The liability of officers is an issue that has attracted some controversy and the submissions generally reflect a wide range of views. ACCI237, is of the view that such a duty should not be included in the model Act, while the ACTU238 asserts that liability must remain with the corporation and relevant corporate officer.
Some submissions support making officers liable for only their actions and those they can control, for instance, the Australian Institute of Company Directors (AICD) and the Business Council of Australia (BCA)239. Others support liability of an officer where a company breach has occurred (‘deemed liability’) unless a defence is proven.
There are also various views expressed on the type of factors to take into account when determining the liability of officers, with the most commonly proposed tests being whether or not the officer:
was not in a position to influence or control;
took reasonably practicable steps or exercised reasonable care; or
acted with due diligence.
Most submissions support the adoption of the Corporations Act 2000 (Cwlth) definition of an officer, as it is said to be clear and well understood by the persons who are in the relevant positions in a company and are intended to be held accountable for non-compliance by the company. Such was the view presented by the AICD.240 However, some submissions, such as that tendered by the ACTU241, preferred the definition of officer contained in the NSW Act.
