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:

Part 1Preliminary1Short title

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

2Commencement

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

3Amendment provisions

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

Part 2Amendment of Agricultural and Veterinary Products (Control of Use) Act 20024Substitution of section 34

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).

5Amendment of section 36 – General defence

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 under section 34.

Part 3Amendment of Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 19816Substitution of section 23

Section 23—delete the section and substitute:

23—Offence in relation to obtaining permission to carry out mining operations

1. (1)

   A person must not, without the consent of the relevant Minister, give, offer or agree to give a payment or other consideration to another person (not being a payment or consideration otherwise permitted or provided for in this Act) in connection with obtaining the permission of Anangu Pitjantjatjara Yankunytjatjara to carry out mining operations on the lands.

Maximum penalty: $50 000 or imprisonment for 10 years.

1. (2)

   In this section—

relevant Minister, in relation to a payment or consideration, means—

1. (a)

   if the payment or consideration is in connection with mining operations authorised under the Mining Act 1971—the Minister responsible for the administration of that Act; or

2. (b)

   if the payment or consideration is in connection with mining operations authorised under the Petroleum and Geothermal Energy Act 2000—the Minister responsible for the administration of that Act.

Part 4Amendment of Animal Welfare Act 1985

7Amendment of section 38 – Offences by bodies corporate

1. (1)

   Section 38(2)—after "this Act" insert:

   (other than an offence against the regulations)

2. (2)

   Section 38(3)—delete paragraph (c)

3. (3)

   Section 38—after subsection (3) insert:

   1. (3a)

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

Part 5Amendment of Aquaculture Act 20018Amendment of section 88 – Liability of directors

Section 88(1)—delete subsection (1) and substitute:

1. (1)

   If a corporation is guilty of an offence against section 17 or 58, each director of the corporation is guilty of an offence and is 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. (1a)

   If a corporation is guilty of an offence against section 16 or 52, each director of the corporation is guilty of an offence and is liable to the same penalty as is prescribed for the principal offence when committed by a natural person 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 corporation 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.

9Amendment of section 89 – General defence

Section 89—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 88.

Part 6Amendment of Authorised Betting Operations Act 2000

10Amendment of section 84 – Offences by bodies corporate

1. (1)

   Section 84(2)—delete "an offence against this Act other than a prescribed offence" and substitute:

   any other offence against this Act (other than an offence against the regulations)

2. (2)

   Section 84(3)—delete "or is an offence against the regulations that is specified as an offence to which subsection (2) does not apply"

3. (3)

   Section 84—after subsection (3) insert:

   1. (3a)

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

Part 7Amendment of Building Work Contractors Act 199511Repeal of section 56

Section 56—delete the section

Part 8Amendment of Citrus Industry Act 200512Repeal of section 24

Section 24—delete the section

Part 9Amendment of Classification (Publications, Films and Computer Games) Act 1995

13Amendment of section 86 – Proceedings against body corporate

Section 86(4)—delete subsection (4) and substitute:

1. (4)

   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 when committed by a natural person unless the director proves that he or she could not by the exercise of due diligence have prevented the commission of the offence.

2. (5)

   In this section—

prescribed offence means an offence against section 34(1), 42(1), 51(1), 59 or 62(1).

Part 10Amendment of Collections for Charitable Purposes Act 1939

14Amendment of section 15 – Accounts, statements and audit

1. (1)

   Section 15(7)—delete subsection (7) and substitute:

   1. (7)

      The holder of a licence who contravenes or fails to comply with a provision of this section is guilty of an offence.

   Penalty: Division 6 fine.

   1. (7a)

      If a body corporate is guilty of an offence against this section, 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.

   2. (7b)

      If an unincorporated body is guilty of an offence against this section, each member of the unincorporated body 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.

2. (2)

   Section 15(8)—after "this section" insert:

   other than an offence against subsection (7a) or 7(b)

Part 11Amendment of Conveyancers Act 199415Repeal of section 61

Section 61—delete the section

Part 12Amendment of Development Act 1993

16Amendment of section 48 – Governor to give decision on development

Section 48(14), penalty provision—delete the penalty provision and substitute:

Penalty: Division 3 fine.

