Guardianship and Administration Act 2019

If a body corporate commits an offence against a provision specified in subsection (2), an officer of the body corporate also commits an offence against the provision if the officer failed to exercise due diligence to prevent the commission of the offence by the body corporate.

For the purposes of subsection (1), the following provisions are specified—

section 43(5);

section 189(1);

section 189(2);

section 190(1);

section 190(2).

In determining whether an officer of a body corporate failed to exercise due diligence, a court may have regard to—

what the officer knew, or ought reasonably to have known, about the commission of the offence by the body corporate; and

whether or not the officer was in a position to influence the body corporate in relation to the commission of the offence by the body corporate; and

what steps the officer took, or could reasonably have taken, to prevent the commission of the offence by the body corporate; and

any other relevant matter.

Without limiting any other defence available to the officer, an officer of a body corporate may rely on a defence that would be available to the body corporate if it were charged with the offence with which officer is charged and, in doing so, the officer bears the same burden of proof that the body corporate would bear.

An officer of a body corporate may commit an offence against a provision specified in subsection (2) whether or not the body corporate has been prosecuted for, or found guilty of, an offence against that provision.

In this section—

a person who is an officer (as defined by section 9 of the Corporations Act) of the body corporate; or

a person (other than a person referred to in paragraph (a)), by whatever name called, who is concerned in, or takes part in, the management of the body corporate.