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This is a Bill, not an Act. For current law, see the Acts databases.
Miscellaneous Acts Amendment
(Directors' Liability) Bill 2012
No , 2012
A Bill for
An Act to amend various Acts and Regulations to implement COAG reforms relating
to the criminal liability of directors.
Clause 1 Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Miscellaneous Acts Amendment (Directors' Liability) 3
Act 2012. 4
2 Commencement 5
This Act commences on a day or days to be appointed by proclamation. 6
Page 2
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
Schedule 1 Amendment of Acts and Regulations 1
1.1 Animal Research Act 1985 No 123 2
[1] Section 46 Unlawfully carrying on the business of animal research 3
Insert at the end of section 46 (1): 4
Note. An offence against subsection (1) committed by a corporation is 5
an executive liability offence attracting executive liability for a director or 6
other person involved in the management of the corporation--see 7
section 58. 8
[2] Section 47A Keeping animals with intention of using them for animal 9
research 10
Insert at the end of section 47A (1): 11
Note. An offence against subsection (1) committed by a corporation is 12
an executive liability offence attracting executive liability for a director or 13
other person involved in the management of the corporation--see 14
section 58. 15
[3] Section 48 Unlawfully supplying animals for use in connection with 16
animal research 17
Insert at the end of the section: 18
Note. An offence against subsection (1) or (2) committed by a 19
corporation is an executive liability offence attracting executive liability 20
for a director or other person involved in the management of the 21
corporation--see section 58. 22
[4] Sections 58 and 58A 23
Omit section 58. Insert instead: 24
58 Liability of directors etc for offences by corporation--offences 25
attracting executive liability 26
(1) For the purposes of this section, an executive liability offence is 27
an offence against any of the following provisions of this Act that 28
is committed by a corporation: 29
(a) section 46 (1), 30
(b) section 47A (1), 31
(c) section 48 (1) or (2). 32
(2) A person commits an offence against this section if: 33
(a) a corporation commits an executive liability offence, and 34
(b) the person is: 35
(i) a director of the corporation, or 36
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Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
(ii) an individual who is involved in the management of 1
the corporation and who is in a position to influence 2
the conduct of the corporation in relation to the 3
commission of the executive liability offence, and 4
(c) the person: 5
(i) knows or ought reasonably to know that the 6
executive liability offence (or an offence of the 7
same type) would be or is being committed, and 8
(ii) fails to take all reasonable steps to prevent or stop 9
the commission of that offence. 10
Maximum penalty: The maximum penalty for the executive 11
liability offence if committed by an individual. 12
(3) The prosecution bears the legal burden of proving the elements of 13
the offence against this section. 14
(4) The offence against this section can only be prosecuted by a 15
person who can bring a prosecution for the executive liability 16
offence. 17
(5) This section does not affect the liability of the corporation for the 18
executive liability offence, and applies whether or not the 19
corporation is prosecuted for, or convicted of, the executive 20
liability offence. 21
(6) This section does not affect the application of any other law 22
relating to the criminal liability of any persons (whether or not 23
directors or other managers of the corporation) who are 24
accessories to the commission of the executive liability offence 25
or are otherwise concerned in, or party to, the commission of the 26
executive liability offence. 27
(7) In this section: 28
director has the same meaning it has in the Corporations Act 29
2001 of the Commonwealth. 30
reasonable steps, in relation to the commission of an executive 31
liability offence, includes, but is not limited to, such action (if 32
any) of the following kinds as is reasonable in all the 33
circumstances: 34
(a) action towards: 35
(i) assessing the corporation's compliance with the 36
provision creating the executive liability offence, 37
and 38
(ii) ensuring that the corporation arranged regular 39
professional assessments of its compliance with the 40
provision, 41
Page 4
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
(b) action towards ensuring that the corporation's employees, 1
agents and contractors are provided with information, 2
training, instruction and supervision appropriate to them to 3
enable them to comply with the provision creating the 4
executive liability offence so far as the provision is 5
relevant to them, 6
(c) action towards ensuring that: 7
(i) the plant, equipment and other resources, and 8
(ii) the structures, work systems and other processes, 9
relevant to compliance with the provision creating the 10
executive liability offence are appropriate in all the 11
circumstances, 12
(d) action towards creating and maintaining a corporate 13
culture that does not direct, encourage, tolerate or lead to 14
non-compliance with the provision creating the executive 15
liability offence. 16
58A Liability of directors etc for offences by corporation--accessory to 17
the commission of the offences 18
(1) For the purposes of this section, a corporate offence is an offence 19
against this Act or the regulations that is capable of being 20
committed by a corporation, whether or not it is an executive 21
liability offence referred to in section 58. 22
(2) A person commits an offence against this section if: 23
(a) a corporation commits a corporate offence, and 24
(b) the person is: 25
(i) a director of the corporation, or 26
(ii) an individual who is involved in the management of 27
the corporation and who is in a position to influence 28
the conduct of the corporation in relation to the 29
commission of the corporate offence, and 30
(c) the person: 31
(i) aids, abets, counsels or procures the commission of 32
the corporate offence, or 33
(ii) induces, whether by threats or promises or 34
otherwise, the commission of the corporate offence, 35
or 36
(iii) conspires with others to effect the commission of 37
the corporate offence, or 38
Page 5
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
(iv) is in any other way, whether by act or omission, 1
knowingly concerned in, or party to, the 2
commission of the corporate offence. 3
Maximum penalty: The maximum penalty for the corporate 4
offence if committed by an individual. 5
(3) The prosecution bears the legal burden of proving the elements of 6
the offence against this section. 7
(4) The offence against this section can only be prosecuted by a 8
person who can bring a prosecution for the corporate offence. 9
(5) This section does not affect the liability of the corporation for the 10
corporate offence, and applies whether or not the corporation is 11
prosecuted for, or convicted of, the corporate offence. 12
(6) This section does not affect the application of any other law 13
relating to the criminal liability of any persons (whether or not 14
directors or other managers of the corporation) who are 15
concerned in, or party to, the commission of the corporate 16
offence. 17
1.2 Building and Construction Industry Long Service Payments 18
Act 1986 No 19 19
[1] Section 16A Employer to notify Corporation of employment of workers 20
Insert at the end of the section: 21
Note. An offence against this section committed by a corporation is an 22
executive liability offence attracting executive liability for a director or 23
other person involved in the management of the corporation--see 24
section 63. 25
[2] Section 39 Offence for failure to pay long service levy 26
Insert at the end of the section: 27
Note. An offence against this section committed by a corporation is an 28
executive liability offence attracting executive liability for a director or 29
other person involved in the management of the corporation--see 30
section 63. 31
Page 6
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
[3] Sections 63 and 63A 1
Omit section 63. Insert instead: 2
63 Liability of directors etc for offences by corporation--offences 3
attracting executive liability 4
(1) For the purposes of this section, an executive liability offence is 5
an offence against any of the following provisions of this Act that 6
is committed by a corporation: 7
(a) section 16A, 8
(b) section 39. 9
(2) A person commits an offence against this section if: 10
(a) a corporation commits an executive liability offence, and 11
(b) the person is: 12
(i) a director of the corporation, or 13
(ii) an individual who is involved in the management of 14
the corporation and who is in a position to influence 15
the conduct of the corporation in relation to the 16
commission of the executive liability offence, and 17
(c) the person: 18
(i) knows or ought reasonably to know that the 19
executive liability offence (or an offence of the 20
same type) would be or is being committed, and 21
(ii) fails to take all reasonable steps to prevent or stop 22
the commission of that offence. 23
Maximum penalty: The maximum penalty for the executive 24
liability offence if committed by an individual. 25
(3) The prosecution bears the legal burden of proving the elements of 26
the offence against this section. 27
(4) The offence against this section can only be prosecuted by a 28
person who can bring a prosecution for the executive liability 29
offence. 30
(5) This section does not affect the liability of the corporation for the 31
executive liability offence, and applies whether or not the 32
corporation is prosecuted for, or convicted of, the executive 33
liability offence. 34
(6) This section does not affect the application of any other law 35
relating to the criminal liability of any persons (whether or not 36
directors or other managers of the corporation) who are 37
accessories to the commission of the executive liability offence 38
Page 7
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
or are otherwise concerned in, or party to, the commission of the 1
executive liability offence. 2
(7) In this section: 3
director has the same meaning it has in the Corporations 4
Act 2001 of the Commonwealth. 5
reasonable steps, in relation to the commission of an executive 6
liability offence, includes, but is not limited to, such action (if 7
any) of the following kinds as is reasonable in all the 8
circumstances: 9
(a) action towards: 10
(i) assessing the corporation's compliance with the 11
provision creating the executive liability offence, 12
and 13
(ii) ensuring that the corporation arranged regular 14
professional assessments of its compliance with the 15
provision, 16
(b) action towards ensuring that the corporation's employees, 17
agents and contractors are provided with information, 18
training, instruction and supervision appropriate to them to 19
enable them to comply with the provision creating the 20
executive liability offence so far as the provision is 21
relevant to them, 22
(c) action towards ensuring that: 23
(i) the plant, equipment and other resources, and 24
(ii) the structures, work systems and other processes, 25
relevant to compliance with the provision creating the 26
executive liability offence are appropriate in all the 27
circumstances, 28
(d) action towards creating and maintaining a corporate 29
culture that does not direct, encourage, tolerate or lead to 30
non-compliance with the provision creating the executive 31
liability offence. 32
63A Liability of directors etc for offences by corporation--accessory to 33
the commission of the offences 34
(1) For the purposes of this section, a corporate offence is an offence 35
against this Act or the regulations that is capable of being 36
committed by a corporation, whether or not it is an executive 37
liability offence referred to in section 63. 38
(2) A person commits an offence against this section if: 39
(a) a corporation commits a corporate offence, and 40
Page 8
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
(b) the person is: 1
(i) a director of the corporation, or 2
(ii) an individual who is involved in the management of 3
the corporation and who is in a position to influence 4
the conduct of the corporation in relation to the 5
commission of the corporate offence, and 6
(c) the person: 7
(i) aids, abets, counsels or procures the commission of 8
the corporate offence, or 9
(ii) induces, whether by threats or promises or 10
otherwise, the commission of the corporate offence, 11
or 12
(iii) conspires with others to effect the commission of 13
the corporate offence, or 14
(iv) is in any other way, whether by act or omission, 15
knowingly concerned in, or party to, the 16
commission of the corporate offence. 17
Maximum penalty: The maximum penalty for the corporate 18
offence if committed by an individual. 19
(3) The prosecution bears the legal burden of proving the elements of 20
the offence against this section. 21
(4) The offence against this section can only be prosecuted by a 22
person who can bring a prosecution for the corporate offence. 23
(5) This section does not affect the liability of the corporation for the 24
corporate offence, and applies whether or not the corporation is 25
prosecuted for, or convicted of, the corporate offence. 26
(6) This section does not affect the application of any other law 27
relating to the criminal liability of any persons (whether or not 28
directors or other managers of the corporation) who are 29
concerned in, or party to, the commission of the corporate 30
offence. 31
1.3 Children and Young Persons (Care and Protection) Act 1998 32
No 157 33
[1] Section 105 Publication of names and identifying information 34
Insert at the end of section 105 (2): 35
Note. An offence against subsection (2) committed by a corporation is 36
an executive liability offence attracting executive liability for a director or 37
other person involved in the management of the corporation--see 38
section 258. 39
Page 9
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
[2] Section 136 Restriction on who may provide statutory out-of-home care 1
Insert at the end of section 136 (2): 2
Note. An offence against subsection (2) committed by a corporation is 3
an executive liability offence attracting executive liability for a director or 4
other person involved in the management of the corporation--see 5
section 258. 6
[3] Section 138 Persons who may arrange for provision of statutory or 7
supported out-of-home care 8
Insert at the end of the section: 9
Note. An offence against subsection (2) committed by a corporation is 10
an executive liability offence attracting executive liability for a director or 11
other person involved in the management of the corporation--see 12
section 258. 13
[4] Section 154 Restriction on who may provide supported out-of-home care 14
Insert at the end of the section: 15
Note. An offence against subsection (3) committed by a corporation is 16
an executive liability offence attracting executive liability for a director or 17
other person involved in the management of the corporation--see 18
section 258. 19
[5] Section 156B Restrictions on who may provide or arrange voluntary 20
out-of-home care 21
Insert at the end of the section: 22
Note. An offence against this section committed by a corporation is an 23
executive liability offence attracting executive liability for a director or 24
other person involved in the management of the corporation--see 25
section 258. 26
[6] Section 173 Medical examination of children in need of care and 27
protection 28
Insert at the end of section 173 (2): 29
Note. An offence against subsection (2) committed by a corporation is 30
an executive liability offence attracting executive liability for a director or 31
other person involved in the management of the corporation--see 32
section 258. 33
[7] Section 175 Special medical treatment 34
Insert at the end of section 175 (1): 35
Note. An offence against subsection (1) committed by a corporation is 36
an executive liability offence attracting executive liability for a director or 37
other person involved in the management of the corporation--see 38
section 258. 39
Page 10
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
[8] Section 185 Provision and exchange of information 1
Insert at the end of section 185 (2A): 2
Note. An offence against subsection (2A) committed by a corporation is 3
an executive liability offence attracting executive liability for a director or 4
other person involved in the management of the corporation--see 5
section 258. 6
[9] Section 222 Endangering children in employment 7
Insert at the end of the section: 8
Note. An offence against this section committed by a corporation is an 9
executive liability offence attracting executive liability for a director or 10
other person involved in the management of the corporation--see 11
section 258. 12
[10] Section 223 Certain employers of children to be authorised 13
Insert at the end of the section: 14
Note. An offence against this section committed by a corporation is an 15
executive liability offence attracting executive liability for a director or 16
other person involved in the management of the corporation--see 17
section 258. 18
[11] Section 228 Neglect of children and young persons 19
Insert at the end of the section: 20
Note. An offence against this section committed by a corporation is an 21
executive liability offence attracting executive liability for a director or 22
other person involved in the management of the corporation--see 23
section 258. 24
[12] Section 230 Tattooing of children and young persons 25
Insert at the end of section 230 (2): 26
Note. An offence against subsection (2) committed by a corporation is 27
an executive liability offence attracting executive liability for a director or 28
other person involved in the management of the corporation--see 29
section 258. 30
[13] Section 230A Body piercing of children 31
Insert at the end of section 230A (2): 32
Note. An offence against subsection (2) committed by a corporation is 33
an executive liability offence attracting executive liability for a director or 34
other person involved in the management of the corporation--see 35
section 258. 36
[14] Section 241 Powers exercisable on entry and inspection 37
Insert at the end of the section: 38
Note. An offence against subsection (2) committed by a corporation is 39
an executive liability offence attracting executive liability for a director or 40
Page 11
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
other person involved in the management of the corporation--see 1
section 258. 2
[15] Section 254 Disclosure of information 3
Insert at the end of section 254 (1): 4
Note. An offence against subsection (1) committed by a corporation is 5
an executive liability offence attracting executive liability for a director or 6
other person involved in the management of the corporation--see 7
section 258. 8
[16] Sections 258-258AB 9
Omit section 258. Insert instead: 10
258 Liability of directors etc for offences by corporation--offences 11
attracting executive liability 12
(1) For the purposes of this section, an executive liability offence is 13
an offence against any of the following provisions of this Act that 14
is committed by a corporation: 15
(a) section 105 (2), 16
(b) section 136 (2), 17
(c) section 138 (2), 18
(d) section 154 (3), 19
(e) section 156B, 20
(f) section 173 (2), 21
(g) section 175 (1), 22
(h) section 185 (2A), 23
(i) section 222, 24
(j) section 223 (1)-(4), 25
(k) section 228, 26
(l) section 230 (2), 27
(m) section 230A (2), 28
(n) section 241 (2), 29
(o) section 254 (1). 30
(2) A person commits an offence against this section if: 31
(a) a corporation commits an executive liability offence, and 32
(b) the person is: 33
(i) a director of the corporation, or 34
Page 12
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
(ii) an individual who is involved in the management of 1
the corporation and who is in a position to influence 2
the conduct of the corporation in relation to the 3
commission of the executive liability offence, and 4
(c) the person: 5
(i) knows or ought reasonably to know that the 6
executive liability offence (or an offence of the 7
same type) would be or is being committed, and 8
(ii) fails to take all reasonable steps to prevent or stop 9
the commission of that offence. 10
Maximum penalty: The maximum penalty for the executive 11
liability offence if committed by an individual. 12
(3) The prosecution bears the legal burden of proving the elements of 13
the offence against this section. 14
(4) The offence against this section can only be prosecuted by a 15
person who can bring a prosecution for the executive liability 16
offence. 17
(5) This section does not affect the liability of the corporation for the 18
executive liability offence, and applies whether or not the 19
corporation is prosecuted for, or convicted of, the executive 20
liability offence. 21
(6) This section does not affect the application of any other law 22
relating to the criminal liability of any persons (whether or not 23
directors or other managers of the corporation) who are 24
accessories to the commission of the executive liability offence 25
or are otherwise concerned in, or party to, the commission of the 26
executive liability offence. 27
(7) In this section: 28
director has the same meaning it has in the Corporations 29
Act 2001 of the Commonwealth. 30
reasonable steps, in relation to the commission of an executive 31
liability offence, includes, but is not limited to, such action (if 32
any) of the following kinds as is reasonable in all the 33
circumstances: 34
(a) action towards: 35
(i) assessing the corporation's compliance with the 36
provision creating the executive liability offence, 37
and 38
(ii) ensuring that the corporation arranged regular 39
professional assessments of its compliance with the 40
provision, 41
Page 13
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
(b) action towards ensuring that the corporation's employees, 1
agents and contractors are provided with information, 2
training, instruction and supervision appropriate to them to 3
enable them to comply with the provision creating the 4
executive liability offence so far as the provision is 5
relevant to them, 6
(c) action towards ensuring that: 7
(i) the plant, equipment and other resources, and 8
(ii) the structures, work systems and other processes, 9
relevant to compliance with the provision creating the 10
executive liability offence are appropriate in all the 11
circumstances, 12
(d) action towards creating and maintaining a corporate 13
culture that does not direct, encourage, tolerate or lead to 14
non-compliance with the provision creating the executive 15
liability offence. 16
258AA Liability of directors etc for offences by corporation--accessory to 17
the commission of the offences 18
(1) For the purposes of this section, a corporate offence is an offence 19
against this Act or the regulations that is capable of being 20
committed by a corporation, whether or not it is an executive 21
liability offence referred to in section 258. 22
(2) A person commits an offence against this section if: 23
(a) a corporation commits a corporate offence, and 24
(b) the person is: 25
(i) a director of the corporation, or 26
(ii) an individual who is involved in the management of 27
the corporation and who is in a position to influence 28
the conduct of the corporation in relation to the 29
commission of the corporate offence, and 30
(c) the person: 31
(i) aids, abets, counsels or procures the commission of 32
the corporate offence, or 33
(ii) induces, whether by threats or promises or 34
otherwise, the commission of the corporate offence, 35
or 36
(iii) conspires with others to effect the commission of 37
the corporate offence, or 38
Page 14
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
(iv) is in any other way, whether by act or omission, 1
knowingly concerned in, or party to, the 2
commission of the corporate offence. 3
Maximum penalty: The maximum penalty for the corporate 4
offence if committed by an individual. 5
(3) The prosecution bears the legal burden of proving the elements of 6
the offence against this section. 7
(4) The offence against this section can only be prosecuted by a 8
person who can bring a prosecution for the corporate offence. 9
(5) This section does not affect the liability of the corporation for the 10
corporate offence, and applies whether or not the corporation is 11
prosecuted for, or convicted of, the corporate offence. 12
(6) This section does not affect the application of any other law 13
relating to the criminal liability of any persons (whether or not 14
directors or other managers of the corporation) who are 15
concerned in, or party to, the commission of the corporate 16
offence. 17
258AB Evidence as to state of mind of corporation 18
(1) Without limiting any other law or practice regarding the 19
admissibility of evidence, evidence that an officer, employee or 20
agent of a corporation (while acting in his or her capacity as such) 21
had, at any particular time, a particular state of mind, is evidence 22
that the corporation had that state of mind. 23
(2) In this section, the state of mind of a person includes: 24
(a) the knowledge, intention, opinion, belief or purpose of the 25
person, and 26
(b) the person's reasons for the intention, opinion, belief or 27
purpose. 28
1.4 Classification (Publications, Films and Computer Games) 29
Enforcement Act 1995 No 63 30
Section 62 31
Omit the section. Insert instead: 32
62 Liability of directors etc for offences by corporation--accessory to 33
the commission of the offences 34
(1) For the purposes of this section, a corporate offence is an offence 35
against this Act or the regulations that is capable of being 36
committed by a corporation. 37
Page 15
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
(2) A person commits an offence against this section if: 1
(a) a corporation commits a corporate offence, and 2
(b) the person is: 3
(i) a director of the corporation, or 4
(ii) an individual who is involved in the management of 5
the corporation and who is in a position to influence 6
the conduct of the corporation in relation to the 7
commission of the corporate offence, and 8
(c) the person: 9
(i) aids, abets, counsels or procures the commission of 10
the corporate offence, or 11
(ii) induces, whether by threats or promises or 12
otherwise, the commission of the corporate offence, 13
or 14
(iii) conspires with others to effect the commission of 15
the corporate offence, or 16
(iv) is in any other way, whether by act or omission, 17
knowingly concerned in, or party to, the 18
commission of the corporate offence. 19
Maximum penalty: The maximum penalty for the corporate 20
offence if committed by an individual. 21
(3) The prosecution bears the legal burden of proving the elements of 22
the offence against this section. 23
(4) The offence against this section can only be prosecuted by a 24
person who can bring a prosecution for the corporate offence. 25
(5) This section does not affect the liability of the corporation for the 26
corporate offence, and applies whether or not the corporation is 27
prosecuted for, or convicted of, the corporate offence. 28
(6) This section does not affect the application of any other law 29
relating to the criminal liability of any persons (whether or not 30
directors or other managers of the corporation) who are 31
concerned in, or party to, the commission of the corporate 32
offence. 33
1.5 Contaminated Land Management Act 1997 No 140 34
[1] Section 14 Management orders 35
Insert at the end of section 14 (6): 36
Note. An offence against subsection (6) committed by a corporation is 37
an executive liability offence attracting executive liability for a director or 38
Page 16
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
other person involved in the management of the corporation--see 1
section 98. 2
[2] Section 28 Ongoing maintenance orders 3
Insert at the end of section 28 (4): 4
Note. An offence against subsection (4) committed by a corporation is 5
an executive liability offence attracting executive liability for a director or 6
other person involved in the management of the corporation--see 7
section 98. 8
[3] Section 60 Duty to report contamination 9
Insert at the end of the section: 10
Note. An offence against subsection (1) or (2) committed by a 11
corporation is an executive liability offence attracting executive liability 12
for a director or other person involved in the management of the 13
