Chapter 2
Views on proposed changes
Introduction
2.1
Superannuation is now the second largest asset held by Australians after
the family home, with the significance of superannuation for Australian
households set to increase over time.[1]
Currently, employers are required to make minimum payments to complying
superannuation funds at the rate of 9.5 per cent of salary and wages to build
employees' retirement savings. This contribution rate is scheduled to rise to
12 per cent by 1 July 2025.[2]
Superannuation accounts for around 27 per cent of Australian household net
wealth.[3]
2.2
As at 30 June 2015, there was over $2 trillion invested by
superannuation funds on behalf of their members. Approximately one-third of
this is held in self-managed superannuation funds, with the remaining held by
not-for-profit funds (industry funds, corporate funds and public sector funds)
and the retail (for-profit) funds.[4]
2.3
This chapter will examine the main aspects and effects of the bill, and
set out concerns raised by submitters and witnesses, with regard to:
-
how independent directors could be drawn from a wider pool,
increasing diversity;
-
the definition of 'independent';
-
independent governance, including concerns about dismantling the
equal representation model of governance;
-
the role of APRA to determine independence;
-
the transition period provided by the bill; and
-
the potential for mergers and acquisitions.
2.4
During his second reading speech, the then Assistant Treasurer, the Hon
Mr Josh Frydenburg MP, noted that employees contributing to superannuation
funds rely on the good governance of those funds, which necessitates a very
high standard of governance:
Employees cannot generally access their superannuation until
they retire and they rely on others to manage their superannuation until that
time. The government wants to make sure that superannuation is managed with the
highest possible standards of governance, in a way that is in superannuation
members' best interests. This, fundamentally, is what this bill seeks to bring
about.[5]
2.5
The Treasury submitted that there are significant benefits associated
with independent governance:
Independent directors bring to the board an external,
dispassionate perspective, enabling boards to benefit from a diversity of views
and providing a check on management recommendations. In contrast to directors
who may be executives of the RSE licensee's business or who represent employers
or employees, independent directors are more likely to be free of the types of
conflicts that may cause them to (either intentionally or unintentionally)
serve the interests of the employer sponsors, a related party or a subset of
members, rather than the fund's entire membership.[6]
2.6
The Treasury suggested that accountability and transparency would be
increased through strengthening oversight of management of superannuation funds
by independent directors.[7]
2.7
Representatives of the Treasury told the committee at its public hearing
in Melbourne that current governance arrangements were out-dated, and that,
because of industry change, the governance model was no longer effective:
The superannuation landscape has evolved significantly since
the introduction of the Superannuation Industry (Supervision) Act in 1993. Superannuation
funds are now complex financial businesses, and trustees have to manage an
ever-growing pool of Australian retirement savings.[8]
2.8
The committee notes the views of APRA, which is in strong support of
independent board appointments to trustee boards. This view was set out in a
speech to the AIST Governance Ideas Exchange Forum in Melbourne on 20 October
2015, by APRA Member, Mrs Helen Rowell:
APRA's long-held view is that independent directors play a
very important, positive role on boards – not just in superannuation but across
all APRA-regulated industries. APRA's experience, over many years and across
all our industries, is that having at least some independent directors on
boards supports sound governance outcomes. Independent directors broaden the
skills and capabilities that can be brought to the board table, and improve
decision-making by bringing an objective perspective to issues the board
considers. They are also well placed to hold other directors accountable for
their conduct, particularly in relation to conflicts of interest. As outlined
in our submissions to the Financial System Inquiry, we consider the diversity
of views and experience that independent directors bring supports more robust
decision-making by boards.[9]
Increasing diversity and flexibility on boards
2.9
The committee heard that an important aspect of the proposed changes to
the number of independent directors is the greater pool from which independent
directors will be drawn, should the bill be passed. The Explanatory Memorandum
to the bill states:
Increasing independence can also be seen to bring diversity
in worldview to a board's decision making processes. A diverse worldview
enables the decision making processes of superannuation boards to be tested and
challenged in a way that achieves beneficial member outcomes and feeds back
into the above covenants.[10]
2.10
