125ECriminal liability of executive officer of body corporate – legal

125E Criminal liability of executive officer of body corporate – legal burden of proof on defence (1) An executive officer of a body corporate commits an offence if the body corporate commits an offence against section 125B(1), 125C(1), 125D or 125DA(1) (a relevant offence). Maximum penalty: The maximum penalty that may be imposed on an individual for the commission of the relevant offence. (2) An offence against subsection (1) is an offence of absolute liability. (3) It is a defence to a prosecution for an offence against (a) was not in a position to influence the conduct of the body corporate in relation to the commission of the relevant offence; or (b) took reasonable steps to prevent the commission of the relevant offence; or (c) did not know, and could not reasonably have been expected to know, that the relevant offence would be committed. (4) The defendant has a legal burden of proof in relation to a matter mentioned in subsection (3).

Criminal Code Act 1983 128 (5) In deciding whether the defendant took (or failed to take) reasonable steps to prevent the commission of the relevant offence, a court must consider the following: (a) any action the defendant took directed towards ensuring the following (to the extent the action is relevant to the commission of the relevant offence): (i) the body corporate arranged regular professional assessments of the body corporate's compliance with the provision to which the relevant offence relates; (ii) the body corporate implemented any appropriate recommendation arising from an assessment under subparagraph (i); (iii) the body corporate's employees, agents and contractors had a reasonable knowledge and understanding of the requirement to comply with the provision to which the relevant offence relates; (b) any action the defendant took when the defendant became aware that the relevant offence was, or could be, about to be (6) Subsection (5) does not limit the matters the court may consider. (7) This section does not affect the liability of the body corporate. (8) This section applies to an executive officer whether or not the body corporate is prosecuted for, or found guilty of, the relevant offence. (9) Subsection (1) does not apply to an executive officer if the body corporate would have a defence to a prosecution for the relevant Note for subsection (9) The defendant has an evidential burden in relation to the matters mentioned in subsection (9) (see section 43BU of the Criminal Code). (10) In this section: executive officer, of a body corporate, means a director or other person who is concerned with, or takes part in, the management of the body corporate.

Criminal Code Act 1983 129