AUSTRALIA Law and Practice Contributed by: Sven Burchartz and Jessica Bell, Kalus Kenny Intelex
• death or personal injury caused by breaches of Australian Consumer Law; • reckless conduct; • workplace health and safety obligations; • criminal conduct; or • unfair contract terms, including overly broad waiv - ers. Keeping Sporting Events Safe Event organisers may maintain safety and public order by: • complying with workplace health and safety laws; • applying liquor licensing controls; • banning or removing violent or disruptive specta - tors; • providing mechanisms for spectators to report misconduct; • implementing emergency management and evacu - ation procedures; • using surveillance and controlled entry systems; and • managing crowds, including restricting prohibited items. There is no blanket legal requirement in Australia for a sporting club (whether professional, amateur, com - mercial or non-profit) to become incorporated. To limit the liability of members and officers, the most com - mon structure of a sporting club is: • an incorporated association under the applicable state or territory legislation (the Associations Incor - porations Acts); • a company limited by guarantee under the Corpo - rations Act 2001 (Cth) (eg, Football Australia and Swimming Australia); or • a company limited by shares (eg, some NRL, AFL and A-League clubs). 4. Corporate Structures 4.1 Legal Forms of Sporting Bodies However, there are circumstances in which govern - ing bodies require local clubs to be incorporated. For example, AFL NSW/ACT, the state body responsible for the growth of the AFL in New South Wales and
the Australian Capital Territory, requires local football clubs to be incorporated to ensure that the legal rights and obligations of the clubs are not borne by their members. The choice of legal structure for a sporting organi - sation depends on its size, purpose, and objectives. Small, not-for-profit clubs often do not require the more complex governance and reporting obligations of a corporate structure. Whereas for-profit organisa - tions are typically larger, may have paid staff, seek external investment, and operate more like a normal business, which necessitates a higher level of govern - ance and oversight. 4.2 Corporate Governance Codes Sports Governance Principles In March 2020, the Australian Sports Commission released a revised version of its Sport Governance Principles (the “Principles”), developed to guide Australian sporting organisations in delivering good governance. The Principles apply to all organisations throughout the Australian sporting sector, whether they are small local clubs or large national organisa - tions. Directors’ Duties The Principles themselves are not mandatory, but directors of sporting organisations are required to comply with the same behavioural requirements as any other company director in Australia, as outlined in the Corporations Act 2001 (Cth). This includes com - plying with a number of directors’ duties such as the duty of care, skill and diligence, the requirement to avoid conflicts of interest and the duty to act in good faith. These duties also apply under state and territory legislation for incorporated associations and for sport - ing organisations that are registered charities. Insolvent Trading Section 95A of the Corporations Act prohibits direc - tors of corporations, including sporting organisations, from allowing a corporation to trade while insolvent. A sporting organisation will be considered insolvent if it is unable to pay its debts as and when they become due and payable. Consequences of insolvent trading may include:
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