Statutes Amendment (Directors' Liability) Act 2011 (SA)

South Australia

Statutes Amendment (Directors' Liability) Act 2011

An Act to amend the Aboriginal Heritage Act 1988, the Air Transport (Route Licensing—Passenger Services) Act 2002, the Animal Welfare Act 1985, the ANZAC Day Commemoration Act 2005, the Architectural Practice Act 2009, the Authorised Betting Operations Act 2000, the Controlled Substances Act 1984, the Employment Agents Registration Act 1993, the Gaming Machines Act 1992, the Health Care Act 2008, the Misrepresentation Act 1972, the Opal Mining Act 1995, the Petroleum Products Regulation Act 1995, the Prohibition of Human Cloning for Reproduction Act 2003, the Racing (Proprietary Business Licensing) Act 2000, the Research Involving Human Embryos Act 2003, the Retirement Villages Act 1987, the Second-hand Vehicle Dealers Act 1995, the Security and Investigation Agents Act 1995, the Supported Residential Facilities Act 1992, the Survey Act 1992, the Taxation Administration Act 1996, the Tobacco Products Regulation Act 1997, the Travel Agents Act 1986 and the Veterinary Practice Act 2003.

The Parliament of South Australia enacts as follows:

Part 1Preliminary1Short title

This Act may be cited as the Statutes Amendment (Directors' Liability) Act 2011.

2Commencement

This Act will come into operation on a day to be fixed by proclamation.

3Amendment provisions

In this Act, a provision a heading referring to the amendment of a specified Act amends the Act so specified.

Part 2Amendment of Aboriginal Heritage Act 19884Amendment of section 41 – Vicarious liability

1. (1)

   Section 41(2)—delete "an offence against this Act" and substitute:

   a prescribed offence

2. (2)

   Section 41—after subsection (2) insert:

   1. (3)

      In this section—

   prescribed offence means—

   1. (a)

      an offence against Part 3 (other than an offence against section 20(4), 22(5), 24(10), 32(3) or 36(4)); or

   2. (b)

      an offence against subsection (1) that relates to such an offence.

Part 3—Amendment of Air Transport (Route LicensingPassenger Services) Act 20025Repeal of section 23

Section 23—delete the section

Part 4Amendment of Animal Welfare Act 19856Substitution of section 38

Section 38—delete the section and substitute:

38—Offences by bodies corporate

1. (1)

   If a body corporate is guilty of a prescribed offence, each member of the governing body of the body corporate is guilty of an offence and liable to the same penalty as is prescribed for the principal offence unless the member proves that he or she could not by the exercise of due diligence have prevented the commission of the offence.

2. (2)

   If a body corporate is guilty of any other offence against this Act, each member of the governing body of the body corporate is guilty of an offence and liable to the same penalty as is prescribed for the principal offence if the prosecution proves that—

   1. (a)

      the member knew, or ought reasonably to have known, that there was a significant risk that such an offence would be committed; and

   2. (b)

      the member was in a position to influence the conduct of the body corporate in relation to the commission of such an offence; and

   3. (c)

      the member failed to exercise due diligence to prevent the commission of the offence.

3. (3)

   Subsection (2) does not apply if the principal offence is—

   1. (a)

      an offence against section 15A, 31B or 31E; or

   2. (b)

      an offence against section 40 that relates to such an offence; or

   3. (c)

      an offence against the regulations that is specified as an offence to which subsection (2) does not apply.

4. (4)

   In this section—

prescribed offence means—

1. (a)

   an offence against section 13(1) or (2) or section 14(1), (2) or (4); or

2. (b)

   an offence against section 40 that relates to such an offence.

