Speaking at the annual Australian Corporate Lawyers Association conference in Melbourne, Middletons partner Murray Deakin said the corporate governance landscape in Australia had changed significantly in recent times, as a result of the Centro and James Hardie cases involving officers and directors. "The final form of that landscape has not yet emerged with the High Court having reserved its decision in the James Hardie case," he said.

The NSW Court of Appeal's decision in the James Hardie Case set new benchmarks for directors, company secretaries and general counsels according to Deakin, but with both James Hardie and the Australian Securities Investment Commission appealing the rulings the benchmarks could be set again by the High Court.

The former general counsel and company secretary of James Hardie was found to be an officer of the company by the Court of Appeal in two capacities. Firstly, because they were a participant in the making of decisions which affected the whole or a substantial part of James Hardies' business and secondly, because they held the title of company secretary. "My clients appeal raises a number of key issues: who should be taken to be an officer and therefore subject to duty of care under the Corporations Act? Should a general counsel, when acting in the  traditional role of a legal officer of a corporation, be included? And in relation to company secretaries, should they be taken to be an officer not only in respect to their conduct as secretary but in all of their conduct?" asked Deakin.

The implications of the Court of Appeal's decision for general counsels and company secretaries are significant, because the ruling expands much further the scope for determining who is considered a director under section 180 of the Corporations Act, according to Deakin: "For general counsels [and] in-house counsels the decision allows a very wide spectrum of dealings to fall within the office of director. It need be no more than the presentation of proposal or making a real contribution to the decisions being made," he said.

Deakin added that he believed it would necessitate that all general counsels secure directors and officers insurance, which could increase premiums and in turn could have other consequences; such as undermining a general counsel's ability to maintain professional privilege over advice given to the board.

By having a separate contract for the two roles general counsels could more confidently separate their responsibilities and accountability, although not completely,  he concluded.