Statutes Amendment (Directors' Liability) Act 2013 (SA)

South Australia

Statutes Amendment (Directors' Liability) Act 2013

An Act to amend various Acts to modify or remove the liability of directors and other executives of bodies corporate for offences committed by the bodies corporate.

The Parliament of South Australia enacts as follows:

This Act may be cited as the Statutes Amendment (Directors' Liability) Act 2013.

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

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

Section 34—delete the section and substitute:

34—Offences by body corporate

1. (1)

   If a body corporate is guilty of a prescribed offence, each member of the governing body, and the manager, of the body corporate are guilty of an offence and liable to the same penalty as is prescribed for the principal offence unless the member or the manager (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 any other offence against this Act (other than an offence against the regulations), each member of the governing body, and the manager, of the body corporate are 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 or manager (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 member or manager (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 member or manager (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 14(5), 16, 27, 29, 30(7), 32 or 38.

4. (4)

   A person referred to in this section may be prosecuted and convicted of an offence against this section whether or not the body corporate has been prosecuted or convicted of the principal offence committed by the body corporate.

5. (5)

   The regulations may make provision in relation to the criminal liability of a member of the governing body, or the manager, of a body corporate that is guilty of an offence against the regulations.

6. (6)

   In this section—

prescribed offence means an offence against section 6, 7, 8, 11, 15, 22 or 30(6).

Section 36—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…