Legislative Assembly for the ACT: 2004 Week 08 Hansard (Tuesday, 3 August 2004) . . Page.. 3296 ..
Question so resolved in the negative.
MR SMYTH (Leader of the opposition) (11.02): The opposition will be supporting this bill. This bill implements some important provisions governing the behaviour of corporations and their directors. As the Treasurer noted in his presentation speech, the provisions in the bill arise from the report of the Cole royal commission. An interesting feature of the provisions in this bill is that they will not be activated if directors and corporations behave in accordance with the law and deal appropriately with their obligations, in this instance, particularly their taxation liabilities.
It became evident from the Cole royal commission into the building and construction industry that major problems were identified particularly within that industry in relation to fraudulent conduct and evasion of taxation responsibilities. The commission recommended that all states and territories adopt provisions similar to those implemented in New South Wales to impose liability on directors and former directors, and on members of groups of companies to help reduce the incidence of fraud and tax evasion.
This bill goes further, however, in trying to tackle the problems of successive company structures—so-called phoenix companies—being interposed in a group with the intention of evading payment of taxes and other obligations. The provisions in the bill will therefore enable current and former directors to be pursued in relation to outstanding obligations and in relation to any fraudulent conduct.
There is one aspect of this bill that requires some additional comment. That concerns the use of the word “corporation” in division 7.2 in this bill. As I understand the use of “corporation” in this bill, it means that the provisions of the bill will apply very broadly. We need to consider the definition of “corporation” in the Commonwealth’s Corporations Act 2001 to appreciate what is being proposed.
Under the definition in the Corporations Act the corporations encompassed by the bill we are debating today include companies, any body corporate and any unincorporated body that may sue or be sued or that may hold property. The implications of the coverage of corporations in the present bill, therefore, are that all people who are in positions of public trust, and who have accepted positions of responsibility in a wide range of organisations, are required to act honestly in performing their duties. It is worth emphasising that, provided that office-bearers perform their duties honestly, the provisions of this bill will have no impact on them.
The provisions in this bill are intended to be used in situations where office-bearers attempt to evade their responsibilities. The opposition has no difficulty with the premise that office-bearers must be honest and must accept responsibility. This is a premise that all people who accept positions of trust and responsibility must accept. This premise must apply irrespective of whether the organisation is a large publicly listed corporation or a relatively small charity. Honesty and responsibility must be the hallmarks of people who are office-bearers in all of these organisations. For these reasons the opposition will be supporting the bill.
MS DUNDAS (11.05): I wanted this bill to be adjourned today because I have ongoing concerns that it may have unintended adverse impacts on the community sector. This bill