An Act to amend various Acts and Regulations to implement COAG reforms relating to the criminal liability of directors.
1 Name of Act
This Act is the Miscellaneous Acts Amendment (Directors’ Liability) Act 2012.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
Schedule 1 Amendment of Acts and Regulations
[1] Section 46 Unlawfully carrying on the business of animal research
Insert at the end of section 46 (1):Note—An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 58.
[2] Section 47A Keeping animals with intention of using them for animal research
Insert at the end of section 47A (1):Note—An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 58.
[3] Section 48 Unlawfully supplying animals for use in connection with animal research
Insert at the end of the section:Note—An offence against subsection (1) or (2) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 58.
[4] Sections 58 and 58A
Omit section 58. Insert instead:58 Liability 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:(a) section 46 (1),(b) section 47A (1),(c) section 48 (1) or (2).(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, andrelevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,(ii) the structures, work systems and other processes,(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.58A Liability 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 58.(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.
[1] Section 16A Employer to notify Corporation of employment of workers
Insert at the end of the section:Note—An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 63.
[2] Section 39 Offence for failure to pay long service levy
Insert at the end of the section:Note—An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 63.
[3] Sections 63 and 63A
Omit section 63. Insert instead:63 Liability 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:(a) section 16A,(b) section 39.(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, andrelevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,(ii) the structures, work systems and other processes,(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.63A Liability 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 63.(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.
[1] Section 105 Publication of names and identifying information
Insert at the end of section 105 (2):Note—An offence against subsection (2) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 258.
[2] Section 136 Restriction on who may provide statutory out-of-home care
Insert at the end of section 136 (2):Note—An offence against subsection (2) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 258.
[3] Section 138 Persons who may arrange for provision of statutory or supported out-of-home care
Insert at the end of the section:Note—An offence against subsection (2) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 258.
[4] Section 154 Restriction on who may provide supported out-of-home care
Insert at the end of the section:Note—An offence against subsection (3) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 258.
[5] Section 156B Restrictions on who may provide or arrange voluntary out-of-home care
Insert at the end of the section:Note—An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 258.
[6] Section 173 Medical examination of children in need of care and protection
Insert at the end of section 173 (2):Note—An offence against subsection (2) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 258.
[7] Section 175 Special medical treatment
Insert at the end of section 175 (1):Note—An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 258.
[8] Section 185 Provision and exchange of information
Insert at the end of section 185 (2A):Note—An offence against subsection (2A) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 258.
[9] Section 222 Endangering children in employment
Insert at the end of the section:Note—An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 258.
[10] Section 223 Certain employers of children to be authorised
Insert at the end of the section:Note—An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 258.
[11] Section 228 Neglect of children and young persons
Insert at the end of the section:Note—An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 258.
[12] Section 230 Tattooing of children and young persons
Insert at the end of section 230 (2):Note—An offence against subsection (2) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 258.
[13] Section 230A Body piercing of children
Insert at the end of section 230A (2):Note—An offence against subsection (2) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 258.
[14] Section 241 Powers exercisable on entry and inspection
Insert at the end of the section:Note—An offence against subsection (2) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 258.
[15] Section 254 Disclosure of information
Insert at the end of section 254 (1):Note—An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 258.
[16] Sections 258–258AB
Omit section 258. Insert instead:258 Liability 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:(a) section 105 (2),(b) section 136 (2),(c) section 138 (2),(d) section 154 (3),(e) section 156B,(f) section 173 (2),(g) section 175 (1),(h) section 185 (2A),(i) section 222,(j) section 223 (1)–(4),(k) section 228,(l) section 230 (2),(m) section 230A (2),(n) section 241 (2),(o) section 254 (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, andrelevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,(ii) the structures, work systems and other processes,(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.258AA Liability 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 258.(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.258AB Evidence as to state of mind of corporation(1) Without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation (while acting in his or her capacity as such) had, at any particular time, a particular state of mind, is evidence that the corporation had that state of mind.(2) In this section, the state of mind of a person includes:(a) the knowledge, intention, opinion, belief or purpose of the person, and(b) the person’s reasons for the intention, opinion, belief or purpose.
Section 62
Omit the section. Insert instead:62 Liability 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.(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.
[1] Section 14 Management orders
Insert at the end of section 14 (6):Note—An offence against subsection (6) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 98.
[2] Section 28 Ongoing maintenance orders
Insert at the end of section 28 (4):Note—An offence against subsection (4) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 98.
[3] Section 60 Duty to report contamination
Insert at the end of the section:Note—An offence against subsection (1) or (2) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 98.
[4] Sections 98–98B
Omit section 98. Insert instead:98 Liability 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:(a) section 14 (6),(b) section 28 (4),(c) section 60 (1) or (2).(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, andrelevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,(ii) the structures, work systems and other processes,(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.98A Liability 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 98.(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.98B Evidence as to state of mind of corporation(1) Without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation (while acting in his or her capacity as such) had, at any particular time, a particular state of mind, is evidence that the corporation had that state of mind.(2) In this section, the state of mind of a person includes:(a) the knowledge, intention, opinion, belief or purpose of the person, and(b) the person’s reasons for the intention, opinion, belief or purpose.
