Criminal liability of officers of bodies corporate—failure to exercise due diligence

In force

(1)

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.

(2)

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

(a)

section 23(5);

(b)

section 33D(1);

(c)

section 47A(2);

(d)

section 55A;

S. 297(2)(da) inserted by No. 48/2021 s. 104.

(da)

section 64FB(1), (2) or (3);

S. 297(2)(db) inserted by No. 48/2021 s. 104.

(db)

section 64FG;

(e)

section 64J(1);

(f)

section 64AF;

(g)

section 70A;

(h)

section 75(4);

(i)

section 75A(1), (2) or (3);

(j)

section 76A (1), (2) or (3);

(k)

section 78A;

(l)

section 79A;

(m)

section 80AA;

(n)

section 137A(1) or (2);

(o)

section 137C(1);

(p)

section 145(4);

(q)

section 145A(1) to (6);

(r)

section 148(1) or (4);

(s)

section 151(2);

(t)

section 169A(1), (2) or (3);

(u)

section 178(1);

(v)

section 194(1), (1A) or (1B);

(w)

section 195(1), (1A) or (1B);

(x)

section 208(1), (1A) or (1B);

(y)

section 288(1), (2) or (3);

(z)

section 290(1).

(3)

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

(a)

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

(b)

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

(c)

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

(d)

any other relevant matter.

(4)

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 the officer is charged and, in doing so, the officer bears the same burden of proof that the body corporate would bear.

(5)

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.

(6)

In this section—

body corporate has the same meaning as corporation has in section 57A of the Corporations Act;

officer, in relation to a body corporate, means—

(a)

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

(b)

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.

S. 297A inserted by No. 48/2021 s. 103.

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297 Criminal liability of officers of bodies corporate—failure to exercise due diligence