More than a year from the time of being proposed by the federal government, changes to the Corporations Act have finally come to pass, which create new responsibilities on directors to avoid “high” criminal and civil penalties, says McCabe Curwood managing principal Andrew Lacey.

1.   Director Identification Number (DIN) Scheme

The most significant change to the new version of this, he said, is that those that will be appointed as a director must do so before their appointment. Previously, directors could apply for their DIN 28 days after their appointment.

2.   Creditor-defeating provisions

“The Combating Illegal Phoenixing Bill has introduced novel creditor-defeating provisions, which are designed to specifically target transfers of company assets for less than market value (or the best price reasonably obtainable) which have the effect of preventing, hindering or significantly delaying the availability of a company’s assets during liquidation for creditors,” he said.

The implementation of this law also has other outcomes, he added, including that “a creditor-defeating transfer is voidable if the transfer is made when the company is insolvent or becomes insolvent as a result of the disposition within the following 12 months”.  

3.   Director Penalty Notice (DPN) regime expansion

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They then have 21 days from being served the DPN, he explained, to pay the amount owed.

From 1 April 2020, the Combating Illegal Phoenixing Bill will mean a company’s unpaid GST will also be included in the amount owed by the director, he noted.

4.   Improper director resignations

 “In short, the law will prevent a sole director from resigning in circumstances where it would leave a company without a director. The law is directed to preventing directors engaging in phoenixing by resigning and thereby intentionally transferring accountability to other directors, such as a ‘straw director’,” he said.

5.   New laws regarding foreign bribery

“Notably, a statutory defence is incorporated into the CCC Bill, where a body corporate can show that they had adequate procedures in place to prevent the commission of a foreign bribery offence by an associate,” he said.

“The CCC Bill gives the Minister express powers to publish guidance on what steps a body corporate can take in order to engage the defence. With the CCC [Bill currently] before the Senate, directors of companies operating internationally should ensure that any published ministerial guidance is incorporated into company policies, employment contracts and/or supply agreements if the [bill] is passed.”