Safe harbour advice for company directors

Safe harbour allows directors of a company in financial difficulty attempt a turnaround while protected from civil liability for insolvent trading. The course of action must be reasonably likely to lead to a better outcome than immediate administration or liquidation. Strict conditions apply, and directors must be able to show they met them.

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Key points

Safe harbour is found in s 588GA of the Corporations Act 2001 (Cth).
It covers debts connected with a credible plan, and debts incurred in the ordinary course of business.
Employee entitlements, including superannuation, must be paid and tax lodgements kept substantially up to date.
It does not cover director penalty notices, criminal liability or your other duties as a director.
Directors must point to evidence that it applied, so board minutes and records are essential.

General guidance only – not legal advice. Please obtain independent legal advice before relying on any of this information. The law is stated as at September 2026.

What is insolvent trading, and how does safe harbour help?

A company is insolvent when it cannot pay all its debts as and when they become due and payable. Directors can be personally liable if the company incurs a debt while insolvent, or becomes insolvent by incurring it. Liability arises where there were reasonable grounds to suspect insolvency (s 588G).

A liquidator can sue directors to recover creditors’ losses. ASIC can seek civil penalties and compensation. Dishonest insolvent trading is a criminal offence.

Safe harbour gives directors room to attempt a turnaround instead of appointing an administrator early. It starts when a director, after suspecting insolvency, starts developing a course of action reasonably likely to lead to a better outcome. A “better outcome” means one better for the company than the immediate appointment of an administrator or liquidator.

What does safe harbour protect, and what does it not?

Safe harbour covers debts incurred directly or indirectly in connection with the course of action. Since 10 July 2024, it also expressly covers debts incurred in the ordinary course of business. It extends to the creditor-defeating disposition provisions (ss 588GAB and 588GAC).

It does not protect you from:

director penalty notices for unpaid PAYG withholding, GST or superannuation guarantee charge;
the criminal offence of dishonest insolvent trading;
claims for breach of your other duties, such as care and diligence;
personal guarantees you have given; or
the company’s own liability to its creditors.

How is the “better outcome” test applied?

Optimism is not enough. The plan must rest on reliable information. Section 588GA(2) lists matters a court may consider, including whether the director is:

properly informing themselves of the company’s financial position;
taking appropriate steps to prevent misconduct by officers or employees;
ensuring the company keeps financial records appropriate to its size and nature;
obtaining advice from an appropriately qualified entity given sufficient information (advice to the company counts); and
developing or implementing a plan to restructure the company and improve its financial position.

These are indicators, not a checklist.

The Act does not define “appropriately qualified entity”. ASIC’s Regulatory Guide 217 points to qualifications, professional memberships, relevant experience, resources and professional indemnity insurance. Some situations call for more than one adviser, such as a lawyer and an accountant.

Which conditions must the company meet?

Safe harbour is not available for a debt if, when it is incurred, the company is failing to:

pay employee entitlements that are payable, including superannuation contributions; or
lodge returns, statements and other documents required by taxation laws.

This applies if the failure is less than substantial compliance, or one of two or more failures in the prior 12 months (s 588GA(4)).

The tax condition concerns lodgement, not payment. A company with unpaid tax can still qualify if its lodgements are substantially up to date.

Directors must also substantially comply with their duties to assist any later administrator or liquidator. Otherwise, safe harbour is treated as never having applied (s 588GA(5)). A court may excuse failures in exceptional circumstances or in the interests of justice (s 588GA(6)).

What does a credible plan and board process look like?

There is no prescribed form. A credible plan usually includes:

a clear explanation of why the company is in difficulty;
regularly updated cash flow forecasts;
specific actions, such as cost cuts, asset sales, refinancing or a deal with creditors;
a comparison with the likely result of immediate administration or liquidation; and
milestones, and triggers for changing course.

Records matter because directors who rely on safe harbour carry an evidential burden (s 588GA(3)). They must point to evidence suggesting a reasonable possibility that it applied.

Minute when the board first suspected insolvency and began developing the plan. Record advice, decisions and reasons, and review the plan at every meeting.

A director may be unable to rely on books or information not handed to an administrator or liquidator when required (s 588GB). Poor financial records can also support a presumption of insolvency (s 588E(4)).

When does safe harbour end?

Protection ends at the earliest of:

the end of a reasonable period, if the director fails to take the course of action;
when the director stops taking the course of action;
when it stops being reasonably likely to lead to a better outcome; or
when an administrator or liquidator is appointed.

Boards should reassess the plan regularly and act promptly if it is no longer viable.

How Taylor David can help

We act for directors, companies, creditors, financiers and insolvency practitioners in restructuring and turnaround, insolvency and commercial litigation. For directors considering safe harbour, we can:

advise the board on insolvent trading risk and whether safe harbour is available;
work with your accountant or turnaround adviser to develop and test the plan;
document the plan, board papers and minutes;
negotiate with lenders, landlords, the ATO and other creditors; and
advise on formal options, such as voluntary administration, if the plan is not viable.

Frequently asked questions

Questions we are often asked

When should directors consider safe harbour?

As soon as you suspect the company may become insolvent. Warning signs include overdue creditors, unpaid tax and pressure from lenders. Safe harbour only covers debts incurred after you start developing a course of action, so delay narrows your protection. Early advice also keeps more options open.

Do we have to tell creditors or lenders that we are in safe harbour?

The Act does not require directors to announce that they are relying on safe harbour. However, listed companies must continue to meet their continuous disclosure obligations. Loan agreements and leases may require notice of financial difficulty. Take advice before deciding what to disclose, and when.

What happens if the turnaround plan does not work?

Safe harbour does not require the plan to succeed. It requires the course of action to be reasonably likely to lead to a better outcome at the time. Protection ends once that is no longer so. Debts incurred during the protected period can remain covered if the conditions were met. A liquidator may later test your reliance, so your records matter.

Can small companies use safe harbour?

Yes. Safe harbour is available to directors of companies of any size. Some indicators scale to the company. For example, financial records must suit its size and nature. ASIC’s guidance says a “reasonable period” depends on size and complexity. Smaller companies may also consider small business restructuring, a separate process with its own eligibility rules.

Is the safe harbour law changing?

An independent review ran from August to November 2021. The Government agreed to several recommendations in March 2022. Some took effect on 10 July 2024, but others, such as removing the “two or more failures” rule, have not been legislated. In August 2026, responding to a parliamentary inquiry, the Government pointed to a Productivity Commission inquiry for broader insolvency reform.

General guidance only – not legal advice. Please obtain independent legal advice before relying on any of this information. The law is stated as at September 2026.

Related expertise

Reconstruction & Turnaround →Insolvency →Litigation →

The earlier we talk, the more options you have.

To discuss your situation in confidence, call Scott D. Taylor on +61 7 3229 9800, email [email protected] or send us an enquiry online.

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