Default penalty: $500.

17Amendment of section 49 – Crown development and public infrastructure

Section 49(14a), penalty provision—delete the penalty provision and substitute:

Penalty: Division 3 fine.

Default penalty: $500.

18Amendment of section 49A – Electricity infrastructure development

Section 49A(16), penalty provision—delete the penalty provision and substitute:

Penalty: Division 3 fine.

Default penalty: $500.

19Amendment of section 69 – Emergency orders

Section 69(12), penalty provision—delete the penalty provision and substitute:

Penalty: Division 4 fine.

Default penalty: $200.

20Amendment of section 71 – Fire safety

Section 71(14), penalty provision—delete the penalty provision and substitute:

Penalty: Division 4 fine.

Default penalty: $200.

21Amendment of section 105 – General provisions relating to offences

1. (1)

   Section 105(3)—delete subsection (3) and substitute:

   1. (3)

      If a body corporate is guilty of a prescribed offence, each director and the chief executive officer of the body corporate are guilty of an offence and liable to the same penalty as is prescribed for the principal offence when committed by a natural person unless the director or the chief executive officer (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. (3a)

      If a body corporate is guilty of any other offence against this Act (other than an offence against the regulations), each director and the chief executive officer of the body corporate are guilty of an offence and liable to the same penalty as is prescribed for the principal offence when committed by a natural person if the prosecution proves that—

      1. (a)

         the director or chief executive officer (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 director or chief executive officer (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 director or chief executive officer (as the case may be) failed to exercise due diligence to prevent the commission of the offence.

   3. (3b)

      Subsection (3a) does not apply if the principal offence is an offence against section 19, 20, 31A, 45A, 48C, 54, 54A, 56B, 59, 60, 66, 67, 69(7), 71(4), 71(10), 71AA, 74, 84, 88B, 91, 92, 93, 95, 101, 102, or 103.

   4. (3c)

      The regulations may make provision in relation to the criminal liability of a director or the chief executive of a body corporate that is guilty of an offence against the regulations.

2. (2)

   Section 105—after subsection (7) insert:

   1. (8)

      In this section—

   prescribed offence means an offence against section 44, 45, 48, 49, 49A, 55, 57A, 69(12), 71(14) or 106A(8).

Part 13Amendment of Electricity Act 1996

22Amendment of section 61 – Electrical installation work

1. (1)

   Section 61(1), penalty provision—delete "$5 000" and substitute:

   $10 000

2. (2)

   Section 61(4), penalty provision—delete "$5 000" and substitute:

   $10 000

23Amendment of section 61A – Unsafe installation of electrical equipment

Section 61A, penalty provision—delete "$5 000" and substitute:

$10 000

24Amendment of section 84 – Unlawful interference with electricity infrastructure or electrical installation

Section 84(1), penalty provision—delete "$10 000" and substitute:

$20 000

25Amendment of section 85 – Unlawful taking of electricity, interference with meters or positioning of lines

Section 85(1), penalty provision—delete "$10 000" and substitute:

$20 000

26Amendment of section 92 – General defence

Section 92—after subsection (2) insert:

1. (3)

   Subsection (1) does not apply in relation to a person who is charged with an offence under section 93.

27Substitution of section 93

Section 93—delete the section and substitute:

93—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 when committed by a natural person 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)

   In this section—

prescribed offence means an offence against section 15, 25, 60 or 61.

Part 14Amendment of Emergency Management Act 2004

28Amendment of section 28 – Failure to comply with directions

Section 28—after its present contents (now to be designated as subsection (1)) insert:

1. (2)

   If a body corporate is guilty of an offence against this section, each director 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 when committed by a natural person unless the director 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. (3)

   A person may be prosecuted and convicted of an offence under subsection (2) whether or not the body corporate has been prosecuted or convicted of the offence committed by the body corporate.

29Repeal of section 35

Section 35—delete the section

Part 15Amendment of Energy Products (Safety and Efficiency) Act 2000

30Amendment of section 8 – Prohibition of sale or use of unsafe energy products

Section 8—after subsection (5) insert:

1. (6)

   If a body corporate is guilty of an offence against this section, 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.

