33Liability of directors etc for
offences by corporation—offences attracting executive
liability
(1)
For the purposes of this section, an executive
liability offence is an offence against any of the following
provisions of this Act that is committed by a corporation:
section 6 (1)
(2)
A person commits an offence against this section
if:
(a)
a corporation commits an executive liability
offence, and
(b)
the person is:
(i)
a director of the corporation,
or
(ii)
an individual who is involved in the management
of the corporation and who is in a position to influence the conduct of the
corporation in relation to the commission of the executive liability offence,
and
(c)
the person:
(i)
knows or ought reasonably to know that the
executive liability offence (or an offence of the same type) would be or is
being committed, and
(ii)
fails to take all reasonable steps to prevent or
stop the commission of that offence.
Maximum penalty: The maximum penalty for the
executive liability offence if committed by an
individual.
(3)
The prosecution bears the legal burden of proving
the elements of the offence against this section.
(4)
The offence against this section can only be
prosecuted by a person who can bring a prosecution for the executive liability
offence.
(5)
This section does not affect the liability of the
corporation for the executive liability offence, and applies whether or not
the corporation is prosecuted for, or convicted of, the executive liability
offence.
(6)
This section does not affect the application of
any other law relating to the criminal liability of any persons (whether or
not directors or other managers of the corporation) who are accessories to the
commission of the executive liability offence or are otherwise concerned in,
or party to, the commission of the executive liability
offence.
(7)
In this section:
director has the same meaning it has
in the Corporations Act 2001 of the
Commonwealth.
reasonable steps, in relation to the
commission of an executive liability offence, includes, but is not limited to,
such action (if any) of the following kinds as is reasonable in all the
circumstances:
(a)
action towards:
(i)
assessing the corporation’s compliance with
the provision creating the executive liability offence,
and
(ii)
ensuring that the corporation arranged regular
professional assessments of its compliance with the
provision,
(b)
action towards ensuring that the
corporation’s employees, agents and contractors are provided with
information, training, instruction and supervision appropriate to them to
enable them to comply with the provision creating the executive liability
offence so far as the provision is relevant to them,
(c)
action towards ensuring that:
(i)
the plant, equipment and other resources,
and
(ii)
the structures, work systems and other
processes,
relevant to compliance with the provision creating the
executive liability offence are appropriate in all the
circumstances,
(d)
action towards creating and maintaining a
corporate culture that does not direct, encourage, tolerate or lead to
non-compliance with the provision creating the executive liability
offence.
s 33: Subst 2012 No
97, Sch 1.12 [2].
33ALiability of directors etc for
offences by corporation—accessory to the commission of the
offences
(1)
For the purposes of this section, a corporate offence is an offence
against this Act or the regulations that is capable of being committed by a
corporation, whether or not it is an executive liability offence referred to
in section 33.
(2)
A person commits an offence against this section
if:
(a)
a corporation commits a corporate offence,
and
(b)
the person is:
(i)
a director of the corporation,
or
(ii)
an individual who is involved in the management
of the corporation and who is in a position to influence the conduct of the
corporation in relation to the commission of the corporate offence,
and
(c)
the person:
(i)
aids, abets, counsels or procures the commission
of the corporate offence, or
(ii)
induces, whether by threats or promises or
otherwise, the commission of the corporate offence, or
(iii)
conspires with others to effect the commission of
the corporate offence, or
(iv)
is in any other way, whether by act or omission,
knowingly concerned in, or party to, the commission of the corporate
offence.
Maximum penalty: The maximum penalty for the
corporate offence if committed by an individual.
(3)
The prosecution bears the legal burden of proving
the elements of the offence against this section.
(4)
The offence against this section can only be
prosecuted by a person who can bring a prosecution for the corporate
offence.
(5)
This section does not affect the liability of the
corporation for the corporate offence, and applies whether or not the
corporation is prosecuted for, or convicted of, the corporate
offence.
(6)
This section does not affect the application of
any other law relating to the criminal liability of any persons (whether or
not directors or other managers of the corporation) who are concerned in, or
party to, the commission of the corporate offence.
s 33A: Ins 2012 No
97, Sch 1.12 [2].