Section 206A(1) of the Corporations Act 2001 (Cth) is ‘Disqualified Person Not To Manage Corporations’ and is extracted below.
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Disqualified Person Not To Manage Corporations
(1) A person who is disqualified from managing corporations under this Part commits an offence if:
(a) they make, or participate in making, decisions that affect the whole, or a substantial part, of the business of the corporation; or
(b) they exercise the capacity to affect significantly the corporation’s financial standing; or
(c) they communicate instructions or wishes (other than advice given by the person in the proper performance of functions attaching to the person’s professional capacity or their business relationship with the directors or the corporation) to the directors of the corporation:
(i) knowing that the directors are accustomed to act in accordance with the person’s instructions or wishes; or
(ii) intending that the directors will act in accordance with those instructions or wishes.
Note: Under section 1274AA, ASIC is required to keep a record of persons disqualified from managing corporations.
The maximum penalty for the offence of Disqualified Person Not To Manage Corporations is:
1 year imprisonment and/or 50 penalty units (a Commonwealth penalty unit is currently $210).
However, it should be kept in mind that maximu m penalties are reserved for the most serious cases.
Your legal team will be able to advise you of the essential elements the prosecution would need to prove in order to establish the offence, whether those elements are capable of being established in your particular situation, the most effective and efficient way forward and the likely outcome.
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