Boards have lessons from Hayne

Banks have had much of the focus in the aftermath of the Hayne Royal Commission with some justification.

The misconduct that was uncovered by the royal commissioner, Kenneth Hayne, and his legal team was egregious and bore all of the hallmarks of a complete disregard by the individuals involved in the worst cases for basic decency and the welfare of the consumers at the other end of their nefarious capers to fill pockets with the bonuses and commissions that came with hoodwinking punters.

Another important consequence is for the practice of governance in companies, clubs, societies and other entities that must keep good books and records as a part of their process of running an entity.

One of the key tasks is the keeping of accurate and adequate minutes to document decision making at the level of the board of directors.

Persistent questioning by counsel assisting of key officer bearers in companies such as Catherine Livingstone from the board of the Commonwealth Bank ought to send a shiver down the spine of company directors, company secretaries and senior managers everywhere.

It is a salutary reminder that you must ensure that your views as an individual involved in governance are properly recorded in company minutes. Objections to policy decisions, resource allocations, responses to the way in which complaints by customers are dealt with and responses by the board or individual members to regulatory concerns matter.

Each director that has a concern must ensure that they have that minuted properly and that the concern is reasonably expressed. A failure to document a concern properly either by directing a notetaker such as a company secretary to do so during a meeting or when the draft minutes circulate means an objection goes unrecorded.

Why does this matter?

Failure to record something can lead to questions about whether a director had properly done their job. Arguing before a court or another forum that you asked a question or raised concerns is worth trying but evidence that you raised it is better. Ensure that your views are reflected so that you as an individual director can demonstrate you were doing your job properly.

Company secretaries must also tighten up their procedures where they sense boards have directors on them that are tardy or are unwilling to be perceived as troublemakers.

Specific requests must be made in each e-mail of board members to ensure that they are satisfied that any views or objections they made during a meeting have been reflected. It is critical that company secretaries make sure this request is embedded in an e-mail or other communication so that directors under pressure in a court of elsewhere are less able to blame a company secretary for failing to raise the issue as a red flag.

A company secretary can be the convenient meat in the sandwich if there is not audit trail of communication that tells board members to do their job and advise the company secretary whether their views as expressed during a meeting are properly reflected.

It is healthy for boards to re-examine their internal processes periodically to ensure that they are engaging in best practice governance and the Hayne Royal Commission has only underscored the importance of boards doing and being seen to do the right thing.

Tom Ravlic FIPA is an investigative journalist, consultant and the author of ‘Vulture City: how our bankers got rich on swindle’ (Wilkinson Publishing) that is available for pre-order via all good online bookstores and .

Where it all began 48 years ago …

Journalism was a natural career choice for me because I have always liked piecing together puzzles, solving problems, knowing what makes people tick and also revealing things designed to hold powerful people to account.

I’ve written about corporate accounting controversies, political parties ducking and weaving, explained complex accounting gymnastics, upset regulators and chased listed companies and caused more than one person to get grumpy when a light was shone into their corner.

There is one story, however, that I have not been able to fully uncover until earlier this year, which is the story of how I was diagnosed with a rare condition called hypoparathyroidism.

I am well into my late forties and for all this time I have been unaware of what detective work went on to discover I had what is a rare disorder until I requested access to my medical records late last year from the Royal Children’s Hospital under Freedom of Information laws.

All it cost me to go back into the archival time machine, which occurred at the same time as Australians were wondering whether to opt our of the electronic My Health system, was one hundred dollars that included the application fee and the payment for printing and mailing costs.

The first 19 years of my life arrived mid-January in a manila folder in the mail and I began to go on my personal medical safari.

What did I learn?

It was about six weeks from birth that the condition was discovered after there was a battery of tests undertaken to unravel this medical mystery that covered the full gamut including immunology and bacteriology.

I had been taken to the hospital by my parents with convulsions that had been occurring over a longer period of time but there was no immediately discernible cause so the medical practitioners had to go through the process of elimination to try and understand the dilemma with which they were presented.

Hypoparathyroidism – essentially the inactivity of or non-existence of parathyroid glands – results in a range of symptoms that include tetany, fatigue, tingling around the face known as parasthesia and a range of other weird and wonderful things if the condition is not treated properly with one of a range of treatments.