corporation--see section 98. 14
[4] Sections 98-98B 15
Omit section 98. Insert instead: 16
98 Liability of directors etc for offences by corporation--offences 17
attracting executive liability 18
(1) For the purposes of this section, an executive liability offence is 19
an offence against any of the following provisions of this Act that 20
is committed by a corporation: 21
(a) section 14 (6), 22
(b) section 28 (4), 23
(c) section 60 (1) or (2). 24
(2) A person commits an offence against this section if: 25
(a) a corporation commits an executive liability offence, and 26
(b) the person is: 27
(i) a director of the corporation, or 28
(ii) an individual who is involved in the management of 29
the corporation and who is in a position to influence 30
the conduct of the corporation in relation to the 31
commission of the executive liability offence, and 32
(c) the person: 33
(i) knows or ought reasonably to know that the 34
executive liability offence (or an offence of the 35
same type) would be or is being committed, and 36
Page 17
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
(ii) fails to take all reasonable steps to prevent or stop 1
the commission of that offence. 2
Maximum penalty: The maximum penalty for the executive 3
liability offence if committed by an individual. 4
(3) The prosecution bears the legal burden of proving the elements of 5
the offence against this section. 6
(4) The offence against this section can only be prosecuted by a 7
person who can bring a prosecution for the executive liability 8
offence. 9
(5) This section does not affect the liability of the corporation for the 10
executive liability offence, and applies whether or not the 11
corporation is prosecuted for, or convicted of, the executive 12
liability offence. 13
(6) This section does not affect the application of any other law 14
relating to the criminal liability of any persons (whether or not 15
directors or other managers of the corporation) who are 16
accessories to the commission of the executive liability offence 17
or are otherwise concerned in, or party to, the commission of the 18
executive liability offence. 19
(7) In this section: 20
director has the same meaning it has in the Corporations 21
Act 2001 of the Commonwealth. 22
reasonable steps, in relation to the commission of an executive 23
liability offence, includes, but is not limited to, such action (if 24
any) of the following kinds as is reasonable in all the 25
circumstances: 26
(a) action towards: 27
(i) assessing the corporation's compliance with the 28
provision creating the executive liability offence, 29
and 30
(ii) ensuring that the corporation arranged regular 31
professional assessments of its compliance with the 32
provision, 33
(b) action towards ensuring that the corporation's employees, 34
agents and contractors are provided with information, 35
training, instruction and supervision appropriate to them to 36
enable them to comply with the provision creating the 37
executive liability offence so far as the provision is 38
relevant to them, 39
Page 18
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
(c) action towards ensuring that: 1
(i) the plant, equipment and other resources, and 2
(ii) the structures, work systems and other processes, 3
relevant to compliance with the provision creating the 4
executive liability offence are appropriate in all the 5
circumstances, 6
(d) action towards creating and maintaining a corporate 7
culture that does not direct, encourage, tolerate or lead to 8
non-compliance with the provision creating the executive 9
liability offence. 10
98A Liability of directors etc for offences by corporation--accessory to 11
the commission of the offences 12
(1) For the purposes of this section, a corporate offence is an offence 13
against this Act or the regulations that is capable of being 14
committed by a corporation, whether or not it is an executive 15
liability offence referred to in section 98. 16
(2) A person commits an offence against this section if: 17
(a) a corporation commits a corporate offence, and 18
(b) the person is: 19
(i) a director of the corporation, or 20
(ii) an individual who is involved in the management of 21
the corporation and who is in a position to influence 22
the conduct of the corporation in relation to the 23
commission of the corporate offence, and 24
(c) the person: 25
(i) aids, abets, counsels or procures the commission of 26
the corporate offence, or 27
(ii) induces, whether by threats or promises or 28
otherwise, the commission of the corporate offence, 29
or 30
(iii) conspires with others to effect the commission of 31
the corporate offence, or 32
(iv) is in any other way, whether by act or omission, 33
knowingly concerned in, or party to, the 34
commission of the corporate offence. 35
Maximum penalty: The maximum penalty for the corporate 36
offence if committed by an individual. 37
(3) The prosecution bears the legal burden of proving the elements of 38
the offence against this section. 39
Page 19
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
(4) The offence against this section can only be prosecuted by a 1
person who can bring a prosecution for the corporate offence. 2
(5) This section does not affect the liability of the corporation for the 3
corporate offence, and applies whether or not the corporation is 4
prosecuted for, or convicted of, the corporate offence. 5
(6) This section does not affect the application of any other law 6
relating to the criminal liability of any persons (whether or not 7
directors or other managers of the corporation) who are 8
concerned in, or party to, the commission of the corporate 9
offence. 10
98B Evidence as to state of mind of corporation 11
(1) Without limiting any other law or practice regarding the 12
admissibility of evidence, evidence that an officer, employee or 13
agent of a corporation (while acting in his or her capacity as such) 14
had, at any particular time, a particular state of mind, is evidence 15
that the corporation had that state of mind. 16
(2) In this section, the state of mind of a person includes: 17
(a) the knowledge, intention, opinion, belief or purpose of the 18
person, and 19
(b) the person's reasons for the intention, opinion, belief or 20
purpose. 21
1.6 Conveyancers Licensing Act 2003 No 3 22
[1] Section 155 Offences by persons other than principal offenders 23
Insert at the end of the section: 24
(2) A person does not commit an offence because of this section for 25
any act or omission that is an offence under section 160. 26
[2] Section 160 27
Omit the section. Insert instead: 28
160 Liability of directors etc for offences by corporation--accessory to 29
the commission of the offences 30
(1) For the purposes of this section, a corporate offence is an offence 31
against this Act or the regulations that is capable of being 32
committed by a corporation. 33
(2) A person commits an offence against this section if: 34
(a) a corporation commits a corporate offence, and 35
Page 20
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
(b) the person is: 1
(i) a director of the corporation, or 2
(ii) an individual who is involved in the management of 3
the corporation and who is in a position to influence 4
the conduct of the corporation in relation to the 5
commission of the corporate offence, and 6
(c) the person: 7
(i) aids, abets, counsels or procures the commission of 8
the corporate offence, or 9
(ii) induces, whether by threats or promises or 10
otherwise, the commission of the corporate offence, 11
or 12
(iii) conspires with others to effect the commission of 13
the corporate offence, or 14
(iv) is in any other way, whether by act or omission, 15
knowingly concerned in, or party to, the 16
commission of the corporate offence. 17
Maximum penalty: The maximum penalty for the corporate 18
offence if committed by an individual. 19
(3) The prosecution bears the legal burden of proving the elements of 20
the offence against this section. 21
(4) The offence against this section can only be prosecuted by a 22
person who can bring a prosecution for the corporate offence. 23
(5) This section does not affect the liability of the corporation for the 24
corporate offence, and applies whether or not the corporation is 25
prosecuted for, or convicted of, the corporate offence. 26
(6) This section does not affect the application of any other law 27
relating to the criminal liability of any persons (whether or not 28
directors or other managers of the corporation) who are 29
concerned in, or party to, the commission of the corporate 30
offence. 31
1.7 Drug Misuse and Trafficking Act 1985 No 226 32
[1] Section 19 Aiding, abetting etc commission of offence in New South 33
Wales 34
Insert at the end of the section: 35
(2) A person does not commit an offence because of this section for 36
any act or omission that is an offence under section 43B. 37
Page 21
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
[2] Section 20 Aiding, abetting etc commission of offence outside New 1
South Wales 2
Insert at the end of the section: 3
(2) A person does not commit an offence because of this section for 4
any act or omission that is an offence under section 43B. 5
[3] Section 27 Aiding, abetting etc commission of offence in New South 6
Wales 7
Insert at the end of the section: 8
(2) A person does not commit an offence because of this section for 9
any act or omission that is an offence under section 43B. 10
[4] Section 28 Conspiring to commit and aiding etc commission of offence 11
outside New South Wales 12
Insert at the end of the section: 13
(2) A person does not commit an offence because of this section for 14
any act or omission that is an offence under section 43B. 15
[5] Section 36 Contravention of Act etc by corporations 16
Omit the section. 17
[6] Section 36ZB 18
Omit the section. Insert instead: 19
36ZB Evidence as to state of mind of corporation 20
(1) This section applies in relation to proceedings for an offence 21
committed by a corporation under this Part or regulations made 22
under this Part. 23
(2) Without limiting any other law or practice regarding the 24
admissibility of evidence, evidence that an officer, employee or 25
agent of a corporation (while acting in his or her capacity as such) 26
had, at any particular time, a particular state of mind, is evidence 27
that the corporation had that state of mind. 28
(3) In this section, the state of mind of a person includes: 29
(a) the knowledge, intention, opinion, belief or purpose of the 30
person, and 31
(b) the person's reasons for the intention, opinion, belief or 32
purpose. 33
Page 22
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
[7] Sections 43A and 43B 1
Insert after section 43: 2
43A Liability of directors etc for offences by corporation--offences 3
attracting executive liability 4
(1) For the purposes of this section, an executive liability offence is 5
an offence against the regulations: 6
(a) that is prescribed by the regulations as an offence to which 7
this section applies, and 8
(b) that is committed by a corporation. 9
(2) A person commits an offence against this section if: 10
(a) a corporation commits an executive liability offence, and 11
(b) the person is: 12
(i) a director of the corporation, or 13
(ii) an individual who is involved in the management of 14
the corporation and who is in a position to influence 15
the conduct of the corporation in relation to the 16
commission of the executive liability offence, and 17
(c) the person: 18
(i) knows or ought reasonably to know that the 19
executive liability offence (or an offence of the 20
same type) would be or is being committed, and 21
(ii) fails to take all reasonable steps to prevent or stop 22
the commission of that offence. 23
Maximum penalty: The maximum penalty for the executive 24
liability offence if committed by an individual. 25
(3) The prosecution bears the legal burden of proving the elements of 26
the offence against this section. 27
(4) The offence against this section can only be prosecuted by a 28
person who can bring a prosecution for the executive liability 29
offence. 30
(5) This section does not affect the liability of the corporation for the 31
executive liability offence, and applies whether or not the 32
corporation is prosecuted for, or convicted of, the executive 33
liability offence. 34
(6) This section does not affect the application of any other law 35
relating to the criminal liability of any persons (whether or not 36
directors or other managers of the corporation) who are 37
accessories to the commission of the executive liability offence 38
Page 23
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
or are otherwise concerned in, or party to, the commission of the 1
executive liability offence. 2
(7) In this section: 3
director has the same meaning it has in the Corporations 4
Act 2001 of the Commonwealth. 5
reasonable steps, in relation to the commission of an executive 6
liability offence, includes, but is not limited to, such action (if 7
any) of the following kinds as is reasonable in all the 8
circumstances: 9
(a) action towards: 10
(i) assessing the corporation's compliance with the 11
provision creating the executive liability offence, 12
and 13
(ii) ensuring that the corporation arranged regular 14
professional assessments of its compliance with the 15
provision, 16
(b) action towards ensuring that the corporation's employees, 17
agents and contractors are provided with information, 18
training, instruction and supervision appropriate to them to 19
enable them to comply with the provision creating the 20
executive liability offence so far as the provision is 21
relevant to them, 22
(c) action towards ensuring that: 23
(i) the plant, equipment and other resources, and 24
(ii) the structures, work systems and other processes, 25
relevant to compliance with the provision creating the 26
executive liability offence are appropriate in all the 27
circumstances, 28
(d) action towards creating and maintaining a corporate 29
culture that does not direct, encourage, tolerate or lead to 30
non-compliance with the provision creating the executive 31
liability offence. 32
43B Liability of directors etc for offences by corporation--accessory to 33
the commission of the offences 34
(1) For the purposes of this section, a corporate offence is an offence 35
against this Act or the regulations that is capable of being 36
committed by a corporation, whether or not it is an executive 37
liability offence referred to in section 43A. 38
(2) A person commits an offence against this section if: 39
(a) a corporation commits a corporate offence, and 40
Page 24
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
(b) the person is: 1
(i) a director of the corporation, or 2
(ii) an individual who is involved in the management of 3
the corporation and who is in a position to influence 4
the conduct of the corporation in relation to the 5
commission of the corporate offence, and 6
(c) the person: 7
(i) aids, abets, counsels or procures the commission of 8
the corporate offence, or 9
(ii) induces, whether by threats or promises or 10
otherwise, the commission of the corporate offence, 11
or 12
(iii) conspires with others to effect the commission of 13
the corporate offence, or 14
(iv) is in any other way, whether by act or omission, 15
knowingly concerned in, or party to, the 16
commission of the corporate offence. 17
Maximum penalty: The maximum penalty for the corporate 18
offence if committed by an individual. 19
(3) The prosecution bears the legal burden of proving the elements of 20
the offence against this section. 21
(4) The offence against this section can only be prosecuted by a 22
person who can bring a prosecution for the corporate offence. 23
(5) This section does not affect the liability of the corporation for the 24
corporate offence, and applies whether or not the corporation is 25
prosecuted for, or convicted of, the corporate offence. 26
(6) This section does not affect the application of any other law 27
relating to the criminal liability of any persons (whether or not 28
directors or other managers of the corporation) who are 29
concerned in, or party to, the commission of the corporate 30
offence. 31
Page 25
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
1.8 Drug Misuse and Trafficking Regulation 2011 1
Clause 7A 2
Insert after clause 7: 3
7A Liability of directors etc for offences by corporation--offences 4
attracting executive liability 5
An offence against clause 5, 6 or 7 is prescribed as an offence to 6
which section 43A of the Act applies. 7
Note. An offence against clause 5, 6 or 7 committed by a corporation is 8
an executive liability offence attracting executive liability for a director or 9
other person involved in the management of the corporation--see 10
section 43A of the Act. 11
1.9 Duties Act 1997 No 123 12
[1] Section 25 Aggregation of dutiable transactions 13
Insert at the end of section 25 (6): 14
Note. An offence against subsection (6) committed by a corporation is 15
an executive liability offence attracting executive liability for a director or 16
other person involved in the management of the corporation--see 17
section 121 of the Taxation Administration Act 1996. 18
[2] Section 218C Multi-jurisdictional statement 19
Insert at the end of section 218C (1): 20
Note. An offence against subsection (1) committed by a corporation is 21
an executive liability offence attracting executive liability for a director or 22
other person involved in the management of the corporation--see 23
section 121 of the Taxation Administration Act 1996. 24
[3] Section 248 Insurers must be registered 25
Insert at the end of the section: 26
Note. An offence against this section committed by a corporation is an 27
executive liability offence attracting executive liability for a director or 28
other person involved in the management of the corporation--see 29
section 121 of the Taxation Administration Act 1996. 30
[4] Section 251 Cessation of business and cancellation of registration by 31
the insurer 32
Insert at the end of section 251 (1): 33
Note. An offence against subsection (1) committed by a corporation is 34
an executive liability offence attracting executive liability for a director or 35
other person involved in the management of the corporation--see 36
section 121 of the Taxation Administration Act 1996. 37
Page 26
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
[5] Section 262 Lodgment of statement of dutiable value 1
Insert at the end of the note to the section: 2
An offence against this section committed by a corporation is an 3
executive liability offence attracting executive liability for a director or 4
other person involved in the management of the corporation--see 5
section 121 of the Taxation Administration Act 1996. 6
[6] Section 270 Exemptions for motor dealers 7
Insert at the end of section 270 (4): 8
Note. An offence against subsection (4) committed by a corporation is 9
an executive liability offence attracting executive liability for a director or 10
other person involved in the management of the corporation--see 11
section 121 of the Taxation Administration Act 1996. 12
[7] Section 286 Limitation on use of designated stamps 13
Insert at the end of section 286 (1): 14
Note. An offence against subsection (1) committed by a corporation is 15
an executive liability offence attracting executive liability for a director or 16
other person involved in the management of the corporation--see 17
section 121 of the Taxation Administration Act 1996. 18
[8] Section 296 Stamping of instruments after execution 19
Insert at the end of section 296 (1): 20
Note. An offence against subsection (1) committed by a corporation is 21
an executive liability offence attracting executive liability for a director or 22
other person involved in the management of the corporation--see 23
section 121 of the Taxation Administration Act 1996. 24
[9] Section 301 Registration of transactions and instruments 25
Insert at the end of section 301 (1): 26
Note. An offence against subsection (1) committed by a corporation is 27
an executive liability offence attracting executive liability for a director or 28
other person involved in the management of the corporation--see 29
section 121 of the Taxation Administration Act 1996. 30
1.10 Electricity (Consumer Safety) Act 2004 No 4 31
[1] Section 16 Electrical articles must meet certain standards before they 32
can be sold 33
Insert at the end of section 16 (1): 34
Note. An offence against subsection (1) committed by a corporation is 35
an executive liability offence attracting executive liability for a director or 36
other person involved in the management of the corporation--see 37
section 45. 38
Page 27
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
[2] Section 20 Person must not give false acquisition guarantee 1
Insert at the end of section 20 (1): 2
Note. An offence against subsection (1) committed by a corporation is 3
an executive liability offence attracting executive liability for a director or 4
other person involved in the management of the corporation--see 5
section 45. 6
[3] Section 24 Persons must comply with notices issued under this Division 7
Insert at the end of the section: 8
Note. An offence against subsection (1), (2) or (3) committed by a 9
corporation is an executive liability offence attracting executive liability 10
for a director or other person involved in the management of the 11
corporation--see section 45. 12
[4] Section 27 Prohibition of the sale of certain electrical articles and the 13
labelling of such articles 14
Insert at the end of section 27 (4): 15
Note. An offence against subsection (4) committed by a corporation is 16
an executive liability offence attracting executive liability for a director or 17
other person involved in the management of the corporation--see 18
section 45. 19
[5] Section 31 Electrical installation work to comply with regulations 20
Insert at the end of section 31 (1): 21
Note. An offence against subsection (1) committed by a corporation is 22
an executive liability offence attracting executive liability for a director or 23
other person involved in the management of the corporation--see 24
section 45. 25
[6] Sections 45 and 45A 26
Omit section 45. Insert instead: 27
45 Liability of directors etc for offences by corporation--offences 28
attracting executive liability 29
(1) For the purposes of this section, an executive liability offence is 30
an offence against any of the following provisions of this Act that 31
is committed by a corporation: 32
(a) section 16 (1), 33
(b) section 20 (1), 34
(c) section 24 (1)-(3), 35
(d) section 27 (4), 36
(e) section 31 (1). 37
Page 28
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
(2) A person commits an offence against this section if: 1
(a) a corporation commits an executive liability offence, and 2
(b) the person is: 3
(i) a director of the corporation, or 4
(ii) an individual who is involved in the management of 5
the corporation and who is in a position to influence 6
the conduct of the corporation in relation to the 7
commission of the executive liability offence, and 8
(c) the person: 9
(i) knows or ought reasonably to know that the 10
executive liability offence (or an offence of the 11
same type) would be or is being committed, and 12
(ii) fails to take all reasonable steps to prevent or stop 13
the commission of that offence. 14
Maximum penalty: The maximum penalty for the executive 15
liability offence if committed by an individual. 16
(3) The prosecution bears the legal burden of proving the elements of 17
the offence against this section. 18
(4) The offence against this section can only be prosecuted by a 19
person who can bring a prosecution for the executive liability 20
offence. 21
(5) This section does not affect the liability of the corporation for the 22
executive liability offence, and applies whether or not the 23
corporation is prosecuted for, or convicted of, the executive 24
liability offence. 25
(6) This section does not affect the application of any other law 26
relating to the criminal liability of any persons (whether or not 27
directors or other managers of the corporation) who are 28
accessories to the commission of the executive liability offence 29
or are otherwise concerned in, or party to, the commission of the 30
executive liability offence. 31
(7) In this section: 32
director has the same meaning it has in the Corporations 33
Act 2001 of the Commonwealth. 34
reasonable steps, in relation to the commission of an executive 35
liability offence, includes, but is not limited to, such action (if 36
Page 29
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
any) of the following kinds as is reasonable in all the 1
circumstances: 2
(a) action towards: 3
(i) assessing the corporation's compliance with the 4
provision creating the executive liability offence, 5
and 6
(ii) ensuring that the corporation arranged regular 7
professional assessments of its compliance with the 8
provision, 9
(b) action towards ensuring that the corporation's employees, 10
agents and contractors are provided with information, 11
training, instruction and supervision appropriate to them to 12
enable them to comply with the provision creating the 13
executive liability offence so far as the provision is 14
relevant to them, 15
(c) action towards ensuring that: 16
(i) the plant, equipment and other resources, and 17
(ii) the structures, work systems and other processes, 18
relevant to compliance with the provision creating the 19
executive liability offence are appropriate in all the 20
circumstances, 21
(d) action towards creating and maintaining a corporate 22
culture that does not direct, encourage, tolerate or lead to 23
non-compliance with the provision creating the executive 24
liability offence. 25
45A Liability of directors etc for offences by corporation--accessory to 26
the commission of the offences 27
(1) For the purposes of this section, a corporate offence is an offence 28
against this Act or the regulations that is capable of being 29
committed by a corporation, whether or not it is an executive 30
liability offence referred to in section 45. 31
(2) A person commits an offence against this section if: 32
(a) a corporation commits a corporate offence, and 33
(b) the person is: 34
(i) a director of the corporation, or 35
(ii) an individual who is involved in the management of 36
the corporation and who is in a position to influence 37
the conduct of the corporation in relation to the 38
commission of the corporate offence, and 39
Page 30
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
(c) the person: 1
(i) aids, abets, counsels or procures the commission of 2
the corporate offence, or 3
(ii) induces, whether by threats or promises or 4
otherwise, the commission of the corporate offence, 5
or 6
(iii) conspires with others to effect the commission of 7
the corporate offence, or 8
(iv) is in any other way, whether by act or omission, 9
knowingly concerned in, or party to, the 10
commission of the corporate offence. 11
Maximum penalty: The maximum penalty for the corporate 12
offence if committed by an individual. 13
(3) The prosecution bears the legal burden of proving the elements of 14
the offence against this section. 15
(4) The offence against this section can only be prosecuted by a 16
person who can bring a prosecution for the corporate offence. 17
(5) This section does not affect the liability of the corporation for the 18
corporate offence, and applies whether or not the corporation is 19
prosecuted for, or convicted of, the corporate offence. 20
(6) This section does not affect the application of any other law 21
relating to the criminal liability of any persons (whether or not 22
directors or other managers of the corporation) who are 23
concerned in, or party to, the commission of the corporate 24
offence. 25
1.11 Environmentally Hazardous Chemicals Act 1985 No 14 26
[1] Section 26 Orders to be observed 27
Insert at the end of the section: 28
Note. An offence against this section committed by a corporation is an 29
executive liability offence attracting executive liability for a director or 30
other person involved in the management of the corporation--see 31
section 53. 32
[2] Section 32 Licence conditions 33
Insert at the end of section 32 (2): 34
Note. An offence against subsection (2) committed by a corporation is 35
an executive liability offence attracting executive liability for a director or 36
other person involved in the management of the corporation--see 37
section 53. 38
Page 31
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
[3] Sections 53 and 53A 1
Omit section 53. Insert instead: 2
53 Liability of directors etc for offences by corporation--offences 3
attracting executive liability 4
