AUSTRALIA Law and Practice Contributed by: Sven Burchartz and Jessica Bell, Kalus Kenny Intelex
states and territories has now legislated (to vary - ing degrees) in relation to the general concept. For example, in Victoria negligence is governed by the Wrongs Act 1958 (Vic). Generally, sports event organisers owe a duty of care to participants in the event, people working at the event and spectators who buy a ticket to and attend the event. Limiting Liability Liability in negligence can be limited or exclud - ed by way of agreement between the relevant parties. However, the agreement should explic - itly identify the limitation or exclusion of certain liability, as general wording such as “all liability is excluded” will not ordinarily be construed by Australian courts to apply liability limitations or exclusions to liability for negligence. There is no blanket legal requirement in Australia for a sporting club (whether that club is profes - sional, amateur, commercial or non-profit) to become incorporated. However, in order to limit the liability of its members and officers, many sporting clubs do choose to incorporate, either as: • incorporated associations under the applica - ble state or territory legislation (the Associa - tions Incorporations Acts); or • corporations under the Corporations Act 2001 (Cth) (the Corporations Act). 4. Corporate 4.1 Legal Sporting Structures There are some circumstances where governing bodies have imposed a requirement that small local clubs be incorporated. For example, the 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. 4.2 Corporate Governance Sports Governance Principles
In March 2020, the Australian Sports Com - mission released a revised version of its Sport Governance Principles (the “Principles” ), which it has developed for the purpose of guiding Aus - tralian sporting organisations to deliver good governance. The Principles apply to all organi - sations throughout the Australian sporting sec - tor, whether they are small local clubs or large national organisations. Directors’ Duties The Principles (outlined above) are not manda - tory, 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. This includes complying with a number of direc - tors’ 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. Insolvent Trading The Corporations Act also prohibits insolvent trading by directors of all corporations, which includes the directors of sporting organisations. Pursuant to Section 95A of the Corporations Act, “a person is solvent if, and only if, the person is able to pay all the person’s debts as and when they become due and payable.” 4.3 Funding of Sport The Australian Sports Commission (ASC) is the Australian government agency responsible for
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