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