Here are two quotes by Sarah Bartholomeusz.
I think it is fair to say we are moving in this direction in our thinking, and I would think ASIC also, if what we are discovering now is any indication.
Clearly we shall be getting legal advice before moving but for me I would serioulsy suggest the current directors take heed of some of the issues being raised and their current response. The board is made up of individuals with flesh and blood. That's the way the law sees the board. The board is not a separate legal entity.
This is not a game. These are serious matters.
I would suggest the current board seriously consider that it is their job to oversee the current management and senior executives of CPA Australia, and that means appointing and removing them (with my emphasis on the latter currently). I would encourage them to not get too caught up with the sales pitches of some but rather soberly consider what their primary functions are in the midst of these very troubling revelations.
Criminalisation of Directors’ Duties
In Australia, directors of a corporation are expected to undertake their duties and responsibilities in accordance with both statutory and common laws (judge-made laws). The Directors’ Duties are designed to promote good governance and ensure that they act in the interests of the company, including putting the company’s interests first. Directors’ Duties include:Directors' Duties
Duty to act bona fide (in good faith) in the interests of the company as a whole
Duty not to act for an improper purpose
Duties of care and diligence
Duty to avoid conflicts of interest
Duty not to make improper use of position
Duty not to make improper use of information
Duty not to trade while insolvent
Any director who breaches these duties faces the risk of attracting criminal action.
Statutory Duties – criminal offences
Section 184 of the Corporations Act provides a series of criminal offences which arise when the behaviour of directors falls far short of acceptable standards due to intentional dishonesty or recklessness:
Good faith. A director commits an offence if they are reckless or intentionally dishonest, and fail to exercise their powers and discharge their duties in good faith in the best interests of the corporation or for a proper purpose.
Use of position. A director commits an offence if they use their position with intentional dishonesty or recklessly in order to directly or indirectly gain an advantage for themselves, or someone else,or cause detriment to the corporation.
Use of information. Any person who obtains information because they are, or have been, a director of a corporation commits an offence if they use the information with intentional dishonesty or recklessly in order to directly or indirectly gain an advantage for themselves, or someone else, or cause detriment to the corporation.
Opportunities often arise that may tempt a director to personally benefit from their position or another person. Under s 182 (1) of the Corporations Act (‘the Act’), a director must not improperly use their position to gain an advantage for themselves, for another person or cause detriment to the company. This is known as the duty not to make improper use of position. This duty is similar to and is related to the fiduciary duties a director owes to the company. It also sits alongside the duty not to make improper use of information obtained through your position as a director.
What constitutes ‘improper’ use of position?
To be found in breach of this duty, the person involved must be a director of the company. ‘Officers’ and ‘employees’ of the company must also comply with this duty under the Act.