Manage corporation whilst disqualified
The Maximum Penalty for this Offence is 12 Months Imprisonment and/or a $5,500 Fine.
Which Court is Likely to Hear the Matter?
This matter is summary and will be dealt with in the Local Court.
An offence which is dealt with in a local court by a magistrate
What the Prosecution Must Prove – The Elements of the Offence:
- That you are disqualified from managing a corporation under a specific part of the Corporations Act (Part 2D.6)
- (a) That you made decisions which affected the whole or a substantial part of the business; or (b) That you made decisions which had the capacity to significantly affect a corporations financial standing; or (c) That you communicated instructions to the directors of the corporation which are not given by way of advice and fall within your professional capacity within the corporation, and the directors are accustomed to act in accordance with your instructions
It is a defence to this charge if you have obtained permission from ASIC to act as a director.
You will be able to successfully defend the charge if you can show that you were not acting in a management capacity but rather, were simply providing advice and/or guidance whilst the actual directors maintained the ultimate decision making capability.
What the Law Says:
It is an offence under the Corporations Act to manage a corporation whilst disqualified from doing so.
Common Reasons for Disqualification
You will be disqualified from managing a corporation if:
- You have been declared bankrupt
- You have been convicted of a major offence under the Corporations Law or an offence of dishonesty under the state legislation.
- You have been disqualified by ASIC directly or by court order for conduct related to previous poor management of companies.
WHERE TO NEXT?
If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in corporate crime and will be able to guide you through the process while dealing with the various authorities related to your matter.