Corporate governance is the process by which the corporate can implement proficient decision making, appropriate resource allocation, and involve in strategic planning. It concentrates on how objects of are laid down and attained, how risk is watched and evaluated and how performance are maximized.
Corporate governance helps corporations to construct value through innovation, provide accountability and to implement proper control system to quantify the risk involved.
Corporate governance has become more relevance to determine the cost of capital in a global capital market.
So as to facilitate the Australian companies to compete internationally and to preserve and promote investor’s reliability both in Australia and overseas, corporate governance is to ensure to review those practices to reflect both local and international developments and position.
Corporate governance must be evolutionary and receptive to the information requirements of local and international investors.
In Australia, Corporate governance has been defined by two chief guides viz. ‘Corporate Practices and Conduct ‘issued by the Bosch Committee in 1995 and ‘A guide for Investment Managers and Corporations “issued by IFSA in 1997 and also by ASX publications and the Australian Institute of Directors.
Most definitions on corporate governance refer mainly the following:
In Australia, relevant disclosures are made in a separate corporate governance section of the annual report of a company. Australian Corporate Act requires certain information is to be included in the director’s report and these informations can be included in the corporate governance section in the annual report of the corporation.
The main general salient features of corporate governance codes are:
Thus corporate governance is aimed at the maximization of shareholders wealth and to protect their interests. While the corporate governance is helpful to instill confidence on investors and at the same time if there are grave governance deficiencies, the investors may shun the shares of individual companies, a section of markets or even national capital markets.
Westpac Banking corporation of Australia has not only stood top of the Australian corporate governance league race in 2004 but also only the bank on international level to enter into the global top 20 corporates as appraised by Governance Metrics International , an International rating agency.[1]
The annual IR Magazine Australia awards for 2005 had been awarded to the following Australian companies for their best corporate governance in investor relations by ASX 100 company viz. ANZ , BHP Billion , Blue Scope Steel, and Stock land.[2]
The recent scandals in US like Enron, WorldCom, and Adelphia has compelled the governments across the world to promulgate enhanced legislation, improved corporate codes and corporate boards have been “re-balanced” to have more independent directors.
Corporate responsibility is nothing but the extension of governance beyond simple compliance to squeeze wider social values. A recent survey finds that of late more business heads and corporate investors are factoring corporate responsibility into their decision making process.
Thus the corporate responsibility has become vital or pivotal consideration in investment decisions. As per views of business heads, corporate responsibility should include ethical staff behavior, good corporate governance and transparency where as for investors, transparency, good corporate governance and ethical staff behavior were the top most concern. Further it is revealed that corporate responsibility could augment corporate’s bottom line and resulted in intangible advantages of brand enhancement and better staff morale but it has disadvantages also like unproven business benefits and high cost involved .
The Role of ASIC (Australian Securities & Investment Commission) in corporate governance:
The ASIC mainly supervises and enforces compliance with the various provisions of the Australian Corporations Act that are devised to control and influence the exercise of power by top managers and directors. The major supervision provisions include duties of directors, general meetings of the company shareholders, and transactions with the related parties.
But the full compliance by the corporates can not be possible unless there exists adequate enforcement mechanism. Hence support of the government is needed for the enforcement mandate of their securities market.
ASIC has successfully through its various ranges of enforcement measures have brought a series of civil, administrative and criminal actions to bring accountability to wrongdoers.
Former CFO of Harris Scarfe was sentenced to 6 year imprisonment in a criminal charges leveled against him by ASIC[3]. Likewise, civil penalty proceedings were initiated against erstwhile directors of HIH. Court held that they breached their duties as directors under the Australian Corporations Act and debarred them to involve in the management of company affairs for 20 years and 10 years.Further, these erstwhile directors were directed to pay compensation of more than A $7 million and also Court imposed pecuniary penalties in each case.
Further ASIC is contemplating actions in more than 200 cases most of which mainly concerned with issues relating to failed governance. Further, more than 69 persons were imprisoned for committing white collar crimes from 1999 to 2002.
ASIC tries to enforce the corporate codes by compelling to make disclosures, the operation of exchanges (where listing arrangement also requires corporate governance compliances), the directives on audit and licensing of intermediaries.
