Offences By Officers of Certain Companies

Section 590 of the Corporations Act 2001 lists offences by Officers of Certain Companies. It is a criminal offence for a company officer to engage in misconduct against the company’s interests. This covers a range of conduct such as failure to disclose property of a company, failure to disclose details of a recently disposed of company property, putting false entries in the company books, or concealment or removal of property.

Have you been accused of Offences By Officers of Certain Companies? You will have important legal questions which must be answered. Our lawyers are available to have a confidential discussion with you about your case.

ASIC Interview
The ASIC interview process is designed to assist the investigator to prove allegations against you. If you have been requested to participate in an interview for Offences By Officers of Certain Companies, an expert criminal lawyer will be aware of techniques used by the investigator to elicit information from you. Your lawyer will be able to provide you with advice about how to best conduct yourself in the interview and also attend the interview with you to protect your interests and to get a sense of the case against you.

Pleading Not Guilty
A core principle of the criminal justice system in Australia is that a person is presumed to be innocent of a crime until proven guilty. This means that if you have been charged with Offences By Officers of Certain Companies, you do not have to prove your innocence. The charge must be proved against you ‘beyond reasonable doubt’ at Court.

If you are pleading not guilty to Offences By Officers of Certain Companies, an experienced criminal lawyer will identify the weaknesses in the ASIC case against you and provide you with legal and strategic advice about your best legal defence to the charge. Our lawyers also engage experts such as forensic accountants who can assist your defence.

Pleading Guilty
If you have been charged with Offences By Officers of Certain Companies and the evidence against you is overwhelming, you may decide to concede that you are guilty of the offence. Even in these circumstances, it is wise to engage legal representation to assist you with your case.

An expert criminal lawyer will be able to provide detailed advice about what you should do before going to Court. This may involve for example, engaging in appropriate counselling, paying restitution and gathering character references and letters of support. This preparation will lay the groundwork for your lawyer’s ultimate submissions to the Court and assist to you achieve the best possible outcome for your case.

Examples of Offences By Officers of Certain Companies
  • A director of a company creates a bank account and puts company funds it. When the company is being liquidated the director does not disclose the existence of the company to a liquidator and withdraws the funds.
  • An employee of a company does not include a Toyota Land Cruiser as a company asset and attempts to keep it for themselves.
  • A person keeps money or an asset of the books and attempts to keep it for themselves.
What is the legal definition of Offences By Officers of Certain Companies?
  1. A person who, being a past or present officer or employee of a company to which this section applies:
    1. does not disclose to the appropriate officer all the property of the company, and how and to whom and for what consideration and when any part of the property of the company was disposed of within 10 years next before the relevant day, except such part as has been disposed of in the ordinary course of the business of the company; or
    2. has, within 10 years next before the relevant day or at a time on or after that day:
      1. engaged in conduct that resulted in the fraudulent concealment or removal of any part of the property of the company to the value of $100 or more; or
      2. engaged in conduct that resulted in the concealment of any debt due to or by the company; or
      3. engaged in conduct that resulted in the fraudulent parting with, alteration or making of any omission in, or being privy to fraudulent parting with, altering or making any omission in, any book affecting or relating to affairs of the company; or
      4. by any false representation or other fraud, obtained on credit, for or on behalf of the company, any property that the company has not subsequently paid for; or
      5. engaged in conduct that resulted in the fraudulent pawning, pledging or disposal of, otherwise than in the ordinary course of the business of the company, property of the company that has been obtained on credit and has not been paid for;
    3. fraudulently makes any material omission in any statement or report relating to affairs of the company; or
    4. engaged in conduct that prevented the production to the appropriate officer of any book affecting or relating to affairs of the company; or
    5. has, within 10 years next before the relevant day or at a time on or after that day, attempted to account for any part of the property of the company by making entries in the books of the company showing fictitious transactions, losses or expenses; or
    6. has, within 10 years next before the relevant day or at a time on or after that day, been guilty of any false representation or other fraud for the purpose of obtaining the consent of the creditors of the company or any of them to an agreement with reference to affairs of the company or to the winding up;
    contravenes this subsection.
  2. Absolute liability applies to so much of an offence based on paragraph (1)(c), (g) or (h) as requires that an event occur within 10 years next before the relevant day or at a time on or after that day.Note: For absolute liability, see section 6.2 of the Criminal Code.
  3. Paragraph (1)(a) does not apply to the extent that the person is not capable of disclosing the information referred to in that paragraph.Note: A defendant bears an evidential burden in relation to the matters in subsection (3), see subsection 13.3(3) of the Criminal Code.
  4. A person who, being a past or present officer or employee of a company to which this section applies, does not deliver up to, or in accordance with the directions of, the appropriate officer:
    1. all the property of the company in the person’s possession; or
    2. all books in the person’s possession belonging to the company (except books of which the person is entitled, as against the company and the appropriate officer, to retain possession);
    contravenes this subsection.
  • 4A. A person who, being a past or present officer or employee of a company and knowing or believing that a false debt has been proved by a person, fails for a period of one month to inform the appropriate officer of his or her knowledge or belief contravenes this subsection.
  • 4B. A person must not intentionally or recklessly fail to comply with subsection (4) or (4A).
  1. Where a person pawns, pledges or disposes of any property in circumstances that amount to a contravention by virtue of subparagraph (1)(c)(v), a person who takes in pawn or pledge or otherwise receives the property knowing it to be pawned, pledged or disposed of in those circumstances contravenes this subsection.
  2. A person who takes in pawn or pledge or otherwise receives property in circumstances mentioned in subsection (5) and with the knowledge mentioned in that subsection is taken to hold the property as trustee for the company concerned and is liable to account to the company for the property.
  3. Where, in proceedings under subsection (6), it is necessary to establish that a person has taken property in pawn or pledge, or otherwise received property:
    1. in circumstances mentioned in subsection (5); and
    2. with the knowledge mentioned in that subsection;
    the matter referred to in paragraph (b) of this subsection may be established on the balance of probabilities.
Legislation
The legislation for this offence can be found on section 590 of Corporations Act 2001.

Elements of the offence
In essence to prove this charge the Prosecution must show that past or present employee or officer of a company under external administration engaged in any of the types of conduct listed under subsections (1)(a)-(h).

Defences
Defences to this charge can include a factual dispute, the concept of beyond reasonable doubt, or an honest and reasonable mistake.

You should ring us and discuss your case if you have been charged. Deciding on whether to plead guilty or not has consequences for you and should be made after proper discussion with a criminal lawyer.

Questions in cases like this
  • Has the information or property been disclosed?
  • Was the company insolvent at the time of the transaction?
  • What evidence is there to prove the alleged misconduct occurred?
Maximum penalty for section 590 of the Corporations Act 2001 (Cth)
Offences By Officers of Certain Companies (s590 of the Corporations Act 2001 (Cth)) carries a maximum penalty of 100 penalty units ($16,119.00) or two years imprisonment or both. The penalty for 590(5) which refers to pawning, pledging or disposing of property obtained on credit is 50 penalty units ($8.059.00) or one year imprisonment or both.