Corporations Act 2001

CHAPTER 2D - OFFICERS AND EMPLOYEES  

PART 2D.6 - DISQUALIFICATION FROM MANAGING CORPORATIONS  

Note: This Part does not apply to a CCIV: see section 1224E .

SECTION 206A   DISQUALIFIED PERSON NOT TO MANAGE CORPORATIONS  

206A(1)    

A person who is disqualified from managing corporations under this Part commits an offence if:

(a)    they make, or participate in making, decisions that affect the whole, or a substantial part, of the business of the corporation; or

(b)    they exercise the capacity to affect significantly the corporation ' s financial standing; or

(c)    they communicate instructions or wishes (other than advice given by the person in the proper performance of functions attaching to the person ' s professional capacity or their business relationship with the directors or the corporation) to the directors of the corporation:

(i) knowing that the directors are accustomed to act in accordance with the person ' s instructions or wishes; or

(ii) intending that the directors will act in accordance with those instructions or wishes.

Note: Under section 1274AA , ASIC is required to keep a record of persons disqualified from managing corporations.

206A(1A)    

For an offence based on subsection (1), strict liability applies to the circumstance, that the person is disqualified from managing corporations under this Part.

Note: For strict liability , see section 6.1 of the Criminal Code .

206A(1B)    

It is a defence to a contravention of subsection (1) if the person had permission to manage the corporation under either section 206GAB or 206G and their conduct was within the terms of that permission.

Note: A defendant bears an evidential burden in relation to the matters in subsection (1B), see subsection 13.3(3) of the Criminal Code .

206A(2)    

A person ceases to be a director, alternate director or a secretary of a company if:

(a)    the person becomes disqualified from managing corporations under this Part; and

(b)    they are not given permission to manage the corporation under section 206GAB or 206G .

Note: If a person ceases to be a director, alternate director or a secretary under subsection (2) the company must notify ASIC (see subsection 205B(5) ).