Statutory Corporations (Liability of Directors) Act 1996

The Act rests on several core legal concepts and structural choices. First, it imports the company‑law concept of fiduciary duties into the public statutory corporations sphere by direct declaration (s 5(1)). The declared duties are the same as those in the Corporations Act 2001 for company directors; the Act, however, limits who may enforce those duties to specific public officials (s 5(2)). That creates a public‑law enforcement channel rather than a general right for shareholders or private plaintiffs to sue under s 5.

Second, the Act creates a discrete criminal and civil liability package for directors of listed statutory corporations in Schedule 1 (Part 3). The Part 3 duties,honesty (s 9), care and diligence (s 10), improper use of information (s 11) and improper use of position (s 12),are expressed in familiar corporate governance language, but are backed by both criminal penalties and civil recovery mechanisms (ss 13-14). Section 7(3) expressly states these duties are in addition to those in s 5, so a director of a listed corporation faces both the general fiduciary duties and the specific Part 3 duties.

Third, the Act addresses the interaction between Ministerial directions and director duties. It declares that Ministers cannot lawfully direct corporations beyond the corporation’s powers or to breach obligations (s 6). For corporations whose affairs are managed by a governing body it creates a practical process: a governing body that considers a direction against corporate interests or unlawful must provide written notice to the responsible Minister within seven days (s 17(1)). The Minister must then cancel or confirm the direction (s 17(2)), and a confirmed direction that is unlawful has no effect (s 17(3)). Corporations may seek judicial relief against directions they consider unlawful (s 18). Directors who comply with lawful Ministerial directions do not contravene certain duties provided they satisfied other conditions, including reasonable efforts to obtain the governing body notice where relevant (s 19(1)).

Fourth, the Act balances liability with court relief and insurance. Courts may relieve persons from liability under s 5, s 13 or s 14 if they acted honestly and ought fairly to be excused (s 20), and an applicant may seek relief proactively in the Supreme Court (s 21). Corporations may insure directors for liabilities under ss 13 or 14 related to breaches of ss 9 or 10 except wilful breaches, but only with ministerial approval (s 15). That creates a controlled insurance route rather than an open market entitlement.

Finally, the Act confines Part 3’s application to the corporations and positions listed in Schedule 1 (s 7(1)). The Governor may amend that Schedule by regulation (s 8). Part 2’s definitions exclude government trading enterprises and local governments from the general definition of corporation for that Part (s 4), with the term GTE defined by the Government Trading Enterprises Act 2023 s 3(1) (s 4 as amended). Those definitional constraints determine which statutory regimes apply to which bodies.

The Act affects three principal groups: directors and persons who control the affairs of statutory corporations, the statutory corporations themselves (especially those listed in Schedule 1), and responsible Ministers and the Attorney General who have enforcement powers.

Directors: The term director is broad. For Part 2, director means a member of a corporation’s governing body, a sole governor, or where the affairs are managed by members, a member (s 4). For Part 3, director means the person who holds a position described in the second column of Schedule 1 (s 7(1)), and includes persons acting in place of a director, whether temporarily, as deputy, alternate or representative or in other circumstances (s 7(1)). Thus appointed board members, commissioners, directors of boards, and persons acting as alternates for those positions are covered if their corporation appears in Schedule 1.

Listed statutory corporations and their boards: Part 3 applies only to the specific statutory corporations enumerated in Schedule 1 (s 7(1) and Schedule 1). The Schedule lists a range of Western Australian statutory bodies, for example the Chemistry Centre (WA), Forest Products Commission, Insurance Commission of Western Australia, Lotteries Commission, Metropolitan Redevelopment Authority, Western Australian Treasury Corporation and others. The list has been amended repeatedly and the Governor can add or remove entries by regulation (s 8), so which corporate boards are affected can change by instrument.

Responsible Ministers and the Attorney General: Under s 5(2) the Minister responsible for the Act that created the director, or a replacement Minister for a repealed Act, or the Attorney General, may enforce the fiduciary duties declared in s 5. That concentrates enforcement authority in the executive and the Attorney General rather than in private litigants or shareholders. Responsible Ministers also play a decision role under the Act for insurance approvals (s 15(1)) and must respond when a governing body gives a s 17 notice by cancelling or confirming a direction (s 17(2)).

