BULAW5915 Corporate Law: Examining NAB's Corporate Governance Issues

This report provides an analysis of corporate governance and director's duties in Australia, using the National Australia Bank (NAB) case as a primary example. It examines the findings of the Royal Commission, which revealed significant breaches of corporate governance principles by NAB, inc...Read More

Corporate Law
Running head: CORPORATE LAW 0
Student’s Name: Bhumika Adhikari
Address

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Contents
Part A ..................................................................................................................................2
Introduction..................................................................................................................................2
Royal Commission.......................................................................................................................2
Royal Commission Finding.........................................................................................................2
Corporate Governance – Poor or Good........................................................................................3
Review of Corporate Governance aspects...................................................................................4
Part B ..................................................................................................................................5
What is Good Corporate Governance?........................................................................................5
Theories of Corporate Governance..............................................................................................6
Conclusion...................................................................................................................................7

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Part A
Introduction
Corporate governance is an important aspect when dealing on behalf of a company. As
the name implies, this governance provides a manner and rules to corporates in which conducts
of the same should take place. Further, this aspect is way in that a corporation is governed.
Corporate governance focuses on interest of all stakeholders of a company and requires the
director and officer of the company to work under a model that ensures sustainable development.
In the emerging ear where money matters a lot, many of the cases has reported in Australia,
where management of a company earned money in an unethical manner. As corporate
governance is very much connected to the subject of ethics, this will not be wrongful to mention
that the reported cases are unethical.
The chosen company for this report is the National Bank of Australia. This bank is one
out of four lead financial institutions of Australia and the same it is securities are listed on
Australian Stock Exchange.
Royal Commission
A royal Commission is an authority in Australia that looks after the conducts of banks,
financial institutions, and other superannuation services industries of the country. The
commission has recently been established in the year 2017 (Royal Commission, 2018). The
motive behind the development of this commission is to control the issues of unethical practices
and frauds in banks and other financial institutions. During the last few years, when cases were

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used to report on a daily basis, the government of Australia started feeling lack of existence of a
proper authority that could give whole time attention to such conducts. Therefore, the Australian
government has established and developed this commission.
Royal Commission Finding
Similar to many of other banks, the National Bank of Australia (NAB) has also reported
as a guilty bank, which was engaged in the activities that led to poor corporate governance. NAB
is a bank that is highly reputed in Australia. In conjunction with this, the same is the largest retail
superannuation fund in Australia (Rose, 2016). Recently Royal commission has served a paper to
the bank in which thousands of breaches in the different sectors were mentioned. These breaches
included breaches with the provisions of Corporations act 2001, Australian Securities and
Investments Commission (ASIC) and so on. The issue was started when in the year 2016; ASIC
first time has come into knowledge about the fact that NAB was involved in charging of
unreasonable money from it is customers (Danckert, Yeates & Williams, 2018). It has found that
the bank was charging his customers for no service fee. In the investigation, findings of ASIC,
and Royal Commission, it was noted that the bank has charged an advisory fee from super
customers in exchange to provide only general advice rather than an advisory one. Further, no
adviser was even linked to those accounts ever. The bank further admitted that super accounts
also been charged for advisory services even when no services were provided to them.
As Royal Commission has come into existence recently, the same has reviewed the issue
further. Commission has later alleged that in addition to charging the several accounts for no
service fee, NAB has also breached it is a further duty. The commission has found that the bank
has not made timely reporting to ASIC and failed to notify the authority (ASIC) that what is the