(1) For the purposes of this section, an executive liability offence is 5
an offence against any of the following provisions of this Act that 6
is committed by a corporation: 7
(a) section 26, 8
(b) section 32 (2). 9
(2) A person commits an offence against this section if: 10
(a) a corporation commits an executive liability offence, and 11
(b) the person is: 12
(i) a director of the corporation, or 13
(ii) an individual who is involved in the management of 14
the corporation and who is in a position to influence 15
the conduct of the corporation in relation to the 16
commission of the executive liability offence, and 17
(c) the person: 18
(i) knows or ought reasonably to know that the 19
executive liability offence (or an offence of the 20
same type) would be or is being committed, and 21
(ii) fails to take all reasonable steps to prevent or stop 22
the commission of that offence. 23
Maximum penalty: The maximum penalty for the executive 24
liability offence if committed by an individual. 25
(3) The prosecution bears the legal burden of proving the elements of 26
the offence against this section. 27
(4) The offence against this section can only be prosecuted by a 28
person who can bring a prosecution for the executive liability 29
offence. 30
(5) This section does not affect the liability of the corporation for the 31
executive liability offence, and applies whether or not the 32
corporation is prosecuted for, or convicted of, the executive 33
liability offence. 34
(6) This section does not affect the application of any other law 35
relating to the criminal liability of any persons (whether or not 36
directors or other managers of the corporation) who are 37
accessories to the commission of the executive liability offence 38
Page 32
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
or are otherwise concerned in, or party to, the commission of the 1
executive liability offence. 2
(7) In this section: 3
director has the same meaning it has in the Corporations 4
Act 2001 of the Commonwealth. 5
reasonable steps, in relation to the commission of an executive 6
liability offence, includes, but is not limited to, such action (if 7
any) of the following kinds as is reasonable in all the 8
circumstances: 9
(a) action towards: 10
(i) assessing the corporation's compliance with the 11
provision creating the executive liability offence, 12
and 13
(ii) ensuring that the corporation arranged regular 14
professional assessments of its compliance with the 15
provision, 16
(b) action towards ensuring that the corporation's employees, 17
agents and contractors are provided with information, 18
training, instruction and supervision appropriate to them to 19
enable them to comply with the provision creating the 20
executive liability offence so far as the provision is 21
relevant to them, 22
(c) action towards ensuring that: 23
(i) the plant, equipment and other resources, and 24
(ii) the structures, work systems and other processes, 25
relevant to compliance with the provision creating the 26
executive liability offence are appropriate in all the 27
circumstances, 28
(d) action towards creating and maintaining a corporate 29
culture that does not direct, encourage, tolerate or lead to 30
non-compliance with the provision creating the executive 31
liability offence. 32
53A Liability of directors etc for offences by corporation--accessory to 33
the commission of the offences 34
(1) For the purposes of this section, a corporate offence is an offence 35
against this Act or the regulations that is capable of being 36
committed by a corporation, whether or not it is an executive 37
liability offence referred to in section 53. 38
(2) A person commits an offence against this section if: 39
(a) a corporation commits a corporate offence, and 40
Page 33
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
(b) the person is: 1
(i) a director of the corporation, or 2
(ii) an individual who is involved in the management of 3
the corporation and who is in a position to influence 4
the conduct of the corporation in relation to the 5
commission of the corporate offence, and 6
(c) the person: 7
(i) aids, abets, counsels or procures the commission of 8
the corporate offence, or 9
(ii) induces, whether by threats or promises or 10
otherwise, the commission of the corporate offence, 11
or 12
(iii) conspires with others to effect the commission of 13
the corporate offence, or 14
(iv) is in any other way, whether by act or omission, 15
knowingly concerned in, or party to, the 16
commission of the corporate offence. 17
Maximum penalty: The maximum penalty for the corporate 18
offence if committed by an individual. 19
(3) The prosecution bears the legal burden of proving the elements of 20
the offence against this section. 21
(4) The offence against this section can only be prosecuted by a 22
person who can bring a prosecution for the corporate offence. 23
(5) This section does not affect the liability of the corporation for the 24
corporate offence, and applies whether or not the corporation is 25
prosecuted for, or convicted of, the corporate offence. 26
(6) This section does not affect the application of any other law 27
relating to the criminal liability of any persons (whether or not 28
directors or other managers of the corporation) who are 29
concerned in, or party to, the commission of the corporate 30
offence. 31
1.12 Explosives Act 2003 No 39 32
[1] Section 6 Licences required for handling explosives and explosive 33
precursors 34
Insert at the end of section 6 (1): 35
Note. An offence against subsection (1) committed by a corporation is 36
an executive liability offence attracting executive liability for a director or 37
other person involved in the management of the corporation--see 38
section 33. 39
Page 34
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
[2] Sections 33 and 33A 1
Omit section 33. Insert instead: 2
33 Liability of directors etc for offences by corporation--offences 3
attracting executive liability 4
(1) For the purposes of this section, an executive liability offence is 5
an offence against any of the following provisions of this Act that 6
is committed by a corporation: 7
section 6 (1) 8
(2) A person commits an offence against this section if: 9
(a) a corporation commits an executive liability offence, and 10
(b) the person is: 11
(i) a director of the corporation, or 12
(ii) an individual who is involved in the management of 13
the corporation and who is in a position to influence 14
the conduct of the corporation in relation to the 15
commission of the executive liability offence, and 16
(c) the person: 17
(i) knows or ought reasonably to know that the 18
executive liability offence (or an offence of the 19
same type) would be or is being committed, and 20
(ii) fails to take all reasonable steps to prevent or stop 21
the commission of that offence. 22
Maximum penalty: The maximum penalty for the executive 23
liability offence if committed by an individual. 24
(3) The prosecution bears the legal burden of proving the elements of 25
the offence against this section. 26
(4) The offence against this section can only be prosecuted by a 27
person who can bring a prosecution for the executive liability 28
offence. 29
(5) This section does not affect the liability of the corporation for the 30
executive liability offence, and applies whether or not the 31
corporation is prosecuted for, or convicted of, the executive 32
liability offence. 33
(6) This section does not affect the application of any other law 34
relating to the criminal liability of any persons (whether or not 35
directors or other managers of the corporation) who are 36
accessories to the commission of the executive liability offence 37
or are otherwise concerned in, or party to, the commission of the 38
executive liability offence. 39
Page 35
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
(7) In this section: 1
director has the same meaning it has in the Corporations 2
Act 2001 of the Commonwealth. 3
reasonable steps, in relation to the commission of an executive 4
liability offence, includes, but is not limited to, such action (if 5
any) of the following kinds as is reasonable in all the 6
circumstances: 7
(a) action towards: 8
(i) assessing the corporation's compliance with the 9
provision creating the executive liability offence, 10
and 11
(ii) ensuring that the corporation arranged regular 12
professional assessments of its compliance with the 13
provision, 14
(b) action towards ensuring that the corporation's employees, 15
agents and contractors are provided with information, 16
training, instruction and supervision appropriate to them to 17
enable them to comply with the provision creating the 18
executive liability offence so far as the provision is 19
relevant to them, 20
(c) action towards ensuring that: 21
(i) the plant, equipment and other resources, and 22
(ii) the structures, work systems and other processes, 23
relevant to compliance with the provision creating the 24
executive liability offence are appropriate in all the 25
circumstances, 26
(d) action towards creating and maintaining a corporate 27
culture that does not direct, encourage, tolerate or lead to 28
non-compliance with the provision creating the executive 29
liability offence. 30
33A Liability of directors etc for offences by corporation--accessory to 31
the commission of the offences 32
(1) For the purposes of this section, a corporate offence is an offence 33
against this Act or the regulations that is capable of being 34
committed by a corporation, whether or not it is an executive 35
liability offence referred to in section 33. 36
(2) A person commits an offence against this section if: 37
(a) a corporation commits a corporate offence, and 38
(b) the person is: 39
(i) a director of the corporation, or 40
Page 36
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
(ii) an individual who is involved in the management of 1
the corporation and who is in a position to influence 2
the conduct of the corporation in relation to the 3
commission of the corporate offence, and 4
(c) the person: 5
(i) aids, abets, counsels or procures the commission of 6
the corporate offence, or 7
(ii) induces, whether by threats or promises or 8
otherwise, the commission of the corporate offence, 9
or 10
(iii) conspires with others to effect the commission of 11
the corporate offence, or 12
(iv) is in any other way, whether by act or omission, 13
knowingly concerned in, or party to, the 14
commission of the corporate offence. 15
Maximum penalty: The maximum penalty for the corporate 16
offence if committed by an individual. 17
(3) The prosecution bears the legal burden of proving the elements of 18
the offence against this section. 19
(4) The offence against this section can only be prosecuted by a 20
person who can bring a prosecution for the corporate offence. 21
(5) This section does not affect the liability of the corporation for the 22
corporate offence, and applies whether or not the corporation is 23
prosecuted for, or convicted of, the corporate offence. 24
(6) This section does not affect the application of any other law 25
relating to the criminal liability of any persons (whether or not 26
directors or other managers of the corporation) who are 27
concerned in, or party to, the commission of the corporate 28
offence. 29
1.13 Food Act 2003 No 43 30
[1] Section 13 Handling of food in unsafe manner 31
Insert at the end of the section: 32
Note. An offence against this section committed by a corporation is an 33
executive liability offence attracting executive liability for a director or 34
other person involved in the management of the corporation--see 35
section 122. 36
Page 37
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
[2] Section 14 Sale of unsafe food 1
Insert at the end of the section: 2
Note. An offence against this section committed by a corporation is an 3
executive liability offence attracting executive liability for a director or 4
other person involved in the management of the corporation--see 5
section 122. 6
[3] Section 15 False description of food 7
Insert at the end of the section: 8
Note. An offence against this section committed by a corporation is an 9
executive liability offence attracting executive liability for a director or 10
other person involved in the management of the corporation--see 11
section 122. 12
[4] Section 16 Handling and sale of unsafe food 13
Insert at the end of the section: 14
Note. An offence against this section committed by a corporation is an 15
executive liability offence attracting executive liability for a director or 16
other person involved in the management of the corporation--see 17
section 122. 18
[5] Section 17 Handling and sale of unsuitable food 19
Insert at the end of the section: 20
Note. An offence against subsection (1) or (2) committed by a 21
corporation is an executive liability offence attracting executive liability 22
for a director or other person involved in the management of the 23
corporation--see section 122. 24
[6] Section 18 Misleading conduct relating to sale of food 25
Insert at the end of the section: 26
Note. An offence against subsection (1), (2) or (3) committed by a 27
corporation is an executive liability offence attracting executive liability 28
for a director or other person involved in the management of the 29
corporation--see section 122. 30
[7] Section 19 Sale of food not complying with purchaser's demand 31
Insert at the end of section 19 (1): 32
Note. An offence against subsection (1) committed by a corporation is 33
an executive liability offence attracting executive liability for a director or 34
other person involved in the management of the corporation--see 35
section 122. 36
[8] Section 20 Sale of unfit equipment or packaging or labelling material 37
Insert at the end of the section: 38
Note. An offence against this section committed by a corporation is an 39
executive liability offence attracting executive liability for a director or 40
Page 38
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
other person involved in the management of the corporation--see 1
section 122. 2
[9] Section 21 Compliance with Food Standards Code 3
Insert at the end of the section: 4
Note. An offence against subsection (1)-(4) committed by a corporation 5
is an executive liability offence attracting executive liability for a director 6
or other person involved in the management of the corporation--see 7
section 122. 8
[10] Section 35 Failure to comply with emergency order 9
Insert at the end of the section: 10
Note. An offence against this section committed by a corporation is an 11
executive liability offence attracting executive liability for a director or 12
other person involved in the management of the corporation--see 13
section 122. 14
[11] Section 64 Contravention of prohibition order 15
Insert at the end of the section: 16
Note. An offence against this section committed by a corporation is an 17
executive liability offence attracting executive liability for a director or 18
other person involved in the management of the corporation--see 19
section 122. 20
[12] Section 104 Offences relating to food safety schemes 21
Insert at the end of the section: 22
Note. An offence against subsection (1)-(4) committed by a corporation 23
is an executive liability offence attracting executive liability for a director 24
or other person involved in the management of the corporation--see 25
section 122. 26
[13] Sections 122-122B 27
Omit section 122. Insert instead: 28
122 Liability of directors etc for offences by corporation--offences 29
attracting executive liability 30
(1) For the purposes of this section, an executive liability offence is 31
an offence against any of the following provisions of this Act that 32
is committed by a corporation: 33
(a) section 13, 34
(b) section 14, 35
(c) section 15, 36
(d) section 16, 37
(e) section 17 (1) or (2), 38
Page 39
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
(f) section 18 (1)-(3), 1
(g) section 19 (1), 2
(h) section 20, 3
(i) section 21 (1)-(4), 4
(j) section 35, 5
(k) section 64, 6
(l) section 104 (1)-(4). 7
(2) A person commits an offence against this section if: 8
(a) a corporation commits an executive liability offence, and 9
(b) the person is: 10
(i) a director of the corporation, or 11
(ii) an individual who is involved in the management of 12
the corporation and who is in a position to influence 13
the conduct of the corporation in relation to the 14
commission of the executive liability offence, and 15
(c) the person: 16
(i) knows or ought reasonably to know that the 17
executive liability offence (or an offence of the 18
same type) would be or is being committed, and 19
(ii) fails to take all reasonable steps to prevent or stop 20
the commission of that offence. 21
Maximum penalty: The maximum penalty for the executive 22
liability offence if committed by an individual. 23
(3) The prosecution bears the legal burden of proving the elements of 24
the offence against this section. 25
(4) The offence against this section can only be prosecuted by a 26
person who can bring a prosecution for the executive liability 27
offence. 28
(5) This section does not affect the liability of the corporation for the 29
executive liability offence, and applies whether or not the 30
corporation is prosecuted for, or convicted of, the executive 31
liability offence. 32
(6) This section does not affect the application of any other law 33
relating to the criminal liability of any persons (whether or not 34
directors or other managers of the corporation) who are 35
accessories to the commission of the executive liability offence 36
or are otherwise concerned in, or party to, the commission of the 37
executive liability offence. 38
Page 40
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
(7) In this section: 1
director has the same meaning it has in the Corporations 2
Act 2001 of the Commonwealth. 3
reasonable steps, in relation to the commission of an executive 4
liability offence, includes, but is not limited to, such action (if 5
any) of the following kinds as is reasonable in all the 6
circumstances: 7
(a) action towards: 8
(i) assessing the corporation's compliance with the 9
provision creating the executive liability offence, 10
and 11
(ii) ensuring that the corporation arranged regular 12
professional assessments of its compliance with the 13
provision, 14
(b) action towards ensuring that the corporation's employees, 15
agents and contractors are provided with information, 16
training, instruction and supervision appropriate to them to 17
enable them to comply with the provision creating the 18
executive liability offence so far as the provision is 19
relevant to them, 20
(c) action towards ensuring that: 21
(i) the plant, equipment and other resources, and 22
(ii) the structures, work systems and other processes, 23
relevant to compliance with the provision creating the 24
executive liability offence are appropriate in all the 25
circumstances, 26
(d) action towards creating and maintaining a corporate 27
culture that does not direct, encourage, tolerate or lead to 28
non-compliance with the provision creating the executive 29
liability offence. 30
122A Liability of directors etc for offences by corporation--accessory to 31
the commission of the offences 32
(1) For the purposes of this section, a corporate offence is an offence 33
against this Act or the regulations that is capable of being 34
committed by a corporation, whether or not it is an executive 35
liability offence referred to in section 122. 36
(2) A person commits an offence against this section if: 37
(a) a corporation commits a corporate offence, and 38
(b) the person is: 39
(i) a director of the corporation, or 40
Page 41
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
(ii) an individual who is involved in the management of 1
the corporation and who is in a position to influence 2
the conduct of the corporation in relation to the 3
commission of the corporate offence, and 4
(c) the person: 5
(i) aids, abets, counsels or procures the commission of 6
the corporate offence, or 7
(ii) induces, whether by threats or promises or 8
otherwise, the commission of the corporate offence, 9
or 10
(iii) conspires with others to effect the commission of 11
the corporate offence, or 12
(iv) is in any other way, whether by act or omission, 13
knowingly concerned in, or party to, the 14
commission of the corporate offence. 15
Maximum penalty: The maximum penalty for the corporate 16
offence if committed by an individual. 17
(3) The prosecution bears the legal burden of proving the elements of 18
the offence against this section. 19
(4) The offence against this section can only be prosecuted by a 20
person who can bring a prosecution for the corporate offence. 21
(5) This section does not affect the liability of the corporation for the 22
corporate offence, and applies whether or not the corporation is 23
prosecuted for, or convicted of, the corporate offence. 24
(6) This section does not affect the application of any other law 25
relating to the criminal liability of any persons (whether or not 26
directors or other managers of the corporation) who are 27
concerned in, or party to, the commission of the corporate 28
offence. 29
122B Evidence as to state of mind of corporation 30
(1) Without limiting any other law or practice regarding the 31
admissibility of evidence, evidence that an officer, employee or 32
agent of a corporation (while acting in his or her capacity as such) 33
had, at any particular time, a particular state of mind, is evidence 34
that the corporation had that state of mind. 35
Page 42
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
(2) In this section, the state of mind of a person includes: 1
(a) the knowledge, intention, opinion, belief or purpose of the 2
person, and 3
(b) the person's reasons for the intention, opinion, belief or 4
purpose. 5
1.14 Forestry Act 1916 No 55 6
[1] Section 29 Penalty for unlawfully working sawmill 7
Omit section 29 (3). 8
[2] Section 49 9
Insert after section 48: 10
49 Liability of directors etc for offences by corporation--accessory to 11
the commission of the offences 12
(1) For the purposes of this section, a corporate offence is an offence 13
against this Act or the regulations that is capable of being 14
committed by a corporation. 15
(2) A person commits an offence against this section if: 16
(a) a corporation commits a corporate offence, and 17
(b) the person is: 18
(i) a director of the corporation, or 19
(ii) an individual who is involved in the management of 20
the corporation and who is in a position to influence 21
the conduct of the corporation in relation to the 22
commission of the corporate offence, and 23
(c) the person: 24
(i) aids, abets, counsels or procures the commission of 25
the corporate offence, or 26
(ii) induces, whether by threats or promises or 27
otherwise, the commission of the corporate offence, 28
or 29
(iii) conspires with others to effect the commission of 30
the corporate offence, or 31
(iv) is in any other way, whether by act or omission, 32
knowingly concerned in, or party to, the 33
commission of the corporate offence. 34
Maximum penalty: The maximum penalty for the corporate 35
offence if committed by an individual. 36
Page 43
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
(3) The prosecution bears the legal burden of proving the elements of 1
the offence against this section. 2
(4) The offence against this section can only be prosecuted by a 3
person who can bring a prosecution for the corporate offence. 4
(5) This section does not affect the liability of the corporation for the 5
corporate offence, and applies whether or not the corporation is 6
prosecuted for, or convicted of, the corporate offence. 7
(6) This section does not affect the application of any other law 8
relating to the criminal liability of any persons (whether or not 9
directors or other managers of the corporation) who are 10
concerned in, or party to, the commission of the corporate 11
offence. 12
1.15 Funeral Funds Act 1979 No 106 13
Section 90 14
Omit the section. Insert instead: 15
90 Liability of directors etc for offences by corporation--accessory to 16
the commission of the offences 17
(1) For the purposes of this section, a corporate offence is an offence 18
against this Act or the regulations that is capable of being 19
committed by a corporation. 20
(2) A person commits an offence against this section if: 21
(a) a corporation commits a corporate offence, and 22
(b) the person is: 23
(i) a director of the corporation, or 24
(ii) an individual who is involved in the management of 25
the corporation and who is in a position to influence 26
the conduct of the corporation in relation to the 27
commission of the corporate offence, and 28
(c) the person: 29
(i) aids, abets, counsels or procures the commission of 30
the corporate offence, or 31
(ii) induces, whether by threats or promises or 32
otherwise, the commission of the corporate offence, 33
or 34
(iii) conspires with others to effect the commission of 35
the corporate offence, or 36
Page 44
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
(iv) is in any other way, whether by act or omission, 1
knowingly concerned in, or party to, the 2
commission of the corporate offence. 3
Maximum penalty: The maximum penalty for the corporate 4
offence if committed by an individual. 5
(3) The prosecution bears the legal burden of proving the elements of 6
the offence against this section. 7
(4) The offence against this section can only be prosecuted by a 8
person who can bring a prosecution for the corporate offence. 9
(5) This section does not affect the liability of the corporation for the 10
corporate offence, and applies whether or not the corporation is 11
prosecuted for, or convicted of, the corporate offence. 12
(6) This section does not affect the application of any other law 13
relating to the criminal liability of any persons (whether or not 14
directors or other managers of the corporation) who are 15
concerned in, or party to, the commission of the corporate 16
offence. 17
1.16 Gaming Machines Act 2001 No 127 18
[1] Section 199A 19
Insert after section 199: 20
199A Liability of directors etc for offences by corporation--accessory to 21
the commission of the offences 22
(1) For the purposes of this section, a corporate offence is an offence 23
against this Act or the regulations that is capable of being 24
committed by a corporation. 25
(2) A person commits an offence against this section if: 26
(a) a corporation commits a corporate offence, and 27
(b) the person is: 28
(i) a director of the corporation, or 29
(ii) an individual who is involved in the management of 30
the corporation and who is in a position to influence 31
the conduct of the corporation in relation to the 32
commission of the corporate offence, and 33
(c) the person: 34
(i) aids, abets, counsels or procures the commission of 35
the corporate offence, or 36
Page 45
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
(ii) induces, whether by threats or promises or 1
otherwise, the commission of the corporate offence, 2
or 3
(iii) conspires with others to effect the commission of 4
the corporate offence, or 5
(iv) is in any other way, whether by act or omission, 6
knowingly concerned in, or party to, the 7
commission of the corporate offence. 8
Maximum penalty: The maximum penalty for the corporate 9
offence if committed by an individual. 10
(3) The prosecution bears the legal burden of proving the elements of 11
the offence against this section. 12
(4) The offence against this section can only be prosecuted by a 13
person who can bring a prosecution for the corporate offence. 14
(5) This section does not affect the liability of the corporation for the 15
corporate offence, and applies whether or not the corporation is 16
prosecuted for, or convicted of, the corporate offence. 17
(6) This section does not affect the application of any other section 18
of this Act or any other law relating to the criminal liability of any 19
persons (whether or not directors or other managers of the 20
corporation) who are concerned in, or party to, the commission of 21
the corporate offence. 22
[2] Section 200 Offences by corporate hoteliers 23
Omit section 200 (2). Insert instead: 24
(2) If a hotelier that is a corporation is taken to have contravened 25
(whether by act or omission) a provision of this Act or the 26
regulations by reason of a contravention by the manager of the 27
hotel, each person who occupies a position of authority in the 28
corporation is taken to have contravened the provision if the 29
person knowingly authorised or permitted the contravention. 30
[3] Section 201 Liability of secretary of club and members of governing 31
body 32
Omit section 201 (1). Insert instead: 33
