350Liability of officers of bodies corporate—failure to exercise due diligence (legal burden of proof)

350 Liability of officers of bodies corporate—failure to exercise due diligence (legal burden of proof) (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. (2) For the purposes of subsection (1), the following provisions are specified— (a) section 25(1); (b) section 27(1); (c) section 28(1); (d) section 32(2); (e) section 44(1); (f) section 45(1); (g) section 46(1); (h) section 47(1); (i) section 63(1), (2) and (3); (j) section 88(2); (k) section 133(1) and (2); (l) section 134(1); (m) section 135(2); (n) section 137(1); (o) section 286(1); (p) section 287(1); (q) section 290(1); (r) section 292(1); (s) section 463(2). (3) It is a defence to a charge for an offence against, or committed by contravening, a provision specified in subsection (2) for an officer of a body corporate to prove that the officer exercised due diligence to prevent the commission of the offence by the body corporate. (4) In determining whether an officer of a body corporate 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 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. (5) 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. (6) 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. 351 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).