[1] Section 155 Offences by persons other than principal offenders
Insert at the end of the section:(2) A person does not commit an offence because of this section for any act or omission that is an offence under section 160.
[2] Section 160
Omit the section. Insert instead:160 Liability 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.(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.
[1] Section 19 Aiding, abetting etc commission of offence in New South Wales
Insert at the end of the section:(2) A person does not commit an offence because of this section for any act or omission that is an offence under section 43B.
[2] Section 20 Aiding, abetting etc commission of offence outside New South Wales
Insert at the end of the section:(2) A person does not commit an offence because of this section for any act or omission that is an offence under section 43B.
[3] Section 27 Aiding, abetting etc commission of offence in New South Wales
Insert at the end of the section:(2) A person does not commit an offence because of this section for any act or omission that is an offence under section 43B.
[4] Section 28 Conspiring to commit and aiding etc commission of offence outside New South Wales
Insert at the end of the section:(2) A person does not commit an offence because of this section for any act or omission that is an offence under section 43B.
[5] Section 36 Contravention of Act etc by corporations
Omit the section.
[6] Section 36ZB
Omit the section. Insert instead:36ZB Evidence as to state of mind of corporation(1) This section applies in relation to proceedings for an offence committed by a corporation under this Part or regulations made under this Part.(2) Without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation (while acting in his or her capacity as such) had, at any particular time, a particular state of mind, is evidence that the corporation had that state of mind.(3) In this section, the state of mind of a person includes:(a) the knowledge, intention, opinion, belief or purpose of the person, and(b) the person’s reasons for the intention, opinion, belief or purpose.
[7] Sections 43A and 43B
Insert after section 43:43A Liability 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 the regulations:(a) that is prescribed by the regulations as an offence to which this section applies, and(b) that is committed by a corporation.(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, andrelevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,(ii) the structures, work systems and other processes,(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.43B Liability 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 43A.(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.
Clause 7A
Insert after clause 7:7A Liability of directors etc for offences by corporation—offences attracting executive liabilityAn offence against clause 5, 6 or 7 is prescribed as an offence to which section 43A of the Act applies.Note—An offence against clause 5, 6 or 7 committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 43A of the Act.
[1] Section 25 Aggregation of dutiable transactions
Insert at the end of section 25 (6):Note—An offence against subsection (6) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 121 of the Taxation Administration Act 1996.
[2] Section 218C Multi-jurisdictional statement
Insert at the end of section 218C (1):Note—An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 121 of the Taxation Administration Act 1996.
[3] Section 248 Insurers must be registered
Insert at the end of the section:Note—An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 121 of the Taxation Administration Act 1996.
[4] Section 251 Cessation of business and cancellation of registration by the insurer
Insert at the end of section 251 (1):Note—An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 121 of the Taxation Administration Act 1996.
[5] Section 262 Lodgment of statement of dutiable value
Insert at the end of the note to the section:An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 121 of the Taxation Administration Act 1996.
[6] Section 270 Exemptions for motor dealers
Insert at the end of section 270 (4):Note—An offence against subsection (4) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 121 of the Taxation Administration Act 1996.
[7] Section 286 Limitation on use of designated stamps
Insert at the end of section 286 (1):Note—An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 121 of the Taxation Administration Act 1996.
[8] Section 296 Stamping of instruments after execution
Insert at the end of section 296 (1):Note—An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 121 of the Taxation Administration Act 1996.
[9] Section 301 Registration of transactions and instruments
Insert at the end of section 301 (1):Note—An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 121 of the Taxation Administration Act 1996.
[1] Section 16 Electrical articles must meet certain standards before they can be sold
Insert at the end of section 16 (1):Note—An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 45.
[2] Section 20 Person must not give false acquisition guarantee
Insert at the end of section 20 (1):Note—An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 45.
[3] Section 24 Persons must comply with notices issued under this Division
Insert at the end of the section:Note—An offence against subsection (1), (2) or (3) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 45.
[4] Section 27 Prohibition of the sale of certain electrical articles and the labelling of such articles
Insert at the end of section 27 (4):Note—An offence against subsection (4) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 45.
[5] Section 31 Electrical installation work to comply with regulations
Insert at the end of section 31 (1):Note—An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 45.
[6] Sections 45 and 45A
Omit section 45. Insert instead:45 Liability 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:(a) section 16 (1),(b) section 20 (1),(c) section 24 (1)–(3),(d) section 27 (4),(e) section 31 (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, andrelevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,(ii) the structures, work systems and other processes,(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.45A Liability 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 45.(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.