Convulsions were one way in which hypoparathyroidism manifested itself and the medical report on how I slowly recovered from these during hospitalisation as an infant fascinated me.

“Convulsions that occurred during the early part of his hospital stay were controlled with [intravenous] calcium gluconate – as his serum calcium rose, changed to oral calcium gluconate. Also given vitamin D and Pentavite,” the medical report in what is a 300-plus page file that chronicles almost two decades of my existence. “Convulsions became less frequent until they finally ceased, and the patient was discharged on calcium gluconate orally, 1 Gm q.i.d.. vitamin D 1000 daily and Penatvite 12 drips daily.”

This was the beginning of the use of what is called the conventional treatment to treat the disorder in my case that has continued to work well. There are alternative treatments that are hormone-based but in my case ‘if it ain;’t broke, don’t touch it’ applies. Why mess with success?

I am different to some others with the condition because there are people who have hypoparathyroidism that might come bundled with another disorder such as a problem with adrenal glands. l

Others might discover hypopara is the door prize they receive when they deal with thyroid problems. The parathyroids sit on top of the thyroid gland and as such the removal a thyroid gland to fix one medical problem can bring the onset of another. There are also people for whom the disorder is familial.

There were also tests for other things, too, in order to rule things out over periods of time given the nature of hypopara but those typically came back with the medical practitioners’ version of ‘nothing to see here’.

My records also provided an audit trail of blood test results that were undertaken once every three months to ensure that there was sufficient ‘control’ as the doctors call it of the levels of calcium in the blood. There are times when things were out of kilter but short letters that said “you will be pleased to hear that your blood tests were again satisfactory” are peppered throughout the records.

The records are also a reminder of the care that nephrologists – doctors that specialise in treating kidney problems – took of me during those years when endocrinologists did not have as great an understanding on the impact of calcium in certain disorders.

I was fortunate to have gifted medical practitioners such as Dr David McCredie and Dr Harley Powell keep me in check medically. It goes without saying that I am eternally grateful for their various interventions that have made things easier for me later in life.

The records also underscore the challenges I faced in understanding how to deal with this thing that medical professionals did not understand. It must also be acknowledged that these records also show the toll medical mysteries take on families that are confronted with having to understand something that is rare, different and, at times, isolating.

What is the sum of all of this for someone with a rare disorder like hypopara?

Resilience, persistence and an enhanced capacity for empathy are the things that first come to mind –  possibly why I succumbed to the irresistible pull of journalism in the first place.

Tom Ravlic FIPA is an investigative journalist and the author of ‘Vulture City: how our bankers got rich on swindle’ (Wilkinson Publishing) due for release shortly.

Patience and time get ‘heads on spikes’

Australians could be forgiven for thinking that the behemoths in our financial services sector are untouchable. It seemed for a long time that calls for a royal commission, for example, kept falling on deaf ears and that complaints against banks and similar institutions were being given little more than lip service.
Regulators such as the Australian Securities and Investments Commission have been accused by commentators of neglecting responsibilities to ensure companies are complying with laws.
There are now prominent examples of Australian regulators will act and use the legal muscle available to them to remind financial institutions of their legal obligations.
These examples give a reason for Australians to be less cynical about the work regulators do to clamp down on corporate misbehaviour.
Consider the case of the recent Commonwealth Bank and the AUSTRAC settlement that will result in the bank paying out $700 million for its failure to ensure its systems properly reported transactions that exceed $10,000 and a range of other breaches.
The CBA’s rap sheet for noncompliance includes a failure to provide 53,506 threshold reports between November 2012 and September 2015 for transactions above $10,000 as well has failing to properly monitor transactions on 778,370 accounts.
You need to add the AUSTRAC settlement to the belting the CBA received from the Australian Prudential Regulation Authority following the recent review of the bank’s governance processes that tore into the poor performance of the board and management.
Criminal cartel charges, which are the result of investigations by the Australia’s competition watchdog, have been laid against Deutsche Bank, Citigroup and the ANZ. Those charges relate to alleged cartel conduct in the trading of ANZ shares by Deutsche Bank and Citigroup following an institutional share placement by the ANZ in August 2015.
A common factor in these case studies is the length of time between initial acts committed by entities and actions taken by regulators. These cases are independent of the poking, prodding and probing of bankers by the Hayne royal commission that is due to issue an interim report later this year.
These examples have also caused people to continue questioning what the Australian Securities and Investments Commission is doing in chasing down banks behaving badly.
Spare a moment’s thought, however, for investigators unpicking what are often intricate webs of both publicly visible and more clandestine activities.
Disassembling a transaction or series of transactions so that it is clear what and how many offences might have been committed by which party takes time. You need reliable evidence of wrongdoing for court proceedings.
The forensic analysis required is painstaking. It would blow the mind of the average punter if they were exposed, for example, to the mountain of material relating to internal controls, risk management and the IT systems of the CBA or another financial institution.
These unseen folks are the heroes of the results we are now seeing writ large in the media. What outsiders do not see is the patience, diligence and determination needed to get ‘heads on spikes’.

