Corporations Act 2001

ASIC may disqualify a person from managing corporations for up to 5 years if:

subsection (2) applies to the person in relation to 2 or more corporations; and

ASIC has given the person:

a notice in the prescribed form requiring them to demonstrate why they should not be disqualified; and

an opportunity to be heard on the question; and

ASIC is satisfied that the disqualification is justified.

This subsection applies to the person in relation to a corporation if:

within 7 years immediately before ASIC gives the notice under subparagraph (1)(b)(i):

the person has been an officer of the corporation; and

while the person was an officer, or within 12 months after the person ceased to be an officer, the corporation began to be wound up; and

money was advanced for the purposes of paying the entitlements of employees of the corporation under the Fair Entitlements Guarantee Act 2012; and

the Commonwealth has received a minimal return, or no return, on the advance (whether or not the corporation is still being wound up, or has been wound up); and

ASIC has reason to believe that the Commonwealth is unlikely to receive more than a minimal return on the advance; and

ASIC has reason to believe that either of the following occurred during the 7‑year period mentioned in paragraph (a):

the corporation contravened this Act or the Corporations (Aboriginal and Torres Strait Islander) Act 2006 while the person was an officer of the corporation, and the person failed to take reasonable steps to prevent the contravention;

the person contravened this Act or the Corporations (Aboriginal and Torres Strait Islander) Act 2006 while the person was an officer of the corporation.

For the purposes of paragraphs (2)(b) and (c), the Commonwealth has received a minimal return on an advance under the Fair Entitlements Guarantee Act 2012 if the amount of the advance recovered by the Commonwealth is 10 cents in the dollar or less.

For recovery of advances paid under the Fair Entitlements Guarantee Act 2012, see Part 5 of that Act.

In determining whether the disqualification is justified, ASIC:

must have regard to whether any of the corporations mentioned in paragraph (1)(a) were related to one another; and

may have regard to:

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

whether the disqualification would be in the public interest; and

any other matters that ASIC considers appropriate.

To avoid doubt, the references in paragraph (1)(a) and subsections (2) and (4) to a corporation include references to an Aboriginal and Torres Strait Islander corporation.

If ASIC disqualifies a person from managing corporations under this section, ASIC must serve a notice on the person advising them of the disqualification. The notice must be in the prescribed form.

The disqualification takes effect from the time when a notice referred to in subsection (6) is served on the person.