31Amendment of section 17 – General defence

Section 17—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 8(6).

32Repeal of section 18

Section 18—delete the section

Part 16Amendment of Essential Services Act 198133Repeal of section 10B

Section 10B—delete the section

Part 17Amendment of Essential Services Commission Act 200234Repeal of section 46

Section 46—delete the section

Part 18Amendment of Fair Trading Act 1987

35Amendment of section 43 – Unlawful actions and representations

Section 43(2), penalty provision—delete the penalty provision and substitute:

Maximum penalty:

In the case of a body corporate—$25 000.

In any other case—$5 000 or imprisonment for 6 months.

36Amendment of section 88 – Defences

Section 88—after subsection (4) insert:

1. (5)

   This section does not apply in relation to a person who is charged with an offence under section 90(3).

37Amendment of section 90 – Vicarious liability

Section 90(3)—delete subsection (3) and substitute:

1. (3)

   If a body corporate is guilty of an offence against section 28A or 37, each director of the body corporate is guilty of an offence and liable to the same penalty as is prescribed for the principal offence when committed by a natural person 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.

Part 19Amendment of Fire and Emergency Services Act 2005

38Amendment of section 86 – Fire safety at premises

Section 86(4), penalty provision—delete the penalty provision and substitute:

Maximum penalty:

1. (a)

   if the offender is a body corporate—$50 000;

2. (b)

   if the offender is a natural person—$10 000.

39Substitution of section 138

Section 138—delete the section and substitute:

138—Offences by body corporate

1. (1)

   If a body corporate is guilty of an offence against this Act (other than an offence against the regulations), each director and the manager of the body corporate are guilty of an offence and is liable to the same penalty as is prescribed for the principal offence when committed by a natural person if the prosecution proves that—

   1. (a)

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

2. (2)

   Subsection (1) does not apply if the principal offence is an offence against section 40, 79, 87, 89, 91, 125, 126, 131, 133, 134, 135, 136, or 142.

3. (3)

   A person may be prosecuted and convicted of an offence under this section whether or not the body corporate has been prosecuted or convicted of the offence committed by the body corporate.

4. (4)

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

Part 20Amendment of Fisheries Management Act 2007

40Amendment of section 71 – Taking, injuring etc aquatic mammals and protected species prohibited

Section 71—after subsection (3) insert:

1. (4)

   Subsection (3)(a) does not apply in relation to a person who is charged with an offence under section 120(1) or (1a).

41Amendment of section 120 – Offences committed by bodies corporate or agents, or involving registered boats

1. (1)

   Section 120(1)—delete subsection (1) and substitute:

   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 when committed by a natural person unless the director 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 is guilty of an offence against this Act (other than a prescribed offence or an offence against the regulations), each director of the body corporate is guilty of an offence and liable to the same penalty as is prescribed for the principal offence when committed by a natural person 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

1. 1. 1. (c)

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

   2. (1b)

      Subsection (1a) does not apply if the principal offence is an offence against section 59, 67, 73, 75, 76, 77, 84, 88 or 91.

2. (2)

   Section 120—after subsection (4) insert:

   1. (5)

      The regulations may make provision in relation to the criminal liability of a director of a body corporate that is guilty of an offence against the regulations.

   2. (6)

      In this section—

   prescribed offence means—

   1. (a)

      an offence against section 52, 53, 72, 74, 78 or 102; or

   2. (b)

      an offence against section 71 that involves an aquatic mammal.

Part 21Amendment of Gaming Machines Act 199242Amendment of section 85 – Vicarious liability

1. (1)

   Section 85(1a)—after "this Act" insert:

   (other than an offence against the regulations)

2. (2)

   Section 85(1b)—delete "or is an offence against the regulations that is specified as an offence to which subsection (1a) does not apply"

3. (3)

   Section 85(1c)—after "this Act" insert:

   (other than an offence against the regulations)

4. (4)

   Section 85(2)—after "this Act" insert:

   (other than an offence against the regulations)

5. (5)

   Section 85—after subsection (3) insert:

   1. (3a)

      The regulations may make provision in relation to the criminal liability for a body corporate that is guilty of an offence against the regulations of—

      1. (a)

         a person occupying a position of authority in the body corporate; or

      2. (b)

         a gaming machine manager for the associated licensed premises for which the body corporate holds the licence.