Westpac quizzed on adviser remuneration

Rowena Orr QC has been Grilling Westpac executive Michael Wright over the bank’s remuneration policies as they relate to performance payments to financial advisers.

Wright’s evidence delivered in response to Orr’s questioning sought to explain the principles of the remuneration in relation to adviser bonuses.

The evidence from the Westpac executives follows evidence from a Westpac customer earlier in the day relating to the financial consequences of advice received on their personal circumstances when they planned to start a bed and breakfast.

That evidence from Westpac  is currently continuing at on the commission’s site .

CBA grilling continues

Commonwealth Bank executive Marianne Perkovic is again in the cross hairs of counsel assisting Michael Hodge QC at the Royal Commission this morning.

Perkovic has this morning attempted to take a question on notice while counsel assisting has been pressing her on revenue sharing arrangements.

Further questions have centred on enforceable undertaking negotiations. It appears it has taken more than a year for there to be an agreement on an enforceable undertaking

You can watch the live stream here .

Needed: a Senate tax reform inquiry

One of the things I found remarkable when working in not for profit bodies is the way in which you could get warring parties together and get to a productive outcome on an issue that people previous thought was impossible.chained-businessman-debt-concept_z1WdDK0O.jpg

An example of this was a forum run in Canberra some years ago in the midst of the public sector accounting debate. The event – convened by both the National Institute of Accountants and the Institute of Chartered Accountants at the time – brought together the diverse policy and practical and academic perspectives of public sector accounting at the National Press Club. It resulted in a better dialogue over time on public sector accounting issues within the profession.

The National Institute of Accountants later morphed into the Institute of Public Accountants and led a unique exercise in examining the various issues related to the scalability of accounting standards for those required to prepare financial reports.

All views were heard and – even better – the key regulatory agencies and the Canberra bureaucrats overseeing that area of the law were present. Nothing was hidden. It was all transparent and when the IPA submission on what was called different reporting went in to the Australian Accounting Standards Board there were no surprises.

On both occasions people walked away having had the opportunity to share perspectives and they felt they had gotten heard. Their views were exposed to those that matter. Everybody shared and discussed the issues with some degree of openness and a willingness to understand.

It is time that the same spirit was brought back to the debate over the reform of our taxation laws.

Tax reform has been a political football for as long as this 45-year old mind can remember and the reasons are always plain to see. There are vested interests at play in all levels of our richly diverse society and multiple views that can be held on individual issues depending on which side of the fence a particular group is on.

Timing is also an issue when is comes to a conversation on tax reform. The most recent attempt at a dialogue on tax reform was the Hockey-led Re:Think project and the timing for the country was unfortunate. Progress on that project, which started with a first class paper setting down the reform context, was scuttled after the leadership coup in September 2015. Everything was on the table, according to the freshly minted Prime Minister Malcolm Turnbull, until such a time as the Australian Labor Party made the table dematerialise with their various and fairly powerful hits at the government’s inaction on tax reform.

Remember the so-called plan to increase the rate and the base of the GST to 15%? The Labor-led debate on negative gearing? No matter what the government did on those issues it was unable to brush off the impression that the opposition rather than the government was the lead partner in the tango.