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status of the refund that the bank was required to make to victim members (Redman, 2018). In
actual, when ASIC found the unethical practices into the bank, the same has made NAB liable
to refund the money to all the customers who have charged for no service or have been charged
on for periodic services that were not there in actuals. NAB also failed to notify ASIC about
breaches of license conditions that have committed under section 912D of Corporations Act
2001 (Frost, 2018).
At the Melbourne hearing, Michael Hodge QC, a councel who was assisting Royal
commission, has reviewed the internal documents and e-mails of NAB and have reviewed that
the bank hoped if it capped the refunds, the same can be in the middle of the pack in view of
ASIC. NAB is now paying $100 million in compensation to it is super customers that have been
charged fraudulently (The Guardian, 2018). Mr. Hodge stated that the bank was engaged in
unethical and unconscionable conduct despite being aware of the fact that fees must not be
charged for no fee service (Neil, 2018).
Corporate Governance – Poor or Good
After having look on the conduct of NAB, this is to state that the bank has not taken steps
according to good governance principles. Being the largest superannuation fund of the nation, it
was NAB’s responsibility to conduct in an ethical manner by considering the interest of
everyone, mainly to it is customers, but the bank failed to do so. Charging fee for no services and
even after the death of some of the customers is not a tolerable action in the subject of corporate
governance. The bank has practiced poor corporate governance during the last few years.

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Review of Corporate Governance aspects
The subject of corporate governance consists of some aspects that a company needs to
follow and perform while ensuring the existence and development of good corporate governance.
These aspects are requirements in actual, that a good corporate governance demands. Two of the
most common aspects and their implications are mentioned hereunder:-
1. Duties of Directors: - Part 1 of chapter 2D of Corporations Act 2001 states the general duties
of a director. Sections under this part demand that every director and officer of the company
act in an ethical manner. Section 180 of the act requires that every director and officers of the
company must perform their duty with due care and diligence (Austlii, 2018). Further Section
181 of the act says that these people need to do act in good faith and best suitable manner of
the company (Australian Government, 2018). Section 182 and 183 of the act further says that
a director or officer of the company must not use their position or information available with
them for a personal interest. Section 912D of the act is also an important section. According
to the provisions of this section, a financial license holder company needs to notify ASIC
regarding every breach of license conditions (Australia, 2011).
In the studied case, management of the company including superannuation trustee were
required to act in the best interest of the company. Being the part of management, the officer
must not have charged unreasonable fee form customers. By doing this, officers and directors of
the company breached their duties as stipulated under Corporations Act 2001. Further NAB also
failed to notify ASIC that the same has breached terms of the license. Therefore, this can be
stated that the management of the bank did not perform their duties in the manner expected by
Corporations Act, 2001.

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2. ASX Principles: - Australian Stock exchange has published some corporate governance
principles and recommendations in the year 2003 (Farrell, Harding & Spilsbury, 2018). Every
listed company of Australia is required to comply with these principles. These eight principles
provide the manner in which the director and officer of every listed company need to perform
their duty. According to these principles, every company needs to act ethically (ASX
Corporate Governance Council, 2018). Officers of NAB have not done anything ethical while
charging their customers for no fee services. Further, the principles state that every listed
company must comply with the reporting requirements of applicable law and make timely
disclosures to authorities. As in the given case, NAB failed to report the issue of breach of
license condition to ASIC, this can be stated that the bank has not complied with the
requirements of corporate governance principles let out by ASX.
Part B
What is Good Corporate Governance?
After knowing that what corporate governance is, this is also required to know that what
a good corporate governance stands for. This is to mention that good corporate governance is
that governance, which is positive in nature and includes wellness of everyone.
Where complying with good governance brings many positive results to an organization,
poor corporate governances on another side can lead adverse impacts on an organization. This is
the reason that authorities such as the ASX, ASIC and corporations Act itself requires directors
and officers of the company to act according to the principles of good corporate governance.
Following are some negative results that poor corporate governance brings to a company.

