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BlackBay Insights

  • Writer's pictureGreg Leather

How Can Directors Avoid Breaching the Corporations Act?

In today's corporate governance landscape, the role of a director is crucial and fraught with significant legal responsibilities. The Corporations Act 2001 (Cth) (the Act) outlines a comprehensive suite of duties and obligations for directors, ensuring that their actions align with the best interests of the company and its stakeholders. Breaching these regulations can lead to significant legal, financial, and reputational damage. As such, it's imperative for directors to adopt a vigilant and proactive stance towards compliance.


A Deep Dive into Director Duties


Understanding the scope of your duties is the foundation of compliance.


The Corporations Act specifies several key responsibilities:


1.  Duty to act in good faith and for proper purpose:


  • Section 181 of the Corporations Act states that directors must exercise their powers and discharge their duties with the degree of care and diligence that a reasonable person would exercise if they were a director in the same circumstances, and:

o   In good faith for the best interests of the company; and

o   For a proper purpose.

 

2.  Duty to act with care and diligence:


  • Section 180 of the Corporations Act stipulates that directors must exercise their powers and discharge their duties with the degree of care and diligence that a reasonable person would exercise if they were a director in the same circumstances.

 

3.  Duty to avoid conflicts of interest:

  • Section 191 of the Corporations Act requires directors to avoid situations where their personal interest conflict, or may conflict, with the interests of the company.

 

4.  Duty not to improperly use position or information:

  • Sections 182 and 183 of the Corporations Act prohibit directors from improperly using their position or information to gain an advantage for themselves or someone else, or to cause detriment to the company.

 

5.  Duty to prevent insolvent trading:

  • Section 588G of the Corporations Act imposes a duty on directors to prevent the company from trading while insolvent, meaning they must ensure that the company does not incur debts if there are reasonable grounds to suspect insolvency.

 

6.  Duty to disclose personal interests:

  • Section 191 of the Corporations Act requires directors to disclose any material personal interests in matters relating to the affairs of the company.

 

7.  Duty to keep proper financial records:

  • Section 286 of the Corporations Act mandates directors to ensure that the company keeps accurate financial records that enable the company's financial position to be determined with reasonable accuracy.

These duties are fundamental obligations that directors must adhere to in the course of managing and overseeing the affairs of the company. It's essential for directors to understand and fulfill these duties diligently to avoid legal repercussions and promote the best interests of the company and its stakeholders.


Directors' duties at common law, which are based on legal precedents rather than statutory law, include several key principles that directors are expected to adhere to.

 

While the specific duties can vary slightly depending on the jurisdiction, some common principles of directors' duties at common law include:

 

1.  Duty of Care and Skill: Directors are required to exercise reasonable care, skill, and diligence in the performance of their duties. This duty involves acting with the same level of care that a reasonable person in a similar position would exercise under comparable circumstances.

 

2.  Duty of Loyalty: Directors owe a duty of loyalty to the company, which includes acting in the best interests of the company and its shareholders. This duty prohibits directors from prioritising interests or the interests of others over those of the company.

 

3.  Duty to Act in Good Faith: Directors must act in good faith and with honesty in all their dealings on behalf of the company. This duty entails avoiding conflicts of interest and refraining from engaging in any conduct that could harm the company or its stakeholders.

 

4.  Duty to Avoid Conflicts of Interest: Directors must avoid situations where their personal interest's conflict, or may potentially conflict, with the interests of the company. If a conflict arises, directors must disclose the conflict to the board and refrain from participating in decisions where they have a personal interest.

 

5.  Duty to Exercise Powers for Proper Purpose: Directors are obligated to exercise their powers for the purposes for which they were conferred and in the best interests of the company. This duty prohibits directors from using their powers for improper purposes or to benefit themselves or others at the expense of the company.

 

6.  Duty of Confidentiality: Directors have a duty to maintain the confidentiality of the company's information and affairs. This duty requires directors to refrain from disclosing sensitive or confidential information to third parties without proper authorisation.

 

7.  Duty to Prevent Insolvent Trading: While primarily codified in statutory law, directors also have a common law duty to prevent insolvent trading. This duty requires directors to ensure that the company does not continue to trade while insolvent, thereby avoiding harm to creditors.


These common law duties serve as foundational principles that guide the conduct of directors and are supplemented by statutory obligations, such as those outlined in the Corporations Act in Australia. It's essential for directors to understand and fulfill both their common law and statutory duties diligently to effectively govern the affairs of the company.


