Document ID: chunk:federal_register_of_legislation:C2025C00180:clause:1_15:p24
Version: federal_register_of_legislation:C2025C00180
Segment Type: clause
Provision Reference: sch 1 cl 15 (pt 24/39)
Character Range: 1873072–1875800

recipient; and
 (b) the fund is not so endorsed or entitled.
Note: The Commissioner is required to give written notice of the penalty (see section 298‑10).
 (2) The persons are:
 (a) each person who is a trustee of the fund; and
 (b) each director of each *constitutional corporation that is a trustee of the fund, if:
 (i) any of the penalty cannot reasonably be recovered from the constitutional corporation; and
 (ii) the constitutional corporation is neither a licensed trustee company (within the meaning of the Corporations Act 2001) nor the Public Trustee of a State or Territory.
Note: A person mentioned in paragraph (2)(a) may, in certain circumstances, not be a constitutional corporation: see item 28 of Schedule 2 to the Tax Laws Amendment (2009 Measures No. 4) Act 2009 (former prescribed private funds).
 (3) The amount of the penalty is:
 (a) the amount specified in the *applicable trust fund guidelines for the purposes of subsection (1); or
 (b) the amount worked out in accordance with the method specified in the applicable trust fund guidelines for the purposes of subsection (1).
The guidelines may specify different penalties or methods for different circumstances.
 (4) The penalty must not be reimbursed from the fund.
Note: Division 298 in this Schedule contains machinery provisions for administrative penalties.

Defences for directors
 (5) Paragraph (2)(b) does not apply to a director if:
 (a) the director was not aware of the holding out mentioned in paragraph (1)(a) and it would not have been reasonable to expect the director to have been aware of that holding out; or
 (b) the director took all reasonable steps to ensure that the holding out mentioned in that paragraph did not occur; or
 (c) there were no such steps that the director could have taken.
 (6) In determining what is reasonable for the purposes of paragraph (5)(a), (b) or (c), have regard to all relevant circumstances.
 (7) A person who wishes to rely on subsection (5) bears an evidential burden in relation to the matters in that subsection.

Power of courts to grant relief
 (8) Section 1318 of the Corporations Act 2001 (power of Court to grant relief in case of breach of director's duty) does not apply to a liability of a director under this section.

Suspension and removal of trustees

426‑125  Suspension or removal of trustees

Suspension
 (1) The Commissioner may suspend all of the trustees of an *ancillary or community charity trust fund if the Commissioner is satisfied that the fund, or any of the trustees of the fund, have breached:
 (a) the *applicable trust fund guidelines; or
 (b) any other *Australian law.
 (2) The suspension of a trustee:
 (a) starts when the Commissioner gives the trustee notice