Over the last couple of decades, organisations throughout society, whether they be charities, not-for-profits, unions, or corporate boards, have seen increasing requirements for more transparency and accountability
The Australian Charities and Not-for-profits Commission (ACNC) was established in December 2012 to, in part, “maintain, protect and enhance public trust and confidence in the sector through increased accountability and transparency.”
In November 2016, the Registered Organisations Bill established a dedicated Registered Organisations Commission to “promote efficient management of organisations and high standards of accountability of organisations and their office holders, to their members”.
Now the spotlight has turned towards the corporate world and the responsibility of corporate board directors.
In May 2018, the ASX Corporate Governance Council published a consultation draft of proposed corporate governance principles and recommendations. The following appraisal by Clayton Utz outlines some of the key proposals:
- The role and responsibilities of the Board
The proposals, if implemented to the full extent drafted by the ASX, have the potential to import the most fundamental change in the approach to corporate governance of listed entities that has occurred for many years.
A consistent theme throughout the proposed changes is requiring the board of directors to discharge their responsibilities having regard to the interests of a broader group of stakeholders than simply shareholder interests. For example:
- Under the Board Charter, the Board is responsible for defining the entity’s “purpose”, the implication being that entities are explicitly expected to have a positive impact on its stakeholders and society at large.
- The Board and Management are expected to instil a culture across the entity of acting lawfully, ethically and in a socially responsible manner ie. be “good corporate citizens”. The explicit reference to a listed entity’s “social licence to operate” is designed to compel entities to ensure a broad range of stakeholders are borne in mind.
- The Board is expected to define the entity’s “core values”, which must include providing positive outcomes for a variety of stakeholders, including employees, customers, local communities and shareholders, and not just shareholders.
- The Board must ensure that it reviews the listed entity’s risk management framework so that it is taking into account long-term risks (such as climate change, environmental and social risks) that correlate with broader stakeholder interests.
- Skills and composition of the Board
The ASX proposals respond to a growing concern across the corporate community that directors need to have a requisite level of relevant skill and knowledge in order to properly perform their oversight function over management. For example:
- Increased emphasis on directors having “knowledge of the entity and the industry in which [the entity] operates” in order for the Board to be effective.
- Reformed Board “skills matrix” process so that boards are transparent in disclosing the skills and knowledge the Board requires, and comparing that to the existing skills and knowledge of the current directors.
- Explicitly highlighting how the “currency of a director’s knowledge or skill” or the impact of “other commitments” can inhibit the director’s ability to properly perform their oversight and monitoring responsibilities.
- New emphasis on professional development for directors in a number of key areas such as the entity’s structure, business operations, history and culture, as well as legal duties and responsibilities as a director, and a basic level of understanding of accounting matters.
The ASX changes to the Diversity Policy Recommendation 1.5 reflect calls for increased diversity amongst senior management and leadership positions across the corporate communities, as well as normative changes in how society values diversity. For example:
- Diversity at the board level is now seen as an “asset to listed entities and a contributor to better overall performance”, which is reflective of empirical evidence
- New emphasis on “numerical, measureable objectives” for diversity at all levels of a listed entity, include the composition of its board, senior executives and workforce generally.
- The explicit target has been set for listed entities to have not less than 30% of its directors of each gender on the board within a specified period, representing a shift away from “aspirational objectives” to hard, numerical targets.
- Board composition should now factor in other aspects of diversity in addition to gender, such as geographic and cultural.
Perhaps understandably, this was met with resistance from the business community.
Today, the SMH reported that the Labor Party national conference intends to debate an amendment that would make company directors liable for failing to uphold their corporate social responsibility under a proposal designed to stamp out wage theft, environmental exploitation and unconscionable conduct exposed by the banking royal commission.
As I read the principles and recommendations from the ASX, the thing that struck me most forcibly is that there are no similar expectations or accountability for government and parliamentarians.