Can a company indemnify a director for a restrictive trade practices breach?

No. Schedule 9 to the Trade Practices Legislation Amendment Act (No. 1) 2006 (No. 131, 2006 which commenced on 1 January 2007) inserted sections 77A, 77B and 77C in the Trade Practices Act prohibiting a company from indemnifying an officer from liability to pay a pecuniary penalty under section 76 for a contravention of a provision of Part IV of the Trade Practices Act (the restrictive trade practices provisions) or legal costs when the person has been found to be liable.

If your company’s constitution or director’s access and indemnity deed only prohibits indemnities disallowed under Section 199A of the Corporations Act (and not under the Trade Practices Act or "any law"), it could be committing an offence under section 77C.

With AGM season approaching, now is the time to consider whether a constitution amendment is required.

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