[1] Section 26 Orders to be observed
Insert at the end of the section:Note—An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 53.
[2] Section 32 Licence conditions
Insert at the end of section 32 (2):Note—An offence against subsection (2) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 53.
[3] Sections 53 and 53A
Omit section 53. Insert instead:53 Liability 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:(a) section 26,(b) section 32 (2).(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, andrelevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,(ii) the structures, work systems and other processes,(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.53A Liability 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 53.(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.
[1] Section 6 Licences required for handling explosives and explosive precursors
Insert at the end of section 6 (1):Note—An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 33.
[2] Sections 33 and 33A
Omit section 33. Insert instead:33 Liability 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, andrelevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,(ii) the structures, work systems and other processes,(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.33A Liability 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.
1.13 Food Act 2003 No 43
[1] Section 13 Handling of food in unsafe manner
Insert at the end of the section:Note—An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 122.
[2] Section 14 Sale of unsafe food
Insert at the end of the section:Note—An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 122.
[3] Section 15 False description of food
Insert at the end of the section:Note—An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 122.
[4] Section 16 Handling and sale of unsafe food
Insert at the end of the section:Note—An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 122.
[5] Section 17 Handling and sale of unsuitable food
Insert at the end of the section:Note—An offence against subsection (1) or (2) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 122.
[6] Section 18 Misleading conduct relating to sale of food
Insert at the end of the section:Note—An offence against subsection (1), (2) or (3) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 122.
[7] Section 19 Sale of food not complying with purchaser’s demand
Insert at the end of section 19 (1):Note—An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 122.
[8] Section 20 Sale of unfit equipment or packaging or labelling material
Insert at the end of the section:Note—An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 122.
[9] Section 21 Compliance with Food Standards Code
Insert at the end of the section:Note—An offence against subsection (1)–(4) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 122.
[10] Section 35 Failure to comply with emergency order
Insert at the end of the section:Note—An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 122.
[11] Section 64 Contravention of prohibition order
Insert at the end of the section:Note—An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 122.
[12] Section 104 Offences relating to food safety schemes
Insert at the end of the section:Note—An offence against subsection (1)–(4) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 122.
[13] Sections 122–122B
Omit section 122. Insert instead:122 Liability 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:(a) section 13,(b) section 14,(c) section 15,(d) section 16,(e) section 17 (1) or (2),(f) section 18 (1)–(3),(g) section 19 (1),(h) section 20,(i) section 21 (1)–(4),(j) section 35,(k) section 64,(l) section 104 (1)–(4).(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, andrelevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,(ii) the structures, work systems and other processes,(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.122A Liability 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 122.(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.122B Evidence as to state of mind of corporation(1) Without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation (while acting in his or her capacity as such) had, at any particular time, a particular state of mind, is evidence that the corporation had that state of mind.(2) In this section, the state of mind of a person includes:(a) the knowledge, intention, opinion, belief or purpose of the person, and(b) the person’s reasons for the intention, opinion, belief or purpose.
[1] Section 29 Penalty for unlawfully working sawmill
Omit section 29 (3).
[2] Section 49
Insert after section 48:49 Liability 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.(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.
Section 90
Omit the section. Insert instead:90 Liability 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.(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.
[1] Section 199A
Insert after section 199:199A Liability 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.(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 section of this Act or 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.
[2] Section 200 Offences by corporate hoteliers
Omit section 200 (2). Insert instead:(2) If a hotelier that is a corporation is taken to have contravened (whether by act or omission) a provision of this Act or the regulations by reason of a contravention by the manager of the hotel, each person who occupies a position of authority in the corporation is taken to have contravened the provision if the person knowingly authorised or permitted the contravention.
[3] Section 201 Liability of secretary of club and members of governing body
Omit section 201 (1). Insert instead:(1) If a club contravenes a provision of this Act or the regulations, the secretary and members of the governing body of the club are, whether or not the club is convicted for the contravention, each taken to have contravened the provision if the person charged knowingly authorised or permitted the contravention.
[4] Section 202 Liability of management and directors of corporate holders of gaming-related licences
Omit section 202 (1). Insert instead:(1) If the holder of a gaming-related licence that is a corporation contravenes a provision of this Act or the regulations, each person who is a director of the corporation or who is concerned in the management of the corporation is, whether or not the corporation has been convicted for the contravention, taken to have contravened the provision if the person knowingly authorised or permitted the contravention.
Section 11 Requirement to furnish a monthly return
Insert at the end of the section:Note—An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 121 of the Taxation Administration Act 1996.
Section 159
Omit the section. Insert instead:159 Liability 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.(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.
1.19 Jury Act 1977 No 18
Section 70
Omit the section. Insert instead:70 Liability 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.(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.
[1] Section 95 Offences and penalties
Omit section 95 (4).
[2] Section 95A
Insert after section 95:95A Liability 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.(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.
