Page 4809 - Week 13 - Thursday, 28 November 2019
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provide further information about the application of the 10-year period of rectification work, retrospectivity, and executive officers. The government is happy to provide this information. In relation to recommendations 3, 5, 6 and 7, I refer members to the information in the response and the explanatory statement.
I would now like to speak about the other recommendations in more detail.
First, I go to director liability. It is concerning that public comments appear to imply that the government may have contravened relevant commonwealth laws. This is not the case. As we made clear in the response to the standing committee, the commonwealth Corporations Law was not intended to cover the field in the regulation of the duties of directors or other officers of corporations. The commonwealth Corporations Act deals with the interactions with state and territory laws. It plainly states that the corporations legislation is not intended to exclude or limit the concurrent operation of any law of a state or territory, including a law that imposes additional obligations or liabilities, whether civil or criminal, on the director or other officers of a company or another corporation. It is disingenuous for anyone to suggest otherwise.
The committee mentioned additional instruments made by the commonwealth. The information previously provided to the committee can be applied to these legislative instruments with the same result, as the commonwealth instruments are not stand-alone laws but all amend the Corporations Law. This means that once implemented, the provisions of those commonwealth instruments are covered by section 5E(1) of the commonwealth Corporations Act, which provides that the Corporations Law does not exclude or limit the concurrent operation of any law of a state or territory. The provisions are also consistent with the COAG principles for personal criminal liability of directors and executive officers. There is nothing in the operation of the proposed amendments that would appear to be inconsistent with the Corporations Law.
On director liability, in developing the bill the government has considered provisions already in place in ACT laws and in building laws in other jurisdictions. All states and territories other than South Australia already include liability provisions for directors or executive officers in their building laws. Other ACT laws also provide broader executive officer liabilities for contraventions. These laws include those that builders and others in the industry have existing obligations under, such as the Environment Protection Act, the Heritage Act, and the Tree Protection Act. Work health and safety laws also place broad duties on a range of people.
Specific amendments in the bill may make directors and executive officers consider their obligations more seriously, but they are not unreasonable. It is also important to recognise that individual licensees and partners in licensed partnerships already have personal liability.
It is also important to understand what the proposed powers do. They do not make a director liable for a building defect in all circumstances. They do not make the executive officers liable for all breaches of relevant laws by the corporation.
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