covid19-law.com.au
2. Commercial
D. Corporations & Associations
i. Legislation
Commonwealth:
Corporations Act 2001 (Cth) amended by the Coronavirus Economic Response Package Omnibus Act 2020 (Cth).
Made under the Corporations Act 2001 (Cth):
Made under the Guarantee of Lending to Small and Medium Enterprises (Coronavirus Economic Response Package) Act 2020 (Cth):
New South Wales:
COVID-19 Emergency Response Act 2020 (NSW):
Associations Incorporation Act 2009 (NSW) amended by the COVID-19 Legislation Amendment (Emergency Measures—Miscellaneous) Act 2020 (NSW): The amendment allows an association to hold a meeting at multiple venues using technology (such as audiovisual link software) that gives a reasonable opportunity for participation in the meeting. The amendment also allows voting on resolutions by the members of an association to be conducted by postal or electronic ballot. These alternative arrangements are permitted, on a temporary basis, even if the association’s constitution does not currently allow meetings and votes to take place remotely.
Registered Clubs Act 1976 (NSW) amended by the COVID-19 Legislation Amendment (Emergency Measures—Miscellaneous) Act 2020 (NSW): allows regulations to be made that will permit an election of the governing body of a registered club to be postponed for up to 12 months from the commencement of the amendment.
South Australia:
COVID-19 Emergency Response Act 2020 (SA):
Australian Capital Territory:
Associations Incorporation Act 1991 (ACT) amended by the COVID-19 Emergency Response Legislation Amendment Act 2020 (ACT).
ii. Case law
As to bankruptcy and insolvency, see the Bankruptcy & Insolvency section of this text.
In a Federal Circuit Court case involving the assessment of penalties for established breaches of the Fair Work Act 2009 (Cth) by corporations and directors as accessories, Judge Driver rejected the respondents' argument that the "important humanitarian motivations underlying the projects engaged in by the corporate respondents" should be a strongly mitigating factor when determining penalty. The Judge stated that "it is perhaps ironic that if Geneasys had been trading now it may have been engaged in work serving the public interest in relation to the COVID-19 pandemic but the facts are that Geneasys is in liquidation and the intellectual property relating to those inventions has been lost": Fair Work Ombudsman v Priority Matters Pty Ltd and Anor (No 5) [2020] FCCA 901, [52]-[53]. The directors were ordered to pay penalties, however, the Judge granted them an extended period of time in which to pay those penalties given the economic disruption caused by the COVID-19 pandemic: [208].
iii. Further resources
D. Corporations & Associations
i. Legislation
Commonwealth:
Corporations Act 2001 (Cth) amended by the Coronavirus Economic Response Package Omnibus Act 2020 (Cth).
Made under the Corporations Act 2001 (Cth):
- Corporations Regulations 2001 (Cth) amended by:
- Corporations (Coronavirus Economic Response) Determination (No. 1) 2020: modifies the Corporations Act to enable Annual General Meetings to be run electronically, and to enable electronic signatures to be used, to address the impacts of COVID-19.
- Corporations (Coronavirus Economic Response) Determination (No. 2) 2020: modifies the operation of the civil penalty provisions in subsection 674(2), 674(2A), 675(2) and 675(2A) of the Corporations Act to establish a temporary test based on a disclosing entity or its officers’ knowledge, recklessness or negligence with respect to whether certain information would have a material effect on the price or value of its enhanced disclosure securities and therefore should be disclosed under section 674 or 675 of the Act.
- ASIC Corporations (Share and Interest Purchase Plans) Instrument 2019/547, amended by:
- ASIC Corporations (Amendment) Instrument 2020/290: amends the above instrument, as if the permissible total trading suspension days specified in para 7(a)(ii) were 10 days instead of five.
- ASIC Corporations (Trading Suspensions Relief) Instrument 2020/289: modifies the operation of ss 708AA, 708A, 1012DAA and 1012DA of the Corporations Act 2001 (Cth) by declaring that the sections apply as if the permissible total trading suspension days specified in the sections were 10 days instead of five.
- ASIC Corporations (Extended Reporting and Lodgment Deadlines—Unlisted Entities) Instrument 2020/395: implements temporary measures aimed at facilitating financial reporting by unlisted entities whose reporting processes take additional time due to current remote work arrangements, travel restrictions and other impacts of COVID-19. The temporary measures are intended to allow unlisted entities up to one additional month to complete financial reports and have those reports audited, in compliance with the financial reporting and audit requirements of the Corporations Act.