Part 5Amendment of ANZAC Day Commemoration Act 2005

7Amendment of section 18 – Restriction on public sports and entertainment before 12 noon on ANZAC Day

Section 18(8)—delete subsection (8)

Part 6Amendment of Architectural Practice Act 20098Repeal of section 64

Section 64—delete the section

Part 7Amendment of Authorised Betting Operations Act 20009Substitution of section 84

Section 84—delete the section and substitute:

84—Offences by bodies corporate

1. (1)

   If a body corporate is guilty of a prescribed offence, the manager of the body corporate and each member of the governing body of the body corporate is guilty of an offence and liable to the same penalty as is prescribed for the principal offence unless the manager or member (as the case may be) proves that he or she could not by the exercise of due diligence have prevented the commission of the offence.

2. (2)

   If a body corporate is guilty of an offence against this Act other than a prescribed offence, the manager of the body corporate and each member of the governing body of the body corporate is guilty of an offence and liable to the same penalty as is prescribed for the principal offence if the prosecution proves that—

   1. (a)

      the manager or member (as the case may be) knew, or ought reasonably to have known, that there was a significant risk that such an offence would be committed; and

   2. (b)

      the manager or member (as the case may be) was in a position to influence the conduct of the body corporate in relation to the commission of such an offence; and

   3. (c)

      the manager or member (as the case may be) failed to exercise due diligence to prevent the commission of the offence.

3. (3)

   Subsection (2) does not apply if the principal offence is an offence against section 24(3) or 66 or is an offence against the regulations that is specified as an offence to which subsection (2) does not apply.

4. (4)

   In this section—

prescribed offence means an offence against section 18, 20(1), 27, 32, 33, 40, 61, 62E, 69 or 72.

Part 8Amendment of Controlled Substances Act 198410Repeal of section 45

Section 45—delete the section

Part 9Amendment of Employment Agents Registration Act 199311Repeal of section 27

Section 27—delete the section

Part 10Amendment of Gaming Machines Act 199212Amendment of section 85 – Vicarious liability

1. (1)

   Section 85—delete subsection (1) and substitute:

   1. (1)

      If a body corporate that holds a licence is guilty of a prescribed offence, each person occupying a position of authority in the body corporate is guilty of an offence and liable to the same penalty as is prescribed for the principal offence unless the person proves that he or she could not by the exercise of due diligence have prevented the commission of the offence.

   2. (1a)

      If a body corporate that holds a licence is guilty of any other offence against this Act, each person occupying a position of authority in the body corporate is guilty of an offence and liable to the same penalty as is prescribed for the principal offence if the prosecution proves that—

      1. (a)

         the person knew, or ought reasonably to have known, that there was a significant risk that such an offence would be committed; and

      2. (b)

         the person was in a position to influence the conduct of the body corporate in relation to the commission of such an offence; and

      3. (c)

         the person failed to exercise due diligence to prevent the commission of the offence.

   3. (1b)

      Subsection (1a) does not apply if the principal offence is an offence against section 6, 50A, 54, 57, 64, 65, 71 or 80 or is an offence against the regulations that is specified as an offence to which subsection (1a) does not apply.

   4. (1c)

      If a body corporate that holds a licence is guilty of an offence against this Act, any approved gaming machine manager for the licensed premises is guilty of an offence and liable to the same penalty as is prescribed for the principal offence unless the manager proves that he or she could not by the exercise of due diligence have prevented the commission of the offence.

2. (2)

   Section 85—after subsection (3) insert:

   1. (4)

      In this section—

   prescribed offence means any offence for which the maximum penalty includes a term of imprisonment of 2 or more years.

Part 11Amendment of Health Care Act 200813Repeal of section 94

Section 94—delete the section

Part 12Amendment of Misrepresentation Act 1972

14Amendment of section 4 – Misrepresentation made in the course of trade or business

Section 4(5)—delete subsection (5)

Part 13Amendment of Opal Mining Act 199515Amendment of section 82 – Offences

Section 82(7)—delete subsection (7)

Part 14Amendment of Petroleum Products Regulation Act 1995

16Amendment of section 34 – Controls during periods of restriction

Section 34(6), penalty provisions—delete the penalty provisions and substitute:

Maximum penalty:

1. (a)

   in the case of a body corporate—$250 000;

2. (b)

   in the case of a natural person—$10 000.