Corporations themselves: For Part 3, the corporation has direct enforcement rights. Section 14 gives the corporation standing to bring civil proceedings for recovery of profits made by the director resulting from contraventions and for loss or damage suffered. Section 18 explicitly gives a corporation standing to apply for judicial relief against an unlawful Ministerial direction. Where a director is convicted under ss 9, 11 or 12, the convicting court may order compensation be paid to the corporation (s 13).

Other stakeholders: Creditors, contractors and the public are indirectly affected. Section 9(2) frames one class of dishonesty offence in terms of intent to deceive creditors of the corporation or creditors of any other person. The potential for criminal conviction, civil recovery orders and compensation affects corporate risk profiles, insurance costs, director recruitment and governance processes, which in turn alter how statutory corporations interact with markets, suppliers and financiers.

Excluded categories: The general Part 2 definition of corporation excludes a GTE and local governments (s 4). Therefore Part 2 duties as framed may not extend to those categories; Part 3 applies only to the Schedule 1 bodies. Users must check the Act’s definitions and Schedule 1 to determine whether a particular statutory body and position is caught.

The Act establishes two overlapping sets of duties, rights of enforcement and procedural rights.

General fiduciary duties (Part 2): Section 5 declares that a director of a corporation has the same fiduciary relationship and duties of loyalty and good faith as a company director under the Corporations Act 2001 (s 5(1)). Those duties are stated as a declaration rather than a free‑standing cause of action, and are enforceable only by the responsible Minister, a Minister for a replacement Act, or the Attorney General (s 5(2)). Subsection 5(3) expressly permits a written law to relieve a director of liability arising from breach of the declared duties.

Specific statutory duties for listed corporations (Part 3 Division 2): For directors of the Schedule 1 bodies, the Act sets out four statutory duties:

• Duty to act honestly (s 9(1)). This is an ongoing obligation, applying within and outside the State. Contraventions are criminalised where committed with intent to deceive or for other fraudulent purposes, with maximum penalties of $20,000 and five years imprisonment; a lesser penalty applies for summary conviction (s 9(2)). If the higher elements do not apply, a contravention attracts a $5,000 penalty (s 9(3)).

• Duty to exercise reasonable care and diligence (s 10). The standard is that a reasonable person in that position would be expected to exercise in the corporation’s circumstances. The prescriptive monetary penalty for contravention is $5,000.

• Duty not to make improper use of information (s 11(1)). A director or former director must not make improper use of information acquired by virtue of the position to gain an advantage or cause detriment to the corporation. Breach is a crime punishable by $20,000 and five years imprisonment (s 11(2)); a summary conviction penalty is specified.

• Duty not to make improper use of position (s 12(1)). This mirrors s 11 but targets improper use of office rather than information, with the same criminal penalties (s 12(2)).

Civil recovery and compensation rights: If a person is convicted for contravention of ss 9, 10, 11 or 12 and the court is satisfied the corporation suffered loss or damage due to the conduct, the convicting court may order the convicted person to pay compensation to the corporation (s 13(1)). Section 14 allows the corporation to pursue civil recovery whether or not a criminal conviction occurs; the corporation may recover profits made by the director and any loss or damage suffered as a debt due to the corporation by action in any court of competent jurisdiction (s 14(a)-(b)).

Insurance and ministerial approval: Corporations may insure directors or former directors against liabilities incurred under ss 13 or 14 arising from breaches of ss 9 or 10, other than wilful breaches, but only with the approval of the responsible Minister (s 15(1)). The responsible Minister is defined in s 15(2). That mechanism permits indemnity for negligent or non‑wilful conduct where ministerial approval is given, but excludes wilful breaches.

Ministerial directions and process rights: Section 6 declares unlawful directions by Ministers, and s 16 provides definitions for the Division 4 process. Governing bodies may, within seven days, notify a responsible Minister that a direction would not be in the corporation’s interests or is unlawful (s 17(1)). The responsible Minister must either cancel or confirm the direction and state reasons if confirming (s 17(2)). A confirmation has no effect if the direction is unlawful (s 17(3)). A corporation may apply to a court for relief against a direction it considers unlawful (s 18). Directors who act in compliance with a lawful direction given by a Minister do not contravene ss 5, 9 or 10 provided the director made reasonable efforts to cause the governing body to give the s 17 notice where they were of the opinion the governing body should give it (s 19(1)); however s 19(2) limits that protection where the manner of doing the act contravened ss 9 or 10 and the direction did not require that manner.

