Ultra Vires Acts in Australia: 2025 Guide for Businesses

Ultra vires—Latin for “beyond the powers”—remains a crucial legal concept in Australian business. As company law continues to evolve in 2025, understanding ultra vires acts is essential for directors, shareholders, and anyone managing a corporation. These acts, if unchecked, can expose your business to litigation, regulatory penalties, and reputational damage.

What Are Ultra Vires Acts?

In the context of Australian company law, an ultra vires act is any action taken by a company that falls outside its stated powers or objectives as defined in its constitution or governing documents. Historically, this doctrine prevented companies from engaging in activities not explicitly permitted by their charters. Although the concept has softened over the past two decades, it still holds weight in certain scenarios—especially when it comes to public companies, not-for-profits, and statutory corporations.

• Example: If a company’s constitution restricts it to educational services, entering a property development contract could be deemed ultra vires.

• Why it matters: Ultra vires acts can be challenged in court, rendering contracts void or unenforceable and exposing directors to liability.

Recent Legal Shifts: 2025 Policy and Case Law

Australian company law has progressively diluted the ultra vires doctrine for most commercial enterprises. The Corporations Act 2001 gives companies “all the powers of an individual,” and the 2025 amendments further clarify this for proprietary companies. However, the ultra vires principle still bites in some cases:

• Statutory bodies: Government-owned corporations are still strictly bound by enabling legislation. The 2025 review of the Public Governance Act reinforced limits on agency actions.

• Not-for-profits: Charities and incorporated associations must operate within their stated purposes or risk deregistration and loss of tax concessions. The ACNC’s 2025 compliance blitz has already targeted ultra vires fundraising activities.

• Director liability: The High Court’s Smith v. Greenfield Holdings (2024) decision confirmed that knowingly authorising ultra vires acts may constitute a breach of directors’ duties, with personal liability for resulting losses.

In 2025, the Australian Securities and Investments Commission (ASIC) has also issued new guidance for company constitutions, urging clarity on objects and powers to prevent confusion and disputes.

How to Protect Your Business from Ultra Vires Risks

For most Australian companies, ultra vires is a background risk—but one that can quickly come to the fore in disputes or regulatory investigations. Here’s how to stay protected:

• Review and update your constitution: Ensure your company’s governing documents are broad enough to cover planned activities, especially if your business is evolving or diversifying in 2025.

• Document board decisions: Keep clear records of board approvals for major actions, demonstrating that directors considered the company’s powers and objectives.

• Seek member approval for major shifts: If you’re venturing into new business areas, a special resolution from shareholders may be required.

• Monitor regulatory updates: The ACNC, ASIC, and state regulators have all signalled increased scrutiny of companies operating outside their stated purposes in 2025.

• Training and compliance: Educate your board and senior staff about ultra vires risks, particularly if your organisation receives government funding or holds DGR status.

Real-World Consequences: Case Examples from 2024-2025

• HealthTech Ltd: Attempted to launch a cryptocurrency platform without amending its constitution. A disgruntled shareholder successfully challenged the move, leading to costly delays and board resignations.

• Riverina Environmental Group: Lost charity registration after using grant funds for unrelated property investments, breaching their stated charitable purpose.

• City Council Subsidiary: Entered into contracts outside its statutory remit, resulting in the contracts being declared void and directors facing public sector disciplinary proceedings.

The Future of Ultra Vires in Australia

While ultra vires is less of a day-to-day threat for most proprietary companies, it remains a live issue for not-for-profits, statutory bodies, and companies with restrictive constitutions. The 2025 reforms and recent case law make one thing clear: companies must know—and respect—the boundaries of their legal powers.