Corporations Act 2001

On application by ASIC, the Court may disqualify a person from managing corporations for up to 20 years if:

within the last 7 years, the person has been an officer of 2 or more corporations when they have failed; and

the Court is satisfied that:

the manner in which the corporation was managed was wholly or partly responsible for the corporation failing; and

the disqualification is justified.

To avoid doubt, the references in paragraphs (1)(a) and (b) to a corporation include references to an Aboriginal and Torres Strait Islander corporation.

For the purposes of subsection (1), a corporation fails if:

a Court orders the corporation to be wound up under:

section 459B of this Act; or

section 526‑1 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006;

the corporation enters into voluntary liquidation and creditors are not fully paid or are unlikely to be fully paid; or

the corporation executes a deed of company arrangement and creditors are not fully paid or are unlikely to be fully paid; or

the corporation makes a restructuring plan and creditors are not fully paid or are unlikely to be fully paid; or

the corporation ceases to carry on business and creditors are not fully paid or are unlikely to be fully paid; or

a levy of execution against the corporation is not satisfied; or

a receiver, receiver and manager, or provisional liquidator is appointed in relation to the corporation; or

the corporation enters into a compromise or arrangement with its creditors under Part 5.1 (including that Part as applied by section 45‑1 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006); or

the corporation is wound up and a liquidator lodges a report under subsection 533(1) (including that subsection as applied by section 526‑35 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006) about the corporation’s inability to pay its debts.

To satisfy paragraph (h), a corporation must begin to be wound up while the person is an officer or within 12 months after the person ceases to be an officer. However, the report under subsection 533(1) may be lodged by the liquidator at a time that is more than 12 months after the person ceases to be an officer. Sections 513A to 513D contain rules about when a company begins to be wound up.

The reference in paragraph (2)(c) to a deed of company arrangement includes a reference to a deed of corporation arrangement (within the meaning of the Corporations (Aboriginal and Torres Strait Islander) Act 2006.

For the purposes of subsection (1), a person is an officer of an Aboriginal and Torres Strait Islander corporation if the person is an officer of that corporation within the meaning of the Corporations (Aboriginal and Torres Strait Islander) Act 2006.

In determining whether the disqualification is justified, the Court may have regard to:

the person’s conduct in relation to the management, business or property of any corporation; and

any other matters that the Court considers appropriate.

To avoid doubt, the reference in paragraph (3)(a) to a corporation includes a reference to an Aboriginal and Torres Strait Islander corporation.