Relief from liability by courts: The Act provides courts with discretion to relieve persons from liability under s 5, s 13 or s 14 if the court is satisfied the person acted honestly and ought fairly to be excused given all circumstances, including circumstances related to appointment (s 20). A person who reasonably expects a claim can apply to the Supreme Court for relief in advance (s 21(1)-(2)). In jury trials, judges may withdraw cases if satisfied relief ought to be granted (s 22).

Attempted offences: Section 7(2) establishes that attempting to commit an offence under Part 3 is itself an offence within the meaning of s 4 of The Criminal Code.

Scope and limits: Part 3 duties are in addition to Part 2 duties (s 7(3)). The Act provides that written laws may relieve directors of liability (s 5(3)). Schedule 1 determines who is a director for the purposes of Part 3 (s 7(1)), and the Governor may amend Schedule 1 by regulation (s 8). Part 2’s definition of corporation excludes GTEs and local governments (s 4).

The Act combines criminal sanctions, summary penalties, civil recovery mechanisms, and targeted public enforcement routes.

Criminal sanctions under Part 3: Sections 9(2), 11(2) and 12(2) make contraventions criminal offences where specific mental elements or fraudulent purposes are present. Each carries a maximum penalty of $20,000 or imprisonment for five years, or both. Summary conviction penalties are specified as a fine of $12,000 or imprisonment for three years, or both (see ss 9(2), 11(2), 12(2) for summary conviction wording where applicable). For s 9, if the higher elements in s 9(2) do not apply, s 9(3) prescribes a lesser penalty of $5,000 for dishonest conduct not rising to the specified criminal thresholds.

Penalised statutory duty: Section 10 sets a statutory duty of reasonable care and diligence with a specific penalty of $5,000. The text does not create a specified imprisonment penalty for s 10; the specified monetary penalty is the statutory instrument for enforcement against contraventions of the care and diligence duty.

Civil recovery: Section 14 permits the corporation to bring civil proceedings to recover (a) profits made by the director or any other person as a result of the contravention, and (b) the corporation’s loss or damage resulting from the contravention. Those amounts are recoverable as a debt due to the corporation by action in any court of competent jurisdiction. Section 13 allows courts convicting a person under ss 9, 10, 11 or 12 to order the convicted person to pay compensation to the corporation for losses caused by the offending conduct; such orders are enforceable as judgments (s 13(2)).

Enforcement actors: The enforcement design is bifurcated. The fiduciary duties declared in s 5 are enforceable only by the responsible Minister, a Minister for a successor Act, or the Attorney General (s 5(2)). By contrast, Part 3 provides for criminal prosecution and civil recovery by the corporation itself (s 14). The Act therefore centralises enforcement of the general fiduciary duty in public officeholders while allowing public statutory corporations listed in Schedule 1 to litigate directly for Part 3 contraventions.

Attempt liability: Section 7(2) makes attempted offences subject to The Criminal Code attempt provisions, so prosecutors may charge attempts as stand‑alone offences where the factual circumstances support attempt liability.

Insurability and limits: The Act allows a corporation, with responsible Minister approval, to pay premiums for insurance that covers a director’s liability under ss 13 or 14 where the liability arises from s 9 or s 10 breaches, but insurers cannot be used to cover wilful breaches (s 15(1)). This restricts indemnification for the gravest misconduct and makes indemnity conditional on ministerial approval.

Relief from civil liability: Courts retain discretion to relieve persons from liability under s 5, s 13 or s 14 if the court finds the person acted honestly and ought fairly to be excused given all circumstances (s 20). That relief may be applied for pre‑emptively in the Supreme Court (s 21), and judges can withdraw cases from juries to enter judgment for the person on appropriate terms if satisfied relief should apply (s 22).

Practical enforcement considerations: The public enforcement gate for s 5 (s 5(2)) means a duty-holder’s exposure to private suits for the declared fiduciary duties is limited. For the Part 3 offences, criminal enforcement requires prosecutorial resources and proof of relevant mental elements for the higher penalties (for example intent to deceive or for fraudulent purposes in s 9(2)(a)-(b)). Civil recovery requires the corporation to initiate action under s 14, which can be pursued independent of criminal proceedings.

