Page 3440 - Week 09 - Thursday, 21 August 2008
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Let me just repeat that. This is from Mallesons:
it would be completely wrong to suggest that voting shareholders bear any responsibility or duty to determine the direction of the TOC …[a]s to the issue of uncertainty … in some circumstances, the legal duty of the board may in fact be to “tread water” rather than commit to long term strategy.
That is the only significant and substantial legal advice pertaining to this matter. It is available to anybody as of this minute. I will now commission additional legal advice because of this scurrilous report and suggestion that the advice of Mallesons was wrong. The intriguing part about the chapter and its construction in this report is, having headed the chapter with advice from Mallesons in relation to the roles and responsibilities of shareholders, the committee then goes on to completely ignore it. Of course, the legal geniuses on the committee, having ignored Mallesons’ advice in relation to the role of shareholders, then come down with their own legal interpretation of the role, duty and responsibility of shareholders with these classic bits of legal interpretation and insight.
The committee, having taken advice from Mallesons, now ignores that. It has a different view—the QCs who constituted the committee. The committee believes that it may have been appropriate for the government to have issued a direction to Rhodium under section 17 of the act. There was no reference to any legal advice or legal expertise. We now have these brilliant legal experts, the QCs of the Assembly, quoting Mallesons as setting out the law that applies in relation to this and then completely ignoring it and saying: “Oh well, Mallesons have a view, but the committee has a contrary view. The committee believes”—Deb Foskey QC, Brendan Smyth QC, Senior Counsel—“we don’t need to interpret legislation or refer to it.” Deb Foskey QC and Brendan Smyth QC believe that the government should have given a direction under section 6. On what basis does the committee think that? On what basis does the committee conclude, “It appears that the shareholders have failed to comply with the act”? Mallesons did not think so. Mallesons thought that it would have been derelict, almost certainly contrary to the law, for the shareholders to have actually given such a direction, to have interfered in that way.
It is clear under corporations legislation, it is clear in the only advice available, and the only legal advice available to the committee, that the shareholders should not have intervened, and yet the committee, without taking any advice from any legal source, without quoting the basis on which they come to this definition of section 17, completely ignore the extant advice, the advice they had available to them, and say: “Oh look, let’s not worry about advice from Mallesons, let’s not worry about the only legal advice available to us on this particular issue. Let’s ignore and discard that completely. Let’s not forget there’s an election in eight weeks time. And let’s not forget that this is an inquiry we’ve been holding on to for two years and it really has to be brought to a head eight weeks out from an election. Let’s not worry about the niceties of the law, let’s just defame the shareholders. Let’s make allegations in relation to their behaviour and their responsibilities that are completely unfounded, that reflect very adversely on them. Let’s not worry about any integrity in this matter. After all, there’s an election in eight weeks time.” The Greens, of course, need to boost their vote and the Liberal Party, as we know, needs to boost its vote enormously.
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