Part 22Amendment of Gas Act 1997

43Amendment of section 81 – Unlawful interference with distribution system or gas installation

Section 81, penalty provision—delete "$10 000" and substitute:

$20 000

44Amendment of section 82 – Unlawful abstraction or diversion of gas

Section 82(1), penalty provision—delete "$10 000" and substitute:

$20 000

45Amendment of section 88 – General defence

Section 88—after subsection (2) insert:

1. (3)

   Subsection (1) does not apply in relation to a person who is charged with an offence under section 89.

46Substitution of section 89

Section 89—delete the section and substitute:

89—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 (other than an offence against the regulations), 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 10, 34, 34D, 40, 44, 56, 57, 57A, 58, 68, 69, 70, 78, 81, 82, 83, 85 or 86.

4. (4)

   The regulations may make provision in relation to the criminal liability of a director of a body corporate that is guilty of an offence against the regulations.

5. (5)

   In this section—

prescribed offence means an offence against section 19, 27, 37, 37A or 55.

Part 23Amendment of Genetically Modified Crops Management Act 2004

47Amendment of section 22 – Offences by bodies corporate

1. (1)

   Section 22(1)—delete subsection (1) and substitute:

   1. (1)

      If a body corporate is guilty of an offence against this Act (other than an offence against section 20 or 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 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)

   Section 22—after subsection (2) insert:

   1. (3)

      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.

Part 24Amendment of Harbors and Navigation Act 199348Repeal of section 86

Section 86—delete the section

Part 25Amendment of Health Practitioner Regulation National Law (South Australia) Act 201049Substitution of section 72

Section 72—delete the section and substitute:

72—Vicarious liability for offences

1. (1)

   If a body corporate 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 when committed by an individual unless the person occupying the position of authority 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 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. (3)

   Subsection (2) does not apply if the principal offence is an offence against section 42, 44, 45, 47, 50(4), 58, 64, 65, or 69.

4. (4)

   The regulations may make provision in relation to the criminal liability of a person occupying a position of authority in a body corporate that is guilty of an offence against the regulations.

5. (5)

   In this section—

prescribed offence means an offence against section 50(1), 51, 55 or 67.

Part 26Amendment of Heritage Places Act 199350Amendment of section 36 – Damage or neglect

Section 36(3), penalty provision—delete "$25 000" and substitute:

$50 000

51Amendment of section 42 – General provisions relating to offences

1. (1)

   Section 42(2)—delete subsection (2) and substitute:

   1. (2)

      If a body corporate is guilty of a prescribed offence, each director and the chief executive officer of the body corporate are guilty of an offence and, subject to subsection (4), liable to the same penalty as is prescribed for the principal offence unless the director or the chief executive officer (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. (2a)

      If a body corporate is guilty of any other offence against this Act (other than an offence against the regulations), each director and the chief executive officer of the body corporate are guilty of an offence and, subject to subsection (4), liable to the same penalty as is prescribed for the principal offence if the prosecution proves that—

      1. (a)

         the director or chief executive officer (as the case may be) knew, or ought to have known, that there was a significant risk that such an offence would be committed; and

      2. (b)

         the director or chief executive officer (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 director or chief executive officer (as the case may be) failed to exercise due diligence to prevent the commission of the offence.

   3. (2b)

      Subsection (2a) does not apply if the principal offence is an offence against section 27(2), 29A or 41.

2. (2)

   Section 42(3)—after "subsection (2)" insert:

   or (2a)

3. (3)

   Subsection 42(4)(b)—delete "or (2)" and substitute:

   , (2) or (2a)

4. (4)

   Section 42—after subsection (5) insert:

   1. (6)

      The regulations may make provision in relation to the criminal liability of a director or the chief executive of a body corporate that is guilty of an offence against the regulations.

   2. (7)

      In this section—

   prescribed offence means—an offence against section 30, 36(1), 38, 38A or 39A.