The Act intentionally links to and complements other statutory and common law regimes and sets boundaries on interactions.

Corporations Act duties imported and limited: Section 5 declares that directors of statutory corporations have the same fiduciary relationship and duties to act with loyalty and good faith as company directors under the Corporations Act 2001. That imports the conceptual content of company director duties into the statutory corporation context. However, s 5(2) restricts enforcement of those declared duties to specified public officers (the responsible Minister or the Attorney General), thereby limiting private enforcement mechanisms available under the Corporations Act for company directors.

Overlap and addition: Section 7(3) expressly states that duties in Part 3 are in addition to those in s 5. Consequently directors of Schedule 1 bodies face both the general fiduciary duties and the specific statutory duties of Part 3. Practitioners should map potential overlaps; for example, conduct constituting a breach under the Corporations Act concept of a director’s duty may also fall within s 10’s care and diligence duty, and expose the director to both public enforcement under s 5 and criminal or civil consequences under Part 3 if the relevant corporation is in Schedule 1.

Ministerial directions and written laws: The Act interacts with the written laws under which corporations are created. Section 6 constrains a Minister’s power to direct a corporation under a written law by declaring that a Minister cannot direct a corporation to do something that it could not otherwise do, or not to do something it is obliged to do, or give directions that are unlawful for any other reason. Division 4 gives procedural steps for governing bodies to challenge directions under the written law (ss 16-19), and s 18 grants the corporation standing to apply to the courts for relief. The Act therefore overlays executive direction powers in other statutes with procedural checks and judicial recourse.

Definition cross‑references: The Act’s definitions interact with other legislation. The Part 2 definition of corporation excludes a GTE and local government (s 4). The term GTE is cross‑referenced to the Government Trading Enterprises Act 2023 s 3(1) (s 4 as amended). This means bodies that fall within GTE definitions in that Act are excluded from Part 2’s general declaration, altering which statutory duties apply. Similarly Schedule 1 lists specific Acts under which positions are held, and the compilation table records multiple amendment statutes; the Act therefore needs to be read in conjunction with the enabling Act for each body to determine the position’s duties and protections.

Insurance and ministerial control: Section 15 permits a corporation to insure a director against liabilities under ss 13 or 14 for breaches of s 9 or s 10, other than wilful breaches, but only with the responsible Minister’s approval. That creates an intersection between ministerial control and indemnity rights which may also be affected by any indemnity or insurance provisions in the corporation’s own enabling Act.

Criminal law incorporation: Section 7(2) imports attempt provisions from The Criminal Code by making attempts to commit Part 3 offences punishable within the meaning of s 4 of The Criminal Code. Prosecutors must therefore apply Criminal Code principles to attempts under this Act.

Court relief and jurisdictional interaction: Sections 20-22 grant courts broad equitable‑style relief powers and give the Supreme Court proactive jurisdiction to determine relief applications (s 21). Those provisions interact with judicial discretion doctrines under common law and procedural rules of the Supreme Court, and permit judicial management of cases to prevent unjust outcomes when directors acted honestly and deserve excusal.

Regulatory updateability: Schedule 1 may be amended by regulation (s 8). The Act therefore interacts with subordinate legislation procedures and administrative practice; additions or removals from Schedule 1 will change the Act’s coverage without primary legislation.

Limits on private enforcement: Because s 5 duties are only enforceable by specific public actors, private litigants will generally not be able to sue under s 5. However, where a corporation is listed in Schedule 1, the corporation itself has independent civil rights under s 14 to pursue recovery for Part 3 contraventions. Practitioners must therefore track which statutory duties can attract private enforcement and how they interact with other statutory causes of action.

The Act has been amended repeatedly since enactment in 1996. The compilation table and schedule notes record a substantial amendment history consisting of primary statutes and regulatory instruments; the Governor has been empowered to amend Schedule 1 by regulation (s 8), and multiple Acts have varied the Schedule and definitions over time.

Key chronological touchpoints in the compilation table include the original Act (41 of 1996) with commencement dates for the main body on 1 December 1996; subsequent amendments added or altered entries in Schedule 1 to reflect the creation, abolition or restructuring of statutory corporations. For example, legislation listed in the compilation table shows additions and changes effected by the Forest Products Act 2000, the Western Australian Treasury Corporation Amendment Act 1998, and many other Acts through to the Government Trading Enterprises Act 2023 and the Keystart Act 2024. The Schedule footnotes and the compilation table explicitly note many amending Acts by short title and year; Schedule 1 itself carries an extensive amendment history and lists the amending Acts that have added or removed bodies.

