AUSTRALIA Trends and Developments Contributed by: Peter Briggs, Christine Wong, Mark Smyth and Tom Dougherty, Herbert Smith Freehills
responds to various types of crises including natural disasters, cyber-incidents, pandemics, and terrorism. The revised AGCMF sets out a crisis continuum of prevention, preparedness, response and recovery, and establishes over- sight arrangements to continuously improve the framework. For the private sector, this provides a useful blueprint for establishing an appropriate framework to prevent and manage cyber, green- washing, environmental and other crises. Specifically, board and executive decision-mak- ing frameworks should account for the complex set of considerations involved in preparing for and managing a crisis, including: • policies and practices that encourage good corporate governance, a culture of diligence and openness, and clear reporting lines dur- ing a crisis; • the extent of due diligence to be under- taken by directors, officers and managers with regard to corporate actions, including a policy and training structure that maintains an appropriate awareness of environment protection laws; • compliance with the ACCC’s “Making Envi- ronmental Claims: A Guide for Business” , ASIC’s Information Sheet 271 ( “How to avoid greenwashing when offering or promoting sustainability-related products” ) and the Ad Standards’ Australian Association of National Advertiser Environmental Claims Code in environmental and sustainability claims;
• whether to pay a ransom during a cyber- incident (including considerations such as directors’ duties, reputational matters, and the legality of payment); and • for businesses with in-house counsel or legal teams, a policy and training structure that emphasises the importance of responding appropriately to regulatory investigations fol- lowing a crisis (including the need to main- tain integrity of investigations and preserve evidence). In addition, businesses should consider prepar- ing privilege protocols in advance, to manage privilege in the context of responding to a cyber-, environmental or other type of incident. This can be complex, particularly in relation to environ- mental or forensic IT reports – with recent deci- sions scrutinising whether such reports are for the dominant purpose of legal advice. Finally, it is critical to test the efficacy of crisis management frameworks and plans, and to ensure that they are reviewed and updated to respond to future events and legislative reform.
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