17Amendment of section 35 – Controls during rationing periods

Section 35(1) and (2), penalty provisions—delete the penalty provisions and substitute in each case:

Maximum penalty:

1. (a)

   in the case of a body corporate—$250 000;

2. (b)

   in the case of a natural person—$10 000.

18Amendment of section 36 – Permits

Section 36(5) and (7), penalty provisions—delete the penalty provisions and substitute in each case:

Maximum penalty:

1. (a)

   in the case of a body corporate—$250 000;

2. (b)

   in the case of a natural person—$10 000.

19Repeal of section 59 – Offences by bodies corporate

Section 59—delete the section

Part 15Amendment of Prohibition of Human Cloning for Reproduction Act 200320Repeal of section 29

Section 29—delete the section

Part 16Amendment of Racing (Proprietary Business Licensing) Act 200021Repeal of section 46

Section 46—delete the section

Part 17Amendment of Research Involving Human Embryos Act 200322Repeal of section 34

Section 34—delete the section

Part 18Amendment of Retirement Villages Act 198723Amendment of section 42 – Offences

Section 42(3)—delete subsection (3)

Part 19Amendment of Second-hand Vehicle Dealers Act 199524Amendment of section 45 – General defence

Section 45—after its present contents (now to be designated as subsection (1)) insert:

1. (2)

   This section does not apply in relation to a person who is charged with an offence under section 47.

25Substitution of section 47

Section 47—delete the section and substitute:

47—Offences by bodies corporate

1. (1)

   If a body corporate is guilty of a prescribed offence, each director of the body corporate is guilty of an offence and liable to the same penalty as is prescribed for the principal offence unless the director proves that he or she could not by the exercise of due diligence have prevented the commission of the offence.

2. (2)

   If a body corporate is guilty of any other offence against this Act, each director of the body corporate is guilty of an offence and liable to the same penalty as is prescribed for the principal offence if the prosecution proves that—

   1. (a)

      the director knew, or ought reasonably to have known, that there was a significant risk that such an offence would be committed; and

   2. (b)

      the director was in a position to influence the conduct of the body corporate in relation to the commission of such an offence; and

   3. (c)

      the director failed to exercise due diligence to prevent the commission of the offence.

3. (3)

   Subsection (2) does not apply if the principal offence is an offence against section 14, 16, 17, 18, 20, 21, 22, 25A or 42 or is an offence against the regulations that is specified as an offence to which subsection (2) does not apply.

4. (4)

   In this section—

prescribed offence means an offence against section 7, 13, 13A, or 32.

Part 20Amendment of Security and Investigation Agents Act 199526Amendment of section 40 – General defence

Section 40—after its present contents (now to be designated as subsection (1)) insert:

1. (2)

   This section does not apply in relation to a person who is charged with an offence under section 42.

27Substitution of section 42

Section 42—delete the section and substitute:

42—Offences by bodies corporate

1. (1)

   If a body corporate is guilty of a prescribed offence, each director of the body corporate is guilty of an offence and liable to the same penalty as is prescribed for the principal offence unless the director proves that he or she could not by the exercise of due diligence have prevented the commission of the offence.

2. (2)

   If a body corporate is guilty of any other offence against this Act, each director of the body corporate is guilty of an offence and liable to the same penalty as is prescribed for the principal offence if the prosecution proves that—

   1. (a)

      the director knew, or ought reasonably to have known, that there was a significant risk that such an offence would be committed; and

   2. (b)

      the director was in a position to influence the conduct of the body corporate in relation to the commission of such an offence; and

   3. (c)

      the director failed to exercise due diligence to prevent the commission of the offence.

3. (3)

   Subsection (2) does not apply if the principal offence is an offence against section 18, 19, 22, 23C, 23G, 23P or 36 or is an offence against the regulations that is specified as an offence to which subsection (2) does not apply.