Amendments to definitions: Section 4 has been amended to add the modern definition of GTE referencing the Government Trading Enterprises Act 2023 s 3(1). The Reprints Act 1984 has resulted in omitted or updated sections noted in the instrument. The compilation table records reprints at various dates (for example as at 8 Sep 2000, 10 Aug 2001, 7 Nov 2003, 9 Feb 2007, 4 Nov 2011, 23 Sep 2016) that consolidate earlier amendments.

Scheduled bodies have changed: Schedule 1 has been the locus of most operational amendments. It has been amended by numerous Acts and Gazette notices, which is why practitioners must consult the current Schedule and the compilation table when determining whether a particular statutory body and office is caught by Part 3. The Schedule also records that certain historical bodies ceased to exist, for example the State Government Insurance Corporation ceased to exist on 1 July 2012 (see Notes).

Regulatory tools: The Act authorises the Governor to amend Schedule 1 by regulation (s 8). The notes reference Statutory Corporations (Liability of Directors) (Act Amendment) Regulations published in the Gazette in 2004, 2014 and 2018 among others, showing how subordinate instruments have updated the Act’s application to reflect machinery‑of‑government changes.

Uncommenced provisions: The compilation table shows certain related Acts or provisions that may not yet be in force and are included only to signal future changes. For example, entries note the TAB (Disposal) Act 2019 s 157 as unproclaimed at the time of the table. Practitioners must check up‑to‑date commencement data on the WA legislation website.

Practical consequence: Because the Act’s practical scope depends heavily on Schedule 1 and the enabling Acts for each corporation, both primary and subordinate amendment instruments matter. The combination of statutory amendments, reprints and delegated legislative instruments over nearly three decades means current coverage can only be ascertained by consulting the present consolidated Act and the compilation table.

The text provided does not list any reported judicial decisions or case law interpreting this Act. The Act itself creates jurisdictional and substantive hooks that would generate litigation, such as:

• criminal prosecutions under ss 9, 11 and 12 for dishonesty or improper use of information or position;
• civil recovery proceedings by corporations under s 14 to recover profits and losses resulting from contraventions of ss 9-12 or s 10;
• judicial review or declaratory relief applications by corporations challenging the lawfulness of Ministerial directions under s 18;
• applications for relief from liability under s 21 to the Supreme Court by persons who reasonably believe claims may be made against them under s 5, s 13 or s 14; and
• appeals or sentencing cases arising from s 13 compensation orders made after conviction.

Because the source does not provide case names or judicial exegesis, this section is limited to describing the litigation avenues created by the Act. The Act permits a corporation to seek civil recovery (s 14) regardless of whether a criminal conviction occurs and permits the convicting court to order compensation (s 13). Section 18 provides standing to challenge Ministerial directions through the courts, so public law litigation about the scope of Ministerial powers and the meaning of an "unlawful direction" (s 16(2)) is a foreseeable litigation stream.

Procedural and remedial judicial intervention is anticipated by the text: s 20 confers discretion on courts to relieve persons from liability where they acted honestly and ought fairly to be excused; s 21 allows pre‑emptive applications for relief in the Supreme Court; and s 22 enables judges to withdraw cases from juries if they are satisfied relief ought to be granted. These provisions envisage judicial fact‑finding and the exercise of equitable discretion.

For authoritative analyses and precedent application, practitioners must look to case law databases and subsequent decisions interpreting these provisions. The Act’s text indicates likely contested legal questions: the meaning of "honestly" in s 20, the boundaries of an "unlawful direction" in s 6 and s 16(2), the mental element required for criminal liability in s 9(2)(a) and s 9(2)(b), the distinction between improper use of information (s 11) and improper use of position (s 12), and the compensatory calculus under s 13 and s 14.

Several practical pitfalls arise from the Act’s drafting and structure that practitioners should flag for boards, directors and counsel.

1. Enforcement asymmetry for general fiduciary duties (s 5). While s 5 imports company‑law fiduciary duties, only the responsible Minister or the Attorney General can enforce them (s 5(2)). Private litigants and the corporation generally cannot sue under s 5 directly. That creates the risk that conduct which would attract shareholder suits in the company context may not be privately actionable under s 5 unless the public enforcement gate is exercised. Practitioners should therefore not assume private enforcement replicates Corporations Act pathways.