[1] Sections 71 and 71A
Omit section 71. Insert instead:71 Liability 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 (including a licensee that is a corporation).(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.71A Evidence as to state of mind of corporation(1) Without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation (while acting in his or her capacity as such) had, at any particular time, a particular state of mind, is evidence that the corporation had that state of mind.(2) In this section, the state of mind of a person includes:(a) the knowledge, intention, opinion, belief or purpose of the person, and(b) the person’s reasons for the intention, opinion, belief or purpose.
[2] Section 72 Corporate licences—interpretative provisions
Omit “However for the purposes of section 71, a person who is a director of a registered club is not a person who occupies a position of authority in that corporation.” from section 72 (1).
Section 67
Omit the section. Insert instead:67 Liability 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.(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.
[1] Section 4 Long service leave
Insert at the end of the section:Note—An offence against this Act arising under this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 10A.
[2] Section 8 Records to be kept by employers
Insert at the end of the section:Note—An offence against this Act arising under this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 10A.
[3] Section 10 Penalties and offences
Omit section 10 (4).
[4] Sections 10A and 10B
Insert after section 10:10A Liability 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 this Act arising under any of the following provisions of this Act that is committed by a corporation:(a) section 4,(b) section 8.(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, andrelevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,(ii) the structures, work systems and other processes,(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.10B Liability 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 10A.(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.
[1] Section 4 Long service leave
Insert at the end of the section:Note—An offence against this Act arising under this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 10A.
[2] Section 8 Records to be kept by employer
Insert at the end of the section:Note—An offence against this Act arising under this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 10A.
[3] Section 10 Penalties and offences
Omit section 10 (4).
[4] Sections 10A and 10B
Insert after section 10:10A Liability 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 this Act arising under any of the following provisions of this Act that is committed by a corporation:(a) section 4,(b) section 8.(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, andrelevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,(ii) the structures, work systems and other processes,(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.10B Liability 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 10A.(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.
[1] Section 240C Breach of direction
Insert at the end of the section:Note—An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 378F.
[2] Section 378D Contravention of condition of authorisation—offence by holder
Insert at the end of section 378D (1):Note—An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 378F.
[3] Sections 378F and 378FA
Omit section 378F. Insert instead:378F Liability 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:(a) section 240C,(b) section 378D (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, andrelevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,(ii) the structures, work systems and other processes,(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.378FA Liability 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 378F.(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.
Section 54
Omit the section. Insert instead:54 Liability 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.(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.
[1] Section 15 Licences
Insert at the end of section 15 (1):Note—An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 88.
[2] Section 22 Tradesperson’s certificate
Insert at the end of the section:Note—An offence against subsection (1), (3) or (4) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 88.
[3] Sections 88 and 88A
Omit section 88. Insert instead:88 Liability 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:(a) section 15 (1),(b) section 22 (1), (3) or (4).(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, andrelevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,(ii) the structures, work systems and other processes,(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.88A Liability 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 88.(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.
[1] Section 86 Harming or desecrating Aboriginal objects and Aboriginal places
Insert at the end of the section:Note—An offence against subsection (1), (2) or (4) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 175B.
[2] Section 90J Failure to comply with conditions
Insert at the end of the section:Note—An offence against subsection (1) or (2) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 175B.
[3] Section 91AA Director-General may make stop work order
Insert at the end of section 91AA (6):Note—An offence against subsection (6) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 175B.
[4] Section 91G Failure to comply with interim protection order
Insert at the end of the section:Note—An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 175B.
[5] Section 91Q Failure to comply with remediation direction
Insert at the end of section 91Q (1):Note—An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 175B.
[6] Section 91R Delay or obstruction of remediation direction
Insert at the end of the section:Note—An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 175B.
[7] Section 99 Harming threatened interstate fauna
Insert at the end of section 99 (1):Note—An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 175B.
[8] Section 118A Harming or picking threatened species, endangered populations or endangered ecological communities
Insert at the end of the section:Note—An offence against subsection (1) or (2) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 175B.
[9] Section 118B Buying, selling or possessing threatened species or endangered population
Insert at the end of section 118B (1):Note—An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 175B.
[10] Section 118C Damage to critical habitat
Insert at the end of section 118C (1):Note—An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 175B.
[11] Section 118D Damage to habitat of threatened species, endangered populations or endangered ecological communities
Insert at the end of section 118D (1):Note—An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 175B.
[12] Section 133 Conditions and restrictions attaching to licences and certificates and variation of licences and certificates
Insert at the end of section 133 (4):Note—An offence against subsection (4) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 175B.
[13] Section 156A Offence of damaging reserved land
Insert at the end of section 156A (1):Note—An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 175B.
