Preparing for the ACNC Governance Review – Practical tips and solutions

1. Preparing for the ACNC Governance Review – Practical tips and solutions James Beck and Erick Fibich Effective Governance Tel: (07) 3510 8111 Fax: (07) 3510 8181 advisors@effectivegovernance.com.au

2. Effective Governance • Largest independent, Corporate Governance consulting firm in Australia and New Zealand • Combine research with practical methods developed in the field with clients over a twenty year period • This covers the spectrum of companies: • ASX/public • Private • APRA regulated • Charity/not-for-profits • Government-owned • Family businesses

3. Topics for discussion • How to approach the governance review, standards and reporting requirements • Opportunity to review and improve • Better meet community expectations • Board charters • important tools in developing and maintaining leading practice governance as well as demonstrating the board’s commitment to good governance • Board skills analysis • vital for organisations needing to demonstrate their boards are ‘fit and proper’ for the job of governing • CEO performance assessment • a key board responsibility • Board review findings • highlighting possible areas for attention

4. Australian Charities and Not-for-profits Commission (ACNC) • ACNC is the independent national regulator of charities: • Established on 3 December 2012 • Approximately 57,500 registered charities • The ACNC: • registers organisations as charities • helps charities understand and meet their obligations through information, guidance, advice and other support maintains the ACNC Register • works with governments and government agencies across jurisdictions to develop a simplified reporting framework

5. Benefits of registration • Free, online, public register of ACNC registered charities at acnc.gov.au • Entitlement to access Commonwealth benefits including tax concessions • Commonwealth Grant Guidelines • Once information is provided to the ACNC it cannot be requested by other federal agencies • Filing of audited accounts acts as financial acquittal

6. ACNC governance standards and reporting • Under the ACNC Act, registered charities have an ongoing obligation to comply with core minimum governance standards in order to retain their tax concessions – commonly referred to as the governance review • There are no explicit reporting requirement at this time on the governance standards • However, registered charities have to report annually through an Annual Information Statement (AIS) • The reporting requirements vary depending on the size of the charity – small charities do not need to provide as much information as medium or large charities

7. ACNC reporting requirements • The only reporting obligation that all registered charities have for the 2012–2013 reporting period is to submit an Annual Information Statement (AIS) • For medium and large charities – annual financial reports from the 2013–2014 reporting period onwards • The ACNC Act defines charity size according to annual revenue: • small charity – annual revenue is less than $250 000 • medium charity – annual revenue is $250 000 or more but less than $1 million • large charity – annual revenue is $1 million or more

8. ACNC reporting requirements • The ACNC has consulted on the details of the Annual Information Statement (AIS) and is currently finalising it. • The AIS will cover what charities easily know: • How your charity works towards it charitable purpose • The number of volunteers and paid staff • The type of beneficiaries who benefit from the charity’s activities • In addition to the annual information statement, medium and large charities will need to submit for the 2013–2014 reporting period onwards: • for medium charities – a reviewed or audited annual financial report • for large charities – an audited annual financial report

9. Governance standards Definition of ‘charity’ • Parliament approved the Charities Bill 2013 and the Charities (Consequential Amendments and Transitional Provisions) Bill 2013 on 27 June, making it an Act and affirming their place in Australian law • The Charities Act 2013 clarifies the categories of charitable purposes, with native title, human rights and the environment among them • Charities (Consequential Amendments and Transitional Provisions) Act 2013 makes consequential amendments to 13 Acts and the Charities Act 2013; repeals the Extension of Charitable Purpose Act 2004; and makes transitional arrangements for the registration of new subtypes of entities with the ACNC and to preserve the charitable status of certain entities Governance standards for charities commenced 1 July 2013 • From 1 July 2013, charities have to demonstrate that they have systems in place to ensure compliance with five new governance standards

10. The basics – How the standards work • Five core minimum standards (not best practice) • Principles-based • Created by regulations under the ACNC Act • Commenced 1 July 2013 • Apply to all registered charities (not basic religious charities) • Triggers for the ACNC’s regulatory powers if breached • Must be met to be and remain registered with the ACNC