(1) If a club contravenes a provision of this Act or the regulations, the 34
secretary and members of the governing body of the club are, 35
whether or not the club is convicted for the contravention, each 36
taken to have contravened the provision if the person charged 37
knowingly authorised or permitted the contravention. 38
Page 46
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
[4] Section 202 Liability of management and directors of corporate holders 1
of gaming-related licences 2
Omit section 202 (1). Insert instead: 3
(1) If the holder of a gaming-related licence that is a corporation 4
contravenes a provision of this Act or the regulations, each 5
person who is a director of the corporation or who is concerned 6
in the management of the corporation is, whether or not the 7
corporation has been convicted for the contravention, taken to 8
have contravened the provision if the person knowingly 9
authorised or permitted the contravention. 10
1.17 Health Insurance Levies Act 1982 No 159 11
Section 11 Requirement to furnish a monthly return 12
Insert at the end of the section: 13
Note. An offence against this section committed by a corporation is an 14
executive liability offence attracting executive liability for a director or 15
other person involved in the management of the corporation--see 16
section 121 of the Taxation Administration Act 1996. 17
1.18 Heritage Act 1977 No 136 18
Section 159 19
Omit the section. Insert instead: 20
159 Liability of directors etc for offences by corporation--accessory to 21
the commission of the offences 22
(1) For the purposes of this section, a corporate offence is an offence 23
against this Act or the regulations that is capable of being 24
committed by a corporation. 25
(2) A person commits an offence against this section if: 26
(a) a corporation commits a corporate offence, and 27
(b) the person is: 28
(i) a director of the corporation, or 29
(ii) an individual who is involved in the management of 30
the corporation and who is in a position to influence 31
the conduct of the corporation in relation to the 32
commission of the corporate offence, and 33
(c) the person: 34
(i) aids, abets, counsels or procures the commission of 35
the corporate offence, or 36
Page 47
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
(ii) induces, whether by threats or promises or 1
otherwise, the commission of the corporate offence, 2
or 3
(iii) conspires with others to effect the commission of 4
the corporate offence, or 5
(iv) is in any other way, whether by act or omission, 6
knowingly concerned in, or party to, the 7
commission of the corporate offence. 8
Maximum penalty: The maximum penalty for the corporate 9
offence if committed by an individual. 10
(3) The prosecution bears the legal burden of proving the elements of 11
the offence against this section. 12
(4) The offence against this section can only be prosecuted by a 13
person who can bring a prosecution for the corporate offence. 14
(5) This section does not affect the liability of the corporation for the 15
corporate offence, and applies whether or not the corporation is 16
prosecuted for, or convicted of, the corporate offence. 17
(6) This section does not affect the application of any other law 18
relating to the criminal liability of any persons (whether or not 19
directors or other managers of the corporation) who are 20
concerned in, or party to, the commission of the corporate 21
offence. 22
1.19 Jury Act 1977 No 18 23
Section 70 24
Omit the section. Insert instead: 25
70 Liability of directors etc for offences by corporation--accessory to 26
the commission of the offences 27
(1) For the purposes of this section, a corporate offence is an offence 28
against this Act or the regulations that is capable of being 29
committed by a corporation. 30
(2) A person commits an offence against this section if: 31
(a) a corporation commits a corporate offence, and 32
(b) the person is: 33
(i) a director of the corporation, or 34
(ii) an individual who is involved in the management of 35
the corporation and who is in a position to influence 36
Page 48
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
the conduct of the corporation in relation to the 1
commission of the corporate offence, and 2
(c) the person: 3
(i) aids, abets, counsels or procures the commission of 4
the corporate offence, or 5
(ii) induces, whether by threats or promises or 6
otherwise, the commission of the corporate offence, 7
or 8
(iii) conspires with others to effect the commission of 9
the corporate offence, or 10
(iv) is in any other way, whether by act or omission, 11
knowingly concerned in, or party to, the 12
commission of the corporate offence. 13
Maximum penalty: The maximum penalty for the corporate 14
offence if committed by an individual. 15
(3) The prosecution bears the legal burden of proving the elements of 16
the offence against this section. 17
(4) The offence against this section can only be prosecuted by a 18
person who can bring a prosecution for the corporate offence. 19
(5) This section does not affect the liability of the corporation for the 20
corporate offence, and applies whether or not the corporation is 21
prosecuted for, or convicted of, the corporate offence. 22
(6) This section does not affect the application of any other law 23
relating to the criminal liability of any persons (whether or not 24
directors or other managers of the corporation) who are 25
concerned in, or party to, the commission of the corporate 26
offence. 27
1.20 Landlord and Tenant (Amendment) Act 1948 No 25 28
[1] Section 95 Offences and penalties 29
Omit section 95 (4). 30
[2] Section 95A 31
Insert after section 95: 32
95A Liability of directors etc for offences by corporation--accessory to 33
the commission of the offences 34
(1) For the purposes of this section, a corporate offence is an offence 35
against this Act or the regulations that is capable of being 36
committed by a corporation. 37
Page 49
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
(2) A person commits an offence against this section if: 1
(a) a corporation commits a corporate offence, and 2
(b) the person is: 3
(i) a director of the corporation, or 4
(ii) an individual who is involved in the management of 5
the corporation and who is in a position to influence 6
the conduct of the corporation in relation to the 7
commission of the corporate offence, and 8
(c) the person: 9
(i) aids, abets, counsels or procures the commission of 10
the corporate offence, or 11
(ii) induces, whether by threats or promises or 12
otherwise, the commission of the corporate offence, 13
or 14
(iii) conspires with others to effect the commission of 15
the corporate offence, or 16
(iv) is in any other way, whether by act or omission, 17
knowingly concerned in, or party to, the 18
commission of the corporate offence. 19
Maximum penalty: The maximum penalty for the corporate 20
offence if committed by an individual. 21
(3) The prosecution bears the legal burden of proving the elements of 22
the offence against this section. 23
(4) The offence against this section can only be prosecuted by a 24
person who can bring a prosecution for the corporate offence. 25
(5) This section does not affect the liability of the corporation for the 26
corporate offence, and applies whether or not the corporation is 27
prosecuted for, or convicted of, the corporate offence. 28
(6) This section does not affect the application of any other law 29
relating to the criminal liability of any persons (whether or not 30
directors or other managers of the corporation) who are 31
concerned in, or party to, the commission of the corporate 32
offence. 33
Page 50
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
1.21 Liquor Act 2007 No 90 1
[1] Sections 71 and 71A 2
Omit section 71. Insert instead: 3
71 Liability of directors etc for offences by corporation--accessory to 4
the commission of the offences 5
(1) For the purposes of this section, a corporate offence is an offence 6
against this Act or the regulations that is capable of being 7
committed by a corporation (including a licensee that is a 8
corporation). 9
(2) A person commits an offence against this section if: 10
(a) a corporation commits a corporate offence, and 11
(b) the person is: 12
(i) a director of the corporation, or 13
(ii) an individual who is involved in the management of 14
the corporation and who is in a position to influence 15
the conduct of the corporation in relation to the 16
commission of the corporate offence, and 17
(c) the person: 18
(i) aids, abets, counsels or procures the commission of 19
the corporate offence, or 20
(ii) induces, whether by threats or promises or 21
otherwise, the commission of the corporate offence, 22
or 23
(iii) conspires with others to effect the commission of 24
the corporate offence, or 25
(iv) is in any other way, whether by act or omission, 26
knowingly concerned in, or party to, the 27
commission of the corporate offence. 28
Maximum penalty: The maximum penalty for the corporate 29
offence if committed by an individual. 30
(3) The prosecution bears the legal burden of proving the elements of 31
the offence against this section. 32
(4) The offence against this section can only be prosecuted by a 33
person who can bring a prosecution for the corporate offence. 34
(5) This section does not affect the liability of the corporation for the 35
corporate offence, and applies whether or not the corporation is 36
prosecuted for, or convicted of, the corporate offence. 37
Page 51
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
(6) This section does not affect the application of any other law 1
relating to the criminal liability of any persons (whether or not 2
directors or other managers of the corporation) who are 3
concerned in, or party to, the commission of the corporate 4
offence. 5
71A Evidence as to state of mind of corporation 6
(1) Without limiting any other law or practice regarding the 7
admissibility of evidence, evidence that an officer, employee or 8
agent of a corporation (while acting in his or her capacity as such) 9
had, at any particular time, a particular state of mind, is evidence 10
that the corporation had that state of mind. 11
(2) In this section, the state of mind of a person includes: 12
(a) the knowledge, intention, opinion, belief or purpose of the 13
person, and 14
(b) the person's reasons for the intention, opinion, belief or 15
purpose. 16
[2] Section 72 Corporate licences--interpretative provisions 17
Omit "However for the purposes of section 71, a person who is a director of a 18
registered club is not a person who occupies a position of authority in that 19
corporation." from section 72 (1). 20
1.22 Loan Fund Companies Act 1976 No 94 21
Section 67 22
Omit the section. Insert instead: 23
67 Liability of directors etc for offences by corporation--accessory to 24
the commission of the offences 25
(1) For the purposes of this section, a corporate offence is an offence 26
against this Act or the regulations that is capable of being 27
committed by a corporation. 28
(2) A person commits an offence against this section if: 29
(a) a corporation commits a corporate offence, and 30
(b) the person is: 31
(i) a director of the corporation, or 32
(ii) an individual who is involved in the management of 33
the corporation and who is in a position to influence 34
the conduct of the corporation in relation to the 35
commission of the corporate offence, and 36
Page 52
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
(c) the person: 1
(i) aids, abets, counsels or procures the commission of 2
the corporate offence, or 3
(ii) induces, whether by threats or promises or 4
otherwise, the commission of the corporate offence, 5
or 6
(iii) conspires with others to effect the commission of 7
the corporate offence, or 8
(iv) is in any other way, whether by act or omission, 9
knowingly concerned in, or party to, the 10
commission of the corporate offence. 11
Maximum penalty: The maximum penalty for the corporate 12
offence if committed by an individual. 13
(3) The prosecution bears the legal burden of proving the elements of 14
the offence against this section. 15
(4) The offence against this section can only be prosecuted by a 16
person who can bring a prosecution for the corporate offence. 17
(5) This section does not affect the liability of the corporation for the 18
corporate offence, and applies whether or not the corporation is 19
prosecuted for, or convicted of, the corporate offence. 20
(6) This section does not affect the application of any other law 21
relating to the criminal liability of any persons (whether or not 22
directors or other managers of the corporation) who are 23
concerned in, or party to, the commission of the corporate 24
offence. 25
1.23 Long Service Leave Act 1955 No 38 26
[1] Section 4 Long service leave 27
Insert at the end of the section: 28
Note. An offence against this Act arising under this section committed by 29
a corporation is an executive liability offence attracting executive liability 30
for a director or other person involved in the management of the 31
corporation--see section 10A. 32
[2] Section 8 Records to be kept by employers 33
Insert at the end of the section: 34
Note. An offence against this Act arising under this section committed by 35
a corporation is an executive liability offence attracting executive liability 36
for a director or other person involved in the management of the 37
corporation--see section 10A. 38
Page 53
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
[3] Section 10 Penalties and offences 1
Omit section 10 (4). 2
[4] Sections 10A and 10B 3
Insert after section 10: 4
10A Liability of directors etc for offences by corporation--offences 5
attracting executive liability 6
(1) For the purposes of this section, an executive liability offence is 7
an offence against this Act arising under any of the following 8
provisions of this Act that is committed by a corporation: 9
(a) section 4, 10
(b) section 8. 11
(2) A person commits an offence against this section if: 12
(a) a corporation commits an executive liability offence, and 13
(b) the person is: 14
(i) a director of the corporation, or 15
(ii) an individual who is involved in the management of 16
the corporation and who is in a position to influence 17
the conduct of the corporation in relation to the 18
commission of the executive liability offence, and 19
(c) the person: 20
(i) knows or ought reasonably to know that the 21
executive liability offence (or an offence of the 22
same type) would be or is being committed, and 23
(ii) fails to take all reasonable steps to prevent or stop 24
the commission of that offence. 25
Maximum penalty: The maximum penalty for the executive 26
liability offence if committed by an individual. 27
(3) The prosecution bears the legal burden of proving the elements of 28
the offence against this section. 29
(4) The offence against this section can only be prosecuted by a 30
person who can bring a prosecution for the executive liability 31
offence. 32
(5) This section does not affect the liability of the corporation for the 33
executive liability offence, and applies whether or not the 34
corporation is prosecuted for, or convicted of, the executive 35
liability offence. 36
Page 54
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
(6) This section does not affect the application of any other law 1
relating to the criminal liability of any persons (whether or not 2
directors or other managers of the corporation) who are 3
accessories to the commission of the executive liability offence 4
or are otherwise concerned in, or party to, the commission of the 5
executive liability offence. 6
(7) In this section: 7
director has the same meaning it has in the Corporations 8
Act 2001 of the Commonwealth. 9
reasonable steps, in relation to the commission of an executive 10
liability offence, includes, but is not limited to, such action (if 11
any) of the following kinds as is reasonable in all the 12
circumstances: 13
(a) action towards: 14
(i) assessing the corporation's compliance with the 15
provision creating the executive liability offence, 16
and 17
(ii) ensuring that the corporation arranged regular 18
professional assessments of its compliance with the 19
provision, 20
(b) action towards ensuring that the corporation's employees, 21
agents and contractors are provided with information, 22
training, instruction and supervision appropriate to them to 23
enable them to comply with the provision creating the 24
executive liability offence so far as the provision is 25
relevant to them, 26
(c) action towards ensuring that: 27
(i) the plant, equipment and other resources, and 28
(ii) the structures, work systems and other processes, 29
relevant to compliance with the provision creating the 30
executive liability offence are appropriate in all the 31
circumstances, 32
(d) action towards creating and maintaining a corporate 33
culture that does not direct, encourage, tolerate or lead to 34
non-compliance with the provision creating the executive 35
liability offence. 36
10B Liability of directors etc for offences by corporation--accessory to 37
the commission of the offences 38
(1) For the purposes of this section, a corporate offence is an offence 39
against this Act or the regulations that is capable of being 40
Page 55
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
committed by a corporation, whether or not it is an executive 1
liability offence referred to in section 10A. 2
(2) A person commits an offence against this section if: 3
(a) a corporation commits a corporate offence, and 4
(b) the person is: 5
(i) a director of the corporation, or 6
(ii) an individual who is involved in the management of 7
the corporation and who is in a position to influence 8
the conduct of the corporation in relation to the 9
commission of the corporate offence, and 10
(c) the person: 11
(i) aids, abets, counsels or procures the commission of 12
the corporate offence, or 13
(ii) induces, whether by threats or promises or 14
otherwise, the commission of the corporate offence, 15
or 16
(iii) conspires with others to effect the commission of 17
the corporate offence, or 18
(iv) is in any other way, whether by act or omission, 19
knowingly concerned in, or party to, the 20
commission of the corporate offence. 21
Maximum penalty: The maximum penalty for the corporate 22
offence if committed by an individual. 23
(3) The prosecution bears the legal burden of proving the elements of 24
the offence against this section. 25
(4) The offence against this section can only be prosecuted by a 26
person who can bring a prosecution for the corporate offence. 27
(5) This section does not affect the liability of the corporation for the 28
corporate offence, and applies whether or not the corporation is 29
prosecuted for, or convicted of, the corporate offence. 30
(6) This section does not affect the application of any other law 31
relating to the criminal liability of any persons (whether or not 32
directors or other managers of the corporation) who are 33
concerned in, or party to, the commission of the corporate 34
offence. 35
Page 56
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
1.24 Long Service Leave (Metalliferous Mining Industry) Act 1963 1
No 48 2
[1] Section 4 Long service leave 3
Insert at the end of the section: 4
Note. An offence against this Act arising under this section committed by 5
a corporation is an executive liability offence attracting executive liability 6
for a director or other person involved in the management of the 7
corporation--see section 10A. 8
[2] Section 8 Records to be kept by employer 9
Insert at the end of the section: 10
Note. An offence against this Act arising under this section committed by 11
a corporation is an executive liability offence attracting executive liability 12
for a director or other person involved in the management of the 13
corporation--see section 10A. 14
[3] Section 10 Penalties and offences 15
Omit section 10 (4). 16
[4] Sections 10A and 10B 17
Insert after section 10: 18
10A Liability of directors etc for offences by corporation--offences 19
attracting executive liability 20
(1) For the purposes of this section, an executive liability offence is 21
an offence against this Act arising under any of the following 22
provisions of this Act that is committed by a corporation: 23
(a) section 4, 24
(b) section 8. 25
(2) A person commits an offence against this section if: 26
(a) a corporation commits an executive liability offence, and 27
(b) the person is: 28
(i) a director of the corporation, or 29
(ii) an individual who is involved in the management of 30
the corporation and who is in a position to influence 31
the conduct of the corporation in relation to the 32
commission of the executive liability offence, and 33
(c) the person: 34
(i) knows or ought reasonably to know that the 35
executive liability offence (or an offence of the 36
same type) would be or is being committed, and 37
Page 57
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
(ii) fails to take all reasonable steps to prevent or stop 1
the commission of that offence. 2
Maximum penalty: The maximum penalty for the executive 3
liability offence if committed by an individual. 4
(3) The prosecution bears the legal burden of proving the elements of 5
the offence against this section. 6
(4) The offence against this section can only be prosecuted by a 7
person who can bring a prosecution for the executive liability 8
offence. 9
(5) This section does not affect the liability of the corporation for the 10
executive liability offence, and applies whether or not the 11
corporation is prosecuted for, or convicted of, the executive 12
liability offence. 13
(6) This section does not affect the application of any other law 14
relating to the criminal liability of any persons (whether or not 15
directors or other managers of the corporation) who are 16
accessories to the commission of the executive liability offence 17
or are otherwise concerned in, or party to, the commission of the 18
executive liability offence. 19
(7) In this section: 20
director has the same meaning it has in the Corporations 21
Act 2001 of the Commonwealth. 22
reasonable steps, in relation to the commission of an executive 23
liability offence, includes, but is not limited to, such action (if 24
any) of the following kinds as is reasonable in all the 25
circumstances: 26
(a) action towards: 27
(i) assessing the corporation's compliance with the 28
provision creating the executive liability offence, 29
and 30
(ii) ensuring that the corporation arranged regular 31
professional assessments of its compliance with the 32
provision, 33
(b) action towards ensuring that the corporation's employees, 34
agents and contractors are provided with information, 35
training, instruction and supervision appropriate to them to 36
enable them to comply with the provision creating the 37
executive liability offence so far as the provision is 38
relevant to them, 39
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Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
(c) action towards ensuring that: 1
(i) the plant, equipment and other resources, and 2
(ii) the structures, work systems and other processes, 3
relevant to compliance with the provision creating the 4
executive liability offence are appropriate in all the 5
circumstances, 6
(d) action towards creating and maintaining a corporate 7
culture that does not direct, encourage, tolerate or lead to 8
non-compliance with the provision creating the executive 9
liability offence. 10
10B Liability of directors etc for offences by corporation--accessory to 11
the commission of the offences 12
(1) For the purposes of this section, a corporate offence is an offence 13
against this Act or the regulations that is capable of being 14
committed by a corporation, whether or not it is an executive 15
liability offence referred to in section 10A. 16
(2) A person commits an offence against this section if: 17
(a) a corporation commits a corporate offence, and 18
(b) the person is: 19
(i) a director of the corporation, or 20
(ii) an individual who is involved in the management of 21
the corporation and who is in a position to influence 22
the conduct of the corporation in relation to the 23
commission of the corporate offence, and 24
(c) the person: 25
(i) aids, abets, counsels or procures the commission of 26
the corporate offence, or 27
(ii) induces, whether by threats or promises or 28
otherwise, the commission of the corporate offence, 29
or 30
(iii) conspires with others to effect the commission of 31
the corporate offence, or 32
(iv) is in any other way, whether by act or omission, 33
knowingly concerned in, or party to, the 34
commission of the corporate offence. 35
Maximum penalty: The maximum penalty for the corporate 36
offence if committed by an individual. 37
(3) The prosecution bears the legal burden of proving the elements of 38
the offence against this section. 39
Page 59
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
(4) The offence against this section can only be prosecuted by a 1
person who can bring a prosecution for the corporate offence. 2
(5) This section does not affect the liability of the corporation for the 3
corporate offence, and applies whether or not the corporation is 4
prosecuted for, or convicted of, the corporate offence. 5
(6) This section does not affect the application of any other law 6
relating to the criminal liability of any persons (whether or not 7
directors or other managers of the corporation) who are 8
concerned in, or party to, the commission of the corporate 9
offence. 10
1.25 Mining Act 1992 No 29 11
[1] Section 240C Breach of direction 12
Insert at the end of the section: 13
Note. An offence against this section committed by a corporation is an 14
executive liability offence attracting executive liability for a director or 15
other person involved in the management of the corporation--see 16
section 378F. 17
[2] Section 378D Contravention of condition of authorisation--offence by 18
holder 19
Insert at the end of section 378D (1): 20
Note. An offence against subsection (1) committed by a corporation is 21
an executive liability offence attracting executive liability for a director or 22
other person involved in the management of the corporation--see 23
section 378F. 24
[3] Sections 378F and 378FA 25
Omit section 378F. Insert instead: 26
378F Liability of directors etc for offences by corporation--offences 27
attracting executive liability 28
(1) For the purposes of this section, an executive liability offence is 29
an offence against any of the following provisions of this Act that 30
is committed by a corporation: 31
(a) section 240C, 32
(b) section 378D (1). 33
(2) A person commits an offence against this section if: 34
(a) a corporation commits an executive liability offence, and 35
(b) the person is: 36
(i) a director of the corporation, or 37
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Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
(ii) an individual who is involved in the management of 1
the corporation and who is in a position to influence 2
the conduct of the corporation in relation to the 3
commission of the executive liability offence, and 4
(c) the person: 5
(i) knows or ought reasonably to know that the 6
executive liability offence (or an offence of the 7
same type) would be or is being committed, and 8
(ii) fails to take all reasonable steps to prevent or stop 9
the commission of that offence. 10
Maximum penalty: The maximum penalty for the executive 11
liability offence if committed by an individual. 12
(3) The prosecution bears the legal burden of proving the elements of 13
the offence against this section. 14
(4) The offence against this section can only be prosecuted by a 15
person who can bring a prosecution for the executive liability 16
offence. 17
(5) This section does not affect the liability of the corporation for the 18
executive liability offence, and applies whether or not the 19
corporation is prosecuted for, or convicted of, the executive 20
liability offence. 21
(6) This section does not affect the application of any other law 22
relating to the criminal liability of any persons (whether or not 23
directors or other managers of the corporation) who are 24
accessories to the commission of the executive liability offence 25
or are otherwise concerned in, or party to, the commission of the 26
executive liability offence. 27
(7) In this section: 28
director has the same meaning it has in the Corporations 29
Act 2001 of the Commonwealth. 30
reasonable steps, in relation to the commission of an executive 31
liability offence, includes, but is not limited to, such action (if 32
any) of the following kinds as is reasonable in all the 33