[14] Sections 175B and 175C
Omit section 175B. Insert instead:175B Liability 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:(a) section 86 (1), (2) or (4),(b) section 90J (1) or (2),(c) section 91AA (6),(d) section 91G,(e) section 91Q (1),(f) section 91R,(g) section 99 (1),(h) section 118A (1) or (2),(i) section 118B (1),(j) section 118C (1),(k) section 118D (1),(l) section 133 (4),(m) section 156A (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, andrelevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,(ii) the structures, work systems and other processes,(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.175C Evidence as to state of mind of corporation(1) Without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation (while acting in his or her capacity as such) had, at any particular time, a particular state of mind, is evidence that the corporation had that state of mind.(2) In this section, the state of mind of a person includes:(a) the knowledge, intention, opinion, belief or purpose of the person, and(b) the person’s reasons for the intention, opinion, belief or purpose.
[15] Section 176B Ancillary offences
Insert at the end of the section:(2) A person does not commit an offence because of this section for any act or omission that is an offence under section 176C.
[16] Section 176C
Insert after section 176B:176C Liability 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 175B.(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.
[1] Section 12 Clearing requiring approval
Insert at the end of the section:Note—An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 45.
[2] Section 37 Director-General may make “stop work” order
Insert at the end of section 37 (5):Note—An offence against subsection (5) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 45.
[3] Section 38 Directions for remedial work
Insert at the end of section 38 (4):Note—An offence against subsection (4) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 45.
[4] Sections 45 and 45A
Omit section 45. Insert instead:45 Liability 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:(a) section 12,(b) section 37 (5),(c) section 38 (4).(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, andrelevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,(ii) the structures, work systems and other processes,(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.45A Liability 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 45.(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.
Schedule 2 NSW specific provisions
Insert at the end of clause 18 (8):Note—An offence against subclause (8) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 121 of the Taxation Administration Act 1996.
[1] Section 7 Injury to persons or damage to property resulting from pesticide use
Insert at the end of section 7 (1):Note—An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 112.
[2] Section 8 Harm to animals or plants resulting from pesticide use
Insert at the end of section 8 (1):Note—An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 112.
[3] Section 9 Material harm to endangered, vulnerable or protected animals
Insert at the end of section 9 (1):Note—An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 112.
[4] Section 10 Injury to persons or damage to property resulting from pesticide use
Insert at the end of section 10 (1):Note—An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 112.
[5] Section 11 Harm to animals or plants resulting from pesticide use
Insert at the end of section 11 (1):Note—An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 112.
[6] Section 12 Possession of unregistered pesticide
Insert at the end of the note to the section:An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 112.
[7] Section 13 Use of unregistered pesticide
Insert at the end of the note to the section:An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 112.
[8] Section 14 Requirement to read approved label and permit
Insert at the end of section 14 (2):Note—An offence against subsection (2) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 112.
[9] Section 15 Using pesticide contrary to approved label
Insert at the end of the note to section 15 (1):An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 112.
[10] Section 17 Use or possession of restricted pesticides
Insert at the end of the note to the section:An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 112.
[11] Section 19 Environment Protection Authority may direct clean-up action
Insert at the end of section 19 (4):Note—An offence against subsection (4) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 112.
[12] Section 25 Offence
Insert at the end of the section:Note—An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 112.
[13] Section 39 Operation of pesticide control order
Insert at the end of section 39 (4):Note—An offence against subsection (4) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 112.
[14] Section 41 Destruction of pesticides
Insert at the end of section 41 (2):Note—An offence against subsection (2) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 112.
[15] Section 42 Defective equipment
Insert at the end of section 42 (4):Note—An offence against subsection (4) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 112.
[16] Section 59 Contravention of conditions
Insert at the end of the section:Note—An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 112.
[17] Section 65 Prohibited residue orders
Insert at the end of section 65 (5):Note—An offence against subsection (5) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 112.
[18] Section 111 Causing or permitting offence
Insert at the end of the section:(2) A person does not commit an offence because of this section for any act or omission that is an offence under section 112A.
[19] Sections 112–112B
Omit section 112. Insert instead:112 Liability 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:(a) section 7 (1),(b) section 8 (1),(c) section 9 (1),(d) section 10 (1),(e) section 11 (1),(f) section 12,(g) section 13,(h) section 14 (2),(i) section 15 (1),(j) section 17,(k) section 19 (4),(l) section 25,(m) section 39 (4),(n) section 41 (2),(o) section 42 (4),(p) section 59,(q) section 65 (5).(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, andrelevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,(ii) the structures, work systems and other processes,(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.112A Liability 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 112.(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.112B Evidence as to state of mind of corporation(1) Without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation (while acting in his or her capacity as such) had, at any particular time, a particular state of mind, is evidence that the corporation had that state of mind.(2) In this section, the state of mind of a person includes:(a) the knowledge, intention, opinion, belief or purpose of the person, and(b) the person’s reasons for the intention, opinion, belief or purpose.
Section 6 Liability of directors etc of corporations
Omit the section.
[1] Section 213 Offences by persons other than principal offenders
Insert at the end of the section:(2) A person does not commit an offence because of this section for any act or omission that is an offence under section 218.
