Top 10 proposed changes to ASX Corporate Governance Principles and Recommendations and Listing Rules
by Michelle Eastwell, Jasmin Semlitsch
On 16 August 2013, the ASX released two consultation papers regarding the
proposed third edition of the ASX Corporate Governance Principles and
Recommendations (Recommendations) together with governance
related changes to the Listing Rules and ASX Guidance Note 9.
The proposals seek to review and update the ASX Corporate Governance
Principles and Recommendations released in 2007 (and amended in 2010) to
incorporate lessons from the GFC and other local and global corporate governance
developments. While there is an emphasis on providing entities with greater
flexibility for their corporate governance reporting, the proposals (if adopted)
will also require more detailed reporting and will raise the bar on corporate
governance practices in Australia.
It is intended that the proposals will take effect from 1 July 2014.
In this Alert, Michelle Eastwell and Jasmin Semlitsch highlight 10 key
proposed corporate governance changes and ways to prepare for effective
compliance if the proposals are adopted.
Tips for complying if the proposals are adopted
If the proposals are adopted, listed entities will need to:
- review their current corporate governance policies and practices carefully
and ensure that they are updated and modified as appropriate in light of any new
- ensure that they undertake a detailed verification exercise in order to
report accurately on the entity’s compliance with the Recommendations and to
assist in completing the new Appendix 4G; and
- make arrangements for appropriate disclosure of corporate governance
information on the entity’s website.
Top 10 proposed corporate governance changes that may impact listed
- Website Disclosure: Greater flexibility is proposed by
permitting entities to make corporate governance disclosure on their website
rather than in their annual report. If the corporate governance statement is
disclosed on the entity’s website, then this must also be lodged with the ASX at
the time of lodging the annual report.
- New Appendix 4G: A new requirement is proposed for entities
to lodge an Appendix 4G which will act as a ‘checklist’ to be completed by
entities regarding their compliance with the Recommendations and outlining where
details of that information can be found. This represents a shift in focus
towards more detailed disclosure regarding those areas where an entity complies
with the Recommendations, rather than the current approach whereby disclosure is
only required in relation to areas of non-compliance with Recommendations.
- Flexibility for Smaller Entities: A number of changes have
been proposed to recognise that smaller listed entities will have different
governance practices to larger listed entities. These include alternative
reporting options where entities decide not to have nomination, audit, risk or
remuneration committees or internal audit functions.
- Focus on Risk: The issue of risk management has received a
lot of attention in the proposals. There are proposed Recommendations for the
establishment of a risk committee (or otherwise disclosing the processes for
overseeing risk), reviewing the risk management framework annually (at minimum)
and disclosing whether such review has taken place as well as disclosing details
of internal audit functions.
- Independence of Directors: The relationships which may
affect the independence of directors are proposed to be expanded and will
include service on the board for more than nine years.
- Remuneration Clawback Policy: A new proposed Recommendation
that entities put in place a policy for the clawback of performance-based
remuneration from senior executives in certain circumstances, such as where
payment of such remuneration was not warranted or there has been a material
misstatement of the entity’s financial results. The proposed Recommendation also
includes disclosure of the policy and any clawbacks made (or which should have
been made) during the reporting period. The proposed ASX commentary for this
recommendation also states that generally a listed entity should ensure its
executive agreements conform with the clawback policy and facilitate recoupment
of remuneration in accordance with the policy.
- Improved Communication Strategies: The previous
recommendation for a ‘communications policy’ is proposed to be replaced with
Recommendations for the implementation of an investor relations program to
facilitate effective two-way communication and policies and processes to
encourage participation at meetings, as well as more detailed corporate
governance disclosure on an entity’s website.
- Disclosing Sustainability Risks: A new proposed
Recommendation will require an entity to disclose whether it has regard to
economic, environmental and social sustainability risks in conducting its
particular business and if so, how.
- Reporting on Diversity: Increased flexibility is proposed
regarding the diversity related Recommendations to allow an entity to report
their “Gender Equality Indicators” under the Workplace Gender Equality Act
- Foreign Incorporated Entities and Financial Reporting: A
number of amendments have been proposed which, if adopted, will result in
certain Recommendations (including those regarding a declaration from the CEO
and CFO with respect to the integrity of an entity’s financial records and
financial position and the attendance of an entity’s auditor at its AGM)
applying equally to foreign incorporated and Australian incorporated
The ASX is seeking submissions regarding the proposed changes up until 15
November 2013. Interested stakeholders may also wish to attend ASX’s national
road show on the proposals which commences in Brisbane on 16 September 2013.
There have also been a number of other amendments proposed to the Listing
Rules. Of particular interest is the proposed introduction of new Listing Rule
3.19B requiring disclosure of the on market purchase of securities by an entity
under an employee incentive scheme. More information on this proposed change and
the potential impact on listed entities can
be found here.
If you would like to know more about the proposed corporate governance
changes or how they might impact your company, please contact a member of
HopgoodGanim’s Corporate Advisory and Governance team.
With offices in Brisbane and Perth, HopgoodGanim offers
commercially-focused legal advice, coupled with reliable and responsive service
to clients throughout Australia and across international borders.