Creating Governance and Leadership Performance in the Public Sector CPA Australia s Public Sector Governance and Ac .


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“Developing Governance and Leadership Performance in the Public Sector” CPA Australia’s Public Sector Governance and Accountability Symposium Brisbane, 6 December 2004. Professor Bryan Horrigan Professor, School of Law, University of Canberra
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"Creating Governance and Leadership Performance in the Public Sector" CPA Australia\'s Public Sector Governance and Accountability Symposium Brisbane, 6 December 2004 Professor Bryan Horrigan Professor, School of Law, University of Canberra Director, National Center for Corporate Law and Policy Research Consultant, Allens Arthur Robinson Former Deputy Director, National Institute for Governance

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Overview Corporate administration ideas, components, and measurements Impact of the general population private gap on corporate administration Corporate administration turning points, lessons, and developing issues over the general population and private parts Post-Uhrig take off of elected open area corporate administration changes Special difficulties for corporate, official, and counseling sheets in the general population segment Latest observational research on the drivers of good corporate administration and execution

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Presenter\'s Expertise Current ARC investigate concede on corporate administration in the elected open division Previous ARC look into allow on administration and obligation of state GBEs Formerly Deputy Director of the National Institute for Governance (eg open segment administration roundtables, consultancies, and research/preparing) Consultant to national law office on legislative and business matters Currently educating corporate administration at bosses and MBA levels Published research on corporate administration in both private segment and open segment settings Contact: bryan.horrigan@canberra.edu.au; portable 0421 702059

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Corporate Governance Elements …

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Standard Private Sector View Strategy Resourcing Conformance Performance Assurance Accountability Shareholders/proprietors Stakeholders Inner circle (eg workers, banks, providers, lenders) Outer circle (eg controllers, clients, peers, society)

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Public-Private Divide …

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Recent Corporate Governance Milestones Private Sector: Enron, HIH, One.Tel, Ansett corporate breakdown US Sarbanes-Oxley Act changes UK Higgs report (non-official executives) HIH Report ASX CGC Corporate Governance rules CLERP 9 – corporate exposure and examining ASIC cases on chiefs\' obligations as well as business judgments – Rich , Whitlam , Adler (NB CAC Act affect?) Public Sector: UK Nov 2004 \'Building Better Boards\' (non-departmental open bodies) Uhrig Report on key organizations\' administration New ANAO \'better practice\' corporate administration guides Governmental customisation of ASX standards (eg Victorian Treasury)

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Public Sector v Private Sector Orthodox view – a few things the general population segment can gain from the private segment (eg business objectives, corporate sheets) Growing acknowledgment – a few things the private segment can gain from people in general segment (eg "triple primary concern" execution, partner engagement) Some center corporate administration components crosswise over both segments (eg responsibility, consistence, execution) however inside various settings Hybrid model of corporate administration straddling open/private separation ("in the event that you cross a fish with a human you get something which is neither one nor the other - a mermaid! – so don\'t attempt to put round pegs in square openings")

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Eg Ministerial v Other Shareholders Ministers are elite/prevailing shareholders Ministers don\'t exchange their shares in the market Ministers\' shareholdings are hung on open trust Ministers can issue headings Ministers impact law-production, strategy, and control influencing the association and the business sectors in which it contends Ministers have different accountabilities over numerous bodies electorate (eg offices, parliament, bureau, government, electorates, open)

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CORPORATIONS ACT 2001 SECT 180 Care and perseverance - common commitment just Care and determination—executives and different officers A chief or other officer of an enterprise must practice their forces and release their obligations with the level of care and tirelessness that a sensible individual would practice in the event that they: (a) were a chief or officer of a partnership in the company\'s conditions; and (b) involved the workplace held by, and had an indistinguishable duties inside the organization from, the executive or officer. Take note of: This subsection is a common punishment arrangement (see area 1317E).