2. Part 3 is schedule‑dependent (s 7(1) and Schedule 1). The specific criminal and civil liabilities in Part 3 apply only to offices listed in Schedule 1. A position that seems analogous but is not listed will not attract Part 3’s criminal and civil mechanisms. The Governor may amend Schedule 1 by regulation (s 8), so the list can change without primary legislation. Always verify the current Schedule.

3. Criminal liability can attach without civil relief. A director may face criminal exposure under ss 9, 11 and 12 with the attendant custodial and monetary penalties. A corporation’s civil right to recover under s 14 is separate; however, s 13 gives courts the power to order compensation only on conviction, and s 14 requires the corporation to initiate civil action. Recovery is not automatic and will require litigation resources.

4. Insurance limitations and ministerial approval (s 15). Corporations may insure directors for liabilities under ss 13 and 14 related to s 9 or s 10 breaches, other than wilful breaches, but only with the responsible Minister’s approval. This combination of a substantive exclusion (wilful breaches) and an approval gate may leave directors exposed if the Minister refuses approval or if insurers decline to underwrite certain risks.

5. Potential exposure for former directors (s 11(1)). Section 11 applies to current and former directors; misuse of information after leaving office remains an offence. Succession planning and confidentiality protocols must account for post‑employment liability.

6. Time sensitivity on Ministerial direction notices (s 17(1)). A governing body must notify the responsible Minister in writing within seven days of receipt if it determines a Ministerial direction would not be in the corporation’s interests or is unlawful. Failure to give the notice within seven days may affect the corporation’s ability to leverage the s 17 process and may complicate director protections under s 19. Documenting the decision‑making timeline is therefore essential.

7. Director protection is conditional (s 19). Directors who comply with a lawful Ministerial direction are protected from contravening s 5, s 9 or s 10 so long as the direction is lawful and, where they believed s 17(1)(a) applied, they made reasonable efforts to have the governing body give the notice. Directors cannot rely on blanket protection if they act in ways contrary to ss 9 or 10 where the direction did not require that particular manner of doing the act (s 19(2)). Courts will examine whether the director’s efforts were reasonable and whether the direction required the manner of action.

8. Relief from liability requires honesty and fair excuse (s 20). Courts may relieve directors under ss 5, 13 and 14 if they acted honestly and ought fairly to be excused. "Honesty" and what it is fair to excuse will be fact‑sensitive. Reliance on s 20 should not be a default defence strategy without factual grounding.

9. Attempts are offences (s 7(2)). Attempt liability under The Criminal Code applies. Conduct that falls short of completion may nonetheless attract criminal exposure.

10. Interface with enabling Acts. Enabling or creating statutes for each corporation may contain their own indemnity, conflict of interest or duty provisions. The Act explicitly permits written laws to relieve a director of liability arising from breach of s 5 (s 5(3)). Counsel must cross‑check the corporation’s enabling statute for indemnities, specific direction powers, or different enforcement regimes that modify or displace the Act’s application.

11. Narrow definitions and exclusions (s 4). Part 2 excludes GTEs and local governments from the definition of corporation. Bodies that might reasonably be expected to be covered could be excluded by this clause. The term GTE is defined in another Act; the correct classification of a body may require checking the Government Trading Enterprises Act 2023.

12. Liability of acting directors (s 7(1)). Persons acting temporarily or as alternates are captured. Acting or temporary officeholders need the same compliance controls as permanent appointees.

13. No private right of action under s 5 but private civil remedies under s 14. People advising boards should not conflate the enforcement pathways: s 14 enables the corporation itself to recover as a debt; s 5 does not create that private pathway.

The Act imposes obligations on directors and corporations and prescribes steps to reduce legal risk. The compliance measures below focus on documented governance, process, insurance and litigation preparedness.

1. Identify whether the corporation and the position are covered. Check Schedule 1 as currently in force and the Part 2 definition of corporation (s 4) to determine whether Part 3 duties apply. If your body is not in Schedule 1, Part 3 criminal and civil provisions will not apply, but s 5 still imports fiduciary duties to which the responsible Minister or Attorney General may give effect. Confirm whether enabling Acts modify or displace any obligations in this Act.

