The Rise of Independent Directors in Australia: Adoption, Reform and Uncertainty

University of Miami International and Comparative Law Review, Vol. 23, No. 2, pp. 443-560, 2016

Sydney Law School Research Paper No. 15/09

45 Pages Posted: 21 Feb 2015 Last revised: 24 Nov 2016

See all articles by Luke R. Nottage

Luke R. Nottage

The University of Sydney Law School; The University of Sydney - Australian Network for Japanese Law

Fady Aoun

The University of Sydney Law School

Date Written: March 19, 2015

Abstract

Australia has a tradition of surprisingly large non-institutional blockholders in companies listed on the Australian Securities Exchange (ASX). This has arguably impacted on the roles and composition of boards. As outlined in Part II of this paper, for a book project on the spread of independent directors (IDs) throughout the Asian region, there has been a longstanding tension between those in Australia preferring a narrower view of directors’ roles and duties (focused on corporate performance) and those advocating a broader view (including more emphasis on risk management, which may favour smaller shareholders with less information about their firm’s activities). Nonetheless, there has been a shift since the early 1990s away from executive boards towards “monitoring” boards, with fewer members and more IDs, who are expected moreover to maintain minimum standards across a variety of roles.

Yet this transition has not been rapid or particularly smooth (Part III). Following the corporate excesses of the late 1980s, in 1992 the ASX suggested the introduction of mandatory requirements for IDs. Following business opposition, it then proposed a UK-style “comply-or-explain” regime in 1994, but eventually had to settle on an even weaker disclosure regime from 1996. Only after a wave of much more serious corporate failures from around 2001, including one (One.Tel) harming very influential blockholders, did the ASX implement (from 2004) a requirement for listed companies to adopt a majority of IDs on an “if not, why not” basis. Minor revisions were made in 2007, but somewhat more stringent standards were implemented from 2014. The latter changes occurred in the shadow of some post-GFC legislative initiatives and case law that generally expanded the scope of duties owed by directors (including IDs), even though for various reasons Australia did not suffer major bank failures or a recession.

As explained in Part IV, the cornerstone remains these ASX “Principles and Recommendations”, underpinned by Listing Rules (which furthermore mandate an audit committee since 2004, and a remuneration committee since 2011 albeit only for the largest 300 companies, each requiring a majority of IDs). There are comparatively and increasingly detailed criteria for assessing independence, such as whether the director has direct (or, since 2014, “family”) links with a “substantial” (5% ) shareholder. This factor differs from the US and appears to be derived from the UK, but it makes more theoretical sense in Australia given its significant blockholder tradition. Another interesting development has been a compromise reached in the 2014 ASX Principles regarding length of tenure, partly influenced by developments further afield including in Singapore and Hong Kong.

Nonetheless, there is still only weak empirical evidence in Australia of positive effects from IDs, with respect to enhancing risk management and particularly corporate performance overall (Part V). A controversial econometric study published in 2013 concluded that over $69 billion in corporate value had been destroyed over 2003-2011 by the (largely) “if not, why not” ASX requirement for a majority of IDs on listed company boards. The authors were particularly critical of the ASX’s view that major shareholders (or nominees etc.) would lack independence as directors, arguing that they instead have incentives to monitor management better. However, this criterion was not changed significantly in 2014, with one concern being that a relaxation might disproportionately benefit large over smaller shareholders.

There has also been little impact on policy-makers and regulators from a few other academic papers in Australia, which have recently queried the received wisdom about IDs from a variety of perspectives. Though speculative, a subconscious “status quo bias” may be at work, as well as interest group politics – there is now a large (and well-networked) anointed group of incumbent IDs, as well as various professional associations involved in “training” them. This lack of public discussion is unfortunate, as many problems remain to be properly explored from theoretical, empirical and comparative perspectives (Part VI), in order to potentially improve corporate governance in Australia and impact on developments abroad – especially in the Asian region.

Keywords: corporate governance, corporate law, Commonwealth law, comparative law

JEL Classification: K10, K30

Suggested Citation

Nottage, Luke R. and Aoun, Fady, The Rise of Independent Directors in Australia: Adoption, Reform and Uncertainty (March 19, 2015). University of Miami International and Comparative Law Review, Vol. 23, No. 2, pp. 443-560, 2016; Sydney Law School Research Paper No. 15/09. Available at SSRN: https://ssrn.com/abstract=2567504 or http://dx.doi.org/10.2139/ssrn.2567504

Luke R. Nottage (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

The University of Sydney - Australian Network for Japanese Law

Room 640, Building F10, Eastern Avenue
Sydney, NSW 2006
Australia

Fady Aoun

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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