circumstances: 34
(a) action towards: 35
(i) assessing the corporation's compliance with the 36
provision creating the executive liability offence, 37
and 38
(ii) ensuring that the corporation arranged regular 39
professional assessments of its compliance with the 40
provision, 41
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Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
(b) action towards ensuring that the corporation's employees, 1
agents and contractors are provided with information, 2
training, instruction and supervision appropriate to them to 3
enable them to comply with the provision creating the 4
executive liability offence so far as the provision is 5
relevant to them, 6
(c) action towards ensuring that: 7
(i) the plant, equipment and other resources, and 8
(ii) the structures, work systems and other processes, 9
relevant to compliance with the provision creating the 10
executive liability offence are appropriate in all the 11
circumstances, 12
(d) action towards creating and maintaining a corporate 13
culture that does not direct, encourage, tolerate or lead to 14
non-compliance with the provision creating the executive 15
liability offence. 16
378FA Liability of directors etc for offences by corporation--accessory to 17
the commission of the offences 18
(1) For the purposes of this section, a corporate offence is an offence 19
against this Act or the regulations that is capable of being 20
committed by a corporation, whether or not it is an executive 21
liability offence referred to in section 378F. 22
(2) A person commits an offence against this section if: 23
(a) a corporation commits a corporate offence, and 24
(b) the person is: 25
(i) a director of the corporation, or 26
(ii) an individual who is involved in the management of 27
the corporation and who is in a position to influence 28
the conduct of the corporation in relation to the 29
commission of the corporate offence, and 30
(c) the person: 31
(i) aids, abets, counsels or procures the commission of 32
the corporate offence, or 33
(ii) induces, whether by threats or promises or 34
otherwise, the commission of the corporate offence, 35
or 36
(iii) conspires with others to effect the commission of 37
the corporate offence, or 38
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Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
(iv) is in any other way, whether by act or omission, 1
knowingly concerned in, or party to, the 2
commission of the corporate offence. 3
Maximum penalty: The maximum penalty for the corporate 4
offence if committed by an individual. 5
(3) The prosecution bears the legal burden of proving the elements of 6
the offence against this section. 7
(4) The offence against this section can only be prosecuted by a 8
person who can bring a prosecution for the corporate offence. 9
(5) This section does not affect the liability of the corporation for the 10
corporate offence, and applies whether or not the corporation is 11
prosecuted for, or convicted of, the corporate offence. 12
(6) This section does not affect the application of any other law 13
relating to the criminal liability of any persons (whether or not 14
directors or other managers of the corporation) who are 15
concerned in, or party to, the commission of the corporate 16
offence. 17
1.26 Motor Dealers Act 1974 No 52 18
Section 54 19
Omit the section. Insert instead: 20
54 Liability of directors etc for offences by corporation--accessory to 21
the commission of the offences 22
(1) For the purposes of this section, a corporate offence is an offence 23
against this Act or the regulations that is capable of being 24
committed by a corporation. 25
(2) A person commits an offence against this section if: 26
(a) a corporation commits a corporate offence, and 27
(b) the person is: 28
(i) a director of the corporation, or 29
(ii) an individual who is involved in the management of 30
the corporation and who is in a position to influence 31
the conduct of the corporation in relation to the 32
commission of the corporate offence, and 33
(c) the person: 34
(i) aids, abets, counsels or procures the commission of 35
the corporate offence, or 36
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Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
(ii) induces, whether by threats or promises or 1
otherwise, the commission of the corporate offence, 2
or 3
(iii) conspires with others to effect the commission of 4
the corporate offence, or 5
(iv) is in any other way, whether by act or omission, 6
knowingly concerned in, or party to, the 7
commission of the corporate offence. 8
Maximum penalty: The maximum penalty for the corporate 9
offence if committed by an individual. 10
(3) The prosecution bears the legal burden of proving the elements of 11
the offence against this section. 12
(4) The offence against this section can only be prosecuted by a 13
person who can bring a prosecution for the corporate offence. 14
(5) This section does not affect the liability of the corporation for the 15
corporate offence, and applies whether or not the corporation is 16
prosecuted for, or convicted of, the corporate offence. 17
(6) This section does not affect the application of any other law 18
relating to the criminal liability of any persons (whether or not 19
directors or other managers of the corporation) who are 20
concerned in, or party to, the commission of the corporate 21
offence. 22
1.27 Motor Vehicle Repairs Act 1980 No 71 23
[1] Section 15 Licences 24
Insert at the end of section 15 (1): 25
Note. An offence against subsection (1) committed by a corporation is 26
an executive liability offence attracting executive liability for a director or 27
other person involved in the management of the corporation--see 28
section 88. 29
[2] Section 22 Tradesperson's certificate 30
Insert at the end of the section: 31
Note. An offence against subsection (1), (3) or (4) committed by a 32
corporation is an executive liability offence attracting executive liability 33
for a director or other person involved in the management of the 34
corporation--see section 88. 35
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Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
[3] Sections 88 and 88A 1
Omit section 88. Insert instead: 2
88 Liability of directors etc for offences by corporation--offences 3
attracting executive liability 4
(1) For the purposes of this section, an executive liability offence is 5
an offence against any of the following provisions of this Act that 6
is committed by a corporation: 7
(a) section 15 (1), 8
(b) section 22 (1), (3) or (4). 9
(2) A person commits an offence against this section if: 10
(a) a corporation commits an executive liability offence, and 11
(b) the person is: 12
(i) a director of the corporation, or 13
(ii) an individual who is involved in the management of 14
the corporation and who is in a position to influence 15
the conduct of the corporation in relation to the 16
commission of the executive liability offence, and 17
(c) the person: 18
(i) knows or ought reasonably to know that the 19
executive liability offence (or an offence of the 20
same type) would be or is being committed, and 21
(ii) fails to take all reasonable steps to prevent or stop 22
the commission of that offence. 23
Maximum penalty: The maximum penalty for the executive 24
liability offence if committed by an individual. 25
(3) The prosecution bears the legal burden of proving the elements of 26
the offence against this section. 27
(4) The offence against this section can only be prosecuted by a 28
person who can bring a prosecution for the executive liability 29
offence. 30
(5) This section does not affect the liability of the corporation for the 31
executive liability offence, and applies whether or not the 32
corporation is prosecuted for, or convicted of, the executive 33
liability offence. 34
(6) This section does not affect the application of any other law 35
relating to the criminal liability of any persons (whether or not 36
directors or other managers of the corporation) who are 37
accessories to the commission of the executive liability offence 38
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Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
or are otherwise concerned in, or party to, the commission of the 1
executive liability offence. 2
(7) In this section: 3
director has the same meaning it has in the Corporations 4
Act 2001 of the Commonwealth. 5
reasonable steps, in relation to the commission of an executive 6
liability offence, includes, but is not limited to, such action (if 7
any) of the following kinds as is reasonable in all the 8
circumstances: 9
(a) action towards: 10
(i) assessing the corporation's compliance with the 11
provision creating the executive liability offence, 12
and 13
(ii) ensuring that the corporation arranged regular 14
professional assessments of its compliance with the 15
provision, 16
(b) action towards ensuring that the corporation's employees, 17
agents and contractors are provided with information, 18
training, instruction and supervision appropriate to them to 19
enable them to comply with the provision creating the 20
executive liability offence so far as the provision is 21
relevant to them, 22
(c) action towards ensuring that: 23
(i) the plant, equipment and other resources, and 24
(ii) the structures, work systems and other processes, 25
relevant to compliance with the provision creating the 26
executive liability offence are appropriate in all the 27
circumstances, 28
(d) action towards creating and maintaining a corporate 29
culture that does not direct, encourage, tolerate or lead to 30
non-compliance with the provision creating the executive 31
liability offence. 32
88A Liability of directors etc for offences by corporation--accessory to 33
the commission of the offences 34
(1) For the purposes of this section, a corporate offence is an offence 35
against this Act or the regulations that is capable of being 36
committed by a corporation, whether or not it is an executive 37
liability offence referred to in section 88. 38
(2) A person commits an offence against this section if: 39
(a) a corporation commits a corporate offence, and 40
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Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
(b) the person is: 1
(i) a director of the corporation, or 2
(ii) an individual who is involved in the management of 3
the corporation and who is in a position to influence 4
the conduct of the corporation in relation to the 5
commission of the corporate offence, and 6
(c) the person: 7
(i) aids, abets, counsels or procures the commission of 8
the corporate offence, or 9
(ii) induces, whether by threats or promises or 10
otherwise, the commission of the corporate offence, 11
or 12
(iii) conspires with others to effect the commission of 13
the corporate offence, or 14
(iv) is in any other way, whether by act or omission, 15
knowingly concerned in, or party to, the 16
commission of the corporate offence. 17
Maximum penalty: The maximum penalty for the corporate 18
offence if committed by an individual. 19
(3) The prosecution bears the legal burden of proving the elements of 20
the offence against this section. 21
(4) The offence against this section can only be prosecuted by a 22
person who can bring a prosecution for the corporate offence. 23
(5) This section does not affect the liability of the corporation for the 24
corporate offence, and applies whether or not the corporation is 25
prosecuted for, or convicted of, the corporate offence. 26
(6) This section does not affect the application of any other law 27
relating to the criminal liability of any persons (whether or not 28
directors or other managers of the corporation) who are 29
concerned in, or party to, the commission of the corporate 30
offence. 31
1.28 National Parks and Wildlife Act 1974 No 80 32
[1] Section 86 Harming or desecrating Aboriginal objects and Aboriginal 33
places 34
Insert at the end of the section: 35
Note. An offence against subsection (1), (2) or (4) committed by a 36
corporation is an executive liability offence attracting executive liability 37
for a director or other person involved in the management of the 38
corporation--see section 175B. 39
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Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
[2] Section 90J Failure to comply with conditions 1
Insert at the end of the section: 2
Note. An offence against subsection (1) or (2) committed by a 3
corporation is an executive liability offence attracting executive liability 4
for a director or other person involved in the management of the 5
corporation--see section 175B. 6
[3] Section 91AA Director-General may make stop work order 7
Insert at the end of section 91AA (6): 8
Note. An offence against subsection (6) committed by a corporation is 9
an executive liability offence attracting executive liability for a director or 10
other person involved in the management of the corporation--see 11
section 175B. 12
[4] Section 91G Failure to comply with interim protection order 13
Insert at the end of the section: 14
Note. An offence against this section committed by a corporation is an 15
executive liability offence attracting executive liability for a director or 16
other person involved in the management of the corporation--see 17
section 175B. 18
[5] Section 91Q Failure to comply with remediation direction 19
Insert at the end of section 91Q (1): 20
Note. An offence against subsection (1) committed by a corporation is 21
an executive liability offence attracting executive liability for a director or 22
other person involved in the management of the corporation--see 23
section 175B. 24
[6] Section 91R Delay or obstruction of remediation direction 25
Insert at the end of the section: 26
Note. An offence against this section committed by a corporation is an 27
executive liability offence attracting executive liability for a director or 28
other person involved in the management of the corporation--see 29
section 175B. 30
[7] Section 99 Harming threatened interstate fauna 31
Insert at the end of section 99 (1): 32
Note. An offence against subsection (1) committed by a corporation is 33
an executive liability offence attracting executive liability for a director or 34
other person involved in the management of the corporation--see 35
section 175B. 36
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Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
[8] Section 118A Harming or picking threatened species, endangered 1
populations or endangered ecological communities 2
Insert at the end of the section: 3
Note. An offence against subsection (1) or (2) committed by a 4
corporation is an executive liability offence attracting executive liability 5
for a director or other person involved in the management of the 6
corporation--see section 175B. 7
[9] Section 118B Buying, selling or possessing threatened species or 8
endangered population 9
Insert at the end of section 118B (1): 10
Note. An offence against subsection (1) committed by a corporation is 11
an executive liability offence attracting executive liability for a director or 12
other person involved in the management of the corporation--see 13
section 175B. 14
[10] Section 118C Damage to critical habitat 15
Insert at the end of section 118C (1): 16
Note. An offence against subsection (1) committed by a corporation is 17
an executive liability offence attracting executive liability for a director or 18
other person involved in the management of the corporation--see 19
section 175B. 20
[11] Section 118D Damage to habitat of threatened species, endangered 21
populations or endangered ecological communities 22
Insert at the end of section 118D (1): 23
Note. An offence against subsection (1) committed by a corporation is 24
an executive liability offence attracting executive liability for a director or 25
other person involved in the management of the corporation--see 26
section 175B. 27
[12] Section 133 Conditions and restrictions attaching to licences and 28
certificates and variation of licences and certificates 29
Insert at the end of section 133 (4): 30
Note. An offence against subsection (4) committed by a corporation is 31
an executive liability offence attracting executive liability for a director or 32
other person involved in the management of the corporation--see 33
section 175B. 34
[13] Section 156A Offence of damaging reserved land 35
Insert at the end of section 156A (1): 36
Note. An offence against subsection (1) committed by a corporation is 37
an executive liability offence attracting executive liability for a director or 38
other person involved in the management of the corporation--see 39
section 175B. 40
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Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
[14] Sections 175B and 175C 1
Omit section 175B. Insert instead: 2
175B Liability of directors etc for offences by corporation--offences 3
attracting executive liability 4
(1) For the purposes of this section, an executive liability offence is 5
an offence against any of the following provisions of this Act that 6
is committed by a corporation: 7
(a) section 86 (1), (2) or (4), 8
(b) section 90J (1) or (2), 9
(c) section 91AA (6), 10
(d) section 91G, 11
(e) section 91Q (1), 12
(f) section 91R, 13
(g) section 99 (1), 14
(h) section 118A (1) or (2), 15
(i) section 118B (1), 16
(j) section 118C (1), 17
(k) section 118D (1), 18
(l) section 133 (4), 19
(m) section 156A (1). 20
(2) A person commits an offence against this section if: 21
(a) a corporation commits an executive liability offence, and 22
(b) the person is: 23
(i) a director of the corporation, or 24
(ii) an individual who is involved in the management of 25
the corporation and who is in a position to influence 26
the conduct of the corporation in relation to the 27
commission of the executive liability offence, and 28
(c) the person: 29
(i) knows or ought reasonably to know that the 30
executive liability offence (or an offence of the 31
same type) would be or is being committed, and 32
(ii) fails to take all reasonable steps to prevent or stop 33
the commission of that offence. 34
Maximum penalty: The maximum penalty for the executive 35
liability offence if committed by an individual. 36
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Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
(3) The prosecution bears the legal burden of proving the elements of 1
the offence against this section. 2
(4) The offence against this section can only be prosecuted by a 3
person who can bring a prosecution for the executive liability 4
offence. 5
(5) This section does not affect the liability of the corporation for the 6
executive liability offence, and applies whether or not the 7
corporation is prosecuted for, or convicted of, the executive 8
liability offence. 9
(6) This section does not affect the application of any other law 10
relating to the criminal liability of any persons (whether or not 11
directors or other managers of the corporation) who are 12
accessories to the commission of the executive liability offence 13
or are otherwise concerned in, or party to, the commission of the 14
executive liability offence. 15
(7) In this section: 16
director has the same meaning it has in the Corporations 17
Act 2001 of the Commonwealth. 18
reasonable steps, in relation to the commission of an executive 19
liability offence, includes, but is not limited to, such action (if 20
any) of the following kinds as is reasonable in all the 21
circumstances: 22
(a) action towards: 23
(i) assessing the corporation's compliance with the 24
provision creating the executive liability offence, 25
and 26
(ii) ensuring that the corporation arranged regular 27
professional assessments of its compliance with the 28
provision, 29
(b) action towards ensuring that the corporation's employees, 30
agents and contractors are provided with information, 31
training, instruction and supervision appropriate to them to 32
enable them to comply with the provision creating the 33
executive liability offence so far as the provision is 34
relevant to them, 35
(c) action towards ensuring that: 36
(i) the plant, equipment and other resources, and 37
(ii) the structures, work systems and other processes, 38
relevant to compliance with the provision creating the 39
executive liability offence are appropriate in all the 40
circumstances, 41
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Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
(d) action towards creating and maintaining a corporate 1
culture that does not direct, encourage, tolerate or lead to 2
non-compliance with the provision creating the executive 3
liability offence. 4
175C Evidence as to state of mind of corporation 5
(1) Without limiting any other law or practice regarding the 6
admissibility of evidence, evidence that an officer, employee or 7
agent of a corporation (while acting in his or her capacity as such) 8
had, at any particular time, a particular state of mind, is evidence 9
that the corporation had that state of mind. 10
(2) In this section, the state of mind of a person includes: 11
(a) the knowledge, intention, opinion, belief or purpose of the 12
person, and 13
(b) the person's reasons for the intention, opinion, belief or 14
purpose. 15
[15] Section 176B Ancillary offences 16
Insert at the end of the section: 17
(2) A person does not commit an offence because of this section for 18
any act or omission that is an offence under section 176C. 19
[16] Section 176C 20
Insert after section 176B: 21
176C Liability of directors etc for offences by corporation--accessory to 22
the commission of the offences 23
(1) For the purposes of this section, a corporate offence is an offence 24
against this Act or the regulations that is capable of being 25
committed by a corporation, whether or not it is an executive 26
liability offence referred to in section 175B. 27
(2) A person commits an offence against this section if: 28
(a) a corporation commits a corporate offence, and 29
(b) the person is: 30
(i) a director of the corporation, or 31
(ii) an individual who is involved in the management of 32
the corporation and who is in a position to influence 33
the conduct of the corporation in relation to the 34
commission of the corporate offence, and 35
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Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
(c) the person: 1
(i) aids, abets, counsels or procures the commission of 2
the corporate offence, or 3
(ii) induces, whether by threats or promises or 4
otherwise, the commission of the corporate offence, 5
or 6
(iii) conspires with others to effect the commission of 7
the corporate offence, or 8
(iv) is in any other way, whether by act or omission, 9
knowingly concerned in, or party to, the 10
commission of the corporate offence. 11
Maximum penalty: The maximum penalty for the corporate 12
offence if committed by an individual. 13
(3) The prosecution bears the legal burden of proving the elements of 14
the offence against this section. 15
(4) The offence against this section can only be prosecuted by a 16
person who can bring a prosecution for the corporate offence. 17
(5) This section does not affect the liability of the corporation for the 18
corporate offence, and applies whether or not the corporation is 19
prosecuted for, or convicted of, the corporate offence. 20
(6) This section does not affect the application of any other law 21
relating to the criminal liability of any persons (whether or not 22
directors or other managers of the corporation) who are 23
concerned in, or party to, the commission of the corporate 24
offence. 25
1.29 Native Vegetation Act 2003 No 103 26
[1] Section 12 Clearing requiring approval 27
Insert at the end of the section: 28
Note. An offence against this section committed by a corporation is an 29
executive liability offence attracting executive liability for a director or 30
other person involved in the management of the corporation--see 31
section 45. 32
[2] Section 37 Director-General may make "stop work" order 33
Insert at the end of section 37 (5): 34
Note. An offence against subsection (5) committed by a corporation is 35
an executive liability offence attracting executive liability for a director or 36
other person involved in the management of the corporation--see 37
section 45. 38
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Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
[3] Section 38 Directions for remedial work 1
Insert at the end of section 38 (4): 2
Note. An offence against subsection (4) committed by a corporation is 3
an executive liability offence attracting executive liability for a director or 4
other person involved in the management of the corporation--see 5
section 45. 6
[4] Sections 45 and 45A 7
Omit section 45. Insert instead: 8
45 Liability of directors etc for offences by corporation--offences 9
attracting executive liability 10
(1) For the purposes of this section, an executive liability offence is 11
an offence against any of the following provisions of this Act that 12
is committed by a corporation: 13
(a) section 12, 14
(b) section 37 (5), 15
(c) section 38 (4). 16
(2) A person commits an offence against this section if: 17
(a) a corporation commits an executive liability offence, and 18
(b) the person is: 19
(i) a director of the corporation, or 20
(ii) an individual who is involved in the management of 21
the corporation and who is in a position to influence 22
the conduct of the corporation in relation to the 23
commission of the executive liability offence, and 24
(c) the person: 25
(i) knows or ought reasonably to know that the 26
executive liability offence (or an offence of the 27
same type) would be or is being committed, and 28
(ii) fails to take all reasonable steps to prevent or stop 29
the commission of that offence. 30
Maximum penalty: The maximum penalty for the executive 31
liability offence if committed by an individual. 32
(3) The prosecution bears the legal burden of proving the elements of 33
the offence against this section. 34
(4) The offence against this section can only be prosecuted by a 35
person who can bring a prosecution for the executive liability 36
offence. 37
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Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
(5) This section does not affect the liability of the corporation for the 1
executive liability offence, and applies whether or not the 2
corporation is prosecuted for, or convicted of, the executive 3
liability offence. 4
(6) This section does not affect the application of any other law 5
relating to the criminal liability of any persons (whether or not 6
directors or other managers of the corporation) who are 7
accessories to the commission of the executive liability offence 8
or are otherwise concerned in, or party to, the commission of the 9
executive liability offence. 10
(7) In this section: 11
director has the same meaning it has in the Corporations 12
Act 2001 of the Commonwealth. 13
reasonable steps, in relation to the commission of an executive 14
liability offence, includes, but is not limited to, such action (if 15
any) of the following kinds as is reasonable in all the 16
circumstances: 17
(a) action towards: 18
(i) assessing the corporation's compliance with the 19
provision creating the executive liability offence, 20
and 21
(ii) ensuring that the corporation arranged regular 22
professional assessments of its compliance with the 23
provision, 24
(b) action towards ensuring that the corporation's employees, 25
agents and contractors are provided with information, 26
training, instruction and supervision appropriate to them to 27
enable them to comply with the provision creating the 28
executive liability offence so far as the provision is 29
relevant to them, 30
(c) action towards ensuring that: 31
(i) the plant, equipment and other resources, and 32
(ii) the structures, work systems and other processes, 33
relevant to compliance with the provision creating the 34
executive liability offence are appropriate in all the 35
circumstances, 36
(d) action towards creating and maintaining a corporate 37
culture that does not direct, encourage, tolerate or lead to 38
non-compliance with the provision creating the executive 39
liability offence. 40
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Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
45A Liability of directors etc for offences by corporation--accessory to 1
the commission of the offences 2
(1) For the purposes of this section, a corporate offence is an offence 3
against this Act or the regulations that is capable of being 4
committed by a corporation, whether or not it is an executive 5