Ms Vicki Wilkinson, Chief Adviser, Financial System and Services
Division, the Treasury, told the committee that independence would give
flexibility to boards to select directors with appropriate skillsets:
Good trustee governance is fundamental to enhancing members'
retirement incomes. This view was also supported in the 2014 financial system
inquiry, when it stated that, as more fund members exercise choice, directors
appointed by employer and employee groups are less likely to represent the
broader membership of public offer funds and, given the diversity of fund
membership, it is more important for directors to be independent, skilled and
accountable than representative.[11]
2.11
Submitters and witnesses highlighted the potential of independence to
increase diversity on boards. Professor Thomas Clarke, Director, UTS Centre for
Corporate Governance, told the committee that independent directors would
increase diversity:
There is a serious problem in the culture of the boards of
Australia and that is the tiny gene pool from which the directors are recruited...We
have to change that. We need greater diversity, competence, ability and
demography on our boards for them to perform better. That is a broad problem
with governance in this country and probably in others too.[12]
2.12
Mr Alan Kirkland, Chief Executive Officer of CHOICE, told the committee
that 'diversity is an outcome of allowing more independence':
It allows a board to tap into a broader pool of applicants,
it encourages a board to think about the particular skillsets or attributes it
wants in directors and you are likely to see more diversity as a result. The
main reason to have more independence is to create the best possible chance that
you have for people on the board who are very strongly focused on the best
outcomes for the entity and therefore for its members and also to make sure
they have the right mix of skills that would allow you to achieve that.[13]
2.13
Representatives of the Governance Institute of Australia expressed the
view that independent directors would minimise risk by drawing on a larger pool
of decision-makers, with particular regard to gender, age and experience.[14]
2.14
Similarly, Ms Sally Loane, Chief Executive Officer of the Financial
Services Council (FSC), told the committee that independent directors would
provide a 'crucial protection mechanism against conflicted decisions which can
lead to poor consumer outcomes'.[15]
2.15
However, Ms Melina Morrison, Chief Executive Officer of the Business
Council of Co-operatives and Mutuals, noted that although they agree that there
is a need for diversity on boards, they disagreed that the changes set out by
the bill would affect the desired change.[16]
The definition of independent
2.16
The bill seeks to define 'independent' in proposed new section 87, which
sets out the definition of independent from an RSE licensee, for the purpose of
meeting the requirements of the bill. A person would be independent unless
certain conditions are present, such as:
-
if the RSE licensee is a body corporate that has a share capital
or shareholding interest in five per cent or more of the share capital of the
RSE licensee or a body corporate that is related to the RSE licensee;
-
if the RSE licensee has been an executive officer (other than
director) or employee of the RSE licensee or a related RSE licensee;
-
if the RSE licensee has had a business relationship with the RSE
licensee or any individual trustees; and
-
if the RSE licensee is a trustee of a regulated superannuation
fund, is, or has been, a director or executive officer of a large employer in
relation to the fund.
2.17
Some submitters raised concerns about the proposed definition of
independent for the purpose of meeting the requirements of the bill. For
example, the Governance Institute of Australia suggested that legislation
should 'set out the principle of independence, but not prescribe a definition'.[17]
2.18
A report on governance of superannuation funds, published by Mercer
Consulting, also proposed a 'principles-based' definition which would 'enhance
objectivity and impartiality, but which would allow an independent director to
be a fund member'.[18]
2.19
The Australian Institute of Company Directors suggested that the
definition of independent could be broader, modelled on Principle 2 under the
ASX Corporate Governance Council's Corporate Governance Principles and
Recommendations (Principles and Recommendations):
An independent director is a non-executive director who is
not a member of management and who is free of any business or other
relationship that could materially interfere with - or could reasonably be
perceived to materially interfere with - the independent exercise of their
judgment.[19]
2.20
The Australian Industry Group (AI Group) submitted that although they
supported the principles of the bill, they held concerns about the definition
of independent, which they characterised as 'overly restrictive'.[20]
Independent governance
2.21
The bill, if passed, would introduce the requirement that one third of directors
on boards of APRA regulated superannuation funds be independent from the RSE
licensee.