Part 27Amendment of Highways Act 1926

52Amendment of section 39G – Power to close roads or railway lines

Section 39G(4)—delete "subsection (2)" and substitute:

subsection (3)

53Repeal of section 41A

Section 41A—delete the section

Part 28Amendment of Hydroponics Industry Control Act 200954Substitution of section 31

Section 31—delete the section and substitute:

31—Offences by bodies corporate

1. (1)

   If a body corporate is guilty of an offence against section 10 or 11, 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 (other than an offence against the regulations), 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, 17, 21, 22, 23, 24, 26, 27 or 28.

4. (4)

   The regulations may make provision in relation to the criminal liability of a director of a body corporate that is guilty of an offence against the regulations.

55Amendment of section 33 – General defence

Section 33—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 31.

Part 29Amendment of Irrigation Act 2009

56Amendment of section 40 – Protection and facilitation of systems

Section 40(8), penalty provision—delete the penalty provision and substitute:

Maximum penalty:

1. (a)

   in the case of a body corporate—$100 000;

2. (b)

   in the case of a natural person—$20 000.

Expiation fee: $750.

57Amendment of section 62 – Protection of irrigation system etc

Section 62, penalty provision—delete the penalty provision and substitute:

Maximum penalty:

1. (a)

   in the case of a body corporate—$100 000;

2. (b)

   in the case of a natural person—$20 000.

Expiation fee: $750.

58Amendment of section 63 – Unauthorised use of water

Section 63, penalty provision—delete the penalty provision and substitute:

Maximum penalty:

1. (a)

   in the case of a body corporate—$100 000;

2. (b)

   in the case of a natural person—$20 000.

Expiation fee: $750.

59Repeal of section 64

Section 64—delete the section

Part 30Amendment of Land Agents Act 199460Repeal of section 59

Section 59—delete the section

Part 31Amendment of Land and Business (Sale and Conveyancing) Act 199461Repeal of section 39

Section 39—delete the section

Part 32Amendment of Land Valuers Act 199462Repeal of section 20

Section 20—delete the section

Part 33Amendment of Legal Practitioners Act 198163Substitution of section 27

Section 27—delete the section and substitute:

27—Criminal liability of directors

1. (1)

   If a company is guilty of an offence against this Act or any other Act (other than an offence against the regulations), each director of the company 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 company 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.

2. (2)

   Subsection (1) does not apply if the principal offence is an offence against section 21, 22, 23, 23D, 24, 25, 33, 35, 36, 37, 41, 44, 49, 50, 52AA, 52AAB, 62, 73, 76, 77A, 84, 94, 95B or 95BA.

3. (3)

   The regulations may make provision in relation to the criminal liability of a director of a company that is guilty of an offence against the regulations.

Part 34Amendment of Liquor Licensing Act 199764Amendment of section 134 – Vicarious liability

Section 134(1) and (2)—delete subsections (1) and (2)

Part 35Amendment of Livestock Act 1997

65Amendment of section 27 – Requirement to report notifiable conditions

1. (1)

   Section 27(1), penalty provision—delete the penalty provision and substitute:

   Maximum penalty:

   In the case of an exotic disease—$10 000;

   In any other case—$2 500.

   Expiation fee: For an offence against paragraph (a) or (b)—$210.

2. (2)

   Section 27(2), penalty provision—delete the penalty provision and substitute:

   Maximum penalty:

   In the case of an exotic disease—$10 000;

   In any other case—$2 500.

   Expiation fee: $210.

66Amendment of section 33 – Prohibition on entry of livestock or other property absolutely or without required health certificate etc

Section 33(4), penalty provision—delete the penalty provision and substitute:

Maximum penalty: $5 000.

Expiation fee: $315.

67Amendment of section 78 – General defence

Section 78—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 80.

68Substitution of section 80

Section 80—delete the section and substitute:

80—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 (other than an offence against the regulations), 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 25, 26A, 28, 35, 37(5), 38(6), 38(7), 53, 54, 62, 69, 70, 72(6) or 75.

4. (4)

   The regulations may make provision in relation to the criminal liability of a director of a body corporate that is guilty of an offence against the regulations.

