New South Wales Consolidated Acts

CHILDREN'S GUARDIAN ACT 2019 - SECT 165

165 Executive liability offences committed by person

(1) A person commits an executive liability offence if--

(a) a corporation commits an executive liability offence, and

(b) the person is--

(i) a director of the corporation, or

(ii) an individual who is involved in the management of the corporation and who is in a position to influence the conduct of the corporation in relation to the commission of the executive liability offence, and

(c) the person--

(i) knows or ought reasonably to know that the executive liability offence (or an offence of the same type) would be or is being committed, and

(ii) fails to take all reasonable steps to prevent or stop the commission of that offence.

: Maximum penalty--

(a) for an offence under section 161(1)-- 100 penalty units, or

(b) for an offence under section 162(1)-- 50 penalty units, or

(c) otherwise--the maximum penalty for the executive liability offence if committed by an individual.

(2) This section does not affect the following--

(a) the liability of the corporation for the executive liability offence, and applies whether or not the corporation is prosecuted for, or convicted of, the executive liability offence,

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

(3) In this section--

"reasonable steps" , in relation to the commission of an executive liability offence, includes, but is not limited to, action of the following kinds that is reasonable in all the circumstances--

(a) action towards--

(i) assessing the corporation's compliance with the provision creating the executive liability offence, and

(ii) ensuring that the corporation arranged regular professional assessments of its compliance with the provision,

(b) action towards ensuring that the corporation's employees, agents and contractors are provided with information, training, instruction and supervision appropriate to them to enable them to comply with the provision creating the executive liability offence so far as the provision is relevant to them,

(c) action towards ensuring that--

(i) the plant, equipment and other resources, and

(ii) the structures, work systems and other processes,

relevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,

(d) action towards creating and maintaining a corporate culture that does not direct, encourage, tolerate or lead to non-compliance with the provision creating the executive liability offence.