[2] Section 218
Omit the section. Insert instead:218 Liability 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.(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.
[1] Section 47 Licensing requirement—scheduled development work
Insert at the end of section 47 (1):Note—An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 169A.
[2] Section 48 Licensing requirement—scheduled activities (premises-based)
Insert at the end of the section:Note—An offence against subsection (2) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 169A.
[3] Section 49 Licensing requirement—scheduled activities (not premises-based)
Insert at the end of section 49 (2):Note—An offence against subsection (2) committed by a corporation is an offence attracting special executive liability for a director or other person involved in the management of the corporation—see section 169.
[4] Section 64 Failure to comply with condition
Insert at the end of section 64 (1):Note—An offence against subsection (1) committed by a corporation is an offence attracting special executive liability for a director or other person involved in the management of the corporation—see section 169.
[5] Section 66 Conditions requiring monitoring, certification or provision of information, and related offences
Insert at the end of the section:Note—An offence against subsection (2) or (4) committed by a corporation is an offence attracting special executive liability for a director or other person involved in the management of the corporation—see section 169.
[6] Section 86 Notice for breach of licensing requirements
Insert at the end of the section:Note—An offence against subsection (3) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 169A.
[7] Section 91 Clean-up by occupiers or polluters
Insert at the end of the section:Note—An offence against subsection (5) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 169A.
[8] Section 97 Offence
Insert at the end of the section:Note—An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 169A.
[9] Section 102 Offence
Insert at the end of the section:Note—An offence against this section committed by a corporation is an offence attracting special executive liability for a director or other person involved in the management of the corporation—see section 169.
[10] Section 112 Obstruction of persons
Insert at the end of the section:Note—An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 169A.
[11] Section 113 False or misleading statements in reports
Insert at the end of the section:Note—An offence against this section committed by a corporation is an offence attracting special executive liability for a director or other person involved in the management of the corporation—see section 169.
[12] Section 115 Disposal of waste—harm to environment
Insert at the end of section 115 (1):Note—An offence against subsection (1) committed by a corporation is an offence attracting special executive liability for a director or other person involved in the management of the corporation—see section 169.
[13] Section 116 Leaks, spillages and other escapes
Insert at the end of the section:Note—An offence against subsection (1) or (2) committed by a corporation is an offence attracting special executive liability for a director or other person involved in the management of the corporation—see section 169.
[14] Section 117 Emission of ozone depleting substances
Insert at the end of section 117 (1):Note—An offence against subsection (1) committed by a corporation is an offence attracting special executive liability for a director or other person involved in the management of the corporation—see section 169.
[15] Section 120 Prohibition of pollution of waters
Insert at the end of section 120 (1):Note—An offence against subsection (1) committed by a corporation is an offence attracting special executive liability for a director or other person involved in the management of the corporation—see section 169.
[16] Section 132 Maximum penalty for air pollution offences
Insert at the end of the section:Note 1—An offence against section 124, 125, 126 or 128 committed by a corporation is an offence attracting special executive liability for a director or other person involved in the management of the corporation—see section 169.Note 2—An offence against section 129 committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 169A.
[17] Section 141 Maximum penalty for noise offences
Insert at the end of the section:Note—An offence against section 136, 137, 139 or 140 committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 169A.
[18] Section 142A Pollution of land
Insert at the end of section 142A (1):Note—An offence against subsection (1) committed by a corporation is an offence attracting special executive liability for a director or other person involved in the management of the corporation—see section 169.
[19] Section 143 Unlawful transporting or depositing of waste
Insert at the end of section 143 (1):Note—An offence against subsection (1) committed by a corporation is an offence attracting special executive liability for a director or other person involved in the management of the corporation—see section 169.
[20] Section 144 Use of land as waste facility without lawful authority
Insert at the end of section 144 (1):Note—An offence against subsection (1) committed by a corporation is an offence attracting special executive liability for a director or other person involved in the management of the corporation—see section 169.
[21] Section 144AA False or misleading information about waste
Insert at the end of section 144AA (1):Note—An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 169A.
[22] Section 152 Offence
Insert at the end of the section:Note—An offence against this section committed by a corporation is an offence attracting special executive liability for a director or other person involved in the management of the corporation—see section 169.
[23] Section 153A Duty of licence holder to prepare pollution incident response management plan
Insert at the end of the section:Note—An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 169A.
[24] Section 153B EPA may direct other persons to prepare pollution incident response management plan
Insert at the end of section 153B (2):Note—An offence against subsection (2) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 169A.
[25] Section 153D Keeping of plan
Insert at the end of the section:Note—An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 169A.
[26] Section 153E Testing of plan
Insert at the end of the section:Note—An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 169A.
[27] Section 153F Implementation of plan
Insert at the end of the section:Note—An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 169A.
[28] Section 155 Sale of motor vehicles
Insert at the end of the section:Note—An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 169A.