2.22
The committee heard a mixed response to the requirement for one third of
directors to be independent. Although some submitters and witnesses supported
the proposition, other submitters consider that the bill does not go far enough
and argued for a majority of independent directors. Some submitters and
witnesses did not support the changes.
2.23
The Association of Superannuation Funds of Australia (ASFA) and National
Seniors support the requirement of the bill that one third of directors be
independent.[21]
2.24
The Governance Institute of Australia submitted that the requirement for
one third of directors to be independent was a good start, but that their
preference was for the majority of directors to be independent. They submitted
that majority independence was the prevailing international standard, and that
'retirement schemes in developed countries are moving towards appointing more
independent directors'.[22]
2.25
Similarly, the FSC told the committee that the bill would see 'moderate change',
noting that the majority of their members supported a majority of independent
directors.[23]
APRA
2.26
APRA submitted that their present powers to address governance-related
concerns are limited.[24]
Currently, section 29EB of the SIS Act provides that APRA may direct an RSE
licensee to comply with the SIS Act, SIS Regulations and prudential standards,
but only after the RSE licensee has contravened the law.[25]
2.27
The bill, if passed, would provide APRA with the power to determine that
a person is independent from an RSE licensee,[26]
and also to determine that a person is not independent.[27]
Proposed new sections 88 and 90 provide for APRA to make determinations about
whether a director is able to exercise independent judgement. They submitted
that:
[t]his mechanism is necessary to ensure that there is
certainty where an individual might have a non-typical relationship with an RSE
licensee such that it is unclear whether the individual is 'independent'. It
reflects the practical reality that it is not possible to clearly address in
the legislation all situations that may arise in practice; it is essential that
APRA be able to respond to unusual circumstances to provide the necessary
certainty to industry.[28]
2.28
CHOICE submitted that the proposed power to allow APRA to determine
independence may not be necessary, and suggested an alternative option where
APRA be referred a question of independence for guidance but that the final
decision rest with the referring body.[29]
CHOICE submitted that regulations that currently apply to deposit-taking,
general insurance and life insurance industries provide a relevant precedent.[30]
National Seniors supported CHOICE's proposal, stating:
There is no precedent in any other APRA-regulated sector
where APRA decides on the independence of directors. National Seniors believes
that APRA’s powers for regulated superannuation funds should be consistent with
the powers it has for regulating entities in the deposit-taking, general insurance,
life insurance and private health insurance industries. APRA is regarded as
having been effective in this area and we would take some confidence from a
role consistent with their existing approach.
Superannuation fund boards should be responsible for deciding
on the independence of directors.[31]
2.29
The Centre for Workforce Futures expressed the view that giving APRA the
role of determining independence may restrict the available pool of candidates.[32]
2.30
The AIST opposes APRA having the power to determine independence,[33]
as does Industry Super Australia[34]
and Mr Phillip Sweeney.[35]
2.31
Noting that concerns have been raised about APRA's role in determining
independence, APRA stated that it expects to use this power infrequently, '...as
the legislative definition of independence should provide sufficient information
to undertake a robust assessment of a director’s independence in most circumstances.'[36]
2.32
APRA advised the committee that the supporting guidance to RSE licensees
had been updated to reflect the proposed changes and is currently out for
public consultation, and 'encourages RSE licensees to refer the matter to APRA
for guidance where they may be in doubt about a director’s independence.'[37]
2.33
The committee notes that any decision that APRA makes using the powers
in either proposed section 88 or section 90 is a reviewable decision within the
meaning given in the SIS Act.[38]
2.34
The Australian Chamber of Commerce and Industry, while noting that these
powers seem unusual, advised the committee that they appear to be justified on
the basis that decisions made under these proposed provisions are reviewable.[39]
Equal representation
2.35
Part 9 of the SIS Act enshrines equal representation of member and
employer representatives on boards of non-public offer holding RSE licensees.
