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September 21, 2012

Directors’ Liability Reforms update

The Personal Liability for Corporate Fault Reform Bill 2012 has been introduced into the House of Representatives. Background.

The Bill will amend a number of pieces of Commonwealth legislation across a range of portfolios, including the Corporations Act 2001, the Foreign Acquisitions and Takeovers Act 1975, the Health Insurance Act 1973, and the Therapeutic Goods Act 1989.

These Acts are amended to remove the imposition of personal criminal liability for corporate fault except where:
• the director or officer knew of the offence, was involved in the offence, or failed to take reasonable steps to prevent the offence (such as putting appropriate procedures in place to prevent the offence);
• the harm that the offence aims to prevent is of a serious nature (such as serious harm to the national economy or public health and safety, protection of vulnerable persons such as children and the elderly); and
• corporate penalties alone would be ineffective in preventing the conduct in question.

In some cases, provisions have been repealed entirely; in other cases, provisions have been reformed to apply civil liability, to remove burdens of proof from defendants, or to require an increased level of knowledge or involvement by the director or officer before liability is imposed. To support these reforms, the Bill also includes amendments to:
• make clear the provisions that extend the liability of a corporation to an individual and the circumstances of that extension; and
• repeal or replace with civil liability, existing provisions which are not justified under the COAG Principles.

The Bill will not amend laws relating to workplace health and safety and environmental protection.

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Posted 21st September 2012 by David Jacobson in Corporate Governance, Corporations Act