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Upon reviewing the Defamation Lawsuit Wizard, I must say that the automation at Blue Ocean is both legally insightful and technically smooth... I particularly like the detailed legal aspects (e.g., claim elements and limitation period logic, etc.) you have incorporated 👍🏽
An up-and-coming, innovative firm that does things differently. Blue Ocean takes an interdisciplinary approach to its personal + commercial law practice to ensure you’re getting what you + your company needs. It has a growing list of [200+] automated 24/7 personal + business legal documents with Embedded Lawyer-Logic™ …
This innovative Director ID 💼 Legal Wizard includes Embedded Lawyer-Logic that will guide you to determine if and when* you are required to apply for a Director ID under the Corporations Act 2001 (Cth.) and if you are required to apply, to direct you to either:
✅ Apply online (if you have a MyGovID);
✅ Direct you to apply by phone (if you currently live in Australia but are NOT ELIGIBLE to obtain a myGovID);
✅ Download a paper application form (if you currently reside outside of Australia); or
✅ Automatically generate the required forms (This option is NOT CURRENTLY DEVELOPED*).
* Including the different timeframes applicable under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (the CATSI Act).
This Director ID 💼 Legal Wizard assumes you have not yet applied for a Director ID.
Failure to apply for a Director ID when required to do so is a criminal offence under s. 1272C of the Corporations Act 2001 (Cth.) carrying a maximum penalty of $13,200, and potential civil penalties of up to $1,100,000.
Different timeframes and penalties apply under the CATSI Act.
s. 1272B of the Corporations Act 2001 (Cth.) includes a Director of a company who is appointed to the position of an Alternate Director and is "Acting in that Capacity" (regardless of the name that is given to that position) in the list of person's required to apply for a Director ID.
"Acting in that Capacity" might include a person who holds or intends to hold a Corporate Power of Attorney to act on behalf of a Director.
Being a Director of a Corporate Trustee for an Australian Super Fund is the same as being a Director of an Australian Company and will therefore also be required to apply for a Director ID.
If it appears you require an extension of time you will be directed to contact our legal team to assist you with the urgent preparation of a:
⏳ Application for an Extension of Time to apply for a Director ID form.
The following is a list of the main reasons why this Director ID 💼 Legal Wizard was created:
1️⃣ There is a fast-growing number of Directors who are unknowingly already in breach of the new Director ID regime:
You are already in breach of the new Director ID regime if any of the following fact scenarios apply to you:
➲ Example 1: You were a Director on or before 31 October 2021 and have since resigned, even if you have no intention of ever being appointed as a Director again;
➲ Example 2: You are a new Director appointed on or after 1 November 2022 and before 4 April 2022 and did not apply for a new Director ID within the 28 days of your appointment;
➲ Example 3: You are a new Director appointed on or after 5 April 2022 without first applying for a Director ID;
➲ Example 4: You are a Director of a Corporate Trustee for an Australian Super Fund, an Alternate Director or a Corporate Power of Attorney to act in the capacity of a Director and any of the above 3 examples apply to you, you may think the new Director ID regime does not apply to you, but it does!
💡The above fact scenarios are not an exhaustive list. They are provided by way of example to highlight both the complexity of the new Director ID regime as well as how easily you may already unknowingly be in breach ...
⚖️ A breach of the Director ID regime is a criminal offence which may carry substantial penalties (see the IMPORTANT NOTE below for the details).
2️⃣ It is estimated^ that two-thirds or circa 1.6 million of a total of ~2.5 million have not yet applied for their Director ID.
➲ There is less than 2 months remaining on the most relevant of the staggered deadlines, being 30 November 2022 which applies to you if you were a Director or Alternate Director or Corporate Power of Attorney acting in the capacity of a Director on or before 31 October 2021;
3️⃣ The new Director ID regime has a large scope of coverage, applying to Australian Companies, Australian Registrable Bodies such as Charities and Foreign Registered Companies, Directors of Corporate Trustees for Australian Super Funds, Aboriginal & Torres Strait Islander Corps and more ...;
4️⃣ The uptake has been slow so far (see reason 2️⃣ above) and there is clear evidence of widespread confusion^ about who the new Director ID regime applies to, and when applications must be made?
5️⃣ You MUST apply personally for your Director ID (therefore your lawyer, accountant or tax agent CANNOT take care of this for you by applying on your behalf); and
6️⃣ The above widespread confusion presented a unique Blue Ocean Opportunity for Blue Ocean Law Group to quickly develop + showcase to a potentially large audience of Australian + Foreign Corporate Leaders an example of the kind of innovative Legal Wizard that we have the ability to develop.
➲ See also our Defamation Lawsuit 🔥 Legal Wizard [Australia].
7️⃣ Civil penalties may also be applied to a person (such as a company secretary, accountant. lawyer or a tax agent) who is "involved" in a contravention of the Director ID requirement. Blue Ocean Law Group have mitigated our risk by developing + sharing this Legal Wizard.