[29] Section 156 Sale of motor vehicles without anti-pollution devices
Insert at the end of the section:Note—An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 169A.
[30] Section 167 Control equipment
Insert at the end of section 167 (4):Note—An offence against subsection (4) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 169A.
[31] Section 168 Ancillary offences
Insert at the end of the section:(2) A person does not commit an offence because of this section for any act or omission that is an offence under section 169B.
[32] Section 169 Liability of directors etc for offences by corporation—offences attracting special executive liability
Omit “any provision of this Act or the regulations” from section 169 (1).Insert instead “a provision of this Act attracting special executive liability”.
[33] Section 169 (1A)
Insert after section 169 (1):(1A) For the purposes of this section, each of the following provisions attract special executive liability:(a) section 49 (2),(b) section 64 (1),(c) section 66 (2) or (4),(d) section 102,(e) section 113,(f) section 115 (1),(g) section 116 (1) or (2),(h) section 117 (1),(i) section 120 (1),(j) section 124,(k) section 125,(l) section 126,(m) section 128,(n) section 142A (1),(o) section 143 (1),(p) section 144 (1),(q) section 152.
[34] Section 169 (4) and (5)
Omit the subsections.
[35] Sections 169A–169C
Insert after section 169:169A Liability of directors etc for offences by corporation—offences attracting executive liability generally(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:(a) section 47 (1),(b) section 48 (2),(c) section 86 (3),(d) section 91 (5),(e) section 97,(f) section 112,(g) section 129,(h) section 136,(i) section 137,(j) section 139,(k) section 140,(l) section 144AA (1),(m) section 153A,(n) section 153B (2),(o) section 153D,(p) section 153E,(q) section 153F,(r) section 155,(s) section 156,(t) section 167 (4).(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, andrelevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,(ii) the structures, work systems and other processes,(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.169B Liability 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 offence referred to in section 169 or 169A.(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.169C Evidence as to state of mind of corporation(1) Without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation (while acting in his or her capacity as such) had, at any particular time, a particular state of mind, is evidence that the corporation had that state of mind.(2) In this section, the state of mind of a person includes:(a) the knowledge, intention, opinion, belief or purpose of the person, and(b) the person’s reasons for the intention, opinion, belief or purpose.
[36] Section 305 Liability of appropriate regulatory authority, State and others
Omit “section 169 (Offences by corporations)” from section 305 (2) (b).Insert instead “sections 169–169B”.
Sections 36B and 36BA
Omit section 36B. Insert instead:36B Liability 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.(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.36BA Evidence as to state of mind of corporation(1) Without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation (while acting in his or her capacity as such) had, at any particular time, a particular state of mind, is evidence that the corporation had that state of mind.(2) In this section, the state of mind of a person includes:(a) the knowledge, intention, opinion, belief or purpose of the person, and(b) the person’s reasons for the intention, opinion, belief or purpose.
Section 22
Omit the section. Insert instead:22 Liability 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.(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.
Section 44
Omit the section. Insert instead:44 Liability 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.(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.
[1] Section 62B Corrective action by occupiers or persons carrying on certain activities
Insert at the end of the section:Note—An offence against subsection (5) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 64B.
[2] Section 62F Preventive action
Insert at the end of the section:Note—An offence against subsection (6) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 64B.
[3] Section 64 Offence to discharge into works
Insert at the end of section 64 (1):Note—An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 64B.
[4] Sections 64B and 64C
Omit section 64B. Insert instead:64B Liability of directors etc for offences by corporation—offences attracting executive liability(1) For the purposes of this section, an executive liability offence is:(a) an offence against any of the following provisions of this Act that is committed by a corporation:(i) section 62B (5),(ii) section 62F (6),(iii) section 64 (1), or(b) an offence against the regulations:(i) that is prescribed by the regulations as an offence to which this section applies, and(ii) that is committed by a corporation.(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, andrelevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,(ii) the structures, work systems and other processes,(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.64C Evidence as to state of mind of corporation(1) Without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation (while acting in his or her capacity as such) had, at any particular time, a particular state of mind, is evidence that the corporation had that state of mind.(2) In this section, the state of mind of a person includes:(a) the knowledge, intention, opinion, belief or purpose of the person, and(b) the person’s reasons for the intention, opinion, belief or purpose.
[5] Section 67 Persons causing offences
Insert at the end of the section:(3) A person does not commit an offence because of this section for any act or omission that is an offence under section 67A.
[6] Section 67A
Insert after section 67:67A Liability 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 64B.(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.
Clause 23 Certain conduct prohibited on Schedule 1 land and Schedule 2 land
Insert after clause 23 (3):(3A) An offence against subclause (1) (f) or (g) is prescribed as an offence to which section 64B of the Act applies.Note—An offence against subclause (1) (f) or (g) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 64B of the Act.