The intersection between directors' duties under the Corporations Act and common law directors' duties lies in the principles that govern directors' conduct and responsibilities. While the Corporations Act codifies many of the duties to the company and its stakeholders, common law principles provide additional guidance and interpretation of these duties.


Here's how the two intersect:


Duty of Care and Skill:

  • Corporations Act (s180): Requires directors to exercise care and diligence.

  • Common Law: Provides the standard of care expected of directors, which is similar to the statutory duty but may offer additional context or interpretation.

 

Duty of Loyalty:

  • Corporations Act (s181): Requires directors to act in good faith and in the best interests of the company.

  • Common Law: Reinforces the duty of loyalty and may provide specific examples or case law interpretations of situations where conflicts of interest may arise.

Duty to Act in Good Faith:

  • Corporations Act (s181): Requires directors to act in good faith and for proper purposes.

  • Common Law: Offers additional context on what constitutes acting in good faith and may provide guidance on situations where directors' actions could be considered in breach of this duty.

Duty to Avoid Conflicts of Interest:

  • Corporations Act (s191): Requires directors to disclose material personal interests.

  • Common Law: Provides further interpretation of when conflicts of interest arise and the actions directors should take to address them.


Duty to Prevent Insolvent Trading:

  • Corporations Act (s588G): Imposes a duty on directors to prevent insolvent trading.

  • Common Law: Supports this duty by providing context on when a company may be considered insolvent and the actions directors should take to fulfill their obligations in this regard.

Other Common Law Principles: Duty of confidentiality, duty to exercise powers for proper purposes, duty to disclose material information, etc., all intersect with various sections of the Corporations Act, either directly or indirectly.


In summary, while the Corporations Act sets out specific statutory duties for directors, common law principles complement and reinforce these duties, providing additional guidance, interpretation, and context. Directors must navigate both statutory and common law obligations to fulfill their responsibilities effectively and in compliance with legal standards.


So, how can directors avoid breaching the Corporations Act and their duties?


Perhaps the easiest way to avoid breaching duties is to know what they are in the first place. A surprising number of people who take on the role of director do not realise the extent of the duties they owe to the company they represent, the shareholders of those companies and even to creditors and other third parties.

Directors can avoid breaching the Corporations Act by understanding their obligations under the Act and taking proactive measures to fulfill them.

 

9 key steps directors can Take to avoid breaching the Corporations Act:

 

1.  Stay Informed: Directors should familiarise themselves with the provisions of the Corporations Act relevant to their role and responsibilities. Regularly review updates and amendments to ensure compliance with the latest legal requirements.

 

2.  Exercise Due Diligence: Directors must exercise due care, skill, and diligence in the performance of their duties. This includes staying informed about the company's affairs, actively participating in board meetings, and seeking professional advice when necessary.

 

3.   Act in Good Faith: Directors should act honestly and in good faith in the best interests of the company. Avoid conflicts of interest and ensure that all decisions are made with the company's welfare as the primary consideration.

 

4.   Avoid Insider Trading: Directors must comply with laws relating to insider trading and market manipulation. Refrain from trading in the company's securities based on non­ public information and ensure compliance with disclosure requirements.

 

5.  Maintain Financial Records: Directors should ensure that the company maintains accurate and up-to-date financial records as required by the Corporations Act. Implement internal controls and procedures to safeguard the integrity of financial reporting.

 

6.  Prevent Insolvent Trading: Directors have a duty to prevent the company from trading while insolvent. Monitor the company's financial position closely, address any signs of financial distress promptly, and seek professional advice if necessary.

 

7.  Disclose Personal Interests: Directors must disclose any material personal interests in matters relating to the company's affairs. Be transparent about potential conflicts of interest and follow procedures for disclosure as required by the Corporations Act.

 

8.  Comply with Reporting and Disclosure Requirements: Directors should ensure that the company complies with all reporting and disclosure obligations under the Corporations Act. This includes filing annual financial reports, notifying ASIC of significant events, and disclosing information to shareholders as required.

 

9.  Seek Legal Advice: If uncertain about their obligations under the Corporations Act or facing complex legal issues, directors should seek advice from qualified legal professionals. Legal advice can help directors navigate potential pitfalls and ensure compliance with the law.

 

Conclusion


Directors play a crucial role in shaping the destiny of their companies. Being compliant with the Corporations Act is an essential aspect of their responsibilities. By understanding their duties, enhancing corporate governance, committing to continuous learning, seeking professional advice, cultivating a culture of compliance, and prioritising legal compliance in strategic decision-making, directors can navigate the complexities of their roles with confidence and integrity.

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