Board and executive decision-making is in the spotlight more than ever. High-quality decision-making amidst geopolitical turbulence, supply chain disruption and intensifying regulatory and shareholder scrutiny is tough enough. Add the ever-present public gaze and the rise of AI, including AI assisted litigants, and the need for boards and executives to receive clear, accurate and timely legal advice, and to act upon it appropriately, has never been greater.
The recent Federal Court decision of Justice Lee in Australian Securities and Investments Commission v Bekier (Liability Judgment) [2026] FCA 196 handed down in March this year highlights the challenges. The Bekier case followed the casino Royal Commissions in Victoria and Western Australia. In Bekier, ASIC sought orders including that certain directors and officers of The Star Entertainment Group Limited had acted in contravention of the Corporations law by, in summary, failing to exercise powers and discharge their duties with the requisite degree of care and diligence.
The decision runs to nearly 500 pages and is essential reading for company directors and in-house legal teams. The decision emphasises the responsibilities resting on the shoulders of directors and senior executives and those who support their decision-making, including in-house counsel. By way of example, the judgment states: ‘A director, whether executive or non-executive, is required to take reasonable steps to place themselves in a position to guide and monitor the management of the company and is expected to take a diligent and intelligent interest in the information available to them, understand that information, and apply an enquiring mind to their responsibilities.’ [at 1945]
Given the pressures, directors are right to ask: how do I ensure I’m getting the information and advice I need to properly discharge my responsibilities?
Recently, I presented to more than 100 lawyers at the 2026 Association of Corporate Counsel In-house Counsel Day in Perth on the topic of advising boards and senior managers in times of crisis and rapid change. Many of the key takeaways for in-house lawyers apply equally to company directors and senior executives. They include:
Identify issues early. Those who prepare board papers and advise boards need a clear understanding of what issues require the board’s attention and when. Early flagging doesn’t always need to be crisis-focussed – it can be as simple as highlighting a new regulatory emphasis or noting a high-value contract or relationship worth monitoring for ongoing success. For directors or executives, it’s sometimes hard to know what you don’t know. Ask questions about what is happening in the business and probe if the information you are receiving seems incomplete or light-on.
Give in-house lawyers a seat at the table and ensure their advice is sought and valued. Different companies have different ‘advice cultures’. More than ever, directors and senior executives need to have confidence in their legal advisors and seek out their opinions.
Know who the real stakeholders are. They may not always be obvious. In some instances, key stakeholders will include regulators, whistleblowers and possibly members of the public in the case of a product recall or privacy breach. Ignore key stakeholders at your peril.
Good board-housekeeping is important. Keep minutes, remember legal privilege when necessary and don’t lose sight of formal regulatory and statutory obligations.
Get specialist advice early. If a particular issue is high risk or outside your expertise, seek external or specialist legal advice before the stakes rise.
Take stock of the advice you’re receiving. Directors and executives should regularly ask: am I fully across the risks? It’s always available to directors and boards to say, ‘I’m not getting what I need’. Legal teams should also frequently ask, ‘Have I given the board what they need to make informed decisions?’.
Don’t let commercial concerns cloud legal or ethical judgment. No-one thanks a board for ignoring the law. Do not allow a potential drop in share price or embarrassment cloud legal or ethical obligations.
Protect your people – and yourself. Poor decision-making happens under sustained pressure. Make sure both you and those around you have the right support.
Conclusions
Executive decision making isn’t easy, but with the right support it can be done better and with less risk.
At Hall & Wilcox, we help boards and executives make smarter decisions – particularly in times of rapid change. If you’re a director or board who needs assistance, or a legal team member who wants to foster better decision-making, reach out to our experts for help. We’ve been helping companies navigate complex decisions for more than 100 years.
