On 21 September, the AICD lodged a submission with the Australian Law Reform Commission in response to its Interim Report Traditional Rights and Freedoms —Encroachments by Commonwealth Laws. We confined our comments in this submission to issues raised by Chapter 11 (Burden of Proof), Chapter 14 (Strict and Absolute Liability) and Chapter 9 (Retrospective Laws) of the Interim Report.
In summary, the key comments of the AICD were as follows:
- We agree with the ALRC’s recommendation, in regard to the reversal of the onus of proof, that director liability provisions for taxation offences be reviewed and strongly recommend that section 8Y of the Taxation Administration Act 1953 (C’th) be reviewed
- The reversal of the onus of proof is an issue which not only impacts on Commonwealth laws but equally on the laws of the States and Territories
- Strict liability offences (or elements of offences) should not apply in circumstances where directors must make complex judgments or where the penalties applied as a result of a breach are significant
- We are pleased that the Interim Report has recommended that the insolvent trading provisions in the Corporations Act be reviewed
- Provisions in tax legislation which make new directors of a company personally liable for the misconduct of the company at a time when they were not a director should be removed or amended.
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