32ACriminal liability of officers of relevant entities—failure to exercise due diligence

32A Criminal liability of officers of relevant entities—failure to exercise due diligence

(1) If a relevant entity that is a body corporate commits an offence against section 34D, an officer of that relevant entity also commits an offence against the provision if the officer failed to exercise due diligence to prevent the commission of the offence by the relevant entity.

(2) In determining whether an officer of a relevant entity exercised due diligence, a court may have regard to—

(a) what the officer knew, or ought reasonably to have known, about the commission of the offence by the relevant entity; and

(b) whether or not the officer was in a position to influence the relevant entity in relation to the commission of the offence by the relevant entity; and

(c) what steps the officer took, or could reasonably have taken, to prevent the commission of the offence by the relevant entity; and

(d) any other relevant matter.

(3) Without limiting any other defence available to the officer, an officer of a relevant entity may rely on a defence that would be available to the relevant entity if it were charged with the offence with which the officer is charged and, in doing so, the officer bears the same burden of proof that the relevant entity would bear.

(4) An officer of a body corporate may commit an offence against section 34D whether or not the relevant entity has been prosecuted for, or found guilty of, an offence against that section.

(5) In this section—

body corporate has the same meaning as corporation has in section 57A of the Corporations Act;

officer*,* in relation to a relevant entity, means—

(a) a person who is an officer (as defined by section 9 of the Corporations Act) of the relevant entity; or

(b) a person (other than a person referred to in paragraph (a)), by whatever name called, who is concerned in, or takes part in, the management of the relevant entity.

S. 32B inserted by No. 23/2021 s. 27.