The Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry has concluded with the Honourable Justice Hayne submitting his final report on 1 February 2019.
The Commission conducted seven rounds of public hearings totalling 68 days, heard from 130 witnesses and reviewed over 10,000 submissions. At the completion of this comprehensive review, the message delivered to the industry in the Commissioner’s Final Report was clear and simple. The Report identified six basic norms of behaviour that those the subject of the inquiry had failed to embody:
- obey the law;
- do not mislead or deceive;
- act fairly;
- provide services that are fit for purpose
- deliver services with reasonable care and skill; and
- when acting for another, act in the best interests of that other.
From a governance perspective, three key lessons emerged from the Commissioner’s Report for company directors.
1. Get your priorities right
The Commissioner lamented that too often the priority of entities in the financial services industry was the pursuit of profit above all else, including the interests of customers and compliance with the law. The Report emphasised that culture and governance practices must focus on non-financial risk, as well as financial risk.
In a legal sense, the Corporations Act 2001 requires directors to exercise their powers and discharge their duties in good faith in the best interests of the corporation. Consideration of what is in the best interests of the corporation cannot be reduced to merely assessing financial returns to shareholders in a particular accounting period. While ‘value’ to shareholders is always an important consideration for company directors, it should not be the only consideration. The prevailing attitude for some in the industry was that the interests of shareholders and customers are necessarily opposed. But the Commissioner urged entities to take a long-term view and to appreciate that financial advantage will more likely follow if the entity conducts its business according to proper standards, treats its employees well and seeks to provide financial results that, in the long run, are better than other investments of broadly similar risk.
Company directors must ensure that adequate attention and resources are devoted to non-financial risks including compliance risk, conduct risk and regulatory risk. Although non-financial risks are more difficult to measure than financial risks they should not be ignored.
2. Inform yourself of significant strategic matters
Commissioner Hayne noted that a board cannot operate properly without being properly informed of the issues within the company. In order to effectively challenge the management of a company on important issues boards must be equipped with the right information.
This lesson should not be taken to mean that more information must, in every case, be provided to boards. Rather, that better information should be provided and sometimes this will mean giving directors less material. The role of the board is not to engage in the day-to-day affairs of running the business but to be aware of significant strategic matters arising within the business, and to set the strategic direction of the business in relation to those matters. Directors must cast a critical eye over the information provided to them and seek further or better information if what they have received is inadequate or deficient in some way.
To be effectively managed, issues relating to misconduct or compliance with law must be brought to the attention of the board quickly and resolved with urgency.
3. Challenge management when things go wrong
The Commissioner also observed that boards do not function effectively if they do not challenge management. In the words of the Commissioner, accountability "fosters a culture where risks are managed soundly".
At the heart of many of the problems exposed by the Commission was the diffused responsibility for issues and lack of clear accountability. The Commissioner made clear that the primary responsibility for misconduct in the financial services industry lies with the entities concerned and with those who manage and control them. The same is true of all companies; the tone must be set from the top, echoed from the bottom and reinforced at all levels of the organisation. If the board becomes aware that management of the company has engaged or been complicit in any form of misconduct, it is the responsibility of the board to intervene.
Boards must also insist that management develops frameworks that effectively measure and address non-financial risks.
The Royal Commission should serve as a sharp wake up call to all company directors to broaden their awareness to emerging non-financial risks and sharpen their focus on carrying out their duties and powers in the best interests of the corporation.
The Final Report of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry can be accessed here.
Please contact Rohan Harris, Michael Gorton AM or Solomon Miller from our Corporate & Commercial Advisory team should you require further information or advice in relation to foreign investment or other corporate advisory matters.
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