- ASIC Corporations (COVID-19 – Distribution of Debit Cards) Instrument 2020/401: provides exemptions and modifications in relation to the hawking and product disclosure requirements in the Corporations Act in relation to issuing basic deposit products, linked non-cash payment facilities and debit cards due to adverse implications on consumers without debit cards – including vulnerable and elderly consumers – due to COVID-19.
- ASIC Corporations (Amendment) Instrument 2020/452: amends the ASIC Corporations (Exempt Proprietary Companies) Instrument 2015/840, ASIC Corporations (Disregarding Technical Relief) Instrument 2016/73, ASIC Corporations (Wholly-owned Companies) Instrument 2016/785, and ASIC Corporations (Extended Reporting and Lodgment Deadlines—Unlisted Entities) Instrument 2020/395 to assist listed and unlisted entities affected by the impacts of COVID-19 by enabling them more time to report and have audits. This includes public companies, proprietary companies, registered schemes, disclosing entities and financial services licensees.
- ASIC Corporations (Extended Reporting and Lodgment Deadlines—Listed Entities) Instrument 2020/451: implements temporary measures aimed at facilitating financial reporting by listed entities whose reporting processes take additional time due to current remote work arrangements, travel restrictions and other impacts of COVID-19. The temporary measures are intended to allow listed entities up to one additional month to complete financial reports and have those reports audited, in compliance with the financial reporting and audit requirements of the Corporations Act.
Made under the Guarantee of Lending to Small and Medium Enterprises (Coronavirus Economic Response Package) Act 2020 (Cth):
- Guarantee of Lending to Small and Medium Enterprises (Coronavirus Economic Response Package) Rules 2020
- Guarantee of Lending to Small and Medium Enterprises (Coronavirus Economic Response Package) (Minister) Delegation 2020
New South Wales:
COVID-19 Emergency Response Act 2020 (NSW):
- Part 6: Small business commissioner
Associations Incorporation Act 2009 (NSW) amended by the COVID-19 Legislation Amendment (Emergency Measures—Miscellaneous) Act 2020 (NSW): The amendment allows an association to hold a meeting at multiple venues using technology (such as audiovisual link software) that gives a reasonable opportunity for participation in the meeting. The amendment also allows voting on resolutions by the members of an association to be conducted by postal or electronic ballot. These alternative arrangements are permitted, on a temporary basis, even if the association’s constitution does not currently allow meetings and votes to take place remotely.
Registered Clubs Act 1976 (NSW) amended by the COVID-19 Legislation Amendment (Emergency Measures—Miscellaneous) Act 2020 (NSW): allows regulations to be made that will permit an election of the governing body of a registered club to be postponed for up to 12 months from the commencement of the amendment.
South Australia:
COVID-19 Emergency Response Act 2020 (SA):
- Section 16: Requirements relating to documents
- Section 17: Meetings in person etc. may occur by audiovisual or other means
- Section 18: Service
Australian Capital Territory:
Associations Incorporation Act 1991 (ACT) amended by the COVID-19 Emergency Response Legislation Amendment Act 2020 (ACT).
ii. Case law
As to bankruptcy and insolvency, see the Bankruptcy & Insolvency section of this text.
In a Federal Circuit Court case involving the assessment of penalties for established breaches of the Fair Work Act 2009 (Cth) by corporations and directors as accessories, Judge Driver rejected the respondents' argument that the "important humanitarian motivations underlying the projects engaged in by the corporate respondents" should be a strongly mitigating factor when determining penalty. The Judge stated that "it is perhaps ironic that if Geneasys had been trading now it may have been engaged in work serving the public interest in relation to the COVID-19 pandemic but the facts are that Geneasys is in liquidation and the intellectual property relating to those inventions has been lost": Fair Work Ombudsman v Priority Matters Pty Ltd and Anor (No 5) [2020] FCCA 901, [52]-[53]. The directors were ordered to pay penalties, however, the Judge granted them an extended period of time in which to pay those penalties given the economic disruption caused by the COVID-19 pandemic: [208].
iii. Further resources
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