessary qualification and … what is in general expected of directors will tend to become the measure of what is required of them. • Justice Sir Douglas Menzies – 1959 (emphasis added) 40
Editor's Notes
- Based on booklet.. Not on agenda – work health and safety; environment. Are there developments I have overlooked?
- Eliott = At all times the CG guidelines were the guiding principle for our board relationships and behavioursASA said in 2011 that Forrest becoming chair was "an unacceptable concentration of power" that undermined the board's independence. Forrest replied that CG experts do not create wealth for other Australians. Ex director Ian Burston – Twiggy always spoke his mind very eloquently and pursued the point relentlessly, … but whether you would call that domination from a kindly or unkindly aspect is really just a personal view.
- He invited Arthur Levitt to become a board member. Former SEC chair delighted, had bought first Mac in 1984 and "addicted" to apple products. Visited Cupertino, discussed role with Jobs. But Jobs read a speech by Levitt where he argued that boards should play a strong and independent role – and telephoned to withdraw the invitation. "Arthur, I don't think you'd be happy on our board, and I think it best if we not invite you. Frankly I think some of the issues you raised, while appropriate for some companies, really don't apply to Apple's culture. Levitt – I was floored – plain to me Apple's board not designed to act independently of the CEO
- Cf News International in London
- My report, but won't discuss it..
- Designed to avoid as a measurable goal, setting up a process
- Newman Report – Co takes CD obligations seriously, has processes in place to support thisProvides ample info on a regular basis – however, info not always understood in marketplace. Some rec's for improvement made, and some aspects not strictly complied withASIC also investigating – has powers he did not have – however, unable to uncover anything on the informal network where chatter and rumour are often a reliable pointer to serious lapses in procedures. FN – ASIC investigation made task a lot harder – reps of brokers protected by compliance officersASIC's presence make sit difficult for a company. No inference should be drawn etc; but can take up to 12 months, and no public statement as to investigation taking place. While my findings may clear the air, full resolution requires ASIC to finish and say so. Listed entities seeking to clear name by a thorough and urgent review will be hampered by the concurrent ASIC investigation. ASIC may wish to review this..Critical of analysts – have to cover more companies due to cost cutting, less experienced than before the GFC – many are followers and stay within consensus rather than be outliers
- A former banking associate at the Royal Bank of Canada (RBC) was sentenced today to 23 months in jail. Appearing in the Sydney District Court, Mr John Kay Jin Khoo was sentenced to a minimum of 14 months in jail, to be released on his own recognisance in the sum of $500 to be of good behaviour for the remaining 9 months. Mr Khoo, of Bulimba, Queensland, pleaded guilty to a total of four charges of communicating inside information (refer: 12-322MR).ASIC Commissioner Cathie Armour said, ‘Insider trading will not be tolerated. Regardless of whether it is buying and selling, communicating information, or any other form, ASIC has the people, ASIC has the power, and ASIC has the systems in place to catch the individuals involved in this behaviour and punish them accordingly.‘It cannot be any clearer. If you choose to act in this way, there is a very good chance you will be caught, and as today’s judgment shows, there is a very good chance you will go to jail’.Mr Khoo gained the inside information while working at RBC on the proposed acquisition of Macarthur Coal Limited by Peabody Energy Corporation and ArcelorMittalS.A, and the proposed takeovers of Caledon Resources PLC by Guangdong Rising Assets Management Co Limited and of Mantra Resources Pty Ltd by JSCAtomredmetzoloto between 2010 to mid-2011.In handing down the decision the judge said, ‘This was a gross breach of trust by a true insider’.
- ‘We need to change our governing documents to meet the standards.’Probably not. If you need to, your charity has until 1 July 2017 to make any necessary changes to address this. In the meantime, your charity must comply with the standards as far as possible, without breaching its governing document.‘We need to get professional advice on how to meet the standards.’As these are minimum standards, the ACNC expects many charities will already meet most or all of them. Please read our guidance before you spend time or money (including on legal or other professional advice) to meet the standards. The ACNC expects that most charities will not require professional advice to meet the governance standards.‘The governance standards say that our charity can’t break any laws otherwise the ACNC will investigate us.’ No. ‘charities will have to meet the requirements of both ACNC and ASIC.’The governance standards are not intended to duplicate obligations under the Corporations Act. For charities incorporated as companies), your obligations under the Corporations Act (relating to meetings) will no longer apply from 1 July 2013. This will be broadly replaced by governance standard 2 (accountability to members). For more information, read our factsheet on charities registered with ASIC and the ACNC.‘Each of our charity’s responsible persons will have legal obligations under the governance standards.’ No. While governance standards 4 and 5 relate directly to responsible persons, the obligation applies to the charity itself to take reasonable steps to ensure its responsible persons meet certain requirements. Note: Your charity’s responsible persons still have responsibilities under other laws relevant to your charity and the common (judge-made) law. They should be familiar with and meet these other obligations as part of fulfilling their role.