In the post-Enron era, the main difference is the USA’s perspective rule based approach and Australia’s more flexible principle-centered approach. Moreover, in Australia, there are array of menu of regulatory and other official standards for business. These includes Australian Corporation Act, regulatory guidelines such as ASX corporate governance council’s best practice ‘suggestions on corporate governance , regulatory ruling like ATO rulings ,regulatory guidelines like ASTC policy statements and practice notes, official standard-setting and judicial pronouncements. [i]
Most of SOX provisions are identical to Australian laws and regulations such as CLERP 9 and the ASX corporate governance guidelines. Australia’s corporate governance guidelines are designed mainly for the Australian companies and its stock market and it is user-friendly.
ASX corporate governance guidelines and CLERP 9 contains certain SOX governance conditions. It is to be noted that thought there is no 100% identical nature but its intent and objectives are more or less identical. There is a marked difference in approach between USA[4] and Australia towards corporate governance as the former is adopting ‘rule-based’ where as the latter is adopting ‘principle-based’ approach. Australian corporate governance is of suggestive in nature whereas USA is following prescriptive nature to governance matters. Thus the suggestive nature provides an in-built elasticity to retort and adjust to local industry and market forces and too industry ‘best practices’.
Though the objective of some US and Australian governance is identical, the expressions applied are different thereby making strict compliance more complex.
Further, relationships between Australian companies and their external auditors may be viewed by the SEC of USA as a violation of US auditor independence standards and may result in major penalties regardless the fact it complies with the Australian governance standards. This is to be considered if an Australian company is listed in the US. In the case of auditor independence, Australian “general independence ‘code is somewhat relaxed than the comprehensive list of specific preclusions under SOX.
In US, in addition to annual and quarterly financial reports, a listed company has to file periodic reports on material ‘off-balance sheet ‘transactions. Further, it requires personal certification by the CEO or CFO that reports do not include any untrue statements or material omissions and reporting of changes of ownership status.
Under ASX listing rules and Corporations Act of Australia, a listed company has to file continuous disclosures to instill confidence for investors and facilitate them to have timely access to price sensitive information which have an effect on corporate’s securities. Australian governance codes specify lesser specific responsibility on periodic reporting. Where as under SOX, periodic disclosure is easy to implement as it specifies what are to be to reported every financial quarter and not contemplating to report what is materially price-sensitive which has to be disclosed on continuously under ASX codes.
Under US governance codes, stringent and rigid set of prohibitions are placed on external auditors and audit functions which is in line with the US ‘rules based approach’. In contrast, CLERP 9 requires Australian public companies and their external auditors to exhaustive codes concerning auditor independence and fortifies existing auditor independence requirements through a recently introduced set of codes on auditor independence, periodic rotation of audit partners, placing restrictions on employment relations between the client and the auditor and imposing mandatory cooling off period before members of an audit firm can become a officer or director of the client. The main difference lies between Australian ‘general independence test’ which is somewhat liberal than the specific preclusions under SOX.
Under SOX, CEO or CFO has to certify that they have reviewed the relevant financial report and it is not misleading or contain untrue information’s and there exists enough internal controls. In Australia, CLERP 9 mandates that CFO or CEO should provide a written certification on financial statements which is to be addressed to Board of Directors and not to the market itself. Thus the Board of directors assumes definitive authority by way of director’s declaration made in accordance with the board’s resolutions as a part of corporates annual financial report.
In one of the study conducted by the Australian Council of Super investors reveals that about 61% of Non-executive directors appointed in 2005 in S&P / ASX 100 companies were found to be holding directorships with S&P / ASX 100 companies already in Australia .This shows that holding directorship in S&P / ASX 100 companies is the pre-qualification to act as NED in Australian companies.
Study also reveals that there is steady increase in the appointment of NED in Australian companies. About 62% of female directors of ASX listed companies found to be holding more than one board as compared to an average of 41% for males. Remuneration package for the NED services is on the increase and about on average received about $ 154,170 in remuneration for director’s service in Australia.
Court decisions in Australia have detailed and explained what is required of a director.