liability offence referred to in section 45. 6
(2) A person commits an offence against this section if: 7
(a) a corporation commits a corporate offence, and 8
(b) the person is: 9
(i) a director of the corporation, or 10
(ii) an individual who is involved in the management of 11
the corporation and who is in a position to influence 12
the conduct of the corporation in relation to the 13
commission of the corporate offence, and 14
(c) the person: 15
(i) aids, abets, counsels or procures the commission of 16
the corporate offence, or 17
(ii) induces, whether by threats or promises or 18
otherwise, the commission of the corporate offence, 19
or 20
(iii) conspires with others to effect the commission of 21
the corporate offence, or 22
(iv) is in any other way, whether by act or omission, 23
knowingly concerned in, or party to, the 24
commission of the corporate offence. 25
Maximum penalty: The maximum penalty for the corporate 26
offence if committed by an individual. 27
(3) The prosecution bears the legal burden of proving the elements of 28
the offence against this section. 29
(4) The offence against this section can only be prosecuted by a 30
person who can bring a prosecution for the corporate offence. 31
(5) This section does not affect the liability of the corporation for the 32
corporate offence, and applies whether or not the corporation is 33
prosecuted for, or convicted of, the corporate offence. 34
(6) This section does not affect the application of any other law 35
relating to the criminal liability of any persons (whether or not 36
directors or other managers of the corporation) who are 37
concerned in, or party to, the commission of the corporate 38
offence. 39
Page 76
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
1.30 Payroll Tax Act 2007 No 21 1
Schedule 2 NSW specific provisions 2
Insert at the end of clause 18 (8): 3
Note. An offence against subclause (8) committed by a corporation is an 4
executive liability offence attracting executive liability for a director or 5
other person involved in the management of the corporation--see 6
section 121 of the Taxation Administration Act 1996. 7
1.31 Pesticides Act 1999 No 80 8
[1] Section 7 Injury to persons or damage to property resulting from 9
pesticide use 10
Insert at the end of section 7 (1): 11
Note. An offence against subsection (1) committed by a corporation is 12
an executive liability offence attracting executive liability for a director or 13
other person involved in the management of the corporation--see 14
section 112. 15
[2] Section 8 Harm to animals or plants resulting from pesticide use 16
Insert at the end of section 8 (1): 17
Note. An offence against subsection (1) committed by a corporation is 18
an executive liability offence attracting executive liability for a director or 19
other person involved in the management of the corporation--see 20
section 112. 21
[3] Section 9 Material harm to endangered, vulnerable or protected animals 22
Insert at the end of section 9 (1): 23
Note. An offence against subsection (1) committed by a corporation is 24
an executive liability offence attracting executive liability for a director or 25
other person involved in the management of the corporation--see 26
section 112. 27
[4] Section 10 Injury to persons or damage to property resulting from 28
pesticide use 29
Insert at the end of section 10 (1): 30
Note. An offence against subsection (1) committed by a corporation is 31
an executive liability offence attracting executive liability for a director or 32
other person involved in the management of the corporation--see 33
section 112. 34
[5] Section 11 Harm to animals or plants resulting from pesticide use 35
Insert at the end of section 11 (1): 36
Note. An offence against subsection (1) committed by a corporation is 37
an executive liability offence attracting executive liability for a director or 38
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Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
other person involved in the management of the corporation--see 1
section 112. 2
[6] Section 12 Possession of unregistered pesticide 3
Insert at the end of the note to the section: 4
An offence against this section committed by a corporation is an 5
executive liability offence attracting executive liability for a director or 6
other person involved in the management of the corporation--see 7
section 112. 8
[7] Section 13 Use of unregistered pesticide 9
Insert at the end of the note to the section: 10
An offence against this section committed by a corporation is an 11
executive liability offence attracting executive liability for a director or 12
other person involved in the management of the corporation--see 13
section 112. 14
[8] Section 14 Requirement to read approved label and permit 15
Insert at the end of section 14 (2): 16
Note. An offence against subsection (2) committed by a corporation is 17
an executive liability offence attracting executive liability for a director or 18
other person involved in the management of the corporation--see 19
section 112. 20
[9] Section 15 Using pesticide contrary to approved label 21
Insert at the end of the note to section 15 (1): 22
An offence against subsection (1) committed by a corporation is an 23
executive liability offence attracting executive liability for a director or 24
other person involved in the management of the corporation--see 25
section 112. 26
[10] Section 17 Use or possession of restricted pesticides 27
Insert at the end of the note to the section: 28
An offence against this section committed by a corporation is an 29
executive liability offence attracting executive liability for a director or 30
other person involved in the management of the corporation--see 31
section 112. 32
[11] Section 19 Environment Protection Authority may direct clean-up action 33
Insert at the end of section 19 (4): 34
Note. An offence against subsection (4) committed by a corporation is 35
an executive liability offence attracting executive liability for a director or 36
other person involved in the management of the corporation--see 37
section 112. 38
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Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
[12] Section 25 Offence 1
Insert at the end of the section: 2
Note. An offence against this section committed by a corporation is an 3
executive liability offence attracting executive liability for a director or 4
other person involved in the management of the corporation--see 5
section 112. 6
[13] Section 39 Operation of pesticide control order 7
Insert at the end of section 39 (4): 8
Note. An offence against subsection (4) committed by a corporation is 9
an executive liability offence attracting executive liability for a director or 10
other person involved in the management of the corporation--see 11
section 112. 12
[14] Section 41 Destruction of pesticides 13
Insert at the end of section 41 (2): 14
Note. An offence against subsection (2) committed by a corporation is 15
an executive liability offence attracting executive liability for a director or 16
other person involved in the management of the corporation--see 17
section 112. 18
[15] Section 42 Defective equipment 19
Insert at the end of section 42 (4): 20
Note. An offence against subsection (4) committed by a corporation is 21
an executive liability offence attracting executive liability for a director or 22
other person involved in the management of the corporation--see 23
section 112. 24
[16] Section 59 Contravention of conditions 25
Insert at the end of the section: 26
Note. An offence against this section committed by a corporation is an 27
executive liability offence attracting executive liability for a director or 28
other person involved in the management of the corporation--see 29
section 112. 30
[17] Section 65 Prohibited residue orders 31
Insert at the end of section 65 (5): 32
Note. An offence against subsection (5) committed by a corporation is 33
an executive liability offence attracting executive liability for a director or 34
other person involved in the management of the corporation--see 35
section 112. 36
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Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
[18] Section 111 Causing or permitting offence 1
Insert at the end of the section: 2
(2) A person does not commit an offence because of this section for 3
any act or omission that is an offence under section 112A. 4
[19] Sections 112-112B 5
Omit section 112. Insert instead: 6
112 Liability of directors etc for offences by corporation--offences 7
attracting executive liability 8
(1) For the purposes of this section, an executive liability offence is 9
an offence against any of the following provisions of this Act that 10
is committed by a corporation: 11
(a) section 7 (1), 12
(b) section 8 (1), 13
(c) section 9 (1), 14
(d) section 10 (1), 15
(e) section 11 (1), 16
(f) section 12, 17
(g) section 13, 18
(h) section 14 (2), 19
(i) section 15 (1), 20
(j) section 17, 21
(k) section 19 (4), 22
(l) section 25, 23
(m) section 39 (4), 24
(n) section 41 (2), 25
(o) section 42 (4), 26
(p) section 59, 27
(q) section 65 (5). 28
(2) A person commits an offence against this section if: 29
(a) a corporation commits an executive liability offence, and 30
(b) the person is: 31
(i) a director of the corporation, or 32
(ii) an individual who is involved in the management of 33
the corporation and who is in a position to influence 34
Page 80
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
the conduct of the corporation in relation to the 1
commission of the executive liability offence, and 2
(c) the person: 3
(i) knows or ought reasonably to know that the 4
executive liability offence (or an offence of the 5
same type) would be or is being committed, and 6
(ii) fails to take all reasonable steps to prevent or stop 7
the commission of that offence. 8
Maximum penalty: The maximum penalty for the executive 9
liability offence if committed by an individual. 10
(3) The prosecution bears the legal burden of proving the elements of 11
the offence against this section. 12
(4) The offence against this section can only be prosecuted by a 13
person who can bring a prosecution for the executive liability 14
offence. 15
(5) This section does not affect the liability of the corporation for the 16
executive liability offence, and applies whether or not the 17
corporation is prosecuted for, or convicted of, the executive 18
liability offence. 19
(6) This section does not affect the application of any other law 20
relating to the criminal liability of any persons (whether or not 21
directors or other managers of the corporation) who are 22
accessories to the commission of the executive liability offence 23
or are otherwise concerned in, or party to, the commission of the 24
executive liability offence. 25
(7) In this section: 26
director has the same meaning it has in the Corporations 27
Act 2001 of the Commonwealth. 28
reasonable steps, in relation to the commission of an executive 29
liability offence, includes, but is not limited to, such action (if 30
any) of the following kinds as is reasonable in all the 31
circumstances: 32
(a) action towards: 33
(i) assessing the corporation's compliance with the 34
provision creating the executive liability offence, 35
and 36
(ii) ensuring that the corporation arranged regular 37
professional assessments of its compliance with the 38
provision, 39
Page 81
Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
(b) action towards ensuring that the corporation's employees, 1
agents and contractors are provided with information, 2
training, instruction and supervision appropriate to them to 3
enable them to comply with the provision creating the 4
executive liability offence so far as the provision is 5
relevant to them, 6
(c) action towards ensuring that: 7
(i) the plant, equipment and other resources, and 8
(ii) the structures, work systems and other processes, 9
relevant to compliance with the provision creating the 10
executive liability offence are appropriate in all the 11
circumstances, 12
(d) action towards creating and maintaining a corporate 13
culture that does not direct, encourage, tolerate or lead to 14
non-compliance with the provision creating the executive 15
liability offence. 16
112A Liability of directors etc for offences by corporation--accessory to 17
the commission of the offences 18
(1) For the purposes of this section, a corporate offence is an offence 19
against this Act or the regulations that is capable of being 20
committed by a corporation, whether or not it is an executive 21
liability offence referred to in section 112. 22
(2) A person commits an offence against this section if: 23
(a) a corporation commits a corporate offence, and 24
(b) the person is: 25
(i) a director of the corporation, or 26
(ii) an individual who is involved in the management of 27
the corporation and who is in a position to influence 28
the conduct of the corporation in relation to the 29
commission of the corporate offence, and 30
(c) the person: 31
(i) aids, abets, counsels or procures the commission of 32
the corporate offence, or 33
(ii) induces, whether by threats or promises or 34
otherwise, the commission of the corporate offence, 35
or 36
(iii) conspires with others to effect the commission of 37
the corporate offence, or 38
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Amendment of Acts and Regulations Schedule 1
(iv) is in any other way, whether by act or omission, 1
knowingly concerned in, or party to, the 2
commission of the corporate offence. 3
Maximum penalty: The maximum penalty for the corporate 4
offence if committed by an individual. 5
(3) The prosecution bears the legal burden of proving the elements of 6
the offence against this section. 7
(4) The offence against this section can only be prosecuted by a 8
person who can bring a prosecution for the corporate offence. 9
(5) This section does not affect the liability of the corporation for the 10
corporate offence, and applies whether or not the corporation is 11
prosecuted for, or convicted of, the corporate offence. 12
(6) This section does not affect the application of any other law 13
relating to the criminal liability of any persons (whether or not 14
directors or other managers of the corporation) who are 15
concerned in, or party to, the commission of the corporate 16
offence. 17
112B Evidence as to state of mind of corporation 18
(1) Without limiting any other law or practice regarding the 19
admissibility of evidence, evidence that an officer, employee or 20
agent of a corporation (while acting in his or her capacity as such) 21
had, at any particular time, a particular state of mind, is evidence 22
that the corporation had that state of mind. 23
(2) In this section, the state of mind of a person includes: 24
(a) the knowledge, intention, opinion, belief or purpose of the 25
person, and 26
(b) the person's reasons for the intention, opinion, belief or 27
purpose. 28
1.32 Printing and Newspapers Act 1973 No 46 29
Section 6 Liability of directors etc of corporations 30
Omit the section. 31
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Schedule 1 Amendment of Acts and Regulations
1.33 Property, Stock and Business Agents Act 2002 No 66 1
[1] Section 213 Offences by persons other than principal offenders 2
Insert at the end of the section: 3
(2) A person does not commit an offence because of this section for 4
any act or omission that is an offence under section 218. 5
[2] Section 218 6
Omit the section. Insert instead: 7
218 Liability of directors etc for offences by corporation--accessory to 8
the commission of the offences 9
(1) For the purposes of this section, a corporate offence is an offence 10
against this Act or the regulations that is capable of being 11
committed by a corporation. 12
(2) A person commits an offence against this section if: 13
(a) a corporation commits a corporate offence, and 14
(b) the person is: 15
(i) a director of the corporation, or 16
(ii) an individual who is involved in the management of 17
the corporation and who is in a position to influence 18
the conduct of the corporation in relation to the 19
commission of the corporate offence, and 20
(c) the person: 21
(i) aids, abets, counsels or procures the commission of 22
the corporate offence, or 23
(ii) induces, whether by threats or promises or 24
otherwise, the commission of the corporate offence, 25
or 26
(iii) conspires with others to effect the commission of 27
the corporate offence, or 28
(iv) is in any other way, whether by act or omission, 29
knowingly concerned in, or party to, the 30
commission of the corporate offence. 31
Maximum penalty: The maximum penalty for the corporate 32
offence if committed by an individual. 33
(3) The prosecution bears the legal burden of proving the elements of 34
the offence against this section. 35
(4) The offence against this section can only be prosecuted by a 36
person who can bring a prosecution for the corporate offence. 37
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(5) This section does not affect the liability of the corporation for the 1
corporate offence, and applies whether or not the corporation is 2
prosecuted for, or convicted of, the corporate offence. 3
(6) This section does not affect the application of any other law 4
relating to the criminal liability of any persons (whether or not 5
directors or other managers of the corporation) who are 6
concerned in, or party to, the commission of the corporate 7
offence. 8
1.34 Protection of the Environment Operations Act 1997 No 156 9
[1] Section 47 Licensing requirement--scheduled development work 10
Insert at the end of section 47 (1): 11
Note. An offence against subsection (1) committed by a corporation is 12
an executive liability offence attracting executive liability for a director or 13
other person involved in the management of the corporation--see 14
section 169A. 15
[2] Section 48 Licensing requirement--scheduled activities 16
(premises-based) 17
Insert at the end of the section: 18
Note. An offence against subsection (2) committed by a corporation is 19
an executive liability offence attracting executive liability for a director or 20
other person involved in the management of the corporation--see 21
section 169A. 22
[3] Section 49 Licensing requirement--scheduled activities (not 23
premises-based) 24
Insert at the end of section 49 (2): 25
Note. An offence against subsection (2) committed by a corporation is 26
an offence attracting special executive liability for a director or other 27
person involved in the management of the corporation--see 28
section 169. 29
[4] Section 64 Failure to comply with condition 30
Insert at the end of section 64 (1): 31
Note. An offence against subsection (1) committed by a corporation is 32
an offence attracting special executive liability for a director or other 33
person involved in the management of the corporation--see 34
section 169. 35
[5] Section 66 Conditions requiring monitoring, certification or provision of 36
information, and related offences 37
Insert at the end of the section: 38
Note. An offence against subsection (2) or (4) committed by a 39
corporation is an offence attracting special executive liability for a 40
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Schedule 1 Amendment of Acts and Regulations
director or other person involved in the management of the 1
corporation--see section 169. 2
[6] Section 86 Notice for breach of licensing requirements 3
Insert at the end of the section: 4
Note. An offence against subsection (3) committed by a corporation is 5
an executive liability offence attracting executive liability for a director or 6
other person involved in the management of the corporation--see 7
section 169A. 8
[7] Section 91 Clean-up by occupiers or polluters 9
Insert at the end of the section: 10
Note. An offence against subsection (5) committed by a corporation is 11
an executive liability offence attracting executive liability for a director or 12
other person involved in the management of the corporation--see 13
section 169A. 14
[8] Section 97 Offence 15
Insert at the end of the section: 16
Note. An offence against this section committed by a corporation is an 17
executive liability offence attracting executive liability for a director or 18
other person involved in the management of the corporation--see 19
section 169A. 20
[9] Section 102 Offence 21
Insert at the end of the section: 22
Note. An offence against this section committed by a corporation is an 23
offence attracting special executive liability for a director or other person 24
involved in the management of the corporation--see section 169. 25
[10] Section 112 Obstruction of persons 26
Insert at the end of the section: 27
Note. An offence against this section committed by a corporation is an 28
executive liability offence attracting executive liability for a director or 29
other person involved in the management of the corporation--see 30
section 169A. 31
[11] Section 113 False or misleading statements in reports 32
Insert at the end of the section: 33
Note. An offence against this section committed by a corporation is an 34
offence attracting special executive liability for a director or other person 35
involved in the management of the corporation--see section 169. 36
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Amendment of Acts and Regulations Schedule 1
[12] Section 115 Disposal of waste--harm to environment 1
Insert at the end of section 115 (1): 2
Note. An offence against subsection (1) committed by a corporation is 3
an offence attracting special executive liability for a director or other 4
person involved in the management of the corporation--see 5
section 169. 6
[13] Section 116 Leaks, spillages and other escapes 7
Insert at the end of the section: 8
Note. An offence against subsection (1) or (2) committed by a 9
corporation is an offence attracting special executive liability for a 10
director or other person involved in the management of the 11
corporation--see section 169. 12
[14] Section 117 Emission of ozone depleting substances 13
Insert at the end of section 117 (1): 14
Note. An offence against subsection (1) committed by a corporation is 15
an offence attracting special executive liability for a director or other 16
person involved in the management of the corporation--see 17
section 169. 18
[15] Section 120 Prohibition of pollution of waters 19
Insert at the end of section 120 (1): 20
Note. An offence against subsection (1) committed by a corporation is 21
an offence attracting special executive liability for a director or other 22
person involved in the management of the corporation--see 23
section 169. 24
[16] Section 132 Maximum penalty for air pollution offences 25
Insert at the end of the section: 26
Note 1. An offence against section 124, 125, 126 or 128 committed by a 27
corporation is an offence attracting special executive liability for a 28
director or other person involved in the management of the 29
corporation--see section 169. 30
Note 2. An offence against section 129 committed by a corporation is an 31
executive liability offence attracting executive liability for a director or 32
other person involved in the management of the corporation--see 33
section 169A. 34
[17] Section 141 Maximum penalty for noise offences 35
Insert at the end of the section: 36
Note. An offence against section 136, 137, 139 or 140 committed by a 37
corporation is an executive liability offence attracting executive liability 38
for a director or other person involved in the management of the 39
corporation--see section 169A. 40
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Schedule 1 Amendment of Acts and Regulations
[18] Section 142A Pollution of land 1
Insert at the end of section 142A (1): 2
Note. An offence against subsection (1) committed by a corporation is 3
an offence attracting special executive liability for a director or other 4
person involved in the management of the corporation--see 5
section 169. 6
[19] Section 143 Unlawful transporting or depositing of waste 7
Insert at the end of section 143 (1): 8
Note. An offence against subsection (1) committed by a corporation is 9
an offence attracting special executive liability for a director or other 10
person involved in the management of the corporation--see 11
section 169. 12
[20] Section 144 Use of land as waste facility without lawful authority 13
Insert at the end of section 144 (1): 14
Note. An offence against subsection (1) committed by a corporation is 15
an offence attracting special executive liability for a director or other 16
person involved in the management of the corporation--see 17
section 169. 18
[21] Section 144AA False or misleading information about waste 19
Insert at the end of section 144AA (1): 20
Note. An offence against subsection (1) committed by a corporation is 21
an executive liability offence attracting executive liability for a director or 22
other person involved in the management of the corporation--see 23
section 169A. 24
[22] Section 152 Offence 25
Insert at the end of the section: 26
Note. An offence against this section committed by a corporation is an 27
offence attracting special executive liability for a director or other person 28
involved in the management of the corporation--see section 169. 29
[23] Section 153A Duty of licence holder to prepare pollution incident 30
response management plan 31
Insert at the end of the section: 32
Note. An offence against this section committed by a corporation is an 33
executive liability offence attracting executive liability for a director or 34
other person involved in the management of the corporation--see 35
section 169A. 36
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Amendment of Acts and Regulations Schedule 1
[24] Section 153B EPA may direct other persons to prepare pollution incident 1
response management plan 2
Insert at the end of section 153B (2): 3
Note. An offence against subsection (2) committed by a corporation is 4
an executive liability offence attracting executive liability for a director or 5
other person involved in the management of the corporation--see 6
section 169A. 7
[25] Section 153D Keeping of plan 8
Insert at the end of the section: 9
Note. An offence against this section committed by a corporation is an 10
executive liability offence attracting executive liability for a director or 11
other person involved in the management of the corporation--see 12
section 169A. 13
[26] Section 153E Testing of plan 14
Insert at the end of the section: 15
Note. An offence against this section committed by a corporation is an 16
executive liability offence attracting executive liability for a director or 17
other person involved in the management of the corporation--see 18
section 169A. 19
[27] Section 153F Implementation of plan 20
Insert at the end of the section: 21
Note. An offence against this section committed by a corporation is an 22
executive liability offence attracting executive liability for a director or 23
other person involved in the management of the corporation--see 24
section 169A. 25
[28] Section 155 Sale of motor vehicles 26
Insert at the end of the section: 27
Note. An offence against this section committed by a corporation is an 28
executive liability offence attracting executive liability for a director or 29
other person involved in the management of the corporation--see 30
section 169A. 31
[29] Section 156 Sale of motor vehicles without anti-pollution devices 32
Insert at the end of the section: 33
Note. An offence against this section committed by a corporation is an 34
executive liability offence attracting executive liability for a director or 35
other person involved in the management of the corporation--see 36
section 169A. 37
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Schedule 1 Amendment of Acts and Regulations
[30] Section 167 Control equipment 1
Insert at the end of section 167 (4): 2
Note. An offence against subsection (4) committed by a corporation is 3
an executive liability offence attracting executive liability for a director or 4
other person involved in the management of the corporation--see 5
section 169A. 6
[31] Section 168 Ancillary offences 7
Insert at the end of the section: 8
(2) A person does not commit an offence because of this section for 9
any act or omission that is an offence under section 169B. 10
[32] Section 169 Liability of directors etc for offences by corporation-- 11
offences attracting special executive liability 12
Omit "any provision of this Act or the regulations" from section 169 (1). 13
Insert instead "a provision of this Act attracting special executive liability". 14
[33] Section 169 (1A) 15
Insert after section 169 (1): 16
(1A) For the purposes of this section, each of the following provisions 17
