349Liability of officers of bodies corporate—failure to exercise due diligence

349 Liability of officers of bodies corporate—failure to exercise due diligence (1) If a body corporate that is a corporation within the meaning of section 57A of the Corporations Act commits an offence against, or by contravening, a provision specified in subsection (2), an officer of the body corporate also commits an offence against, or by contravening, the provision if the officer failed to exercise due diligence to prevent the commission of the offence by the body corporate. (2) For the purposes of subsection (1), the following provisions are specified— (a) section 40(1); (b) section 64; (c) section 115(3) and (4); (d) section 121(5) and (7); (e) section 139(1); (f) section 142(1); (g) section 143(1); (h) section 155(1); (i) section 168; (j) section 255(2); (k) section 288; (l) section 289(1) and (2); S. 349(2)(m) amended by No. 35/2023 s. 45. (m) section 290(3); (n) section 292(2); (o) section 293(1); (p) section 462(1). (3) In determining whether an officer of a body corporate failed to exercise 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 body corporate; and (b) whether or not the officer was in a position to influence the body corporate in relation to the commission of the offence by the body corporate; and (c) what steps the officer took, or could reasonably have taken, to prevent the commission of the offence by the body corporate; and (d) any other relevant matter. (4) Without limiting any other defence available to the officer, an officer of a body corporate may rely on a defence that would be available to the body corporate 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 body corporate would bear. (5) An officer of a body corporate may commit an offence against, or by contravening, a provision specified in subsection (2) whether or not the body corporate has been prosecuted for, or found guilty of, that offence. S. 350 inserted by No. 39/2018 s. 7 (as amended by Nos 27/2019 ss 12−30, 3/2020 ss 42–44, 47/2020 s. 26).