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1. Economic Impacts: - Whenever a company or intuition fails to perform good governance,
then the same has to pay a heavy amount in the form of penalties to authorities. In
addition to this in those cases where a third party suffers from some loss cause of
unethical and irresponsible working of the company, then the company has to pay
compensation also to such innocent party of the case. In many of the cases, it has been
noted that companies have to pay a huge amount of penalty because of poor corporate
governance issues (Lister, 2017). Such fines and penalties attract negative results to the
financials of the company and company has to suffer some other issues such as lack of
working capital and funds in a long term. In the case of NAB also, the company is
required to pay $100 million in penalties, which is a significant amount and will lead
financial issues in a long-term for the bank.
2. Social Impacts:- Every organization works in society. This is society only from where all
the stakeholders of a company belong. Goodwill of every company is an incredible asset
for the same. However, transactions, which consists of poor corporate governance, put a
negative impact on the image of the company. Apart from goodwill, trust is another
concept. Stakeholders have trust in a company and therefore they attach their interest
with it. But when cases of Poor corporate governance reports, then trust of stakeholder
breaches. In case of NAB scandal also, it was one of the leads of the nation on which
people trusted a lot. When it has come to know that the bank is involved in unethical
practices, then a question has put on the trust of public and stakeholder.
3. Political Impacts: - In every nation, a government is there which makes business and
economic policies. In general, politicians make those policies, which are good for the

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business and supports to economic, but the cause of Poor corporate governance cases,
there is a question arise in respect of efficiency of these policies. A political donation is
another factor to review. Cause of NAB scandal, the bank is not expected to make any
further political donation as it may lead to further issues such as financial crises and
unethical practices.
4. Legal Impacts:- Law is a wonder. It makes provisions for every possible aspect of an area
of working. Corporations Act, 2001 and ASX principles are the main law in the area of
corporate governance in the nation. Provisions of penalties are mentioned in corporations
act, 2001. Breach of law attracts a challenge to the same. In NAB scandal, provisions
related to duties of directors have been challenged openly. Some cases are there which
also provides a need to change in current law. These legal issues adhere in the
atmosphere because of Poor corporate governance of an organization.
After reviewing these impact, one can understand that why authorities demand to
establish good governance
Theories of Corporate Governance
There are different theories on this subject that provide different concepts. An
organization while dealing with corporate governance can use one or more theory. However, in
the cases of poor corporate governance, issue of breaches of such theories exists. Two theories
on this subject and failure of implication by the chosen bank are stated below:-
1. Stakeholder theory: - This theory provides that a company must consider interest and
wellness of it is every stakeholder and should not only focus on the shareholder.
According to this theory, the shareholder is an important stakeholder of a company as

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without their existence a company cannot literally work, but this does not mean that they
are the only stakeholder of a company (Fernando, 2009). Customers, government and
society are other stakeholder and company need to consider their interest also. This
theory focuses on the fact that every person who has some interest on the affairs of a
company is a stakeholder thereon and only is the responsibility of directors and officers
of the company to consider and secure the interest of such person (Andriof, Waddock,
Husted & Rahman, 2017). Being a bank, the interest of many people such as customers,
government, and society was attached with NAB. The bank has not taken the interest of
these people in care and only focused on profit maximization of the company. Profit
maximization is a term related to shareholder and therefore to say that the bank has only
considered and focused wellness of shareholders. As the act of bank is in conflict with
shareholder theory, this is to state that the bank has not acted according to this theory.
2. Consequentialism Theory: - As the name implies, the theory makes the focus on the
consequences and results of a particular deed. The theory is also commonly known as
Utilitarianism Theory. The provisions and principles of this theory say that every task
which brings a positive result to many people will be counted as ethical (Plessis,
Hargovan & Bagaric, 2010). This can be understood by an example. For instance, if
doing the murder of someone, saves the life of many other people then murder will count
as ethical under this theory because it will lead positive results for many of other. The
interest of a wider group of people is important under this theory (Brink, 2011). The
principle of this theory is that an act should focus on happiness of maximum people but
not the only one. NAB has made a scandal and acted in a manner that brought financial

