DIRECTORS’ & OFFICERS’ LIABILITY MASTERCLASS

Masterclass Agenda

8:30AM Registration | 9:00AM Start | 5:00PM Close

 

Topic 1

The Legal Framework & Your Personal Exposure 

Who is caught, by which duties, and why Australia is a high-liability jurisdiction.

• Statutory duties under the Corporation Act 2001 (Cth): ss180-183 and s588G
• Fiduciary versus statutory duties - what the difference means in practice
• Who is an “officer”? How liability extends well beyond the board
• The regulators: ASIC,APRA, ACCC, SafeWork and the OAIC
• Public sector and NFP overlays: PGPA Act duties and ACNC Governance Standard 5

Exercise: Assess whether a CFO, a general manager and a head of risk each qualify as an “officer” - and what that means for their exposure.

 

Topic 2

Where Liability Arises: Duty of Care in Practice 

What the courts and regulators now expect, drawn from recent Australian decisions.

• The evolving standard under s180 - the “reasonable director” test
• ASIC v Cassimatis, ASIC v Healey (Centro) and ASIC v Hellicar (James Hardie)
• ”Stepping stone” liability - when the company’s breach becomes yours 
• Emerging exposures: cyber resilience, privacy and the statutory tort, mandatory climate reporting and greenwashing
• Continuous disclosure and financial reporting risk.

Exercise: A compliance report lands on your desk with escalating red flags. Decide what you do, in what order, and what you record.

 

Topic 3

Officer Due Diligence Under WHS Law

The one duty you cannot delegate - and the only one carrying a custodial sentence.

• Section 27 WHS Act: the six elements of the positive due diligence duty
• Why this duty attaches to you personally and cannot be discharged by delegation
• Industrial manslaughter offences and penalties across Australian jurisdictions
• Psychosocial hazards: the 2022-23 regulations and what enforcement now looks like 
• What evidence of due diligence actually looks like when tested

Exercise: Audit a board reporting pack against the six limbs of s27 and identify where the gaps are.

 

Topic 4

Governance Failures & Boardroom Decision-Making

How good people with good intentions end up personally liable.

• Information asymmetry and “blind reliance” on management
• Inadequate board papers, and failure to act on red flags
• The business judgement rule - when it protects you and it does not
• Conflicts of interest: s191 material personal interest and Chapter 2E related party transactions
• Whistleblower obligations under Part 9.4AAA and liability for vistimisation
• Public sector accountability: royal commissions, inquiries and integrity framework

Exercise: Evaluate a flawed board paper, identify the governance risks, and decide what you would send bank.

 

Topic 5

Financial Distress, Insolvency & Personal Liability 

Avoiding personal exposure when things start going wrong.

• Insolvent trading under s588G - when does liability actually arise?
• Safe harbour protections and how they work in practice
• Director penalty notices: superannuation and PAYG exposure
• Employee entitlements and illegal phoenix activity 
• Crisis governance: managing advisers and protecting the board

Exercise: A company is approaching  insolvency. Working in groups, decide what the board must do today and what it must document.

 

Topic 6

Protecting Yourself: Mitigation & When You Are in the Frame

Practical defences before an issue arises - and what to do once it has

• Building a defensible decision-making process and documenting dissent
• D&O insurance: what it covers, key exclusions, and run-off cover after you leave
• Indemnities and access deeds
• Resigning properly - notification and your liability tail
• If you are examined: ASIC s19 notices, privilege, and when the company’s lawyer stops being yours

Exercise: Groups identify the risks in a complex case study and present a defensible decision-making framework to the room.