Counsel on Markets, Capital & Commerce
The traditional framework of directors' duties — loyalty, care, and good faith — was designed for a world where boards answered primarily to shareholders. That world no longer exists in quite the same form. What replaces it will define corporate governance for the next decade.
The events of 2024 and 2025 — Qantas, Mineral Resources, WiseTech, Nine Entertainment — confirmed what close observers of Australian corporate law had long suspected: investors will hold boards to account for corporate culture when issues occur, regardless of what the Corporations Act technically requires.
This is a significant shift. The law has always imposed duties of care and loyalty on directors. But the enforcement gap between what the law requires and what boards actually did was wide enough to drive a fleet of lawyers through. That gap is closing — not primarily through legislation, but through the coordinated action of institutional shareholders, proxy advisors, and a regulator that has, by its own account, doubled its investigations and nearly doubled its court proceedings in twelve months.
The 2026 Australian corporate governance landscape is one in which directors are being held personally accountable not just for what they did, but for what they failed to notice, failed to question, and failed to escalate. The doctrine of plausible deniability — long a comfort to passive directors — is being systematically dismantled by a regulator that has said, in terms, that it will consider the decision-making processes that enabled failures, not just the failures themselves.
For directors who have treated governance as a compliance exercise rather than a substantive discipline, the reckoning is no longer theoretical.
Three years after its introduction, the safe harbour regime is still widely misunderstood by the boards and advisers who need to rely on it most. Ignorance is not a defence.
More articles coming soonTicking the boxes of whistleblower policy compliance is not the same as creating a culture where wrongdoing is reported and acted upon. Most boards have achieved the former without the latter.
More articles coming soonDiversity of background and experience is genuinely valuable in a boardroom. Diversity mandates that substitute demographic criteria for capability are something else entirely.
More articles coming soon"A company that cannot tell its directors the truth about its own position has already failed — the paperwork simply hasn't caught up yet."
Alan Jones QC — On Corporate Transparency