The High Court decision in James Hardie and impact for general counsel

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22 May 2012

The role of general counsel and of company secretaries has expanded in recent times to a point where both roles now are roles of significance. In the modern listed company, those who occupy these roles – especially those who occupy both roles – are deeply involved in the decision making process, and are most likely officers with all the attendant consequences.

What you need to know

  • Any person having a role in making a decision may be an officer.
  • Who is an officer will depend on what a reasonable person in the position could be expected to do.
  • In most Australian public companies any person acting as general counsel and company secretary will be an officer, with the consequences of that role.
  • Courts are unlikely to support a view that puts the different responsibilities of general counsel and company secretary into watertight compartments, one marked "company secretary" and the other marked "general counsel".
  • The scope of a general counsel’s obligations may extend beyond strictly legal advice, depending on the matters being considered by the board.
  • General counsel ought to clarify with their CEO and chair what the expectations are on their role.

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The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.


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