➲ For example: Filing a Form 484 with ASIC to appoint a new Director, without advising you as a new Director that you MUST first make an application for a Director ID.
^ Two-thirds of directors drag feet on ID numbers by Philip King for Accountants Daily [6 October 2022].
For more information please read our FAQ's about Director ID's:
➲ What are the criminal + civil penalties if you fail to have a Director's Identification number?
➲ When do you need to apply for your Director ID?
This Director ID 💼 Legal Wizard [Australia] has been designed and developed with care 👨💻 by James D. Ford | ⚖️ Principal Solicitor of Blue Ocean Law Group.
© 2022. Blue Ocean Law Group℠.
* This Director ID 💼 Wizard may be expanded at a later date (if there is sufficient demand) to add the functionality required to automatically generate a completed paper application form for Directors who reside outside of Australia.
Enter the code WHen you pay full price to Purchase one of the following Self Service documents:
Re-Enter the code at checkout each time you buy the following documents to get a discount:
A Director ID is a unique identifier that a director will apply for once and keep forever.
The intended purpose of Director ID's is to help prevent the use of false or fraudulent director identities.
All Directors + Alternate Directors (acting in that capacity regardless of the title used for example: Power of Attorney) of a company, registered Australian body, registered foreign company or Aboriginal and Torres Strait Islander corporation will need a Director ID.
ASIC is responsible for enforcing Director ID offences set out in the Corporations Act (Cth) 2001.
It is a criminal offence if Directors or Alternate Directors do not apply on time and penalties may apply.
When you MUST APPLY for your Director ID depends on when you first become a Director or Alternate Director/Power of Attorney to act in the capacity of a Director.
For Directors + Alternate Directors/Power of Attorney of companies regulated by ASIC and registered under the Corporations Act 2001:
✅ Intending new Directors or Alternate Directors/Powers of Attorney must apply before being appointed.
✅ Directors or Alternate Directors/Powers of Attorney appointed on or before 31 October 2021 have until 30 November 2022 to apply.
✅ New Directors or Alternate Directors/Powers of Attorney appointed for the first time between 1 November 2021 and 4 April 2022 had 28 days from their appointment to apply.
Directors (and possibly Alternate Directors/Powers of Attorney) of companies regulated by the Office of the Registrar of Indigenous Corporations and registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 have a different time frame in which to apply. If this applies to you, please visit the ABRS website for more information on when you need to apply.
Important Notice:
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.
Important Notice:
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.
It is important to compare and contrast the major difference between the standard of the legal duty imposed on Directors in Australia versus the U.S.A.
Reliance on the work of professional advisors is available as a defense in the U.S.A so long as Directors can show they had a sufficient basis to reasonably believe their Professional Advisors are both reliable + competent.
In Australia, Directors are held to a much higher standard!
Under the Corporations Act, Directors have a mandatory Duty of Diligence to take additional steps and to make further inquiries to satisfy themselves with regard to the information and advice provided (even if it is provided by professional advisors they reasonably believe are reliable + competent).
The Business Judgment Rule (BJR) defence/defense is available to Directors in both the U.S.A + Australia.
It appears that the above distinction between the reliance on professional advisors v. Duty of Diligence has been incorporated into each countries application of the BJR.
In the Australian version of the BJR, the third element states:
3️⃣ Informs her or himself about the subject matter of the judgment to the extent she or he reasonably believes to be appropriate …
In the U.S.A version of the BJR (refer below), Director's need to make an informed decision, but in doing so they can rely upon professional advisors they reasonably believe to be reliable + competent.
Once advice has been obtained from professional advisors, in the U.S.A. there is no duty to make any further inquiry beyond this point.
A Court will not second guess a business decision if it was:
1️⃣ Informed;
2️⃣ Made in Good Faith;
3️⃣ Without Conflicts of Interest; and
4️⃣ Had a Rational Basis.
So, whether Directors' will be held liable for breach of their duty of care depend on the facts …
✅ Was the Board reasonably informed?
✅ Did it do appropriate homework before making the decision (analyze information, deliberate)?
✅ Did it act in good faith, free of self-interest, and with the belief that the decision was in the best interest of the Corporation?
If so, the Directors' are not liable, despite the poor substantive outcome of the decision, because the BJR recognizes that a Director is not a guarantor of success.
Reliance on others: It is not unreasonable for a director to rely on information from officers, legal counsel, committees, etc. the director reasonably believes to be reliable and competent.
The article Directors duties: care & diligence, business judgment rule, good faith, use of position & information by the Commercial Law Barrister: Jonathan Wilkinson provides a useful summary of the Directors' Duties required under the Corporations Act in Australia as set out by Elliot J. in the recent Victorian Supreme Court decision United Petroleum Australia Pty Ltd v Herbert Smith Freehills [2018] VSC 347.
Source: For a more detailed discussion, please read our blog article.
Credits:
This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
Important Notice:
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.
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