Mixed reaction to proposed APRA veto power
Governance experts yesterday welcomed most of the key policy recommendations made by panel members of the APRA capability review, but shareholder advocates and company directors are worried that the regulator could soon be overdosed with intervention powers.Perhaps the most significant of the 24 recommendations advanced by Graeme Samuel and his peers on the review panel is about strengthening APRA's power to veto appointments to the boards and senior management of regulated entities.APRA boss Wayne Byres yesterday revealed deep reservations about accepting the new power, which the Treasurer Josh Frydenberg said the government would implement.The proposed power would require the prudential regulator to assess nominations for board and senior management roles at banks and other licensees.It is controversial because it raises a moral hazard risk for the regulator, which over time, might cause APRA to be perceived as responsible for the composition of boards and executive leadership teams.To ameliorate the potential for moral hazard, the panel has recommended that APRA's new power be used on a "non-objections" basis rather than as a form of "positive vetting".The additional power might go part of the way to addressing gaps in the current regulatory framework that allow, for example, a director to sit on the boards of separate banks that might compete against each other in one or more product markets.University of NSW law academic Associate Professor Anil Hargovan suggested the wording of the recommendation indicated that the new power would not have blanket application."Importantly, it should be remembered that the use of this new power by APRA is only enlivened if there are risks to governance, culture and accountability identified by APRA," he said."Therefore, the effect of the new power is not a blanket prohibition against having directors on dual boards - its execution is dependent on a risk assessment and judgment call made by APRA and ought only be applied in deserving cases."Risk consultant Pat McConnell believes the reform is long overdue in Australia and he noted that the power would also apply to board reappointments. "I'm fully in favour of that recommendation," he said."The power to reappoint is interesting."If, for example, a risk committee has been shown to be incapable of handling its duties, then the regulator should be in a position to say a director or group of directors shouldn't be reappointed."The panel argues in its report that the new power would bring APRA into line with the powers of many other international regulators such as the UK's Financial Conduct Authority. However, members of the Australian Shareholders' Association said they were worried that APRA could use the new powers to undermine the binary rights of shareholders and directors to make appointments."I have concerns about giving such powers to APRA," said the ASA's AMP monitor, Ian Graves."I don't believe you need a sledgehammer to crack a nut." Hargovan said the efficacy of the panel's recommendation, as framed, is predicated on APRA being on top of its game."History, however, shows this is not always the case," he said. "APRA was heavily criticised for