When an adviser counts as a director in law

The subsection, whole

Here is section 9AC(1) as it reads in compilation 149 of the Act (19 September 2026), with its note.

“(1) A director of a company or other body is:

(a) a person who:

(i) is appointed to the position of a director; or

(ii) is appointed to the position of an alternate director and is acting in that capacity;

regardless of the name that is given to their position; and

(b) unless the contrary intention appears, a person who is not validly appointed as a director if:

(i) they act in the position of a director; or

(ii) the directors of the company or body are accustomed to act in accordance with the person’s instructions or wishes (excluding advice given by the person in the proper performance of functions attaching to the person’s professional capacity or their business relationship with the directors or the corporation).

Note: Examples of provisions for which a person would not be a director because of paragraph (b) of this subsection include:

(a) section 205B (notice to ASIC of change of address); and

(b) section 249C (power to call meetings of a company’s members); and

(c) subsection 251A(3) (signing minutes of meetings).”

Corporations Act 2001, s 9AC(1), compilation 149

Subsections (2) and (3) of the same section adjust the meaning for Part 5.1, on arrangements and reconstructions, and for superannuation entities under Chapter 2M. They are not this page’s subject.

Three routes to being a director

Read as a whole, the subsection gives three separate ways in. Each stands on its own.

1. Appointed, whatever the position is called

   A person appointed to the position of a director is one, “regardless of the name that is given to their position”. So is an alternate director, while acting in that capacity.

2. Acting in the position

   A person who is not validly appointed is a director if “they act in the position of a director”. This limb carries no exclusion for advice.

3. The directors act on their word

   A person who is not validly appointed is a director if the directors “are accustomed to act in accordance with the person’s instructions or wishes”, leaving out advice given in the proper performance of a professional or business role.

Paragraph (b) contains no reference to the person’s title or contract. It asks what the person does, or how the board responds to their instructions or wishes.

The exclusion for advice, read closely

The words in brackets at the end of (b)(ii) exclude “advice given by the person in the proper performance of functions” attaching to one of two things:

• “the person’s professional capacity”; or
• “their business relationship with the directors or the corporation”.

Three features of the wording matter. The exclusion covers advice, not every instruction or wish. It covers advice given in the proper performance of those functions. And it sits inside (b)(ii) only, so it does not reach (b)(i): a person who acts in the position of a director is caught by (b)(i) whatever their profession.

The Act does not say that a professional adviser can never be a director under paragraph (b). It says that advice of the kind described does not count toward (b)(ii). The section does not say how to tell advice from instructions in a particular case.

Where paragraph (b) gives way

Paragraph (b) opens with “unless the contrary intention appears”. The note to the subsection gives three examples of provisions where a person would not be a director because of paragraph (b): section 205B (notice to ASIC of change of address), section 249C (power to call meetings of a company’s members) and subsection 251A(3) (signing minutes of meetings). The note says these are examples, so the list is not complete.

Advisory boards and other titles

The Act does not mention advisory boards, mentors or committees. What it looks at is set out above: appointment to the position of a director, whatever that position is called; acting in the position of a director; or the directors being accustomed to act on a person’s instructions or wishes, outside the exclusion for advice. A title by itself is not one of those things.

A separate rule governs who may be appointed. Section 201B says “Only an individual who is at least 18 may be appointed as a director of a company”, and a person disqualified under Part 2D.6 may be appointed only with ASIC’s permission under section 206GAB or the Court’s leave under section 206G.

Section 9AC, not section 9

The Act’s dictionary in section 9 now says director “has the meaning given by section 9AC”. The endnotes to compilation 149 record section 9AC as added by Act No. 76 of 2023, the Treasury Laws Amendment (2023 Law Improvement Package No. 1) Act 2023. A text that cites section 9 alone for the meaning of director is citing the entry that now points here.

Why it matters

The duties of care and diligence and of good faith in sections 180 and 181 are written for “a director or other officer of a corporation”, and sections 182 and 183 reach directors, other officers and employees. This guide does not restate those duties. A person who is a director under section 9AC is also an officer, because section 9AD(1)(a) lists directors first; the officers guide covers the wider group.

Partners who sit on company boards meet one more rule. For the firm’s liability for a partner’s wrongful acts, the Partnership Acts of NSW and Queensland say a partner acting as a company director is not taken to be acting in the ordinary course of the firm’s business only because the co-partners agreed to the appointment, the director’s pay forms part of the firm’s income, or a co-partner is also a director. The guide on when one partner binds the firm sets that rule out.