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benefits to the company and it is a shareholder. In addition to this, superannuation
officers have also done many of another task such as not informing ASIC about a breach
that was only focused on the interest of a particular group of people. No task of NAB has
brought positive results to many of the people. This can be concluded that NAB has not
followed this theory.
Conclusion
In conclusion, this can say that good corporate governance is advisable for all but not
many of the companies follow this practice. NAB even being the largest superannuation institute
of the nation, has not complied with Good corporate governance. This bank breached provisions
of Corporations act 2001 and principles of ASX. Further, no theory of good corporate
governance was there in the bank. Many negative issues such as social, economic, political, and
legal ones have seen the cause of NAB scandal. Therefore, this will not be adverse to state that
NAB has not followed ethical practices and directors and officers of the banks have breached
their obligations and duties.
References
Andriof, J., Waddock, S., Husted, B., & Rahman, S., S. (2017). Unfolding Stakeholder
Thinking: Theory, Responsibility and Engagement. USA: Routledge.

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ASX Corporate Governance Council, (2018). Corporate Governance Principles and
Recommendations. Retrieved from: https://www.asx.com.au/documents/asx-
compliance/cgc-principles-and-recommendations-3rd-edn.pdf
Austlii. (2018). Corporations Act 2001 - Sect 180. Retrieved from:
http://www5.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s180.html
Australia. (2011). Australian Corporations & Securities Legislation 2011: Corporations Act
2001, ASIC Act 2001, related regulations. Australia: CCH Australia Limited,
Australian Government. (2018). Corporations Act 2001. Retrieved from:
https://www.legislation.gov.au/Details/C2018C00275
Brink, A. (2011). Corporate Governance and Business Ethics. New York: Springer Science &
Business Media.
Danckert, S., Yeates, C., & Williams, R. (2018). NAB accused of withholding information from
ASIC. Retrieved from: https://www.smh.com.au/business/banking-and-finance/nab-
accused-of-withholding-information-from-asic-20180807-p4zvxk.html
Farrell, K., Harding, D., & Spilsbury, S. (2018). ASX Corporate Governance Council releases
its Principles of Good Corporate Governance and best Practice Recommendations.
Retrieved from: http://www.findlaw.com.au/articles/1531/asx-corporate-governance-
council-releases-its-prin.aspx
Fernando, A. C. (2009). Corporate Governance: Principles, Policies, and Practices.
India :Pearson Education India.

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Frost, J. (2018). Hayne royal commission: NAB and CBA singled out in super take down.
Retrieved from: https://www.afr.com/business/banking-and-finance/financial-services/
hayne-royal-commission-nab-and-cba-singled-out-in-super-take-down-20180824-h14fvk
Lister, J. (2017). Corporate Governance Effects. Retrieved from: https://bizfluent.com/info-
8019695-corporate-governance-effects.html
Neil, M. (2018). The bank that kept billing dead people superannuation fees. Retrieved from:
https://www.news.com.au/finance/business/banking/the-bank-that-kept-billing-dead-
people-superannuation-fees/news-story/d372832a56e7ec46d46f934e921c6929
Plessis, J., J., D., Hargovan, A. & Bagaric, M. (2010). Principles of Contemporary Corporate
Governance. New York: Cambridge University Press.
Redman, E.(2018). Banking royal commission live: CBA may have breached ASIC Act, Hayne
told. Retrieved from: https://www.theaustralian.com.au/news/banking-royal-commission-
live/news-story/672b9985737b2d23aa1a36829d01a41a
Rose, S. (2016). NAB's MLC Super now Australia's largest retail superannuation fund.
Retrieved from: https://www.afr.com/business/banking-and-finance/financial-services/
nabs-mlc-super-now-australias-largest-retail-superannuation-fund-20160713-gq4s0k
Royal Commission. (2018). Home. Retrieved from:
https://financialservices.royalcommission.gov.au/Pages/default.aspx
The Guardian. (2018). National Australia Bank charged fees to dead superannuation customers,
inquiry told. Retrieved from:

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https://www.theguardian.com/australia-news/2018/aug/08/national-australia-bank-
charged-fees-to-dead-superannuation-customers-inquiry-told