5. (5)

   In this section—

prescribed offence means an offence against section 20, 24, 27(1) or 33(5).

Part 36Amendment of Maralinga Tjarutja Land Rights Act 198469Substitution of section 25

Section 25—delete the section and substitute:

25—Offence in relation to obtaining permission to carry out mining operations

1. (1)

   A person must not, without the consent of the relevant Minister, give, offer or agree to give a payment or other consideration to another person (not being a payment or consideration in discharge or partial discharge of a liability arising under this Act) in connection with obtaining the permission of Maralinga Tjarutja to carry out mining operations on the lands.

Maximum penalty: $50 000 or imprisonment for 10 years.

1. (2)

   In this section—

relevant Minister, in relation to a payment or consideration, means—

1. (a)

   if the payment or consideration is in connection with mining operations authorised under the Mining Act 1971—the Minister responsible for the administration of that Act; or

2. (b)

   if the payment or consideration is in connection with mining operations authorised under the Petroleum and Geothermal Energy Act 2000—the Minister responsible for the administration of that Act.

Part 37Amendment of Motor Vehicles Act 195970Repeal of section 143A

Section 143A—delete the section

Part 38Amendment of Natural Resources Management Act 200471Amendment of section 218 – General defence

Section 218—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 219.

72Substitution of section 219

Section 219—delete the section and substitute:

219—Offences by bodies 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 when committed by a natural person 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 is guilty of an offence and liable to the same penalty as is prescribed for the principal offence when committed by a natural person 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—

   1. (a)

      an offence against section 11, 32, 71, 106, 132, 144, 145, 169, 175(2) or (3), 180, 183(11) 186, 187, 188, 190, 192, 193, 195, 214 or 215; or

   2. (b)

      an offence against section 127(6) that relates to the breach of a prescribed condition of a water management authorisation; or

   3. (c)

      an offence against section 176 or 177 that relates to a Category 3 animal or plant; or

   4. (d)

      an offence against section 178 that relates to a Category 3 plant; or

   5. (e)

      an offence against section 181 that relates to a Category 3 animal or plant; or

   6. (f)

      an offence against Schedule 1 clause 3.

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—

1. (a)

   an offence against section 123(12), 130, 131 or 183(9); or

2. (b)

   an offence against section 181 that relates to a Category 1 or Category 2 animal or plant.

Part 39Amendment of Passenger Transport Act 199473Amendment of section 5 – Application of Act

Section 5(5), penalty provision—delete the penalty provision and substitute:

Penalty: Division 4 fine.

74Amendment of section 27 – Accreditation of operators

Section 27(1), penalty provision—delete the penalty provision and substitute:

Penalty: Division 3 fine.

75Amendment of section 28 – Accreditation of drivers

Section 28(1), penalty provision—delete "Division 6 fine" and substitute:

Division 5 fine

76Amendment of section 29 – Accreditation of centralised booking services

Section 29(2), penalty provision—delete the penalty provision and substitute:

Penalty: Division 3 fine.

77Amendment of section 31 – Conditions

Section 31(7), penalty provision—delete the penalty provision and substitute:

Penalty:

1. (a)

   In the case of an accreditation under Division 1—Division 3 fine;

2. (b)

   In the case of an accreditation under Division 2—Division 5 fine;

3. (c)

   In the case of an accreditation under Division 3—Division 3 fine.

Expiation fee: In the case of an accreditation under Division 2—$315.

78Amendment of section 35 – Related matters

Section 35(1), penalty provision—delete the penalty provision and substitute:

Penalty: Division 4 fine.

79Amendment of section 36 – Disciplinary powers

Section 36(9), penalty provision—delete the penalty provision and substitute:

Penalty: Division 3 fine.

80Amendment of section 39 – Service contracts

Section 39(4), penalty provision—delete the penalty provision and substitute:

Penalty: Division 3 fine.

81Amendment of section 42 – Assignment of rights under contract

Section 42(1), penalty provision—delete the penalty provision and substitute:

Penalty: Division 3 fine.