11. ACNC governance standards The 5 governance standards are: • Purposes and NFP nature of a registered entity • Accountability to members (where applicable) • Compliance with Australian laws • Suitability of responsible entities • Duties of responsible entities

12. Standard 1: Purposes and NFP Nature • Charities must be not-for-profit and work towards their charitable purpose. They must be able to demonstrate this and provide information about their purpose to the public. • What can charities do? • Clauses in governing rules • Run as a charity • Provide governing rules to ACNC or available on request 1

13. Standard 2: Accountability to Members • Charities that have members must take reasonable steps to be accountable to their members and provide their members adequate opportunity to raise concerns about how the charity is governed. • What can charities do? • Organise an AGM • Communicate to members on activities • Transparent process for appointing directors 2

14. Standard 3: Compliance with Australian Law • Charities must not commit a serious offence (such as fraud) under any Australian law or breach a law that may result in a penalty of 60 penalty units (currently $10,200) or more. • What can charities do? • Don’t have to do anything • Myth that have to report evidence of compliance 3

15. Standard 4: Suitability of Responsible Persons • Charities must check that their responsible persons (such as board or committee members or trustees) are not disqualified from managing a corporation under the Corporations Act 2001 (Cth) or disqualified from being a responsible person of a registered charity by the ACNC Commissioner. Charities must take reasonable steps to remove responsible persons who do not meet these requirements. 4

16. What can charities do? • Search the ASIC disqualified persons register • Search the ACNC register of disqualified persons • Require all its responsible persons to sign a declaration form (pro forma provided) relating to disqualifying offences 4

17. Standard 5: Duties of Responsible Persons • Charities must take reasonable steps to make sure that their responsible persons understand and carry out their legal duties • to act with reasonable care and diligence • to act honestly in the best interests of the charity and for its charitable purposes • not to misuse their position as a responsible person • not to misuse information they gain in their role as a responsible person • to disclose conflicts of interest • to ensure that financial affairs of the charity are managed responsibly • not to allow the charity to operate while it is insolvent 5

18. What can charities do? • Bring these duties to the attention of newly appointed responsible persons (such as providing them with a copy of our or other resources or outline duties in a pro forma letter of appointment • Provide information to responsible persons to refresh their knowledge • If it comes to your attention that a responsible person may not be carrying out their duties, take reasonable action 5

19. ‘We need to get professional advice on how to meet the standards’ The ACNC expects that most charities will not need to spend significant time nor incur any expenses (including on legal or other professional advice) to meet the governance standards These are core, minimum standards. The ACNC expects that most well-run charities will already meet most or all of them

20. ‘We need to change our governing rules to meet the standards’ Most organisations will not If you do, you have until 1 July 2017 But in the interim you can consider the following...

21. Board charters

22. Origin and purpose of charters • The word entered the English language from the Old French charte, which evolved from the Latin word for ‘paper’ (charta) • In medieval Europe, royal charters were used to create cities (i.e., localities with recognised legal rights and privileges) • Thus, the Macquarie Dictionary defines a charter as: ‘a written instrument or contract; a written document... giving privileges (and) rights…’ • For us, a board charter is: A written policy document that clearly defines the respective roles, responsibilities and authorities of the board of directors (both individually and collectively) and management in setting the direction, the management and the control of the organisation.

23. Board charters are an accepted part of the governance landscape... Boards should adopt a formal statement of matters reserved to them or a formal board charter that details their functions and responsibilities. ASX Corporate Governance Council, 2010, Corporate Governance Principles and Recommendations, p.13 Entities should develop and implement a Governance Policy… [A]n entity might like to consider…as part of their Governance Policy a board charter. Standards Australia, 2003, Good Governance Principles, §2.2.2 23

24. Tick-the-box compliance or value creating tool? • A board charter serves a number of important functions as the top level policy document • Serves as a reminder for the board of the legal framework within which it operates • Documents the policies that the board has decided upon to meet its legal and other responsibilities • Assists the corporation’s leadership in delivering good governance • Is a point of reference for disputes • Serves as an induction tool for new directors and senior managers • Charters leave a legacy from today’s board to future boards • BUT charters will only be value creating if they carefully crafted, used and regularly updated