2. Governance documentation and board minutes. Ensure clear, contemporaneous minutes and decision records that evidence directors acted honestly and exercised reasonable care and diligence (ss 9 and 10). Because s 20 relief depends on the court being satisfied the person acted honestly and ought fairly to be excused, well‑kept records of advice taken, information considered and the decision process are essential.

3. Conflict of interest management and information controls. Implement rigorous policies about access to and use of corporate information and post‑employment restrictions, because s 11 applies to former directors and s 12 targets misuse of position. Document approvals, recusals and the handling of confidential information.

4. Risk assessment for Ministerial directions. Establish procedures for promptly identifying directions received from Ministers, for assessing whether a direction is within the corporation’s powers or obligations (s 6), and for triggering the s 17 notice process where the governing body determines a direction would not be in the corporation’s interests or is unlawful. The s 17 notice must be given within seven days of receipt (s 17(1)), so your compliance process must ensure rapid board consideration and written notification to the responsible Minister.

5. Director protection protocol. If a director complies with a Ministerial direction, ensure the director’s action aligns with s 19 conditions. Where the director believes the governing body should give a s 17 notice, the director should record reasonable efforts made to cause the notice. If the direction requires a particular manner of acting that might contravene s 9 or s 10, preserve evidence that the director evaluated the legal risk and sought remedial steps.

6. Insurance and indemnity planning. If the corporation is able to secure ministerial approval, consider insurance for directors for liabilities under ss 13 or 14 arising from s 9 or s 10 breaches, excluding wilful misconduct (s 15(1)). Prepare the responsible Minister’s brief explaining why ministerial approval should be granted, as ministerial consent is required. Also check enabling Acts for indemnity provisions and ensure any indemnity is consistent with the Act’s prohibition on covering wilful breaches.

7. Litigation and recovery preparedness. Because s 14 allows the corporation to recover profits and losses irrespective of criminal conviction, maintain financial and evidentiary controls to calculate and prove loss, and ensure litigation budgets and strategies are in place. If the corporation expects claims, consider proactive use of s 21 to seek relief in the Supreme Court for directors who reasonably expect claims.

8. Recruitment and appointment processes. Given the personal liabilities in Part 3, perform thorough due diligence on prospective directors, ensure clear role descriptions and onboarding that cover statutory duties (ss 5, 9-12), and provide training on the Act, the consequences of breaches, and the s 17 direction process. Ensure that appointment letters, instruments or enabling Acts do not inadvertently conflict with the Act and that written laws claimed to relieve liability under s 5 are properly recorded.

9. Post‑employment obligations. Because s 11 extends to former directors, contractual confidentiality clauses and post‑termination conduct obligations should be carefully drafted and enforced. Provide exit briefings and confirm continuing obligations in writing.

10. Early engagement with counsel and the responsible Minister. Where a governing body considers a direction is problematic, notify the responsible Minister under s 17(1) within seven days and engage counsel early. Document the governing body’s determination and reasons contemporaneously to preserve the s 19 protections for directors.

11. Financial controls and audits. Strengthen internal audit, transaction approval and reporting processes to reduce the likelihood that a director’s conduct could produce loss or profit recoverable under s 14. Regular independent audits and compliance reports provide evidence of reasonable diligence and may be persuasive in a court seeking to assess honesty or whether relief under s 20 is warranted.

12. Records to support s 20 relief. If a director seeks relief, the court will examine whether the person acted honestly, including the circumstances of appointment and all circumstances of the case (s 20). Maintain records that demonstrate the director’s reliance on professional advice, the availability of information, the scope of delegated authority and the contemporaneous rationales for decisions.

13. Review enabling Acts for exemptions. Section 5(3) permits written laws to relieve a director of liability arising from breach of the declared fiduciary duties. Check whether the enabling Act for the corporation contains any such relief and ensure directors and boards understand those statutory allowances.

14. Monitor amendments. Because Schedule 1 can be amended by regulation (s 8) and the compilation table shows frequent amendments historically, compliance teams should monitor legislative and regulatory updates that could add or remove a body from Part 3 coverage, change definitions (for example GTE), or affect ministerial responsibilities.

Adopting these measures will not eliminate all legal risk, but they align operational practice with statutory expectations under the Act and create factual records necessary for defence, relief applications and ministerial engagement if disputes arise.