[1] Section 10 Requirement for full and true disclosure of relevant facts and circumstances
Insert at the end of section 10 (1):Note—An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 121.
[2] Section 41 Effect of approval
Insert at the end of the section:Note—An offence against subsection (1) or (2) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 121.
[3] Section 42 Stamping of instruments
Insert at the end of section 42 (2):Note—An offence against subsection (2) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 121.
[4] Section 49 Additional records
Insert at the end of section 49 (2):Note—An offence against subsection (2) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 121.
[5] Section 50 Inclusion of false or misleading information
Insert at the end of the section:Note—An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 121.
[6] Section 54 Wilfully destroying records
Insert at the end of the section:Note—An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 121.
[7] Section 55 Knowingly giving false or misleading information
Insert at the end of the section:Note—An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 121.
[8] Section 56 Deliberately omitting information
Insert at the end of the section:Note—An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 121.
[9] Section 57 Failure to lodge documents
Insert at the end of the section:Note—An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 121.
[10] Section 58 Falsifying or concealing identity
Insert at the end of the section:Note—An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 121.
[11] Section 72 Power to require information, instruments and records, and attendance
Insert at the end of the section:Note—An offence against subsection (8) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 121.
[12] Section 113 Notice of liquidator’s appointment
Insert at the end of the section:Note—An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 121.
[13] Sections 121 and 121A
Omit section 121. Insert instead:121 Liability 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 the taxation laws that is committed by a corporation:(a) section 10 (1),(b) section 41 (1) or (2),(c) section 42 (2),(d) section 49 (2),(e) section 50,(f) section 54,(g) section 55,(h) section 56,(i) section 57,(j) section 58,(k) section 72 (8),(l) section 113,(m) section 25 (6) of the Duties Act 1997,(n) section 218C (1) of the Duties Act 1997,(o) section 248 of the Duties Act 1997,(p) section 251 (1) of the Duties Act 1997,(q) section 262 of the Duties Act 1997,(r) section 270 (4) of the Duties Act 1997,(s) section 286 (1) of the Duties Act 1997,(t) section 296 (1) of the Duties Act 1997,(u) section 301 (1) of the Duties Act 1997,(v) section 11 of the Health Insurance Levies Act 1982,(w) clause 18 (8) of Schedule 2 to the Payroll Tax Act 2007.(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, andrelevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,(ii) the structures, work systems and other processes,(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.121A Liability 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 a taxation law 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 121.(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.
[1] Section 114 Director-General may make stop work order
Insert at the end of section 114 (6):Note—An offence against subsection (6) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 152.
[2] Section 141O Offence
Insert at the end of the section:Note—An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 152.
[3] Sections 152–152B
Omit section 152. Insert instead:152 Liability 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:(a) section 114 (6),(b) section 141O.(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, andrelevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,(ii) the structures, work systems and other processes,(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.152A Liability 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 152.(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.152B Evidence as to state of mind of corporation(1) Without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation (while acting in his or her capacity as such) had, at any particular time, a particular state of mind, is evidence that the corporation had that state of mind.(2) In this section, the state of mind of a person includes:(a) the knowledge, intention, opinion, belief or purpose of the person, and(b) the person’s reasons for the intention, opinion, belief or purpose.
[4] Section 154 Ancillary offences
Insert at the end of the section:(2) A person does not commit an offence because of this section for any act or omission that is an offence under section 152A.
Sections 53 and 53A
Omit section 53. Insert instead:53 Liability 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.(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.53A Evidence as to state of mind of corporation(1) Without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation (while acting in his or her capacity as such) had, at any particular time, a particular state of mind, is evidence that the corporation had that state of mind.(2) In this section, the state of mind of a person includes:(a) the knowledge, intention, opinion, belief or purpose of the person, and(b) the person’s reasons for the intention, opinion, belief or purpose.
Section 44
Omit the section. Insert instead:44 Liability 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.(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.
[1] Section 15 Prohibition against directing or inciting misconduct
Omit section 15 (4).
[2] Section 99
Omit the section. Insert instead:99 Liability 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.(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.
[1] Section 5 Prohibition of unlicensed network operation and water supply
Insert at the end of section 5 (1):Note—An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 97.
[2] Section 71 Offence to discharge into drains and sewers
Insert at the end of the section:Note—An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 97.
[3] Sections 97–97B
Omit section 97. Insert instead:97 Liability 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:(a) section 5 (1),(b) section 71.(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, andrelevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,(ii) the structures, work systems and other processes,(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.97A Liability 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 97.(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.97B Evidence as to state of mind of corporation(1) Without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation (while acting in his or her capacity as such) had, at any particular time, a particular state of mind, is evidence that the corporation had that state of mind.(2) In this section, the state of mind of a person includes:(a) the knowledge, intention, opinion, belief or purpose of the person, and(b) the person’s reasons for the intention, opinion, belief or purpose.
Section 244
Omit the section. Insert instead:244 Liability 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.(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.