25. Problems with charters / ACNC expectations • Potential issues arise with charters if • They are not updated to reflect • Changes in the law or regulatory environment • Good practice • They mistakenly delegate powers as contemplated by s 198D of the Corporations Act or constitution • The question of whether a director has discharged their duty is related to whether their conduct as director has satisfied the minimum standards of diligence and whether their powers have been delegated appropriately (Is the person appropriately skilled to be delegated to?) • They conflict with the organisation’s constitution • Roles and responsibilities lack clarity • They are at odds with the way the board actually operates (Do as I say, not as I do) • They are ignored by board members and there are no consequences for doing so – Code of Conduct – 3 Strikes.

26. A potential framework Corporate Governance Practice Framework Strategy CEO Monitoring Compliance Risk Management Policy Framework Networking Stakeholder Communication Decision Making Role of the Board Board Structure Role of Individual Directors Role of the Chair Role of the Company Secretary Role of the CEO Board Behavioural Dynamics® Defining Governance Roles Key Board Functions Board Effectiveness Improving Board Processes Director Protection Board Evaluation Director Remuneration Director Selection Director Induction Director Development Board Meetings Board Meeting Agenda Board Papers Board Minutes Board Calendar Committees Source: G. Kiel, G. Nicholson, J.A. Tunny & J. Beck, 2012, Directors at Work: A Practical Guide for Boards, Thomson Reuters, Sydney.

27. Corporate governance charter contents • Introduction • DEFINING GOVERNANCE ROLES • The Role of the Board • Board Structure • Number of Directors • Appointment of Directors • Skills Required on the Board • Duration of Appointment • Vacation of Office • The Role of Individual Directors • Directors’ Code of Conduct • Expectations of Directors in Board Process • Conflict of Interest and Related Party Transactions • Emergency Contact Procedures • The Role of the Chair • Inside the Boardroom • Outside the Boardroom • The Role of the Company Secretary • The Role of the CEO • IMPROVING BOARD PROCESSES • Board Meetings • Meeting Frequency • Meeting Time and Location • Meeting Cycle • Board Meetings (cont’d) • Conduct of Meeting • Quorum and Voting at Meetings • Emergency Decision Making – Written Resolutions • Board Meeting Agenda • Agenda Content • Agenda Preparation • Board Papers • Preparation and Circulation of Board Papers • Retention of Board Papers • Board Minutes • Board Calendar • Committees • KEY BOARD FUNCTIONS • The Board and Strategy • Contacts and Advisory Role • CEO Advisory Role • Protocol for Interaction with Internal and External Parties • Hospitality and Gifts • Monitoring • Compliance • Risk Management • Delegation of Authority • General Delegations • Decisions Requiring Board Approval • EFFECTIVE GOVERNANCE • Director Protection • Information Seeking Protocol • Access to Professional Advice • Access to Board Papers • Insurance • Board and Senior Executive Evaluation • Evaluation Process • Board and Director Evaluations • Board Committee Evaluations • Senior Executive Evaluations • Non-Executive Director Remuneration • Fees • Remuneration • Other Benefits • Director Development • Director Induction • Attachments • Committee Charters 27

28. Charter implementation process 1. Collect and compile current written policies Document the unwritten “board culture” 2. Draft charter highlighting those issues where broad agreement is likelyand those requiring discussion 5. Deliver final Board Charter 3. Discuss draft Board charter with Chair and/or CEO and Company Secretary 4. Board discussion, resolution and agreement on draft Board Charter

29. Board skills analysis

30. Acquiring skills in the boardroom ACNC expectations – ‘fit and proper’ person test • Know what skills you have • Select/nominate directors based on skills gaps • Develop director skills

31. In my view, the objective duty of competence requires that the directors have the ability to read and understand the financial statements, including the understanding that financial statements classify assets and liabilities as current and non-current, and what those concepts mean. Source: ASIC v Healey [2011] FCA 717 at 124 (Centro case)

32. Board competencies • Behavioural • Governance The attributes and competencies enabling individual board members to use their knowledge and skills to function well as team members and to interact with key stakeholders • Technical The essential governance knowledge and understanding all directors should possess or develop if they are to be effective board members. Includes some specific technical competencies as applied at board level • Industry Technical/professional skills and specialist knowledge to assist with ongoing aspects of the board’s role Experience in and knowledge of the industry in which the organisation operates Source: GC Kiel et al., 2012, Directors at work: a practical guide for boards, Sydney: Thomson Reuters.

