Miscellaneous Acts Amendment (Directors’ Liability) Act 2012 (NSW)

No judgment structure available for this case.

An Act to amend various Acts and Regulations to implement COAG reforms relating to the criminal liability of directors.

1Name of Act

This Act is the Miscellaneous Acts Amendment (Directors’ Liability) Act 2012.

2Commencement

This Act commences on a day or days to be appointed by proclamation.

Schedule 1Amendment of Acts and RegulationsAnimal Research Act 1985 No 123[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:

58Liability 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, and
- (ii)
  the structures, work systems and other processes,
relevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,
(d)
action towards creating and maintaining a corporate culture that does not direct, encourage, tolerate or lead to non-compliance with the provision creating the executive liability offence.

58ALiability 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.

Building and Construction Industry Long Service Payments Act 1986 No 19[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:

63Liability 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, and
- (ii)
  the structures, work systems and other processes,
relevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,
(d)
action towards creating and maintaining a corporate culture that does not direct, encourage, tolerate or lead to non-compliance with the provision creating the executive liability offence.

63ALiability 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.

Children and Young Persons (Care and Protection) Act 1998 No 157[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:

258Liability 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, and
- (ii)
  the structures, work systems and other processes,
relevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,
(d)
action towards creating and maintaining a corporate culture that does not direct, encourage, tolerate or lead to non-compliance with the provision creating the executive liability offence.

258AALiability 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.

258ABEvidence 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.

Classification (Publications, Films and Computer Games) Enforcement Act 1995 No 63

Omit the section. Insert instead:

62Liability 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.

Contaminated Land Management Act 1997 No 140[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:

98Liability 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, and
- (ii)
  the structures, work systems and other processes,
relevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,
(d)
action towards creating and maintaining a corporate culture that does not direct, encourage, tolerate or lead to non-compliance with the provision creating the executive liability offence.

98ALiability 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.

98BEvidence 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.

Conveyancers Licensing Act 2003 No 3[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:

160Liability 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.

Drug Misuse and Trafficking Act 1985 No 226[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:

36ZBEvidence 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:

43ALiability 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, and
- (ii)
  the structures, work systems and other processes,
relevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,
(d)
action towards creating and maintaining a corporate culture that does not direct, encourage, tolerate or lead to non-compliance with the provision creating the executive liability offence.

43BLiability 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.

Drug Misuse and Trafficking Regulation 2011

Insert after clause 7:

7ALiability of directors etc for offences by corporation—offences attracting executive liability

An 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.

Duties Act 1997 No 123[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.

Electricity (Consumer Safety) Act 2004 No 4[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:

45Liability 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, and
- (ii)
  the structures, work systems and other processes,
relevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,
(d)
action towards creating and maintaining a corporate culture that does not direct, encourage, tolerate or lead to non-compliance with the provision creating the executive liability offence.

45ALiability 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.

Environmentally Hazardous Chemicals Act 1985 No 14[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:

53Liability 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, and
- (ii)
  the structures, work systems and other processes,
relevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,
(d)
action towards creating and maintaining a corporate culture that does not direct, encourage, tolerate or lead to non-compliance with the provision creating the executive liability offence.

53ALiability 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.

Explosives Act 2003 No 39[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:

33Liability of directors etc for offences by corporation—offences attracting executive liability(1)

For the purposes of this section, an executive liability offence is an offence against any of the following provisions of this Act that is committed by a corporation:

•
section 6 (1)

(2)

A person commits an offence against this section if:

(a)
a corporation commits an executive liability offence, and
(b)
the person is:
- (i)
  a director of the corporation, or
- (ii)
  an individual who is involved in the management of the corporation and who is in a position to influence the conduct of the corporation in relation to the commission of the executive liability offence, and
(c)
the person:
- (i)
  knows or ought reasonably to know that the executive liability offence (or an offence of the same type) would be or is being committed, and
- (ii)
  fails to take all reasonable steps to prevent or stop the commission of that offence.

Maximum penalty: The maximum penalty for the executive liability offence if committed by an individual.

(3)

The prosecution bears the legal burden of proving the elements of the offence against this section.

(4)

The offence against this section can only be prosecuted by a person who can bring a prosecution for the executive liability offence.

(5)

This section does not affect the liability of the corporation for the executive liability offence, and applies whether or not the corporation is prosecuted for, or convicted of, the executive liability offence.

(6)

This section does not affect the application of any other law relating to the criminal liability of any persons (whether or not directors or other managers of the corporation) who are accessories to the commission of the executive liability offence or are otherwise concerned in, or party to, the commission of the executive liability offence.

(7)

In this section:

director has the same meaning it has in the Corporations Act 2001 of the Commonwealth.

reasonable steps, in relation to the commission of an executive liability offence, includes, but is not limited to, such action (if any) of the following kinds as is reasonable in all the circumstances:

(a)
action towards:
- (i)
  assessing the corporation’s compliance with the provision creating the executive liability offence, and
- (ii)
  ensuring that the corporation arranged regular professional assessments of its compliance with the provision,
(b)
action towards ensuring that the corporation’s employees, agents and contractors are provided with information, training, instruction and supervision appropriate to them to enable them to comply with the provision creating the executive liability offence so far as the provision is relevant to them,
(c)
action towards ensuring that:
- (i)
  the plant, equipment and other resources, and
- (ii)
  the structures, work systems and other processes,
relevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,
(d)
action towards creating and maintaining a corporate culture that does not direct, encourage, tolerate or lead to non-compliance with the provision creating the executive liability offence.