82Amendment of section 45 – Requirement for licence

Section 45(8), penalty provision—delete the penalty provision and substitute:

Penalty: Division 3 fine.

83Amendment of section 49 – Transfer of licences

Section 49(1), penalty provision—delete the penalty provision and substitute:

Penalty: Division 3 fine.

84Amendment of section 54 – Inspections

1. (1)

   Section 54(14), penalty provision—delete the penalty provision and substitute:

   Penalty: Division 4 fine.

2. (2)

   Section 54(15), penalty provision—delete the penalty provision and substitute:

   Penalty: Division 4 fine.

3. (3)

   Section 54(18), penalty provision—delete the penalty provision and substitute:

   Penalty: Division 5 fine.

   Expiation fee: $315.

85Amendment of section 59 – General provisions relating to offences

Section 59(1)—delete subsection (1)

Part 40Amendment of Plant Health Act 200986Amendment of section 54 – Vicarious liability

Section 54—delete subsection (2) and substitute:

1. (2)

   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 when committed by a natural person unless the member proves that he or she could not by the exercise of due diligence have prevented the commission of the offence.

2. (3)

   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 of the body corporate is guilty of an offence and liable to the same penalty as is prescribed for the principal offence when committed by a natural person 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. (4)

   Subsection (3) does not apply if the principal offence is—

   1. (a)

      an offence against section 6(2), 11(2), 12, 13, 14, 15, 23, 24, 32, 33, 38, 39, 42, 45, 48 or 51; or

   2. (b)

      an offence against section 7 that is a minor offence within the meaning of that section; or

   3. (c)

      an offence against section 8 that is a minor offence within the meaning of that section; or

   4. (d)

      an offence against section 20(3) consisting of a contravention of a prescribed condition of accreditation.

4. (5)

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

5. (6)

   In this section—

prescribed offence means—

1. (a)

   an offence against section 6(1), 9, 11(1) or 28; or

2. (b)

   an offence against section 7 other than a minor offence within the meaning of that section; or

3. (c)

   an offence against section 8 other than a minor offence within the meaning of that section; or

4. (d)

   an offence against section 20(3) other than a contravention of a prescribed condition.

Part 41Amendment of Plumbers, Gas Fitters and Electricians Act 199587Repeal of section 38

Section 38—delete the section

Part 42Amendment of Primary Produce (Food Safety Schemes) Act 200488Amendment of section 43 – General defence

Section 43—after subsection (2) insert:

1. (3)

   This section does not apply in relation to a person who is charged with an offence under section 44.

89Substitution of section 44

Section 44—delete the section and substitute:

44—Offences by bodies corporate

1. (1)

   If a body corporate is guilty of a prescribed offence, each director 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 director 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)

   In this section—

prescribed offence means an offence against section 12, 16(2), 32 or 35.

Part 43Amendment of Renmark Irrigation Trust Act 2009

90Amendment of section 41 – Protection and facilitation of systems

Section 41(8), penalty provision—delete the penalty provision and substitute:

Maximum penalty:

1. (a)

   in the case of a body corporate—$100 000;

2. (b)

   in the case of a natural person—$20 000.

Expiation fee: $750.

91Amendment of section 67 – Protection of irrigation system etc

Section 67, penalty provision—delete the penalty provision and substitute:

Maximum penalty:

1. (a)

   in the case of a body corporate—$100 000;

2. (b)

   in the case of a natural person—$20 000.

Expiation fee: $750.

92Amendment of section 68 – Unauthorised use of water

Section 68, penalty provision—delete the penalty provision and substitute:

Maximum penalty:

1. (a)

   in the case of a body corporate—$100 000;

2. (b)

   in the case of a natural person—$20 000.

Expiation fee: $750.

93Repeal of section 69

Section 69—delete the section

Part 44Amendment of Second-hand Vehicle Dealers Act 1995

94Amendment of section 47 – Offences by bodies corporate

1. (1)

   Section 47(2)—after "this Act" insert:

   (other than an offence against the regulations)

2. (2)

   Section 47(3)—delete "or is an offence against the regulations that is specified as an offence to which subsection (2) does not apply"

3. (3)

   Section 47—after subsection (3) insert:

   1. (3a)

      The regulations may make provision in relation to the criminal liability of a director of a body corporate that is guilty of an offence against the regulations.