The never ending political point scoring these situations seem to produce would appear to most observers to be the status quo until such a time as a government has a decent majority in both the lower and upper house again.

I do, however, believe that it is possible to bring the adult discussion I spoke about in my blog earlier this week to the area of tax reform by using the very chamber that has a diverse composition capable of giving all of the issues a decent airing: the Senate.

As I have said elsewhere the Australian electorate has given the country a Senate that represents it wishes and its views at a particular point in time. It is clearly a composition that can provide a solid contribution to the taxation debate were a Senate committee formed to look into taxation reform.

Suspend the disparaging remarks about the Senate and the all too frequent character assassinations for a few moments while I explain how this can be done.

Committee composition

A Senate Economics References Committee inquiry into future directions for taxation reform should be convened and it composition must be drawn from the major parties and every crossbench group represented in the Senate.

No crossbench grouping should be dropped off the list. Every single group needs to be there. You have small business people, politicians with experience at State and Federal level and people accustomed to asking difficult questions of advocates of points of view such as lawyers and, of course, a prominent journalist. There is even a crossbench Senator that has a policy of lower taxation overall. The diversity of policy views exists for a solid inquiry to be conducted by a Senate committee into tax reform.

This composition also means that all parties  have the opportunity to take ownership of the outcome of the committee inquiry for the benefit of the country as a whole. The conduct of politicians at the start, during and after such an inquiry will be the greatest indication of how committed they are to the national interest.

Terms of reference

The terms of reference should be kept extremely simple although the issues that the inquiry will touch on will be their very nature be complex. No need to overburden the terms of reference with that complexity.

The committee’s terms of reference should include but not be limited to examining:

  • The current state of the Australian economy and tax reform measures that may assist in improving the overall wellbeing of Australian society as a whole;
  • What measures can be implemented to ensure that Australian taxation regime is as simple and as fair as it can possibly be to individuals and entities resident in Australia;
  • The impact of the taxation regime on individuals and whether all steps to minimise complexity and also maintain a fair and equitable tax regime are being taken.
  • The impact of taxation on the ability of small businesses to focus on growing the enterprise with an emphasis on determining what additional measures are possible to reduce the compliance burden;
  • Methods used by individuals and entities to plan their taxation affairs to minimise tax paid with the objective of recommending areas of reform where existing laws are deemed to lead to an unfair or inequitable outcome;
  • The status of Australia on the world stage as a tax jurisdiction and the economic implications of current policy settings for the growth of the economy compared with other countries; and,
  • Explore the viability of policy setting advocating by community groups, industry associations, academics, individuals and other parties by modelling the impact of reform measures the committee believes have merit based on the evidence presented to it in person or in written submissions.

A two phase inquiry

There is no way the inquiry can consist solely of written submissions and testimony at public hearings.  An inquiry into tax reform needs two phases:

  • First phase: the collecting of stakeholder views regarding current problems with the tax law and reform options. This is critical to ensure people are given the opportunity to be heard by contributing to the process. There is nothing worse in a consultation process than for the body conducting the inquiry or exposure process to find itself under attack for not providing people with the chance to engage. Once the inquiry is on and running then people have an opportunity to have a dialogue. This phase should result in an interim report documenting the variety of views and opinions put to the committee.
  • Second phase: The committee should review the recommendations put forward by stakeholders and seek the assistance of the Parliamentary Budget Office to crunch the numbers on the various proposals that are put forward so that the committee has not just theory but modelling on which to base recommendations for reform of the taxation laws of Australia. This phase should conclude with the final report of the committee. That report should contain recommendations for change.

The committee will have completed its heavy lifting. It will need to await the government response to the committee. A final report from the committee should be treated as a set of reform proposals. Any response from the government should indicate a willingness or reluctance to legislate. There should be no room for fence sitting

These are the moments in the political life of a country where politicians can demonstrate they have the ticker for serious legislative reform. how many of our political intermediaries actually have the necessary ticker to deliver?

Timeline for the inquiry

The inquiry should take place over no more than 12 months, which would leave sufficient time for the government to respond to any recommendations and put any reform suggestions to the electorate at the next election. There is enough desire for meaningful reform within the community that the use of a committee inquiry to develop proposals for reform that could be taken to an election would be welcomed.

