Corporations Act 2001
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.
[ CCH Note: S 206A(1) will be amended by No 69 of 2020, s 3, Sch 1, by inserting " or the Registrar " after " ASIC " in the note, (effective 22 June 2022 or a day or days to be fixed by Proclamation).]
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 .
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 .
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) ).
[ CCH Note: S 206A(2) will be amended by No 69 of 2020, s 3, Sch 1, by inserting " or the Registrar " after " ASIC " in the note, (effective 22 June 2022 or a day or days to be fixed by Proclamation).]