The regulatory landscape has undergone a “fundamental change”, and in-house legal teams need to ensure they can proactively address and manage the new mechanisms, says a senior governance executive.
In conversation with Lawyers Weekly, Governance Institute of Australia executive manager of policy and advocacy Catherine Maxwell (pictured) said challenges lie ahead for legal teams within businesses in that the “twin peaks” model of regulation – APRA and ASIC – remain, albeit with new approaches to supervision and enforcement.
“ASIC’s new approach to enforcement is ‘why not litigate?’, based around a close and continuous monitoring, which it may roll out more broadly. APRA’s approach is ‘constructively tough’,” she said.
“This ‘constant pressure’ model is new, and therefore lawyers need to rethink concepts such as legal professional privilege, and how they give advice.”
One of the key challenges, Ms Maxwell identified, is determining who within a business owes a relationship to the regulator.
“Is it legal, is it compliance, is it risk? Who ensures they are all coordinated, or that they collaborate and operate within a clear hierarchy? Governance frameworks are vital here – these decisions will need to be made at board level, with advice from company secretaries, and especially the general counsel. You could argue that the importance of the general counsel has gone up significantly since Hayne due to these new reporting requirements,” she posited.
When asked about the type of support legal teams have to offer in such trying times, she said resource allocation and funding would be vital at this juncture, “given the steep increase in workload in a short time”.
“At a basic level, more people (especially juniors) to assist with the heavy lifting, and the technological tools to analyse data and produce precis quickly and effectively. We are already seeing a number of our members look at new AI-based technologies to summarise large pools of documentation into summaries, to assist general counsel and company secretaries advising the board.”
“On a personal level, there is a large amount of pressure on individual team members, and their leadership to perform in this ‘constant pressure’ environment. This is a test of personal resilience, and organisation’s people and culture teams need to ensure those internal systems of support are made available.”
“Finally, it is a good time to review KPIs. Consider how your legal teams determine ‘success’ in this environment, and do you need to develop new measures of performance management?”
And the status of the GC itself is “also worth considering”, Ms Maxwell added: where do they now sit in the hierarchy of decision making?
“Is it time to elevate them to the executive team (if they aren’t already).”
They must also ensure they are playing their part, she added.
“It’s important they remember these professional obligations, and to lead from the front. Their ethical conduct and professionalism flows down through the culture of their teams, under pressure or not. I have no doubt they are performing admirably under the circumstances,” she concluded.