attract special executive liability: 18
(a) section 49 (2), 19
(b) section 64 (1), 20
(c) section 66 (2) or (4), 21
(d) section 102, 22
(e) section 113, 23
(f) section 115 (1), 24
(g) section 116 (1) or (2), 25
(h) section 117 (1), 26
(i) section 120 (1), 27
(j) section 124, 28
(k) section 125, 29
(l) section 126, 30
(m) section 128, 31
(n) section 142A (1), 32
(o) section 143 (1), 33
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Amendment of Acts and Regulations Schedule 1
(p) section 144 (1), 1
(q) section 152. 2
[34] Section 169 (4) and (5) 3
Omit the subsections. 4
[35] Sections 169A-169C 5
Insert after section 169: 6
169A Liability of directors etc for offences by corporation--offences 7
attracting executive liability generally 8
(1) For the purposes of this section, an executive liability offence is 9
an offence against any of the following provisions of this Act that 10
is committed by a corporation: 11
(a) section 47 (1), 12
(b) section 48 (2), 13
(c) section 86 (3), 14
(d) section 91 (5), 15
(e) section 97, 16
(f) section 112, 17
(g) section 129, 18
(h) section 136, 19
(i) section 137, 20
(j) section 139, 21
(k) section 140, 22
(l) section 144AA (1), 23
(m) section 153A, 24
(n) section 153B (2), 25
(o) section 153D, 26
(p) section 153E, 27
(q) section 153F, 28
(r) section 155, 29
(s) section 156, 30
(t) section 167 (4). 31
(2) A person commits an offence against this section if: 32
(a) a corporation commits an executive liability offence, and 33
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Schedule 1 Amendment of Acts and Regulations
(b) the person is: 1
(i) a director of the corporation, or 2
(ii) an individual who is involved in the management of 3
the corporation and who is in a position to influence 4
the conduct of the corporation in relation to the 5
commission of the executive liability offence, and 6
(c) the person: 7
(i) knows or ought reasonably to know that the 8
executive liability offence (or an offence of the 9
same type) would be or is being committed, and 10
(ii) fails to take all reasonable steps to prevent or stop 11
the commission of that offence. 12
Maximum penalty: The maximum penalty for the executive 13
liability offence if committed by an individual. 14
(3) The prosecution bears the legal burden of proving the elements of 15
the offence against this section. 16
(4) The offence against this section can only be prosecuted by a 17
person who can bring a prosecution for the executive liability 18
offence. 19
(5) This section does not affect the liability of the corporation for the 20
executive liability offence, and applies whether or not the 21
corporation is prosecuted for, or convicted of, the executive 22
liability offence. 23
(6) This section does not affect the application of any other law 24
relating to the criminal liability of any persons (whether or not 25
directors or other managers of the corporation) who are 26
accessories to the commission of the executive liability offence 27
or are otherwise concerned in, or party to, the commission of the 28
executive liability offence. 29
(7) In this section: 30
director has the same meaning it has in the Corporations 31
Act 2001 of the Commonwealth. 32
reasonable steps, in relation to the commission of an executive 33
liability offence, includes, but is not limited to, such action (if 34
any) of the following kinds as is reasonable in all the 35
circumstances: 36
(a) action towards: 37
(i) assessing the corporation's compliance with the 38
provision creating the executive liability offence, 39
and 40
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Amendment of Acts and Regulations Schedule 1
(ii) ensuring that the corporation arranged regular 1
professional assessments of its compliance with the 2
provision, 3
(b) action towards ensuring that the corporation's employees, 4
agents and contractors are provided with information, 5
training, instruction and supervision appropriate to them to 6
enable them to comply with the provision creating the 7
executive liability offence so far as the provision is 8
relevant to them, 9
(c) action towards ensuring that: 10
(i) the plant, equipment and other resources, and 11
(ii) the structures, work systems and other processes, 12
relevant to compliance with the provision creating the 13
executive liability offence are appropriate in all the 14
circumstances, 15
(d) action towards creating and maintaining a corporate 16
culture that does not direct, encourage, tolerate or lead to 17
non-compliance with the provision creating the executive 18
liability offence. 19
169B Liability of directors etc for offences by corporation--accessory to 20
the commission of the offences 21
(1) For the purposes of this section, a corporate offence is an offence 22
against this Act or the regulations that is capable of being 23
committed by a corporation, whether or not it is an offence 24
referred to in section 169 or 169A. 25
(2) A person commits an offence against this section if: 26
(a) a corporation commits a corporate offence, and 27
(b) the person is: 28
(i) a director of the corporation, or 29
(ii) an individual who is involved in the management of 30
the corporation and who is in a position to influence 31
the conduct of the corporation in relation to the 32
commission of the corporate offence, and 33
(c) the person: 34
(i) aids, abets, counsels or procures the commission of 35
the corporate offence, or 36
(ii) induces, whether by threats or promises or 37
otherwise, the commission of the corporate offence, 38
or 39
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Schedule 1 Amendment of Acts and Regulations
(iii) conspires with others to effect the commission of 1
the corporate offence, or 2
(iv) is in any other way, whether by act or omission, 3
knowingly concerned in, or party to, the 4
commission of the corporate offence. 5
Maximum penalty: The maximum penalty for the corporate 6
offence if committed by an individual. 7
(3) The prosecution bears the legal burden of proving the elements of 8
the offence against this section. 9
(4) The offence against this section can only be prosecuted by a 10
person who can bring a prosecution for the corporate offence. 11
(5) This section does not affect the liability of the corporation for the 12
corporate offence, and applies whether or not the corporation is 13
prosecuted for, or convicted of, the corporate offence. 14
(6) This section does not affect the application of any other law 15
relating to the criminal liability of any persons (whether or not 16
directors or other managers of the corporation) who are 17
concerned in, or party to, the commission of the corporate 18
offence. 19
169C Evidence as to state of mind of corporation 20
(1) Without limiting any other law or practice regarding the 21
admissibility of evidence, evidence that an officer, employee or 22
agent of a corporation (while acting in his or her capacity as such) 23
had, at any particular time, a particular state of mind, is evidence 24
that the corporation had that state of mind. 25
(2) In this section, the state of mind of a person includes: 26
(a) the knowledge, intention, opinion, belief or purpose of the 27
person, and 28
(b) the person's reasons for the intention, opinion, belief or 29
purpose. 30
[36] Section 305 Liability of appropriate regulatory authority, State and 31
others 32
Omit "section 169 (Offences by corporations)" from section 305 (2) (b). 33
Insert instead "sections 169-169B". 34
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Amendment of Acts and Regulations Schedule 1
1.35 Racing Administration Act 1998 No 114 1
Sections 36B and 36BA 2
Omit section 36B. Insert instead: 3
36B Liability of directors etc for offences by corporation--accessory to 4
the commission of the offences 5
(1) For the purposes of this section, a corporate offence is an offence 6
against this Act or the regulations that is capable of being 7
committed by a corporation. 8
(2) A person commits an offence against this section if: 9
(a) a corporation commits a corporate offence, and 10
(b) the person is: 11
(i) a director of the corporation, or 12
(ii) an individual who is involved in the management of 13
the corporation and who is in a position to influence 14
the conduct of the corporation in relation to the 15
commission of the corporate offence, and 16
(c) the person: 17
(i) aids, abets, counsels or procures the commission of 18
the corporate offence, or 19
(ii) induces, whether by threats or promises or 20
otherwise, the commission of the corporate offence, 21
or 22
(iii) conspires with others to effect the commission of 23
the corporate offence, or 24
(iv) is in any other way, whether by act or omission, 25
knowingly concerned in, or party to, the 26
commission of the corporate offence. 27
Maximum penalty: The maximum penalty for the corporate 28
offence if committed by an individual. 29
(3) The prosecution bears the legal burden of proving the elements of 30
the offence against this section. 31
(4) The offence against this section can only be prosecuted by a 32
person who can bring a prosecution for the corporate offence. 33
(5) This section does not affect the liability of the corporation for the 34
corporate offence, and applies whether or not the corporation is 35
prosecuted for, or convicted of, the corporate offence. 36
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Schedule 1 Amendment of Acts and Regulations
(6) This section does not affect the application of any other law 1
relating to the criminal liability of any persons (whether or not 2
directors or other managers of the corporation) who are 3
concerned in, or party to, the commission of the corporate 4
offence. 5
36BA Evidence as to state of mind of corporation 6
(1) Without limiting any other law or practice regarding the 7
admissibility of evidence, evidence that an officer, employee or 8
agent of a corporation (while acting in his or her capacity as such) 9
had, at any particular time, a particular state of mind, is evidence 10
that the corporation had that state of mind. 11
(2) In this section, the state of mind of a person includes: 12
(a) the knowledge, intention, opinion, belief or purpose of the 13
person, and 14
(b) the person's reasons for the intention, opinion, belief or 15
purpose. 16
1.36 Rural Workers Accommodation Act 1969 No 34 17
Section 22 18
Omit the section. Insert instead: 19
22 Liability of directors etc for offences by corporation--accessory to 20
the commission of the offences 21
(1) For the purposes of this section, a corporate offence is an offence 22
against this Act or the regulations that is capable of being 23
committed by a corporation. 24
(2) A person commits an offence against this section if: 25
(a) a corporation commits a corporate offence, and 26
(b) the person is: 27
(i) a director of the corporation, or 28
(ii) an individual who is involved in the management of 29
the corporation and who is in a position to influence 30
the conduct of the corporation in relation to the 31
commission of the corporate offence, and 32
(c) the person: 33
(i) aids, abets, counsels or procures the commission of 34
the corporate offence, or 35
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(ii) induces, whether by threats or promises or 1
otherwise, the commission of the corporate offence, 2
or 3
(iii) conspires with others to effect the commission of 4
the corporate offence, or 5
(iv) is in any other way, whether by act or omission, 6
knowingly concerned in, or party to, the 7
commission of the corporate offence. 8
Maximum penalty: The maximum penalty for the corporate 9
offence if committed by an individual. 10
(3) The prosecution bears the legal burden of proving the elements of 11
the offence against this section. 12
(4) The offence against this section can only be prosecuted by a 13
person who can bring a prosecution for the corporate offence. 14
(5) This section does not affect the liability of the corporation for the 15
corporate offence, and applies whether or not the corporation is 16
prosecuted for, or convicted of, the corporate offence. 17
(6) This section does not affect the application of any other law 18
relating to the criminal liability of any persons (whether or not 19
directors or other managers of the corporation) who are 20
concerned in, or party to, the commission of the corporate 21
offence. 22
1.37 Security Industry Act 1997 No 157 23
Section 44 24
Omit the section. Insert instead: 25
44 Liability of directors etc for offences by corporation--accessory to 26
the commission of the offences 27
(1) For the purposes of this section, a corporate offence is an offence 28
against this Act or the regulations that is capable of being 29
committed by a corporation. 30
(2) A person commits an offence against this section if: 31
(a) a corporation commits a corporate offence, and 32
(b) the person is: 33
(i) a director of the corporation, or 34
(ii) an individual who is involved in the management of 35
the corporation and who is in a position to influence 36
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Schedule 1 Amendment of Acts and Regulations
the conduct of the corporation in relation to the 1
commission of the corporate offence, and 2
(c) the person: 3
(i) aids, abets, counsels or procures the commission of 4
the corporate offence, or 5
(ii) induces, whether by threats or promises or 6
otherwise, the commission of the corporate offence, 7
or 8
(iii) conspires with others to effect the commission of 9
the corporate offence, or 10
(iv) is in any other way, whether by act or omission, 11
knowingly concerned in, or party to, the 12
commission of the corporate offence. 13
Maximum penalty: The maximum penalty for the corporate 14
offence if committed by an individual. 15
(3) The prosecution bears the legal burden of proving the elements of 16
the offence against this section. 17
(4) The offence against this section can only be prosecuted by a 18
person who can bring a prosecution for the corporate offence. 19
(5) This section does not affect the liability of the corporation for the 20
corporate offence, and applies whether or not the corporation is 21
prosecuted for, or convicted of, the corporate offence. 22
(6) This section does not affect the application of any other law 23
relating to the criminal liability of any persons (whether or not 24
directors or other managers of the corporation) who are 25
concerned in, or party to, the commission of the corporate 26
offence. 27
1.38 Sydney Water Catchment Management Act 1998 No 171 28
[1] Section 62B Corrective action by occupiers or persons carrying on 29
certain activities 30
Insert at the end of the section: 31
Note. An offence against subsection (5) committed by a corporation is 32
an executive liability offence attracting executive liability for a director or 33
other person involved in the management of the corporation--see 34
section 64B. 35
[2] Section 62F Preventive action 36
Insert at the end of the section: 37
Note. An offence against subsection (6) committed by a corporation is 38
an executive liability offence attracting executive liability for a director or 39
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Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
other person involved in the management of the corporation--see 1
section 64B. 2
[3] Section 64 Offence to discharge into works 3
Insert at the end of section 64 (1): 4
Note. An offence against subsection (1) committed by a corporation is 5
an executive liability offence attracting executive liability for a director or 6
other person involved in the management of the corporation--see 7
section 64B. 8
[4] Sections 64B and 64C 9
Omit section 64B. Insert instead: 10
64B Liability of directors etc for offences by corporation--offences 11
attracting executive liability 12
(1) For the purposes of this section, an executive liability offence is: 13
(a) an offence against any of the following provisions of this 14
Act that is committed by a corporation: 15
(i) section 62B (5), 16
(ii) section 62F (6), 17
(iii) section 64 (1), or 18
(b) an offence against the regulations: 19
(i) that is prescribed by the regulations as an offence to 20
which this section applies, and 21
(ii) that is committed by a corporation. 22
(2) A person commits an offence against this section if: 23
(a) a corporation commits an executive liability offence, and 24
(b) the person is: 25
(i) a director of the corporation, or 26
(ii) an individual who is involved in the management of 27
the corporation and who is in a position to influence 28
the conduct of the corporation in relation to the 29
commission of the executive liability offence, and 30
(c) the person: 31
(i) knows or ought reasonably to know that the 32
executive liability offence (or an offence of the 33
same type) would be or is being committed, and 34
(ii) fails to take all reasonable steps to prevent or stop 35
the commission of that offence. 36
Maximum penalty: The maximum penalty for the executive 37
liability offence if committed by an individual. 38
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Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
(3) The prosecution bears the legal burden of proving the elements of 1
the offence against this section. 2
(4) The offence against this section can only be prosecuted by a 3
person who can bring a prosecution for the executive liability 4
offence. 5
(5) This section does not affect the liability of the corporation for the 6
executive liability offence, and applies whether or not the 7
corporation is prosecuted for, or convicted of, the executive 8
liability offence. 9
(6) This section does not affect the application of any other law 10
relating to the criminal liability of any persons (whether or not 11
directors or other managers of the corporation) who are 12
accessories to the commission of the executive liability offence 13
or are otherwise concerned in, or party to, the commission of the 14
executive liability offence. 15
(7) In this section: 16
director has the same meaning it has in the Corporations 17
Act 2001 of the Commonwealth. 18
reasonable steps, in relation to the commission of an executive 19
liability offence, includes, but is not limited to, such action (if 20
any) of the following kinds as is reasonable in all the 21
circumstances: 22
(a) action towards: 23
(i) assessing the corporation's compliance with the 24
provision creating the executive liability offence, 25
and 26
(ii) ensuring that the corporation arranged regular 27
professional assessments of its compliance with the 28
provision, 29
(b) action towards ensuring that the corporation's employees, 30
agents and contractors are provided with information, 31
training, instruction and supervision appropriate to them to 32
enable them to comply with the provision creating the 33
executive liability offence so far as the provision is 34
relevant to them, 35
(c) action towards ensuring that: 36
(i) the plant, equipment and other resources, and 37
(ii) the structures, work systems and other processes, 38
relevant to compliance with the provision creating the 39
executive liability offence are appropriate in all the 40
circumstances, 41
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Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
(d) action towards creating and maintaining a corporate 1
culture that does not direct, encourage, tolerate or lead to 2
non-compliance with the provision creating the executive 3
liability offence. 4
64C Evidence as to state of mind of corporation 5
(1) Without limiting any other law or practice regarding the 6
admissibility of evidence, evidence that an officer, employee or 7
agent of a corporation (while acting in his or her capacity as such) 8
had, at any particular time, a particular state of mind, is evidence 9
that the corporation had that state of mind. 10
(2) In this section, the state of mind of a person includes: 11
(a) the knowledge, intention, opinion, belief or purpose of the 12
person, and 13
(b) the person's reasons for the intention, opinion, belief or 14
purpose. 15
[5] Section 67 Persons causing offences 16
Insert at the end of the section: 17
(3) A person does not commit an offence because of this section for 18
any act or omission that is an offence under section 67A. 19
[6] Section 67A 20
Insert after section 67: 21
67A Liability of directors etc for offences by corporation--accessory to 22
the commission of the offences 23
(1) For the purposes of this section, a corporate offence is an offence 24
against this Act or the regulations that is capable of being 25
committed by a corporation, whether or not it is an executive 26
liability offence referred to in section 64B. 27
(2) A person commits an offence against this section if: 28
(a) a corporation commits a corporate offence, and 29
(b) the person is: 30
(i) a director of the corporation, or 31
(ii) an individual who is involved in the management of 32
the corporation and who is in a position to influence 33
the conduct of the corporation in relation to the 34
commission of the corporate offence, and 35
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Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
(c) the person: 1
(i) aids, abets, counsels or procures the commission of 2
the corporate offence, or 3
(ii) induces, whether by threats or promises or 4
otherwise, the commission of the corporate offence, 5
or 6
(iii) conspires with others to effect the commission of 7
the corporate offence, or 8
(iv) is in any other way, whether by act or omission, 9
knowingly concerned in, or party to, the 10
commission of the corporate offence. 11
Maximum penalty: The maximum penalty for the corporate 12
offence if committed by an individual. 13
(3) The prosecution bears the legal burden of proving the elements of 14
the offence against this section. 15
(4) The offence against this section can only be prosecuted by a 16
person who can bring a prosecution for the corporate offence. 17
(5) This section does not affect the liability of the corporation for the 18
corporate offence, and applies whether or not the corporation is 19
prosecuted for, or convicted of, the corporate offence. 20
(6) This section does not affect the application of any other law 21
relating to the criminal liability of any persons (whether or not 22
directors or other managers of the corporation) who are 23
concerned in, or party to, the commission of the corporate 24
offence. 25
1.39 Sydney Water Catchment Management Regulation 2008 26
Clause 23 Certain conduct prohibited on Schedule 1 land and 27
Schedule 2 land 28
Insert after clause 23 (3): 29
(3A) An offence against subclause (1) (f) or (g) is prescribed as an 30
offence to which section 64B of the Act applies. 31
Note. An offence against subclause (1) (f) or (g) committed by a 32
corporation is an executive liability offence attracting executive liability 33
for a director or other person involved in the management of the 34
corporation--see section 64B of the Act. 35
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Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
1.40 Taxation Administration Act 1996 No 97 1
[1] Section 10 Requirement for full and true disclosure of relevant facts and 2
circumstances 3
Insert at the end of section 10 (1): 4
Note. An offence against subsection (1) committed by a corporation is 5
an executive liability offence attracting executive liability for a director or 6
other person involved in the management of the corporation--see 7
section 121. 8
[2] Section 41 Effect of approval 9
Insert at the end of the section: 10
Note. An offence against subsection (1) or (2) committed by a 11
corporation is an executive liability offence attracting executive liability 12
for a director or other person involved in the management of the 13
corporation--see section 121. 14
[3] Section 42 Stamping of instruments 15
Insert at the end of section 42 (2): 16
Note. An offence against subsection (2) committed by a corporation is 17
an executive liability offence attracting executive liability for a director or 18
other person involved in the management of the corporation--see 19
section 121. 20
[4] Section 49 Additional records 21
Insert at the end of section 49 (2): 22
Note. An offence against subsection (2) committed by a corporation is 23
an executive liability offence attracting executive liability for a director or 24
other person involved in the management of the corporation--see 25
section 121. 26
[5] Section 50 Inclusion of false or misleading information 27
Insert at the end of the section: 28
Note. An offence against this section committed by a corporation is an 29
executive liability offence attracting executive liability for a director or 30
other person involved in the management of the corporation--see 31
section 121. 32
[6] Section 54 Wilfully destroying records 33
Insert at the end of the section: 34
Note. An offence against this section committed by a corporation is an 35
executive liability offence attracting executive liability for a director or 36
other person involved in the management of the corporation--see 37
section 121. 38
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Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
[7] Section 55 Knowingly giving false or misleading information 1
Insert at the end of the section: 2
Note. An offence against this section committed by a corporation is an 3
executive liability offence attracting executive liability for a director or 4
other person involved in the management of the corporation--see 5
section 121. 6
[8] Section 56 Deliberately omitting information 7
Insert at the end of the section: 8
Note. An offence against this section committed by a corporation is an 9
executive liability offence attracting executive liability for a director or 10
other person involved in the management of the corporation--see 11
section 121. 12
[9] Section 57 Failure to lodge documents 13
Insert at the end of the section: 14
Note. An offence against this section committed by a corporation is an 15
executive liability offence attracting executive liability for a director or 16
other person involved in the management of the corporation--see 17
section 121. 18
[10] Section 58 Falsifying or concealing identity 19
Insert at the end of the section: 20
Note. An offence against this section committed by a corporation is an 21
executive liability offence attracting executive liability for a director or 22
other person involved in the management of the corporation--see 23
section 121. 24
[11] Section 72 Power to require information, instruments and records, and 25
attendance 26
Insert at the end of the section: 27
Note. An offence against subsection (8) committed by a corporation is 28
an executive liability offence attracting executive liability for a director or 29
other person involved in the management of the corporation--see 30
section 121. 31
[12] Section 113 Notice of liquidator's appointment 32
Insert at the end of the section: 33
Note. An offence against this section committed by a corporation is an 34
executive liability offence attracting executive liability for a director or 35
other person involved in the management of the corporation--see 36
section 121. 37
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Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
[13] Sections 121 and 121A 1
Omit section 121. Insert instead: 2
121 Liability of directors etc for offences by corporation--offences 3
attracting executive liability 4
(1) For the purposes of this section, an executive liability offence is 5
an offence against any of the following provisions of the taxation 6
laws that is committed by a corporation: 7
(a) section 10 (1), 8
(b) section 41 (1) or (2), 9
(c) section 42 (2), 10
(d) section 49 (2), 11
(e) section 50, 12
(f) section 54, 13
(g) section 55, 14
(h) section 56, 15
(i) section 57, 16
(j) section 58, 17
(k) section 72 (8), 18
(l) section 113, 19
(m) section 25 (6) of the Duties Act 1997, 20
(n) section 218C (1) of the Duties Act 1997, 21
(o) section 248 of the Duties Act 1997, 22
(p) section 251 (1) of the Duties Act 1997, 23
(q) section 262 of the Duties Act 1997, 24
(r) section 270 (4) of the Duties Act 1997, 25
(s) section 286 (1) of the Duties Act 1997, 26
(t) section 296 (1) of the Duties Act 1997, 27
(u) section 301 (1) of the Duties Act 1997, 28
(v) section 11 of the Health Insurance Levies Act 1982, 29
(w) clause 18 (8) of Schedule 2 to the Payroll Tax Act 2007. 30
(2) A person commits an offence against this section if: 31
(a) a corporation commits an executive liability offence, and 32
(b) the person is: 33
(i) a director of the corporation, or 34
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Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
(ii) an individual who is involved in the management of 1