33. 1.1 Technical Skills and Experience: Accounting What a skills assessment looks like

34. What a skills assessment looks like – internally GAPS Educate What value?

35. What a skills assessment looks like – externally

36. CEO performance assessment

37. CEO role of the board SELECTION REMUNERATION DESELECTION ASSESSMENT MENTORING SUCCESSION

38. Generic CEO assessment cycle • The chair or committee undertakes a detailed review using: • Objective measures • Subjective measures Establish Guide Assess The board agrees goals and key expectations for the CEO Ongoing advice, particularly from the chair • The board formally discusses the chair or committee’s findings: • Objective measures • Subjective measures The chair or committee negotiates performance goals with the CEO • Set Expectations • Expectations for CEO performance are agreed by CEO and board/committee • Endorsed by the board PERFORMANCE • Formal Appraisal • The chair or a committee meets with the CEO to review performance • Performance assessment process formally reviewed at board meeting Source: GC Kiel et al., 2012, Directors at work: a practical guide for boards, Sydney: Thomson Reuters.

39. There is no ‘one-size-fits-all’ approach CEO Review CEO Development CEO’s performance CEO’s competencies Focus of evaluation CEO’s leadership impact CEO’s management abilities CEO’s performance objectives eG CEO Expectations Diagnostic Survey and Workshop Plus KPIs (optional) Tools and processes MLQ 360° Survey and Feedback CEO Behavioural Profile Survey and Coaching Performance Assessment Workshop CEO’s competencies aligned to salary based on meeting or exceeding leadership and management expectations Performance bonus Remuneration outcomes

40. Example of CEO expectations Management Mean Board Mean CEO Self-Rating Management responses Gap Rating is the variance between the mean of each score against the CEO’s Self-Rating Board responses Board results on the 1st row, management on the 2nd CEO Self-Rating Minimum Rating Maximum Rating eG Rating is calculated on score not including ‘don’t know’ ratings Mean Rating

41. Board review findings

42. Some recurring themes • The board simply isn’t involved in strategic planning. We have one so-called strategic planning session in a year, but it isn’t really a strategic planning session • Board’s role in • Strategy • Risk • CEO assessment • CEO succession • Board skills • Board papers • Board behavioural dynamics There are no formal systems in place that I am aware of for bringing risks to the attention of the board discussed To the best of my knowledge, no CEO succession plan exists discussed The board papers are disorganised, inconsistent, lacking in clarity and lacking accountability. Board relationship with senior management could be improved

43. Your governance checklist Try our Governance Health Check: http://www.effectivegovernance.com.au/useful-resources/governance-health-check/ If you answer NO to any of the following questions, it maybe time to undertake a formal Board Review Diagnostic: • Do you think the board and management have a clear and agreed strategic direction? • Does the board have a succession plan in place for directors? • Does the board have a succession plan in place for the CEO? • Does the CEO have a formal evaluation process in place? • Do you feel the board challenges management enough? • Is there clarity between your board and management as to who does what? • Do you know the level of risk upon which decisions are based? • Do you feel comfortable that the board has an appropriate level of financial oversight? • Do your board papers contain the right amount of information? • Are your board meetings effective? • Do you feel as though the board is adding value to the organisation?

44. Ten steps to improving corporate governance •  Recognise that good governance is not just about compliance •  Clarify the board’s role in strategy • Monitor organisational performance • Understand that the board employs the CEO • Recognise that the governance of risk is a board responsibility • Ensure the directors have the information they need •  Build and maintain an effective governance infrastructure •  Appoint a competent chairperson • Build a skills-based board • Evaluate board and director performance and pursue opportunities for improvement

45. For more information, visit www.effectivegovernance.com.au