- Sports Governance Principles are- If not why not principles. And will sound and look familiar to avid readers of the ASX CGC guidelines. But they do suggest normally all directors will be independent, for example; and a skills board, not representative. Recent developments - first, post the London Olympics, some of the March 2012 requirements, are now mandatory – not just if not why not. They appear to be or include staggered rotation, maximum terms, nominations committee, audit and risk committee, chair elected by the board, annual external board evaluation, CEO not to be appointed to the board after leaving that position, for 3 years., minimum of 5 meetings a year etc etc. Very prescriptive, and perhaps burdensome for sporting bodies, and beyond what most commercial enterprises are doing ?Second, specifically for swimming, their post London review looked not only to coaching and similar issues which don't need to be dwelt on today, [it had not occurred to me to use Stilnox for fun] but on the board issues – again, a nominations committee, maximum terms, chair to be elected by the board, board to review its oversight, board charter etc. As the ASC said, "it is uncontested that governance structures significantly affect the performance of sporting organisations."Some of us have been debating that proposition in commercial contexts for years .
- APRA relevant to super and insurance as well as deposit taking bodies Supervisors want to better understand actual workings of the board – see the collective skills and experience of the board in action, the independence of mind and spirit.Some deeply involved in assessing the quality of individual directors and key executivesGetting up close and personal with boards – aware industry believes APRA's requirements too detailed and onerous and require board involvement in matters many see as preserve of management. Will respond when valid. Info pamphlet for directors coming, plus a stocktake of existing requirements for boards..
- The decision by a jury to let former Opes Prime director Julian Smith walk free on Friday from the $700 million collapse of the stock lender sends a terrible message to the business community.After five years of fighting his criminal charges, a very relieved-looking Smith walked away from court a free man.The other two founders pleaded guilty in 2011. Laurie Emini was sentenced to serve a minimum one-year jail sentence, while Anthony Blumberg received a minimum six-month sentence.The case rested on the corporate regulator proving that Smith knew that the company was in a dire financial position when its banker, ANZ, extended a $95 million loan in the days before the collapse.Much of the case revolved around stock lending agreements, margin loans, margin calls and multiple trading accounts.Sitting in the courtroom, one had to wonder whether these aspects of the trial might have been too complicated for some on the jury to properly understand.Unfortunately, the message for the business community is that it is better to fight the regulator and defend any charges then roll over and accept a quick and expedient punishment.A guilty plea nearly always provides a better result for the regulator, investors and our taxpayer’s dollars.Unfortunately, those in the gun are now more likely to run the gauntlet of the courts
- Sally Wheeler, Professor of Law at Queen’s University in Belfast,. If you want effective governance and management for the benefit of members, do not think that structural independence will do this for you. It might but it might not.”At the director level, independence is not sufficient. “Structural independence has become the holy grail. But independence in and of itself does not necessarily lead to better governance. You can’t necessarily get rid of cronyism through a test of independence,”Too much difference is not a good thing. Indeed, a broad spread of people on a board might be disruptive, the academic argued. If directors come from different backgrounds, with different belief systems, this can lead to a lack of trust, potentially with directors becoming less willing to engage and commit themselves fully to the task at hand. They may be less prepared to share their views. On the other hand, if directors share a common belief system, but have different skills and work and life experience, this can enhance debate.Arguably one reason to appoint independent directors is to avoid group-think. “You cannot design out group-think. It is almost impossible to exclude. You get social identification in the first three meetings.”This is not to say that independent directors are a bad idea. It is just that independence should perhaps be a start, rather than an end point. Quality decisions by board members are born by having appropriate skills, expertise and ethical values sitting around the table. High-quality debate, access to sufficient information and sufficient time also play an important role, Wheeler said.“Nine years is probably too long [to sit on a board]. But you have to look at the way institutional memory is managed and handed down,” she said.1. APN News and Media; a recently appointed chair, a reasonably new CEO and several other independents resigning because two shareholders holding over 50% between them, refused to go along with a capital raising the directors strongly believed was in the best interests of the company.2. Leighton; a difficult relationship between the successful Australian company and its 54% controlling shareholder, which had itself changed hands recently, came to a head when the chair and two other senior independents resigned. The definition of a difficult relationship may be when the question has to be asked whether the undertakings about governance made between the board and its shareholder are legally enforceable!3. Graham Cubbin (the independent and dissident at Cascade Coal) - no need to form a view about the rights and wrongs of the transactions to want to applaud a single director standing up to his conflicted colleagues and demanding explanations for deals which did seem to need explanationThese instances say something about independence being a matter of moral courage, I suggest. It's a pity ASX CGC won't be able to adopt one along the lines – a director is independent if they have the courage and the ability to resign their directorship on a matter of principle, and especially when they can't even say what it is... .
- iSelect on top of Great Southern Bread Research Institute