Equal representation was a significant pillar of the introduction of compulsory
superannuation in 1993.
2.36
The Financial Services Inquiry (FSI), conducted in 2014, found that the
equal representation model was no longer a truly representative model, as
superannuation funds are less focussed on a single employer than when
superannuation was introduced. The FSI argued that 'directors appointed by
employer and employee groups are less likely to represent the broader
membership of public offer funds', and that '[g]iven the diversity of fund
membership, it is more important for directors to be independent, skilled and
accountable than representative'.[40]
2.37
Similarly, Ms Wilkinson, from the Treasury, told the committee that although
the equal representation model had been appropriate in 1993, when
superannuation was made compulsory, it had lost its utility.[41]
The Treasury noted the Cooper Review, which found that industry change had
lessened the need for equal representation. The Treasury submitted that the
equal representation model was now detrimental to governance:
The current equal representation model in the Superannuation
Industry (Supervision) Act 1993 (SIS Act) hinders the natural refreshing of
boards because of the restrictions on the number of independent directors that
can be appointed to some registrable superannuation entity (RSE) licensee
boards.[42]
2.38
Some submitters and witnesses expressed concern that the equal
representation model would be replaced. For example, the Centre for Workforce
Futures at Macquarie University submitted that the equal representation model
had been a successful one:
Diversity of views, skills and experience is touted in the
explanatory memorandum as one of the key benefits of increasing the number of
independent directors. However, greater diversity seems strongly associated
with the structure of the equal representation model, which limits excessive
appointment of individuals from one particular group of 'insiders' and
prescribes minimum numbers of appointees from different backgrounds.
Accordingly, using independence to minimise potential conflicts of interest is
likely to result in little meaningful improvement in this regard.[43]
2.39
Mr Tom Garcia, Chief Executive Officer of the Australian Institute of
Superannuation Trustees (AIST) told the committee that although AIST does not
oppose the appointment of independent directors, they do oppose the repeal of
equal representation. Mr Garcia expressed the view that equal representation
could be retained alongside independence:
We contend that having independence on boards and having
equal representation are not mutually exclusive. The stated objectives of this
legislation are to broaden each board's pool of experience and to increase the
accountability of decisions made by directors, particularly in relation to
conflicts of interest. If these are the true aims of the legislation, they
could best be achieved in other ways.[44]
2.40
Similarly, Mr Alan Kirkland, Chief Executive Office of CHOICE, told the
committee that although they support the introduction of independent directors,
the changes set out by the bill were significant:
[t]his bill takes quite a big step in repealing part 9 of the
act and, in doing so, removing the definition of a member representative and
employer representative as well as the basic equal representation rule, which
seems like a very big change in the context of the overall aim of this bill.[45]
2.41
Representatives of the ACTU told the committee that the equal
representation model was successful in fostering consensus in board decisions.[46]
Further, the ACTU told the committee that change was not needed while the
system was successful:
We are deeply concerned that we have a proposal before us
where the government wants to impose a model on a system that is working so
well and is so successful, and they are saying they may want to mandate that
all funds should have a third of their directors as independents. We are
concerned that that will significantly alter the culture.[47]
2.42
APRA and the Treasury noted that the equal representation model could
continue under the amendment, but in a modified form, taking into account the requirement
for one third independent directors.[48]
Independent chair
2.43
Under proposed new section 86 of the bill, the chair of the RSE licensee's
board of directors will be required to be independent from the RSE licensee.
