Criminal liability of officers of bodies corporate—failure to exercise due diligence (evidential burden of proof)
297A Criminal liability of officers of bodies corporate—failure to exercise due diligence (evidential burden of proof)
Subject to subsection (3), 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.
For the purposes of subsection (1), the following provisions are specified—
section 33E(1), (2) or (3);
section 63(1), (2) or (3);
S. 297A(2)(ba) inserted by No. 48/2021 s. 105.
section 64FZB(1), (2) or (3);
S. 297A(2)(bb) inserted by No. 48/2021 s. 105.
section 64FZI (1), (2) or (3);
section 289(1), (2) or (3);
section 289B(1), (2) or (3).
An officer of a body corporate does not commit an offence against a provision specified in subsection (2) if—
the officer presents or points to evidence that suggests a reasonable possibility that the officer exercised due diligence to prevent the commission of the offence by the body corporate; and
the contrary is not proved (beyond reasonable doubt) by the prosecution.
In determining whether an officer of a body corporate exercised 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 the 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—
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 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.
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