the corporation and who is in a position to influence 2
the conduct of the corporation in relation to the 3
commission of the executive liability offence, and 4
(c) the person: 5
(i) knows or ought reasonably to know that the 6
executive liability offence (or an offence of the 7
same type) would be or is being committed, and 8
(ii) fails to take all reasonable steps to prevent or stop 9
the commission of that offence. 10
Maximum penalty: The maximum penalty for the executive 11
liability offence if committed by an individual. 12
(3) The prosecution bears the legal burden of proving the elements of 13
the offence against this section. 14
(4) The offence against this section can only be prosecuted by a 15
person who can bring a prosecution for the executive liability 16
offence. 17
(5) This section does not affect the liability of the corporation for the 18
executive liability offence, and applies whether or not the 19
corporation is prosecuted for, or convicted of, the executive 20
liability offence. 21
(6) This section does not affect the application of any other law 22
relating to the criminal liability of any persons (whether or not 23
directors or other managers of the corporation) who are 24
accessories to the commission of the executive liability offence 25
or are otherwise concerned in, or party to, the commission of the 26
executive liability offence. 27
(7) In this section: 28
director has the same meaning it has in the Corporations 29
Act 2001 of the Commonwealth. 30
reasonable steps, in relation to the commission of an executive 31
liability offence, includes, but is not limited to, such action (if 32
any) of the following kinds as is reasonable in all the 33
circumstances: 34
(a) action towards: 35
(i) assessing the corporation's compliance with the 36
provision creating the executive liability offence, 37
and 38
(ii) ensuring that the corporation arranged regular 39
professional assessments of its compliance with the 40
provision, 41
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Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
(b) action towards ensuring that the corporation's employees, 1
agents and contractors are provided with information, 2
training, instruction and supervision appropriate to them to 3
enable them to comply with the provision creating the 4
executive liability offence so far as the provision is 5
relevant to them, 6
(c) action towards ensuring that: 7
(i) the plant, equipment and other resources, and 8
(ii) the structures, work systems and other processes, 9
relevant to compliance with the provision creating the 10
executive liability offence are appropriate in all the 11
circumstances, 12
(d) action towards creating and maintaining a corporate 13
culture that does not direct, encourage, tolerate or lead to 14
non-compliance with the provision creating the executive 15
liability offence. 16
121A Liability of directors etc for offences by corporation--accessory to 17
the commission of the offences 18
(1) For the purposes of this section, a corporate offence is an offence 19
against a taxation law or the regulations that is capable of being 20
committed by a corporation, whether or not it is an executive 21
liability offence referred to in section 121. 22
(2) A person commits an offence against this section if: 23
(a) a corporation commits a corporate offence, and 24
(b) the person is: 25
(i) a director of the corporation, or 26
(ii) an individual who is involved in the management of 27
the corporation and who is in a position to influence 28
the conduct of the corporation in relation to the 29
commission of the corporate offence, and 30
(c) the person: 31
(i) aids, abets, counsels or procures the commission of 32
the corporate offence, or 33
(ii) induces, whether by threats or promises or 34
otherwise, the commission of the corporate offence, 35
or 36
(iii) conspires with others to effect the commission of 37
the corporate offence, or 38
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Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
(iv) is in any other way, whether by act or omission, 1
knowingly concerned in, or party to, the 2
commission of the corporate offence. 3
Maximum penalty: The maximum penalty for the corporate 4
offence if committed by an individual. 5
(3) The prosecution bears the legal burden of proving the elements of 6
the offence against this section. 7
(4) The offence against this section can only be prosecuted by a 8
person who can bring a prosecution for the corporate offence. 9
(5) This section does not affect the liability of the corporation for the 10
corporate offence, and applies whether or not the corporation is 11
prosecuted for, or convicted of, the corporate offence. 12
(6) This section does not affect the application of any other law 13
relating to the criminal liability of any persons (whether or not 14
directors or other managers of the corporation) who are 15
concerned in, or party to, the commission of the corporate 16
offence. 17
1.41 Threatened Species Conservation Act 1995 No 101 18
[1] Section 114 Director-General may make stop work order 19
Insert at the end of section 114 (6): 20
Note. An offence against subsection (6) committed by a corporation is 21
an executive liability offence attracting executive liability for a director or 22
other person involved in the management of the corporation--see 23
section 152. 24
[2] Section 141O Offence 25
Insert at the end of the section: 26
Note. An offence against this section committed by a corporation is an 27
executive liability offence attracting executive liability for a director or 28
other person involved in the management of the corporation--see 29
section 152. 30
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Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
[3] Sections 152-152B 1
Omit section 152. Insert instead: 2
152 Liability of directors etc for offences by corporation--offences 3
attracting executive liability 4
(1) For the purposes of this section, an executive liability offence is 5
an offence against any of the following provisions of this Act that 6
is committed by a corporation: 7
(a) section 114 (6), 8
(b) section 141O. 9
(2) A person commits an offence against this section if: 10
(a) a corporation commits an executive liability offence, and 11
(b) the person is: 12
(i) a director of the corporation, or 13
(ii) an individual who is involved in the management of 14
the corporation and who is in a position to influence 15
the conduct of the corporation in relation to the 16
commission of the executive liability offence, and 17
(c) the person: 18
(i) knows or ought reasonably to know that the 19
executive liability offence (or an offence of the 20
same type) would be or is being committed, and 21
(ii) fails to take all reasonable steps to prevent or stop 22
the commission of that offence. 23
Maximum penalty: The maximum penalty for the executive 24
liability offence if committed by an individual. 25
(3) The prosecution bears the legal burden of proving the elements of 26
the offence against this section. 27
(4) The offence against this section can only be prosecuted by a 28
person who can bring a prosecution for the executive liability 29
offence. 30
(5) This section does not affect the liability of the corporation for the 31
executive liability offence, and applies whether or not the 32
corporation is prosecuted for, or convicted of, the executive 33
liability offence. 34
(6) This section does not affect the application of any other law 35
relating to the criminal liability of any persons (whether or not 36
directors or other managers of the corporation) who are 37
accessories to the commission of the executive liability offence 38
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Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
or are otherwise concerned in, or party to, the commission of the 1
executive liability offence. 2
(7) In this section: 3
director has the same meaning it has in the Corporations 4
Act 2001 of the Commonwealth. 5
reasonable steps, in relation to the commission of an executive 6
liability offence, includes, but is not limited to, such action (if 7
any) of the following kinds as is reasonable in all the 8
circumstances: 9
(a) action towards: 10
(i) assessing the corporation's compliance with the 11
provision creating the executive liability offence, 12
and 13
(ii) ensuring that the corporation arranged regular 14
professional assessments of its compliance with the 15
provision, 16
(b) action towards ensuring that the corporation's employees, 17
agents and contractors are provided with information, 18
training, instruction and supervision appropriate to them to 19
enable them to comply with the provision creating the 20
executive liability offence so far as the provision is 21
relevant to them, 22
(c) action towards ensuring that: 23
(i) the plant, equipment and other resources, and 24
(ii) the structures, work systems and other processes, 25
relevant to compliance with the provision creating the 26
executive liability offence are appropriate in all the 27
circumstances, 28
(d) action towards creating and maintaining a corporate 29
culture that does not direct, encourage, tolerate or lead to 30
non-compliance with the provision creating the executive 31
liability offence. 32
152A Liability of directors etc for offences by corporation--accessory to 33
the commission of the offences 34
(1) For the purposes of this section, a corporate offence is an offence 35
against this Act or the regulations that is capable of being 36
committed by a corporation, whether or not it is an executive 37
liability offence referred to in section 152. 38
(2) A person commits an offence against this section if: 39
(a) a corporation commits a corporate offence, and 40
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Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
(b) the person is: 1
(i) a director of the corporation, or 2
(ii) an individual who is involved in the management of 3
the corporation and who is in a position to influence 4
the conduct of the corporation in relation to the 5
commission of the corporate offence, and 6
(c) the person: 7
(i) aids, abets, counsels or procures the commission of 8
the corporate offence, or 9
(ii) induces, whether by threats or promises or 10
otherwise, the commission of the corporate offence, 11
or 12
(iii) conspires with others to effect the commission of 13
the corporate offence, or 14
(iv) is in any other way, whether by act or omission, 15
knowingly concerned in, or party to, the 16
commission of the corporate offence. 17
Maximum penalty: The maximum penalty for the corporate 18
offence if committed by an individual. 19
(3) The prosecution bears the legal burden of proving the elements of 20
the offence against this section. 21
(4) The offence against this section can only be prosecuted by a 22
person who can bring a prosecution for the corporate offence. 23
(5) This section does not affect the liability of the corporation for the 24
corporate offence, and applies whether or not the corporation is 25
prosecuted for, or convicted of, the corporate offence. 26
(6) This section does not affect the application of any other law 27
relating to the criminal liability of any persons (whether or not 28
directors or other managers of the corporation) who are 29
concerned in, or party to, the commission of the corporate 30
offence. 31
152B Evidence as to state of mind of corporation 32
(1) Without limiting any other law or practice regarding the 33
admissibility of evidence, evidence that an officer, employee or 34
agent of a corporation (while acting in his or her capacity as such) 35
had, at any particular time, a particular state of mind, is evidence 36
that the corporation had that state of mind. 37
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Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
(2) In this section, the state of mind of a person includes: 1
(a) the knowledge, intention, opinion, belief or purpose of the 2
person, and 3
(b) the person's reasons for the intention, opinion, belief or 4
purpose. 5
[4] Section 154 Ancillary offences 6
Insert at the end of the section: 7
(2) A person does not commit an offence because of this section for 8
any act or omission that is an offence under section 152A. 9
1.42 Unlawful Gambling Act 1998 No 113 10
Sections 53 and 53A 11
Omit section 53. Insert instead: 12
53 Liability of directors etc for offences by corporation--accessory to 13
the commission of the offences 14
(1) For the purposes of this section, a corporate offence is an offence 15
against this Act or the regulations that is capable of being 16
committed by a corporation. 17
(2) A person commits an offence against this section if: 18
(a) a corporation commits a corporate offence, and 19
(b) the person is: 20
(i) a director of the corporation, or 21
(ii) an individual who is involved in the management of 22
the corporation and who is in a position to influence 23
the conduct of the corporation in relation to the 24
commission of the corporate offence, and 25
(c) the person: 26
(i) aids, abets, counsels or procures the commission of 27
the corporate offence, or 28
(ii) induces, whether by threats or promises or 29
otherwise, the commission of the corporate offence, 30
or 31
(iii) conspires with others to effect the commission of 32
the corporate offence, or 33
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Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
(iv) is in any other way, whether by act or omission, 1
knowingly concerned in, or party to, the 2
commission of the corporate offence. 3
Maximum penalty: The maximum penalty for the corporate 4
offence if committed by an individual. 5
(3) The prosecution bears the legal burden of proving the elements of 6
the offence against this section. 7
(4) The offence against this section can only be prosecuted by a 8
person who can bring a prosecution for the corporate offence. 9
(5) This section does not affect the liability of the corporation for the 10
corporate offence, and applies whether or not the corporation is 11
prosecuted for, or convicted of, the corporate offence. 12
(6) This section does not affect the application of any other law 13
relating to the criminal liability of any persons (whether or not 14
directors or other managers of the corporation) who are 15
concerned in, or party to, the commission of the corporate 16
offence. 17
53A Evidence as to state of mind of corporation 18
(1) Without limiting any other law or practice regarding the 19
admissibility of evidence, evidence that an officer, employee or 20
agent of a corporation (while acting in his or her capacity as such) 21
had, at any particular time, a particular state of mind, is evidence 22
that the corporation had that state of mind. 23
(2) In this section, the state of mind of a person includes: 24
(a) the knowledge, intention, opinion, belief or purpose of the 25
person, and 26
(b) the person's reasons for the intention, opinion, belief or 27
purpose. 28
1.43 Valuers Act 2003 No 4 29
Section 44 30
Omit the section. Insert instead: 31
44 Liability of directors etc for offences by corporation--accessory to 32
the commission of the offences 33
(1) For the purposes of this section, a corporate offence is an offence 34
against this Act or the regulations that is capable of being 35
committed by a corporation. 36
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Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
(2) A person commits an offence against this section if: 1
(a) a corporation commits a corporate offence, and 2
(b) the person is: 3
(i) a director of the corporation, or 4
(ii) an individual who is involved in the management of 5
the corporation and who is in a position to influence 6
the conduct of the corporation in relation to the 7
commission of the corporate offence, and 8
(c) the person: 9
(i) aids, abets, counsels or procures the commission of 10
the corporate offence, or 11
(ii) induces, whether by threats or promises or 12
otherwise, the commission of the corporate offence, 13
or 14
(iii) conspires with others to effect the commission of 15
the corporate offence, or 16
(iv) is in any other way, whether by act or omission, 17
knowingly concerned in, or party to, the 18
commission of the corporate offence. 19
Maximum penalty: The maximum penalty for the corporate 20
offence if committed by an individual. 21
(3) The prosecution bears the legal burden of proving the elements of 22
the offence against this section. 23
(4) The offence against this section can only be prosecuted by a 24
person who can bring a prosecution for the corporate offence. 25
(5) This section does not affect the liability of the corporation for the 26
corporate offence, and applies whether or not the corporation is 27
prosecuted for, or convicted of, the corporate offence. 28
(6) This section does not affect the application of any other law 29
relating to the criminal liability of any persons (whether or not 30
directors or other managers of the corporation) who are 31
concerned in, or party to, the commission of the corporate 32
offence. 33
1.44 Veterinary Practice Act 2003 No 87 34
[1] Section 15 Prohibition against directing or inciting misconduct 35
Omit section 15 (4). 36
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Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
[2] Section 99 1
Omit the section. Insert instead: 2
99 Liability of directors etc for offences by corporation--accessory to 3
the commission of the offences 4
(1) For the purposes of this section, a corporate offence is an offence 5
against this Act or the regulations that is capable of being 6
committed by a corporation. 7
(2) A person commits an offence against this section if: 8
(a) a corporation commits a corporate offence, and 9
(b) the person is: 10
(i) a director of the corporation, or 11
(ii) an individual who is involved in the management of 12
the corporation and who is in a position to influence 13
the conduct of the corporation in relation to the 14
commission of the corporate offence, and 15
(c) the person: 16
(i) aids, abets, counsels or procures the commission of 17
the corporate offence, or 18
(ii) induces, whether by threats or promises or 19
otherwise, the commission of the corporate offence, 20
or 21
(iii) conspires with others to effect the commission of 22
the corporate offence, or 23
(iv) is in any other way, whether by act or omission, 24
knowingly concerned in, or party to, the 25
commission of the corporate offence. 26
Maximum penalty: The maximum penalty for the corporate 27
offence if committed by an individual. 28
(3) The prosecution bears the legal burden of proving the elements of 29
the offence against this section. 30
(4) The offence against this section can only be prosecuted by a 31
person who can bring a prosecution for the corporate offence. 32
(5) This section does not affect the liability of the corporation for the 33
corporate offence, and applies whether or not the corporation is 34
prosecuted for, or convicted of, the corporate offence. 35
(6) This section does not affect the application of any other law 36
relating to the criminal liability of any persons (whether or not 37
directors or other managers of the corporation) who are 38
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Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
concerned in, or party to, the commission of the corporate 1
offence. 2
1.45 Water Industry Competition Act 2006 No 104 3
[1] Section 5 Prohibition of unlicensed network operation and water supply 4
Insert at the end of section 5 (1): 5
Note. An offence against subsection (1) committed by a corporation is 6
an executive liability offence attracting executive liability for a director or 7
other person involved in the management of the corporation--see 8
section 97. 9
[2] Section 71 Offence to discharge into drains and sewers 10
Insert at the end of the section: 11
Note. An offence against this section committed by a corporation is an 12
executive liability offence attracting executive liability for a director or 13
other person involved in the management of the corporation--see 14
section 97. 15
[3] Sections 97-97B 16
Omit section 97. Insert instead: 17
97 Liability of directors etc for offences by corporation--offences 18
attracting executive liability 19
(1) For the purposes of this section, an executive liability offence is 20
an offence against any of the following provisions of this Act that 21
is committed by a corporation: 22
(a) section 5 (1), 23
(b) section 71. 24
(2) A person commits an offence against this section if: 25
(a) a corporation commits an executive liability offence, and 26
(b) the person is: 27
(i) a director of the corporation, or 28
(ii) an individual who is involved in the management of 29
the corporation and who is in a position to influence 30
the conduct of the corporation in relation to the 31
commission of the executive liability offence, and 32
(c) the person: 33
(i) knows or ought reasonably to know that the 34
executive liability offence (or an offence of the 35
same type) would be or is being committed, and 36
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Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
(ii) fails to take all reasonable steps to prevent or stop 1
the commission of that offence. 2
Maximum penalty: The maximum penalty for the executive 3
liability offence if committed by an individual. 4
(3) The prosecution bears the legal burden of proving the elements of 5
the offence against this section. 6
(4) The offence against this section can only be prosecuted by a 7
person who can bring a prosecution for the executive liability 8
offence. 9
(5) This section does not affect the liability of the corporation for the 10
executive liability offence, and applies whether or not the 11
corporation is prosecuted for, or convicted of, the executive 12
liability offence. 13
(6) This section does not affect the application of any other law 14
relating to the criminal liability of any persons (whether or not 15
directors or other managers of the corporation) who are 16
accessories to the commission of the executive liability offence 17
or are otherwise concerned in, or party to, the commission of the 18
executive liability offence. 19
(7) In this section: 20
director has the same meaning it has in the Corporations 21
Act 2001 of the Commonwealth. 22
reasonable steps, in relation to the commission of an executive 23
liability offence, includes, but is not limited to, such action (if 24
any) of the following kinds as is reasonable in all the 25
circumstances: 26
(a) action towards: 27
(i) assessing the corporation's compliance with the 28
provision creating the executive liability offence, 29
and 30
(ii) ensuring that the corporation arranged regular 31
professional assessments of its compliance with the 32
provision, 33
(b) action towards ensuring that the corporation's employees, 34
agents and contractors are provided with information, 35
training, instruction and supervision appropriate to them to 36
enable them to comply with the provision creating the 37
executive liability offence so far as the provision is 38
relevant to them, 39
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Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
(c) action towards ensuring that: 1
(i) the plant, equipment and other resources, and 2
(ii) the structures, work systems and other processes, 3
relevant to compliance with the provision creating the 4
executive liability offence are appropriate in all the 5
circumstances, 6
(d) action towards creating and maintaining a corporate 7
culture that does not direct, encourage, tolerate or lead to 8
non-compliance with the provision creating the executive 9
liability offence. 10
97A Liability of directors etc for offences by corporation--accessory to 11
the commission of the offences 12
(1) For the purposes of this section, a corporate offence is an offence 13
against this Act or the regulations that is capable of being 14
committed by a corporation, whether or not it is an executive 15
liability offence referred to in section 97. 16
(2) A person commits an offence against this section if: 17
(a) a corporation commits a corporate offence, and 18
(b) the person is: 19
(i) a director of the corporation, or 20
(ii) an individual who is involved in the management of 21
the corporation and who is in a position to influence 22
the conduct of the corporation in relation to the 23
commission of the corporate offence, and 24
(c) the person: 25
(i) aids, abets, counsels or procures the commission of 26
the corporate offence, or 27
(ii) induces, whether by threats or promises or 28
otherwise, the commission of the corporate offence, 29
or 30
(iii) conspires with others to effect the commission of 31
the corporate offence, or 32
(iv) is in any other way, whether by act or omission, 33
knowingly concerned in, or party to, the 34
commission of the corporate offence. 35
Maximum penalty: The maximum penalty for the corporate 36
offence if committed by an individual. 37
(3) The prosecution bears the legal burden of proving the elements of 38
the offence against this section. 39
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Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Amendment of Acts and Regulations Schedule 1
(4) The offence against this section can only be prosecuted by a 1
person who can bring a prosecution for the corporate offence. 2
(5) This section does not affect the liability of the corporation for the 3
corporate offence, and applies whether or not the corporation is 4
prosecuted for, or convicted of, the corporate offence. 5
(6) This section does not affect the application of any other law 6
relating to the criminal liability of any persons (whether or not 7
directors or other managers of the corporation) who are 8
concerned in, or party to, the commission of the corporate 9
offence. 10
97B Evidence as to state of mind of corporation 11
(1) Without limiting any other law or practice regarding the 12
admissibility of evidence, evidence that an officer, employee or 13
agent of a corporation (while acting in his or her capacity as such) 14
had, at any particular time, a particular state of mind, is evidence 15
that the corporation had that state of mind. 16
(2) In this section, the state of mind of a person includes: 17
(a) the knowledge, intention, opinion, belief or purpose of the 18
person, and 19
(b) the person's reasons for the intention, opinion, belief or 20
purpose. 21
1.46 Workplace Injury Management and Workers Compensation 22
Act 1998 No 86 23
Section 244 24
Omit the section. Insert instead: 25
244 Liability of directors etc for offences by corporation--accessory to 26
the commission of the offences 27
(1) For the purposes of this section, a corporate offence is an offence 28
against this Act or the regulations that is capable of being 29
committed by a corporation. 30
(2) A person commits an offence against this section if: 31
(a) a corporation commits a corporate offence, and 32
(b) the person is: 33
(i) a director of the corporation, or 34
(ii) an individual who is involved in the management of 35
the corporation and who is in a position to influence 36
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Miscellaneous Acts Amendment (Directors' Liability) Bill 2012
Schedule 1 Amendment of Acts and Regulations
the conduct of the corporation in relation to the 1
commission of the corporate offence, and 2
(c) the person: 3
(i) aids, abets, counsels or procures the commission of 4
the corporate offence, or 5
(ii) induces, whether by threats or promises or 6
otherwise, the commission of the corporate offence, 7
or 8
(iii) conspires with others to effect the commission of 9
the corporate offence, or 10
(iv) is in any other way, whether by act or omission, 11
knowingly concerned in, or party to, the 12
commission of the corporate offence. 13
Maximum penalty: The maximum penalty for the corporate 14
offence if committed by an individual. 15
(3) The prosecution bears the legal burden of proving the elements of 16
the offence against this section. 17
(4) The offence against this section can only be prosecuted by a 18
person who can bring a prosecution for the corporate offence. 19
(5) This section does not affect the liability of the corporation for the 20
corporate offence, and applies whether or not the corporation is 21
prosecuted for, or convicted of, the corporate offence. 22
(6) This section does not affect the application of any other law 23
relating to the criminal liability of any persons (whether or not 24
directors or other managers of the corporation) who are 25
concerned in, or party to, the commission of the corporate 26
offence. 27
Page 120
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