2.44
The Treasury noted that during the consultation process on the exposure
draft, some superannuation funds had expressed concerns over the requirement of
the bill that the chair of a board of directors be independent. According to
the Treasury, these concerns are addressed by the transition period provided by
the bill, as the independent chair will not have to be appointed until the end
of a three year transition period.[49]
2.45
Support for this provision was expressed by the Association of
Superannuation Funds of Australia (ASFA), who submitted that the recommendation
to have an independent chair 'is consistent with contemporary governance
standards and with requirements of other prudentially regulated entities,
including banks and insurance companies'.[50]
Further, that the role of the chair in providing guidance was central to the
performance of the fund:
The importance of the role played by the chair in ensuring
the effectiveness of a trustee board cannot be overstated. This role includes
guiding the board and CEO to focus on the right strategic priorities, make
difficult decisions and ensure all fiduciary duties are met. The trustee board
should therefore consider the characteristics it seeks in a chair and devise
suitable procedures for the chair's appointment.[51]
2.46
Some submitters expressed concerns over the provision of the bill which
would ensure an independent chair. These submitters include: National Seniors,
Corporate Superannuation Association and Industry Super Australia.[52]
Transition period
2.47
The bill includes provision in Part 3 of Schedule 1 for a three year
transition period. The Explanatory Memorandum to the bill states:
Existing RSE licensees that comply with transition
requirements set out in APRA's prudential standards will not have to comply
with the new arrangements until the end of a three year transition period,
which will commence from Royal Assent. The purpose of the transition period and
APRA's prudential standards relating to transition is to facilitate an orderly
transition to the new arrangements.[53]
2.48
During the transition period, item 25 provides that the transitional
prudential standards will override any contradictory provisions in trust deeds
and other rules governing a regulated superannuation fund, including the
constitution of a corporate trustee. This provision replicates the provision in
the new section 93B in schedule 1, Part 1, item 1. This provision is required
during the transition period to allow RSE licensees time to amend their trust
deeds or constitutions because new section 93B will not take effect until the
end of the transition period.[54]
2.49
As APRA has prudential oversight of the superannuation system, the SIS
Act allows APRA to issue prudential standards relating to superannuation.
Prudential standards are designed to provide additional detail on prudential
matters set out in the enabling legislation. Prudential standards are
legislative instruments, disallowable in the Senate, and require industry
consultation as part of their development and ongoing revision.[55]
2.50
ASFA supports the proposed three year transition period, and recommends
that it begin on 1 July 2016.[56]
The Australian Chamber of Commerce and Industry also supports the three year
transition period.[57]
2.51
The Treasury submitted that during their consultation process, most
stakeholders had expressed support for a three year transition period, but
noted that some stakeholders had a preference for the three year transition period
to commence on 1 July 2016 rather than on Royal Assent.[58]
2.52
Unisuper suggested that the requirement for an independent committee
chair could be phased in over a longer period. This is on the basis that it
would allow '...newly appointed independent directors to develop expertise in and
familiarity with the trustee before taking on these additional and significant
responsibilities as committee chairs.'[59]
2.53
AIST suggested that the three year transition period is inadequate and
proposed a five year transition period:
This period appears to have been chosen to align with
director terms under board renewal policies. AIST has found however that a
significant number of its member funds have four-year terms (in some cases
five-year terms), and the proposed transition period may therefore not allow
them sufficient opportunity to rotate existing directors in a manner that
protects the best interests of members or that complies with existing contractual
arrangements.[60]
2.54
AIST further suggests that as the bill, if passed, will potentially
cause turnover of up to one third of trustee-directors, a longer transitional
period is needed to deal with the risks presented by such a significant
turnover.[61]
2.55
Industry Super Australia opposes the three year transition period,
stating that:
...boards will have to prioritise compliance with the new law
over other competing demands related to board renewal and continuity. Meeting
the new obligations is certain to disrupt existing renewal and succession
plans. Plans to fill gaps in skills or experience may be abandoned in favour of
meeting the demands of the legislation.[62]
Added costs
2.56
The committee heard the concerns of some submitters that regulatory
costs would increase, and be passed on to consumers. For example, the Corporate Superannuation Association submitted that the
remuneration of independent directors would increase costs which would then be
borne by members of the superannuation fund.[63]
2.57
AIST also expressed concerns at potential costs to superannuation fund
members of implementation costs and higher director fees:
AIST is concerned at the level of board disruption that is
proposed within a short timeframe and cautions against such significant changes
being implemented in haste. The impact on decision-making and boardroom culture
poses a risk to the best interest of members. Coupled with the proposed removal
of the two-thirds voting rule, AIST believes that good governance practices
will be diminished as a result, with members bearing the cost.
