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Corporate Governance

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Good Corporate governance is essential to shareholder value, investor confidence, ethics and compliance.

It is embedded in the company’s social license to operate and being fit for purpose, through rules, systems and processes by which an organisation is controlled and operates.

At marshalls+dent+wilmoth, we advise on:

  • Governance capability frameworks
  • How to manage organisational and board culture
  • Strategy
  • Managing Risk
  • Charters
  • Business and contingency planning
  • Directors’ and officers’ duties
  • Managing conflicts of interest
  • Registers
  • Delegated authority
  • Whistleblower laws and policies
  • Governance controls (policies, processes, systems and procedures)
  • Shareholder rights
  • Meeting practice and procedure
  • Minutes

Expertise

At marshalls+dent+wilmoth, our Consultant, Garth Fountain-Smith is a lawyer with considerable regulatory experience and a corporate governance professional, whose experience includes:

  • Legal and enforcement roles at ASIC and as a Senior manager in compliance and business systems
  • Qualifications in Applied Corporate Governance, and
  • Company directorships, including the Governance Institute of Australia Ltd ‘the peak professional body for ‘whole of organisation governance’ and risk management

Services

Our legal services span all areas of corporate governance. We provide strategic advice, training and risk assessment to clients including:

  • Proprietary limited companies
  • Unlisted entities
  • ASX-listed entities
  • Incorporated associations
  • Sporting clubs
  • Not-for-profit organisations
  • Regulatory and legal compliance is technical and complex, requiring strategic professional advice to maintain investor and shareholder confidence and avert reputational risk and damage.

Find out more about our corporate governance legal services.

Corporate Governance FAQs

Strategic and business advice

Corporate Governance demands an individualised approach.

Our corporate advisory approach, includes:

  • Aligning board structure with strategy
  • Risk management
  • Advising on directors’ duties, particularly in light of COVID-19
  • Codes of conduct
  • Managing conflicts of interest
  • Advising on shareholder disputes and oppression actions
Reputational risk

Reputational risk and damage can undermine years of business success and lead to regulatory action or even prosecution. We advise how to mitigate damage to brand and reputation.

Workplace and board culture

An organisation’s, values, attitudes and beliefs are critical elements of organisational culture.

We advise how to ‘set the tone at the top’ and:

  • Evaluate the architectural framework of organisational culture
  • Evaluate the board’s structure and composition against its charter
  • Evaluate director’s key performance indicators, including by peer review
  • Evaluate reporting processes between senior executive management, the CEO to the board and assess transparency, and
  • Evaluate gender diversity and being fit for purpose against your social license to operate
Directors’ and officers’ duties

Statutory and fiduciary obligations impose high responsibilities on directors, with significant penalties for breach. As a director or company officer, seeking legal advice at the right time is crucial.

We advise on:

  • Compliance with regulatory requirements and reporting obligations, for example:
    • Continuous disclosure obligations
    • ASIC investigations and hearings and the production of documents
  • Conflicts of interest
  • Directors’ and officers’ duties
  • Financial and credit services obligations to act “efficiently, honestly and fairly
  • Risk management to prevent acting in the capacity as a de facto or shadow director, and
  • The safe harbour provisions against insolvent trading and continuous disclosure obligations in light of the COVID-19 pandemic.
Whistleblower laws and compliance

Relevant entities are legally required to ensure their whistleblowing policies are in place and compliant.

We advise on whistleblower obligations and draft whistleblower policies, including reporting procedures for staff.

Policies, processes, systems and procedures

Your organisation’s governance controls are the pillar of its corporate structure.

We draft and implement:

  • Constitutions
  • Board charters
  • Codes of conduct
  • Codes of ethics
  • Workplace policies
  • Shareholder agreements
  • Deeds of access, insurance and indemnity
Compliant minute-taking

Board meeting minutes must be legally compliant to demonstrate that directors have undertaken adequate due diligence to discharge their duties.

Minutes must comply with:

  • s251A of the Corporations Act 2001 (Cth)

Minutes are subject to discovery in legal and regulatory proceedings.

We can advise you how to comply with:

  • The recommendations of the Hayne Royal Commission into minute-taking
  • What to do when ASIC comes knocking on the door with a notice to produce documents, and
  • How to draft minutes to exhibit a mix of the narrative -v-resolution
Meeting practice and procedure

Board meetings and general meetings of members are distinct notwithstanding that directors and shareholders can be in common must comply with legal obligations.

We can advise you:

  • How to conduct board meetings
  • Ensure that notices of meetings are compliant
  • Draft agendas and proposed resolutions
  • Ensure due process is followed at meetings
  • Avoid conflicts of interest
  • How the COVID-19 pandemic affects meeting requirements and the use of virtual technology

Corporate Governance Articles

Virtual meetings and electronic execution now permitted under changes to the Corporations Act and Electronic Transactions Act
Virtual meetings and electronic execution now permitted under changes to the Corporations Act and Electronic Transactions Act
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How to comply with Directors Duties and Workplace Safety laws
How to comply with Directors Duties and Workplace Safety laws
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Is non-compliance with the Privacy Act a breach of directors’ duty?
Is non-compliance with the Privacy Act a breach of directors’ duty?
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