Corporate Governance Principles and Recommendations 4th Edition – What’s New?

Principle 1: Lay solid foundations for management and oversight

Additional Board Requirements

Recommendation 1.1: Listed entities need to disclose a board charter. A Board should be responsible under its charter for:

• defining the entity’s purpose;
• approving a statement of values and code of conduct to underpin culture;
• overseeing management in instilling the entity’s values; and
• ensuring that the remuneration framework is aligned with the entity’s purpose, values, strategic objectives and risk appetite.

Recommendation 1.2: An entity should undertake background checks on senior executives (not just board members) before engaging them.

Recommendation 1.6/1.7: A Board should have in place an annual review processes for the board and management which assesses whether performance has been impacted by a directors’ other commitments.

Diversity

Recommendation 1.5: introduces the requirement:

• to disclose measurable objectives for that period to achieve gender diversity. Requiring disclosure for the specific period will mean entities can’t get away with setting ambiguous goals for an indeterminate future;
• to raise the concept of the achievement of gender participation indicators as a relevant consideration for remuneration KPIs;
• to disclose the diversity policy; and
• for entities in the S&P/ASX 300 to have the objective of at least 30% of each gender represented in their boards within a specified period.

Principle 2: Structure the Board to be effective and add value

Director Independence

Recommendation 2.3: relates to the test for director independence. It now includes a focus on “personal relationships” as opposed to “family relationships”. It also scrutinises directors with performance-based remuneration. Finally, it provides further clarity in relation to assessing director independence. If any of a specific set of factors are present, the director should be considered not to be independent, unless it is clear that the issue is not material and won’t affect their judgement.

Director Development

Recommendation 2.6: Listed entities must have programs for periodically reviewing the need for existing directors to undertake professional development programs.

Principle 3: Instil a culture of acting lawfully, ethically and responsibly

Stakeholder considerations

Recommendation 3.1: The board and management of listed entities must consider not just shareholders but their employees, customers, suppliers, creditors, regulators, consumers and the local communities in which they operate.

Company Values

Recommendation 3.1: Listed entities must articulate and disclose their values setting out aspirational guiding principles.

Code of Conduct

Recommendation 3.2: Listed entities must disclose a code of conduct and have systems to inform the board of material breaches of codes of conduct.

Whistleblower policy and an anti-bribery and corruption policy

Recommendations 3.3/3.4: Listed entities must create and disclose a whistleblower policy and an anti-bribery and corruption policy. Each must have reporting requirements for material incidents/breaches to the board or a subcommittee of the board.

Principle 4: Safeguard the integrity of corporate reports

Integrity of Corporate Reports

Recommendation 4.3: Listed entities must have and disclose a process to verify the integrity of their annual directors’ report and other unaudited reports. Investors should understand how the listed entity has satisfied itself that these reports are accurate, balanced and understandable, and appropriate information to make informed investment decisions.

Principle 5: Make timely and balanced disclosure

Director visibility

Recommendation 5.2: Boards must receive copies of all Listing Rule 3.1 announcements promptly after publication.

Securityholder receipt of timely information

Recommendation 5.3: New investor/analyst presentations should be published on the ASX Markets Announcements Platform ahead of the actual presentation.

Principle 6: Respect the rights of security holders

Shareholder participation

Recommendation 6.3: Listed entities must disclose how they facilitate and encourage participation at meetings of securityholders.

Poll voting

Recommendation 6.4: Resolutions at meetings of securityholders which are considered substantive should be decided by poll, rather than a show of hands. Both the ASX and ASIC have been concerned about this issue for some time.

Principle 7: Recognise and manage risk

Risk appetite

Recommendation 7.2: Listed entities must evaluate whether they are operating with due regard to the risk appetite set by the board.

Focusing board attention on environmental and social risks

Recommendation 7.2: Requirements to ensure the risk framework adequately addresses emerging risks such as conduct, and digital and data risks have been added.

Recommendation 7.4: Refinements of the disclosure obligations in relation to sustainability have also been made so that they focus on “environmental and social risks”, instead of “economic, environmental and social sustainability” risks.

Principle 8: Remunerate fairly and responsibly

No noteworthy changes.

Principle 9: Additional recommendations that apply only in certain cases

Language abilities of directors

Recommendation 9.1: Listed entities should disclose the processes they use to ensure their directors who do not speak the language in which board meetings are held can understand and contribute to board meetings and discharge their obligations in relation to those meetings and documents.

Location of board meetings

Recommendation 9.2: Listed entities established outside Australia should ensure that meetings of securityholders are held at a reasonable place and time.

Attendance of auditor at foreign located AGMs

Recommendation 9.3: A listed entity established outside Australia, and an externally managed listed entity that has an AGM, should ensure that any external auditor attends its AGM and is available to answer questions from securityholders relevant to the audit.