Dangerous Substances Act 2004

This section applies to the following provisions:

a provision mentioned in section 41 (Meaning of safety duty for pt 3.2);

a provision of part 4.3 (Offences relating to licences);

a provision of chapter 5 (Other serious offences);

section 107 (Contravention of improvement notices);

section 119 (Contravention of prohibition notices);

section 128 (Contravention of enforceable undertakings).

An officer of a corporation commits an offence if—

the corporation contravenes a provision to which this section applies; and

the contravention is an offence against this Act (the relevant offence); and

the officer was reckless about whether the contravention would happen; and

the officer was in a position to influence the conduct of the corporation in relation to the contravention; and

the officer failed to take all reasonable steps to prevent the contravention.

This section applies whether or not the corporation is prosecuted for, or convicted of, the relevant offence.

In deciding whether the officer took (or failed to take) reasonable steps to prevent the contravention, a court must have regard to the following:

any action the officer took directed towards ensuring the following (to the extent that the action is relevant to the act or omission):

that the corporation arranged regular professional assessments of the corporation’s compliance with the contravened provision;

that the corporation implemented any appropriate recommendation arising from such an assessment;

that the corporation’s employees, agents and contractors had a reasonable knowledge and understanding of the requirement to comply with the contravened provision;

any action the officer took when the officer became aware that the contravention was, or might be, about to happen.

Subsection (4) does not limit the matters to which the court may have regard.

This section does not apply if the corporation would have a defence to a prosecution for the relevant offence.