A study conducted by UTS centre for corporate governance in Australia in June 2006 reveals that all the participating Australian companies in the study had included short biographies of their directors in their annual report as demanded by the Australian Corporations Act, 2001.
The average size of the Board is 8 with minimum of 4 and the maximum of 14. Majority of board were comprises of independent, non-executive directors and almost only one executive director in the Board. The ASX study of corporate governance practice disclosure in 2005 revealed that about 47% of companies had not complied with inclusion of independent directors in the Board.
As per ASIC report issued during October, 2006, it will check the company’s ASX announcements in case if the company has a market cap of less $500m and if it is engaged in the mining, biotech or energy sectors. Further, ASIC is seriously considering its role to make sure that ASX announcements are accurate and timely. As result of this, the director’s responsibility towards corporate governance has become more accountable.
While the ASIC’s authority to impose fines for breaches in the continuous disclosures is more relevant in forcing the corporations to adhere the governance standards, it is also toothed with other regulatory measures as per details given below:
In the case of ASIC v. HIH Insurance Ltd, Supreme Court of New South Wales found that there was violation by the directors and breach of duty under the corporations Act. Rodney Adler was found to breach his duty as director under section 180,181, 182, and 183 of the Australian Corporation Act and Dominic Fodera was found to be breached the section 180. Further the Court held that payment of $ 10 million to a related party violated the related party provisions as well as the Australian Corporation Act, 2001 dealing with the extending financial help in the purchase of its parent’s shares.
Australian governance laws and regulations are not prescriptive in nature and instead they recognize that diverse governance structures coincide better for different entities. Since US have introduced tougher corporate governance codes, the Australia may follow the suit in very near future.
In Australia, disclosure is required both periodic and on continuous basis. For instance, all listed companies to disclose well in advance the price sensitive information to the market operator who will then make it available to market participants.
However there is lack of severe penalties in case of breaches for disclosure. Thus taking advantage to this loophole, most of the corporates want to avail this as a justification to shun disclosures.
The Australian corporations should cope with the international developments on corporate governance. The board should be made aware what is being happening in the overseas. Some argue that the corporate governance is nothing but a cultural issue and in achieving the governance, one has to battle with human nature every day.
To obviate these breaches, it is recommended that ASIC should be toothed with more powers to levy administrative fines. This would definitely augment suppleness, cost-effectiveness and appropriateness of remedies. This will also strengthen the integrity of the law by offering an impartial remedy for conduct that is otherwise absent.
It is reported that present disclosure obligations under listing rules is of ambiguous in nature mainly pertaining to the continuous disclosure obligations. It is necessary to redraft the listing rules to explain the existing exclusions, transforming the balance in favor of disclosures in all but under short circumstances.
With the template reviews advocated by the 2003 Uhrig Report which is well under consideration, it is necessary to pause and hold in mind that governance is a means to an end.
Proper implementation of governance will contribute to social and economic welfare through efficiency, ethical behavior and competitiveness. It maximizes the profit in the private sector and it monitors the expenditure of pubic monies in public sector.
It has become also need of the hour to reintroduce the obligation on the part of a company to respond market rumors in specific situations. One has to take into cognizance non-accountability of press who publish false rumors thereby triggering movement of share price in the market which creates a not informed and uninformed market. Thus it has become corporates onus to intervene and to augment the market’s state of knowledge.
Thus the Corporate governance is the tool to redress the conflicts of interest between various ‘role players’ in the industry and encourages them to share more responsibilities to adhere corporate accountability.
[1] http://www.iccwbo.org/corporate-governance/id3615/index.html
[2] Awards for best investor relations by Australian companies , JCN Newswires , Septemeber,19,2005.
[3] http://www.asic.gov.au/asic/ASIC.NSF/byid/B285C74C43B87CBBCA256FDC00818039?opendocument
[4] Dale, Luke, “Australian Companies and Sarbanes-Oxley: Governance regulations in a parallel universe, Publication, Keeping Good Companies.
[i] Dale, Luke, “Australian Companies and Sarbanes-Oxley: Governance regulations in a parallel universe, Publication, Keeping Good Companies.
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