93Criminal liability of officers of bodies corporate—failure to exercise due diligence

93 Criminal liability of officers of bodies corporate—failure to exercise due diligence

(1) If a body corporate commits an offence against section 14(1), 15(1) or (2) or 42(1), an officer of the body corporate also commits an offence against the provision if the officer failed to exercise due diligence to prevent the commission of the offence by the body corporate.

(2) In determining whether an officer of a body corporate failed to exercise due diligence, a court may have regard to the following—

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

(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;

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

(d) any other relevant matter.

(3) Without limiting any other defence available to an officer of a body corporate, the officer 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.

(4) An officer of a body corporate may commit an offence against section 14(1), 15(1) or (2) or 42(1) whether or not the body corporate has been prosecuted for, or found guilty of, an offence against that provision.

(5) In this section—

body corporate means corporation within the meaning of section 57A of the Corporations Act;

officer, in relation to a body corporate, means—

(a) a person who is an officer (as defined by section 9 of the Corporations Act) of the body corporate; 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 body corporate.