On 17 April 2009, Senator Nick Sherry, Minister for
Superannuation and Corporate Law, confirmed that the Commonwealth
will conduct an audit of its laws that impact on the issue of
company director liability and will do so against the principles
developed by the Council of Australian Governments (COAG).
COAG referred a set of principles to the Ministerial Council for
Corporations and tasked the Commonwealth, State and Territory
members of the Ministerial Council to assess the principles and
conduct such an audit.
The COAG principles state:
where companies contravene statutory requirements, liability
should be imposed in the first instance on the company itself;
personal criminal liability of a corporate officer for the
misconduct of the corporation should generally be limited to
situations where the officer encourages or assists the commission
of the offence (accessorial liability); and
in exceptional circumstances, where there is a public policy
need to go beyond the ordinary principles of accessorial liability,
a form of deemed liability could be imposed on a corporate officer
only using a 'designated officer' approach (for minor
offences) or a 'modified accessorial' approach (for more
COAG requested the Ministerial Council to examine the imposition
of personal criminal liability for corporate fault and the
contribution this makes to the goal of a seamless national economy,
including nationally consistent regulation.
In the first instance, the Commonwealth will do this by
conducting a comprehensive audit of our own laws against the COAG
The Commonwealth has advised that it aims to conduct the audit
in the second half of 2009.
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