Predictable claims of sexism and so predictably wrong

Illustration: Johannes Leak

Of all people, lawyers should understand the importance of having evidence to support their case. Allegations from legal quarters on Monday that Westpac chairman Lindsay Maxsted was getting an easier ride than women like former AMP chair Catherine Brenner looked spurious from the get-go. They were predictable claims, and predictably wrong, too.

On Monday morning, Melbourne lawyer Leon Zwier ­tweeted that “fortunately for the Westpac chair he is Lindsay, and not Linsey, Maxsted. Had he been a female, Westpac’s Austrac issues would have (been) referred to as reflecting a failure of board ­gender diversity — cf AMP and Westpac.

“I’m very concerned that ­female directors appear to be treated more harshly in a corporate crisis than male directors.”

Fortunately for the Westpac Chair he is Lindsay, and not Linsey, Maxsted. Had he been a female, Westpac’s AUSTRAC issues would have referred to as reflecting a failure of board gender diversity - cf AMP and Westpac.

— Leon Zwier (@lzwier) November 24, 2019

Within 24 hours of Zwier’s tweet, Westpac CEO Brian Hart­zer announced his resignation, followed by Maxsted bringing forward his retirement, too. Board member Ewen Crouch is also ­leaving. Three men. Gone.

How’s that thesis stacking up?

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Had Zwier’s claim of gender ­injustice not been knocked down within 24 hours, you could count on more people echoing this crude ­argument that Brenner was ­treated differently than men. In fact, that case didn’t hold up even before Hartzer and Maxsted ­announced their departure.

Immediately following the banking royal commission’s damning hearings into AMP in April last year, two men at AMP were forced out. In-house legal counsel Brian Salter left within hours of Brenner arriving home from an overseas trip on the Thursday of that fateful week.

Chief executive Craig Meller left the next day. Brenner resigned at the weekend. So much for men surviving ­corporate crises while women get booted.

Gone: Westpac chief executive Brian Hartzer.

Ousted AMP chairman Catherine Brenner.

The men at the top of Westpac have gone, just as Brenner and the AMP’s CEO were forced out ­because, in both cases, there was a daily drumbeat for them to take responsibility. The AMP board faced a slurry of claims pouring out of the banking royal commission about AMP charging clients fees for no service. This despicable practice was not done by a few rogue advisers — it was systemic, ­deliberate and should have been known by AMP’s board and its chair long before it was.

The board under Brenner’s stewardship also underestimated the public response to this fraudulent behaviour. Brenner was in Japan on a holiday, and other ­directors were also overseas, while AMP executives were giving evidence at the royal commission. Brenner’s performance as AMP chair was judged on merit, as she should have been, not on gender. She was accountable as AMP chair, as she should have been. The same goes for Maxsted and Hartzer.

Nothing warranted photographers camping outside Brenner’s home during that ghastly period. But, again, it was less about her gender and more about a prurient media sniffing for the first significant scalp from the royal commission. Brenner’s problem was that she was vaulted into the role of AMP chair for the wrong reasons. The mid-level investment banker lacked the high-level experience to warrant chairing a company the size and complexity of AMP.

Then Westpac chief executive officer Gail Kelly, left, with Chairman Lindsay Maxstead (centre), and Brian Hartzer in 2014.

Compare Gail Kelly at Westpac, who was a highly experienced CEO during the period when the regulator says Westpac knew about the heightened child exploitation risks associated with frequent, low-value payments to The Philippines and Southeast Asia. Kelly’s past performance while CEO on this matter will be judged against the facts, not through the filter of her gender.

Zwier’s thesis suffers from the fact that Catherine Livingstone survived as chair of CBA despite the bank’s own Austrac scandal. While her reign as chair doesn’t cover the relevant period, her time as a CBA director does. She, too, was judged on the merits of her performance at that time. She told the royal commission that as a ­director she challenged management about reports of breaches of anti-money-laundering provisions. Note, too, that two men left CBA following that scandal — CEO Ian Narev and chairman David Turner. If Zwier needs even more evidence, consider Paula Dwyer at Tabcorp, a gaming ­company that copped a $45m fine — a record in 2017 — for breaches of anti-money-laundering and ­counter-terrorism financing laws. Dwyer remains Tabcorp chair ­despite Austrac chief executive Paul Jevtovic finding that Tabcorp failed to ensure it was not being used to fund illegal activities by ­organised crime and terrorism networks.

Zwier’s eagerness to argue that Brenner was treated differently because of her gender exposes the central flaw behind those who have signed on to a gender agenda that relies on sex discrimination to get more women on boards.

Proponents of positive gender discrimination want to talk about gender only when it suits them, when advancing quotas and targets, when being feted as a Male Champion of Change or, in AMP’s case, when being awarded ­Employer of Choice for Gender Equality by the Workplace ­Gender Equality Agency.

But you cannot have it both ways, demanding that gender play a part in appointments and then hide gender in a drawer if things go wrong.

The inevitable consequence of quotas is that less competent women are being appointed to boards because a factor apart from merit is being used to appoint them. Everyone knows it.

Directors — both male and ­female — whisper about it. No one will put names to it. Why rock the boat? It is no answer to say that ­incompetent men also fill boards. They do. But quotas deliberately, and systemically, promote gender over competence.

If the next Westpac chair is a women, let’s hope she is appointed for the right reason. Because the other inevitable price of gender quotas is that when any factor other than skill, experience, and other measures of merit feature in an appointment, that other factor is open to close review.

To be sure, gender is no reason to treat someone differently after their appointment; they will be measured on their ability or lack of it. But when gender is used to ­promote a woman, gender will necessarily be up for discussion if they fail.

Should gender have featured as a factor? If that question is not asked by a board, then directors are not meeting their fiduciary ­duties to act in the best interests of the company. Any lawyer ought to know that much.