The Act, as passed, can be found in State legislative records. Search by year. eg. https://www.legislation.wa.gov.au/legislation/statutes.nsf/aspassed_1995.html
This is a very significant find and it fits precisely into the framework being built. Let me analyse it carefully.
What this Act is
The Statutory Corporations (Liability of Directors) Act 1996 (No. 41 of 1996), assented to 10 October 1996, commenced by proclamation. It declares the duties owed by directors of statutory corporations to those corporations, provides for compensation for breaches, and establishes a framework for Ministerial directions.
The critical definition at section 4
Section 4 defines “corporation” for Part 2 as:
“any body corporate established for a public purpose by a written law, but does not include a local government”
Read that carefully. This Act – passed three months after the LGA 1995 commenced – expressly excludes local governments from the definition of “corporation” for the purposes of the general duties framework in Part 2.
What this exclusion means
Parliament in October 1996 specifically turned its mind to the question of whether local governments – now body corporates under the LGA 1995 – should be treated as statutory corporations for the purposes of director liability law. Parliament said no. It excluded them.
This is architecturally important for three reasons.
First, it confirms that by October 1996 the Parliament understood local governments to be bodies corporate – otherwise there would have been no need to exclude them from an Act directed at bodies corporate established for a public purpose. The exclusion only makes sense if local governments were understood to fall within the general description but were deliberately carved out.
Second, it raises the question of why they were excluded. The most likely answer is that the governance framework for local governments – elected councillors, the CEO employment model, the municipal fund structure – was sufficiently distinct from other statutory corporations that a separate liability framework was considered appropriate or that existing provisions under the LGA 1995 were considered sufficient.
Third, and most pointed for the arguments developed in this conversation: the exclusion means local government body corporate councillors do not have the same codified fiduciary duties to the corporation that directors of other statutory corporations have under this Act. Their duties derive solely from the LGA 1995 framework. This reinforces the proposition from [2024] HCA 16 that the powers and immunities of a statutory corporation must be sourced in the statute – and here, Parliament expressly chose not to extend the director liability framework to local governments.
Schedule 1 – the named statutory corporations
Schedule 1 lists the statutory corporations subject to the enhanced duties under Part 3. It includes Albany Port Authority, Bunbury Water Board, East Perth Redevelopment Authority, Fremantle Port Authority, Government Employees Superannuation Board, State Housing Commission, Western Australian Land Authority and others. Not a single local government appears. The exclusion is complete and deliberate.
The relationship to the broader argument
This Act sits alongside the Local Government (Consequential Amendments) Act 1996 (No. 14 of 1996) as part of the 1996 suite of legislative instruments reshaping WA’s public corporate landscape. Together they show:
No. 14 of 1996 – converted all statutory references to Town Clerk and Shire Clerk into Chief Executive Officer across all WA legislation simultaneously.
No. 41 of 1996 – established director liability duties for WA statutory corporations, then expressly excluded local governments from that framework.
Both passed within four months of the LGA 1995 commencing. Both confirm that the Parliament understood local governments as a distinct and separate class of body corporate – not the Crown, not a standard statutory corporation, and not subject to the same legal frameworks as either.
For the article and for the broader argument: a local government body corporate occupies a precisely defined but deliberately limited statutory space. It is not the Crown. It is not a standard statutory corporation subject to director liability law. It is a specific creature of the LGA 1995, with powers and duties defined exclusively by that Act, and with its officers – formerly statutory public officers of a body politic, now contractual employees of a body corporate – exercising only what that statute specifically confers.
Expressio unius est exclusio alterius – the express mention of one thing excludes the other. The express exclusion of local governments from this Act’s framework is Parliament’s own statement that they are a different kind of thing, governed by different rules, with different obligations. That is precisely the point.
Last Updated 5 months ago
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