This is the only way in which any meaningful tax reform can take place in the short to medium term without the electorate getting spooked by one major party or another.

It is time to have a sensible discussion about tax reform and the most immediate way to have it is to use the diverse skills and expertise made available to the Australian community in the Senate.

There’s not much you can do in circumstances where people decide to play politics to suit themselves. This requires the adults in the room to behave as ‘grown ups’ in a policy debate rather than engaging in the political equivalent of paintball.

The country needs an inquiry like this on tax reform. Just make it happen.

Time to have an adult conversation about politics

New Year’s resolutions are easy to make as a part of the bluster of celebrations marking the end of one 12 month period and start of another.

Some are kept. Others are broken. Some people are serious while others could not really care whether their resolution to lose weight, give up smoking, settle down, go on the around the world trip or find that new job are actually delivered.Conversation Between 3d Characters Showing Communication And Discussion

Babbling about a resolution to others is one way of participating in the  carry on that forms a part of farewelling a year.

There is one resolution that we should all make stick for 2017, however, and that involves establishing a degree of respect for the choice people make at the ballot box in the way in which we talk about political debates.

We have seen disparaging remarks made on too many occasions about the politicians elected by people in the Senate. One observer rather patronisingly and in my view offensively referred to the Senate composition as a ‘Star Wars’ cantina.

Those of us that momentarily laugh at the silliness of the analogy are actually encouraging the people who make it to continue on their merry way making light of the way in which voters use their democratic privilege to elect who it is THEY want to the parliament.

I am quite happy to say I voted for six minor parties above the line in the Senate at the last Federal Election. Does that make me Greedo’s cousin five times removed and born with a blaster attached at the hip?

I don’t think so somehow and it is time for commentators to realise that in attacking the personalities of the people that real people – not commentators paid to watch politics – have chosen to represent them actually makes those candidates even stronger.

The fact is that real people with a vote out in the suburbs have elected a Senate with which a government must learn to work and not disparage.

Commentators must also learn to become more comfortable with an environment that makes them work a little harder to understand where the various parties represented in the Senate may fall on issues.

This is obviously easier in a Senate, for example, where the Federal Government of whatever colour has a majority or there is only limited negotiation required because there a few crossbench groupings.

In the case of the current Senate you have the Greens, One Nation, the Nick Xenofon team, the Liberal Democrats and Derryn Hinch’s Justice Party that require attention.

This is not so much a Star Wars cantina scenario. These people are not aliens from outer space. They were elected because there were people out there in the right numbers in the relevant State that felt those parties represented a chance to be heard. And that the major parties had switched off.

Let’s be frank. This is not a unique phenomenon. I have seen it elsewhere and it happens for the right reasons.

In the area of professional services a group grew basically out of nowhere many years ago when people working in the area of self-managed superannuation funds felt their specialist needs were not being met by the major professional accounting bodies.

They are now a strong group and a group to be reckoned with because the architects recognised a need that needed to be serviced well. It was a need that could not be ignored.

That group is SMSF Australia and they are now regarded by many as a body of which they should be a member to get ahead in the self-managed superannuation side of financial services.

This is an issue that political parties and advocacy organisations in Australia must confront head on.

Political parties cannot allow themselves the luxury of complacency because others will move quickly to fill a gap. Undermining smaller parties by patronising them and effectively engaging in name calling is unhelpful and will damage the cause of major parties more than they themselves realised.

Political parties must find a way to speak to and for the audience that acknowledges their intelligence and their importance or face a decline in votes and – where relevant – a decline in membership. No organisation is ever too big to fail.

A voter that feels belittled in any way by a conversation being had in public will find a different place to park their vote the next time around. Attacking the political parties they have chosen to represent in the upper house of any parliament in this country is also a sure way of making those parties stronger.

This does not mean you fail to hold people accountable for any abuse of power or resources. There must be a light shone on all circumstances where taxpayers’ funds have been abused. Procedural inefficiencies and things that are plain dumb should be called out. This can be done without using terminology that patronises the voter that put the minor parties where they are and should be today.

Let’s collectively make a New Year’s resolution to elevate the quality of discussion about politics in this country. Tone is everything.

We owe it to the people.

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