A proposed new defence for company directors
The Australian Institute of Company Directors (AICD) has recently proposed a new ‘honest and reasonable director defence’ for inclusion in the Corporations Act 2001 (Cth) (Corporations Act). The new broad based defence would apply to all contraventions of the Corporations and ASIC Acts, significantly expanding the scope of protections currently afforded to directors. The proposal has been met with criticism from both ASIC and certain shareholder groups, concerned with a defence which they argue potentially goes too far in protecting directors that may not have been acting responsibly.
The impetus for change
The ‘business judgment rule’ defence in section 180(2) of the Corporations Act, introduced in 1998, has a relatively narrow scope. Importantly, the defence only applies to a director’s statutory duty of care and diligence under section 180(1) and the equivalent common law and equitable duties. It is not available, for example, to directors who are charged with insolvent trading or the duty to act in good faith and the best interests of the company. The rule is also limited to positive business judgment decisions and so is not seen to cover a breach arising from an omission by a director, such as in the Centro litigation in 2011. The AICD proposal highlights what are, in its view, a number of negative consequences of the limited existing protections. Its surveys have revealed significant concerns among directors about the risk of personal liability that has prompted an overly conservative approach to business decisions, creating a negative shift in the directors’ role away from governance and toward technical compliance. Such an approach leads to problems in making forward looking statements and responding to corporate insolvency, the latter often causing directors to place potentially profitable companies too quickly into external administration. The AICD also identifies the lack of protection for directors as a key reason for the reluctance of strong candidates to take on directorships.
The ‘honest and reasonable director defence’
The AICD’s proposed solution to the above issues is to introduce a new catch-all defence to liability where a director acts:
- for a proper purpose, and
- with the degree of care and diligence that the director rationally believes to be reasonable in the circumstances.
The key features of the proposed defence are:
The defence would apply to all provisions of the Corporations and ASIC Acts (and their common law and equitable equivalents), not just the duty of care and diligence.
The AICD has suggested that this would also apply to strict liability provisions. This is potentially difficult to reconcile, as having regard to the subjective state of mind of the person that breached such a provision goes against the nature of strict liability (which ignores the director’s intention). Some example strict liability provisions are the duty to disclose material personal interests (section 191), to not vote on resolutions in which a director has a material personal interest (section 195) and the duty to disclose directors’ remuneration (section 202B). Any application to strict liability offences will need to be carefully considered. A broader issue is the seemingly increasing tendency for strict liability to be applied to statutory drafting as a default.
The defence extends to omissions as well as positive acts, which was considered by many to be a key failing of the existing business judgment rule.
This aspect of the defence could potentially improve directors’ access to the protections in a manner consistent with the Corporations Act without overly compromising the position of shareholders.
The defence includes a subjective test – that a director rationally believes their action (or inaction) was reasonable in the circumstances.
By contrast, the business judgment rule provides that the director’s judgment must be rational ‘unless the belief is one that no reasonable person in their position would hold.’ This is an important distinction, allowing for a broad range of potential arguments based on the surrounding (potentially high pressure) commercial circumstances at the time the decision was made, rather than by reference to an objective standard. Concerns with this subjective element are valid and it is this aspect of any new defence which is likely to be subject to the greatest scrutiny.
The AICD has raised important issues with the proposed new defence, which has been met by concerns from ASIC and certain shareholder groups. As is always the case when dealing with directors’ duties and protecting shareholder (and other stakeholder) interests, it is a balancing act which, if a new defence is developed, will need to strike a mid-point between the views of each group.