To: StockDung who wrote (83128 ) 2/22/2003 9:55:30 PM From: SEC-ond-chance Respond to of 122087 A hard word from the ASX By Ann-Maree Moodie Opinion: Corporate Governance The Australian Stock Exchange's (ASX) Corporate Governance Council, established in August last year to agree on corporate governance standards for Australian listed companies, took a break over the holiday period to muse on the issue of independence. At that time, the council was split between two recommendations on the make-up of a board: one from a majority of independent directors, and one from a majority of non-executive directors (with one-third independent). But numbers were the least of the problems of the council, which consists of all key industry and stakeholder groups in the corporate governance debate. The biggest issue was defining "independence". In a late draft of its Principles of Good Corporate Governance and Best Practice Recommendations, the council determined: "The board should include a balance of executive and non-executive directors (including independent non-executives) such as that no individual or small group of individuals can dominate the board's decision-making." Perhaps the council was having its own problems with dominating members, and maybe Karen Hamilton should have exercised her obligations and authority as chair to illustrate the obvious: the council was confusing independence with influence. An independent director is no more likely to dominate proceedings than a non-executive director. An influential director is another matter. The key role of a board member is to argue and debate, and the chairman must allow discussion to occur during board meetings. But, assuming that well-argued and expressed views are common in Australia's boardrooms, let's move on to the other aspect of the council's deliberations on independent directors versus non-executive directors. According to the same draft document, "a majority of the board should be independent of management and free of any business or other relationship which could materially interfere with the exercise of their unfettered and independent judgment". Independence is certain if a director: 1. Is not a substantial shareholder of the company or an officer of, or otherwise associated directly with, a substantial shareholder of the company. 2. Has not, within the past three years, been employed in an executive capacity by the company or another group member, or been a director after ceasing to hold such employment. 3. Has not within the past three years been a principal or employee of a material professional adviser or a material consultant to the company or another group member. 4. Is not a material supplier or customer of the company or other group member or an officer or otherwise associated directly or indirectly with a significant supplier or customer. 5. Has no material contractual relationship with the company or another group member, other than as a director of the company. 6. Is free from any interest or any business or other relationship that could, or could reasonably be perceived to, materially interfere with the director's ability to act in the best interests of the company.The Australian Stock Exchange listing rules and guidance notes are a serious matter, so if this checklist is to be considered inflexible, Domenic Martino (who relinquished his position as chief executive of Deloitte Touche Tohmatsu over his membership of the board of the failed telco New Tel), will not be alone in the wilderness for long. In one swift move, the ASX will have demolished the boys' club and assured board search consultants of an uninterrupted cashflow for many years hence. But will the boardrooms of Australia be better off as a result? Take, for example, the former partner and national chairman of KPMG, David Crawford. He worked for KPMG or its predecessor firms for 30 years before retiring in 2001 to take up a portfolio of influential directorships: BHP Billiton, Foster's Group, National Foods, Westpac Banking Corporation and The Australian Ballet. Crawford's associations could run him foul of most of the points the ASX wants ticked off to be assured that a board member is independent. But by doing so, Australian business would lose someone of authority, experience and wisdom.Independence has been a theme of the recent release of corporate governance guidelines in Australia, as well as by the Sarbanes-Oxley Act in the US and the Higgs Report in Britain. But those involved with advising boards, as well as board members themselves, should be careful not to confuse integrity, experience and influence with independence. After all, if the ASX had trouble with the definition, how can it expect Australian boards not to?cfoweb.com.au