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Business judgment govern (2) An executive or other officer of a company who makes a business judgment is taken to meet the prerequisites of subsection (1), and their proportionate obligations at custom-based law and in value, in regard of the judgment on the off chance that they: ( a) make the judgment in accordance with some basic honesty for a legitimate reason; and (b) don\'t have a material individual enthusiasm for the topic of the judgment; and (c) advise themselves about the topic of the judgment to the degree they sensibly accept to be fitting; and (d) soundly trust that the judgment is to the greatest advantage of the partnership. The executive\'s or officer\'s conviction that the judgment is to the greatest advantage of the enterprise is a sane one unless the conviction is one that no sensible individual in their position would hold. Take note of: This subsection just works in connection to obligations under this segment and their proportional obligations at precedent-based law or in value (counting the obligation of care that emerges under the customary law standards overseeing risk for carelessness)— it doesn\'t work in connection to obligations under some other arrangement of this Act or under some other laws. (3) In this area: business judgment implies any choice to make or not take move in regard of a matter important to the business operations of the organization.

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COMMONWEALTH AUTHORITIES AND COMPANIES ACT 1997 - SECT 22 Care and persistence—common commitment just Care and ingenuity—officers (1) An officer of a Commonwealth power must practice his or her forces and release his or her obligations with the level of care and industriousness that a sensible individual would practice on the off chance that he or she: (a) were an officer of a Commonwealth power in the Commonwealth power\'s conditions; and (b) involved the workplace held by, and had an indistinguishable duties inside the Commonwealth power from, the officer. Take note of: This subsection is a common punishment arrangement (see Schedule 2).

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Business judgment manage (2) An officer of a Commonwealth power who makes a business judgment is taken to meet the prerequisites of subsection (1), and their identical obligations at precedent-based law and in value, in regard of the judgment in the event that he or she: (a) makes the judgment in compliance with common decency for a legitimate reason; and (b) does not have a material individual enthusiasm for the topic of the judgment; and (c) educates himself or herself about the topic of the judgment to the degree he or she sensibly accepts to be suitable; and (d) sanely trusts that the judgment is to the greatest advantage of the Commonwealth power. The officer\'s conviction that the judgment is to the greatest advantage of the Commonwealth power is a sane one unless the conviction is one that no sensible individual in his or her position would hold. Take note of: This subsection just works in connection to obligations under this segment and their reciprocals at custom-based law or in value (counting the obligation of care that emerges under the customary law standards administering risk for carelessness)— it doesn\'t work in connection to obligations under whatever other arrangement of this Act or under some other laws. (3) In this area: business judgment implies any choice to make or not take move in regard of a matter pertinent to the operations of the Commonwealth power.

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Main Directors\'/Officers Duties Act to substance\'s "greatest advantage" Use mind & perseverance to the standard of a sensible chief in your position (s22 CACA, s180 CA) "Business judgment" barrier applies (s22 CACA, s180 CA) Act in compliance with common decency & for appropriate purposes (s23 CACA, 181 CA) Don\'t abuse position to increase individual preferred standpoint or make hurt element (s24 CACA, s182 CA) Don\'t abuse data to increase individual favorable position or make hurt element (s25 CACA, s183 CA) Disclose material individual interests (ss27F-K CACA, ss191-196) Avoid irreconcilable circumstances/obligation Don\'t exchange while wiped out (s592 CA) Oversee and screen administrative consistence when all is said in done Comply with reporting, evaluating, bookkeeping, & divulgence commitments specifically Advise administration on system Oversee administration execution

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Multiple BJRs BJR protection to break of obligation of care/steadiness (CACA & CA) Preconditions for executives\' dependence on data/guidance (CACA & CA) Judicial attentiveness to diminish executives of risk (CACA & CA) Judicial help against chiefs acting in spite of corporate tenets, particularly for proposed lead (CA) Preconditions for statutory subsidiary activity by individuals (CA) Showing sensible grounds to expect dissolvability, sensible dependence, & sensible strides to avert bringing about of obligation re procedures for corporate tax assessment liabilities (CA) Defenses to rupture of executive\'s obligation to counteract bankrupt exchanging (CA) \'Due constancy\' guard to individual obligation for being \'intentionally required\' in a corporate exposure contradiction (CLERP 9 & CA) +ve judge-made guidelines conceding to executives\' business judgments about corporate advantage & best advantages (general law) - ve judge-made principles which second-figure executives\' business judgments (eg exemptions to "indoor administration" presumptions about executives playing out their obligations)

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The Uhrig Report and Beyond …

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Public Sector Governance Concerns (counting Cth A-G\'s worries) Past: Legal & procedural consistence Agency/legislative planning/subsidizing Financial examining/reporting Formal administration structures/forms Executive sheets for offices/bodies Future: Program results (Barr

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