Part 45Amendment of Security and Investigation Agents Act 1995

95Amendment of section 42 – Offences by bodies corporate

1. (1)

   Section 42(2)—after "this Act" insert:

   (other than an offence against the regulations)

2. (2)

   Section 42(3)—delete "or is an offence against the regulations that is specified as an offence to which subsection (2) does not apply"

3. (3)

   Section 42—after subsection (3) insert:

   1. (3a)

      The regulations may make provision in relation to the criminal liability of a director of a body corporate that is guilty of an offence against the regulations.

Part 46Amendment of South Australian Public Health Act 2011

96Amendment of section 59 – Defence of due diligence

Section 59—after subsection (2) insert:

1. (3)

   This section does not apply in relation to a person who is charged with an offence under section 106.

97Substitution of section 106

Section 106—delete the section and substitute:

106—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 an offence against section 57(3), 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 when committed by a natural person 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)

   In this section—

prescribed offence means an offence against section 57(1), 57(2), 58 or 92(10).

Part 47Amendment of Taxation Administration Act 1996

98Amendment of section 110 – Offences by persons involved in management of corporations

1. (1)

   Section 110—delete "body corporate" wherever occurring and substitute in each case:

   corporation

2. (2)

   Section 110(2)—after "taxation law" insert:

   (other than an offence against the regulations)

3. (3)

   Section 110(2a)—delete paragraph (e)

4. (4)

   Section 110(2b)—delete the subsection

5. (5)

   After subsection (5) insert:

   1. (6)

      The regulations may make provision in relation to the criminal liability of a person who is concerned in, or takes part in, the management of a corporation that is guilty of an offence against the regulations.

   2. (7)

      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 48Amendment of Teachers Registration and Standards Act 2004

99Amendment of section 59 – Liability of members of governing bodies of bodies corporate

Section 59(1)—delete subsection (1) and substitute:

1. (1)

   If a body corporate is guilty of an offence against this Act (other than an offence against the regulations), each member of the governing body, and the manager, of the body corporate is guilty of an offence and liable to the same penalty as is prescribed for the principal offence when committed by a natural person 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 member failed to exercise due diligence to prevent the commission of the offence.

2. (1a)

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

100Amendment of section 60 – General defence

Section 60—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 59.

Part 49Amendment of Travel Agents Act 1986

101Amendment of section 40 – Offences by bodies corporate

1. (1)

   Section 40(2)—after "this Act" insert:

   (other than an offence against the regulations)

2. (2)

   Section 40(3)—delete "or is an offence against the regulations that is specified as an offence to which subsection (2) does not apply"

3. (3)

   Section 40—after subsection (3) insert:

   1. (3a)

      The regulations may make provision in relation to the criminal liability of a director of a body corporate that is guilty of an offence against the regulations.

Part 50Amendment of Water Efficiency Labelling and Standards Act 2006

102Amendment of section 72B – Liability of officers of body corporate

1. (1)

   Section 72B(1) and (2)—delete subsections (1) and (2)

2. (2)

   Section 72B(4)—delete "(1) or"

Part 51Amendment of Water Industry Act 2012103Amendment of section 103 – General defence

Section 103—after subsection (2) insert:

1. (3)

   Subsection (1) does not apply in relation to a person who is charged with an offence under section 104.

104Substitution of section 104

Section 104—delete the section and substitute:

104—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 when committed by a natural person 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 (other than an offence against the regulations), each director of the body corporate is guilty of an offence and liable to the same penalty as is prescribed for the principal offence when committed by a natural person 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 11, 36, 39, 45, 49, 50(5), 50(6), 51, 53, 54, 56(5), 57, 59, 60, 69, 70, 76, 77, 78, 79, 80, 88, 92, 97, 100, 101, 108 or Schedule 2 Part 8.

4. (4)

   The regulations may make provision in relation to the criminal liability of a director of a body corporate that is guilty of an offence against the regulations.

5. (5)

   In this section—

prescribed offence means an offence against section 18, 27, 67 or 68.