33ALiability of directors etc for offences by corporation—accessory to the commission of the offences(1)

For the purposes of this section, a corporate offence is an offence against this Act or the regulations that is capable of being committed by a corporation, whether or not it is an executive liability offence referred to in section 33.

(2)

A person commits an offence against this section if:

(a)
a corporation commits a corporate offence, and
(b)
the person is:
- (i)
  a director of the corporation, or
- (ii)
  an individual who is involved in the management of the corporation and who is in a position to influence the conduct of the corporation in relation to the commission of the corporate offence, and
(c)
the person:
- (i)
  aids, abets, counsels or procures the commission of the corporate offence, or
- (ii)
  induces, whether by threats or promises or otherwise, the commission of the corporate offence, or
- (iii)
  conspires with others to effect the commission of the corporate offence, or
- (iv)
  is in any other way, whether by act or omission, knowingly concerned in, or party to, the commission of the corporate offence.

Maximum penalty: The maximum penalty for the corporate offence if committed by an individual.

(3)

The prosecution bears the legal burden of proving the elements of the offence against this section.

(4)

The offence against this section can only be prosecuted by a person who can bring a prosecution for the corporate offence.

(5)

This section does not affect the liability of the corporation for the corporate offence, and applies whether or not the corporation is prosecuted for, or convicted of, the corporate offence.

(6)

This section does not affect the application of any other law relating to the criminal liability of any persons (whether or not directors or other managers of the corporation) who are concerned in, or party to, the commission of the corporate offence.

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:

122Liability 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, and
- (ii)
  the structures, work systems and other processes,
relevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,
(d)
action towards creating and maintaining a corporate culture that does not direct, encourage, tolerate or lead to non-compliance with the provision creating the executive liability offence.

122ALiability 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.

122BEvidence 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.

Forestry Act 1916 No 55[1]Section 29 Penalty for unlawfully working sawmill

Omit section 29 (3).

[2]Section 49

Insert after section 48:

49Liability 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.

Funeral Funds Act 1979 No 106

Omit the section. Insert instead:

90Liability 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.

Gaming Machines Act 2001 No 127[1]Section 199A

Insert after section 199:

199ALiability 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.

Health Insurance Levies Act 1982 No 159

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.

Heritage Act 1977 No 136

Omit the section. Insert instead:

159Liability 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)

In this section:

director has the same meaning it has in the Corporations Act 2001 of the Commonwealth.

reasonable steps, in relation to the commission of an executive liability offence, includes, but is not limited to, such action (if any) of the following kinds as is reasonable in all the circumstances:

(a)
action towards:
- (i)
  assessing the corporation’s compliance with the provision creating the executive liability offence, and
- (ii)
  ensuring that the corporation arranged regular professional assessments of its compliance with the provision,
(b)
action towards ensuring that the corporation’s employees, agents and contractors are provided with information, training, instruction and supervision appropriate to them to enable them to comply with the provision creating the executive liability offence so far as the provision is relevant to them,
(c)
action towards ensuring that:
- (i)
  the plant, equipment and other resources, and
- (ii)
  the structures, work systems and other processes,
relevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,
(d)
action towards creating and maintaining a corporate culture that does not direct, encourage, tolerate or lead to non-compliance with the provision creating the executive liability offence.

121ALiability 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.

Threatened Species Conservation Act 1995 No 101[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:

152Liability 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, and
- (ii)
  the structures, work systems and other processes,
relevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,
(d)
action towards creating and maintaining a corporate culture that does not direct, encourage, tolerate or lead to non-compliance with the provision creating the executive liability offence.

152ALiability 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.

152BEvidence 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.

Unlawful Gambling Act 1998 No 113

Omit section 53. Insert instead:

53Liability 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.

53AEvidence 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.

Valuers Act 2003 No 4

Omit the section. Insert instead:

44Liability 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.

Veterinary Practice Act 2003 No 87[1]Section 15 Prohibition against directing or inciting misconduct

Omit section 15 (4).

[2]Section 99

Omit the section. Insert instead:

99Liability 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.

Water Industry Competition Act 2006 No 104[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:

97Liability 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, and
- (ii)
  the structures, work systems and other processes,
relevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,
(d)
action towards creating and maintaining a corporate culture that does not direct, encourage, tolerate or lead to non-compliance with the provision creating the executive liability offence.

97ALiability 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.

97BEvidence 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.

Workplace Injury Management and Workers Compensation Act 1998 No 86

Omit the section. Insert instead:

244Liability 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.

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Citations

Miscellaneous Acts Amendment (Directors’ Liability) Act 2012 (NSW)

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