AIST submits that the proposed changes will impose
significant costs (both through implementation and ongoing higher director
fees) and introduce risks to the industry for no good reason.[64]
2.58
Ms Eva Scheerlinck, Executive Manager, Governance and Stewardship, AIST,
told the committee that:
[t]here are a number of different costs associated, in the
first instance, with the recruitment of new directors. This being a different
pool of directors that would need to be sourced, there would be different
models. Whether or not that involves advertising using external requirement
agencies, for example, there are obviously costs associated with that. Our
research indicates that that would be approximately $40,000 per independent
director and up to $100,000 for a chair, despite the fact that in our industry
many of the directors are paid, on average, $60,000 per annum. So the search
cost is with it using external recruiters at that level.[65]
2.59
BOC Super also submitted that the requirement for one third independent
directors would increase costs, estimating that their operations cost base
would increase by 10 per cent to 25 per cent.[66]
Mergers and acquisitions
2.60
The committee heard that a potential effect of the bill would be to encourage
merger activity in the superannuation fund industry. The FSC submitted that:
An important outcome of the introduction of independent
directors will be the role...these new directors will play in supporting industry
consolidation to the benefit of consumers. Merger activity, in conjunction with
the opening of the superannuation industry to competition, will reduce costs in
the industry and put downward pressure on fees for consumers.[67]
2.61
The FSC expressed the view that independent directors would be able to
critically examine the viability of inefficient and underperforming funds, with
a view to a potential merger with a more efficient fund. The FSC drew upon
analysis from Rice Warner and statements from senior superannuation executives,
and put to the committee that 'it is clear that independent directors on
superannuation boards would be expected to increase merger activity'.[68]
2.62
ASFA, however, disputed that the proposed changes in the bill would
promote fund mergers:
It's a very long bow to suggest the proposed governance
changes will drive merger activity. Indeed an independent director whose livelihood
may solely depend on the number of board positions they hold may face an even
more difficult decision than a representative trustee director who has an
alternate main form of employment.
There is no empirical evidence to suggest that mandating independent
directors would give rise to increased mergers.[69]
Strict Liability Offence
2.63
Proposed new section 92 will create an offence for failure to comply
with a direction from APRA related to governance arrangements for an entity,
and makes the offence one of strict liability. The committee notes that this
proposed section was considered by the Senate Scrutiny of Bills Committee,
which drew Senators' attention to the provision, stating that it may be
considered to trespass unduly on personal rights and liberties. However the
Senate Scrutiny of Bills Committee left it to the Senate as a whole to
determine whether the proposed approach is appropriate on the basis that it was
provided with detailed information to justify the approach.[70]
Committee view
2.64
The committee is of the view that the bill contains provisions designed
to ensure that superannuation funds have the flexibility to select independent
directors who have the relevant skillset to aid fund performance, and which
brings governance of regulated superannuation funds in line with international
best practice standards of corporate governance. The committee notes that
superannuation is a significant asset for Australian households, and that a
very high standard of governance is required to ensure that Australians'
superannuation is protected into the future.
2.65
This bill will allow superannuation fund boards to draw from a broader
pool of independent directors, increasing diversity.
2.66
The committee notes the concerns of submitters and witnesses in relation
to unintended consequences regarding representation of members' interests and
added costs, but believes that the bill contains mechanisms to address these
risks.
Recommendation
1
2.67
The committee recommends the bill be passed.
Senator
Sean Edwards
Chair
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