4. (4)

   In this section—

prescribed offence means an offence against section 6, 12A, 13, 23(1), 23(2) or 30.

Part 21Amendment of Supported Residential Facilities Act 199228Amendment of section 52 – Prosecutions

Section 52(3)—delete subsection (3)

Part 22Amendment of Survey Act 199229Repeal of section 55B

Section 55B—delete the section

Part 23Amendment of Taxation Administration Act 1996

30Amendment of section 109 – General criminal defence

Section 109—after its present contents (now to be designated as subsection (1)) insert:

1. (2)

   This section does not apply in relation to a person who is charged with an offence under section 110.

31Amendment of section 110 – Offences by persons involved in management of corporations

Section 110—delete subsections (1) and (2) and substitute:

1. (1)

   If a body corporate is guilty of a prescribed offence, a person who is concerned in, or takes part in, the management of the corporation is guilty of an offence and liable to the same penalty as may be imposed for the principal offence when committed by a natural person unless the person proves that he or she could not by the exercise of due diligence have prevented the commission of the offence.

2. (2)

   If a body corporate is guilty of any other offence against a taxation law, each person who is concerned in, or takes part in, the management of the corporation is guilty of an offence and liable to the same penalty as is prescribed for the principal offence if the prosecution proves that—

   1. (a)

      the person knew, or ought reasonably to have known, that there was a significant risk that such an offence would be committed; and

   2. (b)

      the person was in a position to influence the conduct of the body corporate in relation to the commission of such an offence; and

   3. (c)

      the person failed to exercise due diligence to prevent the commission of the offence.

3. (2a)

   Subsection (2) does not apply if the principal offence is—

   1. (a)

      an offence against sections 75, 76, and  106 of this Act; or

   2. (b)

      an offence against sections 5(7) and 5(9) of the Land Tax Act 1936; or

   3. (c)

      an offence against section 97 of the Payroll Tax Act 2009; or

   4. (d)

      an offence against section 31L of the Stamp Duties Act 1923; or

   5. (e)

      an offence against the regulations made under a taxation law that is specified as an offence to which subsection (2) does not apply.

4. (2b)

   In this section—

prescribed offence means an offence against—

1. (a)

   section 59 of this Act; or

2. (b)

   section 14 of the Debits Tax Act 1994.

Part 24Amendment of Tobacco Products Regulation Act 199732Amendment of section 81 – Vicarious liability

Section 81(1)—delete subsection (1)

Part 25Amendment of Travel Agents Act 198633Amendment of section 38 – General defence

Section 38—after its present contents (now to be designated as subsection (1)) insert:

1. (2)

   This section does not apply in relation to a person who is charged with an offence under section 40.

34Substitution of section 40

Section 40—delete the section and substitute:

40—Offences by bodies corporate

1. (1)

   If a body corporate is guilty of a prescribed offence, each director of the body corporate is guilty of an offence and liable to the same penalty as is prescribed for the principal offence unless the director proves that he or she could not by the exercise of due diligence have prevented the commission of the offence.

2. (2)

   If a body corporate is guilty of any other offence against this Act, each director of the body corporate is guilty of an offence and liable to the same penalty as is prescribed for the principal offence if the prosecution proves that—

   1. (a)

      the director knew, or ought reasonably to have known, that there was a significant risk that such an offence would be committed; and

   2. (b)

      the director was in a position to influence the conduct of the body corporate in relation to the commission of such an offence; and

   3. (c)

      the director failed to exercise due diligence to prevent the commission of the offence.

3. (3)

   Subsection (2) does not apply if the principal offence is an offence against section 14A(2), 33 or 34 or is an offence against the regulations that is specified as an offence to which subsection (2) does not apply.

4. (4)

   In this section—

prescribed offence means an offence against section 7, 13, 18C or 35.

Part 26Amendment of Veterinary Practice Act 200335Repeal of section 73

Section 73—delete the section