The two Royal Commissions into the Abuse of Children and Financial Services concluded with major failings in organisations meeting their duties to stakeholders, whether it be customers or children in their care.
Once problems were highlighted, mistakes were made when there was a failure to acknowledge that something was wrong.
Failing to acknowledge that something went wrong is Dishonest, or at best lacking in transparency, and Counterproductive.
Failure to respond can leave an organisation bereft of its authority to deliver its goods and or services in a manner acceptable to all stakeholders. The result – if it is a private enterprise for profit – it will suffer a loss in profits and value.
If it is a not for profit enterprise it will lose its standing to deliver its services – its members will either leave or stop supporting it.
Wrongs and mistakes can give rise to an Apology. Some Leaders get it right, some inadvertently get it wrong, making things worse (and much worse in some cases).
If the time ever comes for a Board or Leader of a private enterprise or a not for profit enterprise to say sorry for “something”, what should or shouldn’t the Board do from a legal perspective?
What follows is an overview of what is legally required to meet community expectations and stakeholder expectations from an Apology.
 Elements of an Apology
An Apology from an event or incident should communicate to the various stakeholders of an organization:

a message of empathy, regret, or remorse,
acknowledgement of fault, failing or shortfall, and
a forward guideline statement.

In respect to a recipient of the harm or wrong an Apology may:

restore dignity, face and reputation,
provide either vindication or a sense of judgement or an acknowledgement, and

Thus provide peace of mind that that the effecting entity was “responsible for actions” or “owns the problem” and will deal with it.
The elements of an Apology need to be objectively reviewed and considered. The Apology should appropriately address the concerns and mitigates the enterprises financial and reputational exposure.
Initial Considerations
All entities are subject to laws regulations and rules within their charter which dictate minimum compliance and operating standards for the protection of their stakeholders – from shareholders or members to creditors to employees and customers, and even the environment.
The Board needs to be fully informed of the process that is being undertaken in order to

resolve what happened,
determine who was responsible,
decide on the correct communications and timing of communications, and
decide on the options for redressing the “wrong” and “addressing the harm”.

Apologies and Directors Duties
Directors are expected to carry out their duties with reasonable care and diligence. A failure to do so can attract the penalty provisions of the Corporations Act 2001 (Cth). Penalties include:

Disqualification from acting as a director,
Significant fines,
Orders to personally pay compensation, or
Criminal sanction.

BEFORE any Apology is made, a careful review of the factual circumstances needs to be initiated and to consider whether the board and other individuals have been carrying out their duties with reasonable care and diligence, and so as not to put the other directors or any insurance policy that might be in place, at risk.
All directors should be aware that they are both jointly and severally liable for their acts.
Understand your Entities Regulatory Requirements
Any Entity – Profits or Not For Profits – Must change to survive and not just rely on past practices and good deeds. The Returned Services League (NSW) was such an entity. It had come under scrutiny by the Australian Charities and Not For profits Commission. There was also allegations of fraudulent behaviour of former President as well as an alleged cover up. The NSW Government also conducted the Bergin Inquiry into three RSL NSW Entities under the Charitable Fundraising Act 1991. For many RSL members such allegations was not only confronting but a disbelief and a denial that the RSL had failed to keep up with modern governance processes.  Failing to act promptly only enhances the problem.
Timely acceptance of the circumstances, an Appropriate Apology and a commitment and demonstrated action plan was what was needed but not initially forth coming.
Getting it Right

Act fast. Speed matters. The sooner you respond to a situation the better the capacity to take control. Don’t ignore the situation and hope it will go away – it won’t.
Address the stakeholders. Be empathetic and authentic – people can see through it when you’re not.
State the facts as you know them, but do not speculate. Independent legal advice must be sought on this before taking this action. Furthermore, insurers may also need to be across the factual circumstances.
Keep the momentum and provide ongoing updates. This will remove doubts and set a very clear indication of where directors and the Board stand.

Risk mitigation is an essential practice for any Board. There are a myriad of ways unforeseen events that can affect an entity. A harmful occurrence needs to be mitigated. Procrastination or avoiding the unavoidable is no answer. With proper plans and processes in place, a Board can reduce its risks around these events and ensure that damages in reputation and monetary compensation is reduced. An Apology correctly applied can mitigate further damage and ensure that the Entity and its Board can move forward effectively meeting its stakeholder requirements.
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From 1 July 2019, overseas parents of certain categories of Australian citizens/permanent residents/eligible New Zealand citizens will be able to apply for a new Sponsored Parent (Temporary) visa to Australia (SPV), which will allow them to stay in Australia for up to five years at a time.
On 1 March 2019, Minister Coleman announced that applications to sponsor a parent for the SPV will be open from 17 April 2019.
A sponsored parent will be apple to apply for the SPV once a sponsorship application has been approved.
What are the major criteria for visa application?
To be eligible for the SPV the applicant must:

be at least 18 years old;
be sponsored by a biological, adoptive or, in some instances, a step-child of the applicant. The sponsoring child must be at least 18 years old and be an Australian citizen/permanent resident or eligible New Zealand citizen who has been usually resident in Australia for four years;
be outside Australia (unless invited in writing to apply by the Department of Home Affairs), for at least 90 days if the applicant holds or has previously held a Sponsored Parent (Temporary) visa;
provide evidence of access to funds;
provide evidence of health insurance;
not have an outstanding public health debt (unless appropriate arrangements have been made to repay the debt);
satisfy health, character, and national security requirements.

How long can the visa holder stay in Australia?
Parents who are granted the SPV will be allowed to stay in Australia for the continuous period of up to five years at a time.
Upon the expiry of the visa, parents will be able to apply for a further SPV.
They will, however, need to stay outside Australia for at least 90 days before being eligible to apply for a further SPV.
Moreover, as holders of SPVs, they will only be allowed to stay in Australia for the total cumulative maximum period of 10 years.
If the maximum period is to be exceeded, the parents will be required either to depart Australia or to apply for another visa which will allow them to remain in Australia. They will not be eligible for a further SPV.
How much does the visa cost?
The sponsor who lodges a sponsorship application for the SPV will be required to pay a sponsorship application fee of $420.
An applicant for the SPV will need to pay a visa application charge, the amount of which will depend on the duration of the SPV:

$5,000 for the SPV of up to three years’ duration; or
$10,000 for the SPV of up to five years’ duration.

Who will benefit from the SPV?
It is a well-known fact that due to the high volume of applications for the existing contributory permanent or temporary visa applications, their processing time is very long and may exceed 3 years.
Therefore, the SPV may be beneficial for those parents who want to stay with their children in Australia for an extended time of up to 5 years.
The current applicants for the existing contributory permanent or temporary visas may consider the SPV as an option which will allow them to live in Australia while their current visa application is being considered. They need, however, take into consideration that they may be required to leave Australia for their contributory permanent or temporary visa to be granted.
What will be the processing time of the SPV application?
Although it is expected that the processing time of the SPV applications will be shorter than the processing tome of contributory permanent or temporary visa applications, it is not yet clear how quickly the SPV applications will be processed.
The Department of Home Affairs if yet to announce the processing times of the SPV applications.
Our Services
If you would like to receive our advice on the most suitable visa option for your parent, we will be pleased to assist you in that.
Our experienced lawyers in Pavuk Legal can, as well, provide you with extensive advice on other matters, including acquiring of property by your parents, making a will or other legal matters.
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Section 63 of the Trustee Act 1925 (NSW) allows a Trustee to apply to the court for judicial advice on any question about the management or administration of trust property, or with respect to interpreting a trust instrument.
The upshot of seeking judicial advice is that a trustee who follows judicial advice given to them is considered to have discharged their duty as trustee in the subject matter of the application, provided that the trustee has not been guilty of any fraud or wilful concealment or misrepresentation in obtaining the opinion, advice or direction.
The purpose of judicial advice is to provide protection to a trustee. The need for protection usually arises because there is a conflict between beneficiaries or because there is a suggestion, sometimes only faint, that there may be an alleged breach of trust if the trustee adopts a certain course of action. The conflict between beneficiaries or the possible breach of trust must arise out of some ‘question’ respecting the management or administration of the trust or in relation to the interpretation of the trust instrument.
At times an application for judicial advice will be refused or even considered inappropriate.
In NSW Trustee and Guardian v Eleison [2018] NSWSC 1691, an application for judicial advice was brought by the Plaintiff.
The facts which were the subject of the advice sought in the proceedings were complicated and uncertain. In this case the beneficiary was said to have killed the testator by negligently driving. One of the question on which the trustee sought advice from the court was whether the beneficiary’s action would be considered as “unlawful killing” under legislation.
The Court held that it is one thing to seek advice whether the trustee is justified in distributing the estate in a certain way. It is quite another thing to condition that justification for distribution by reference to a series of questions that require the determination of substantive questions of fact and law.
It was decided that it was inappropriate for the Court to provide advice in the absence of a substantive proceeding in which all interested parties have put submissions and all admissible evidence has been elicited, to reach a final conclusion as to the essential underlying questions.
If a trustee is seeking advice in relation to a trust, it would be beneficial to seek immediate advice to ascertain how the trustee’s application to seek advice may affect its interests under the trust.
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