39Criminal liability of executive officer of body corporate –

39 Criminal liability of executive officer of body corporate – evidential burden of proof on defence (1) An executive officer of a body corporate commits an offence if the body corporate commits an offence by contravening a declared provision (a relevant offence). Maximum penalty: The maximum penalty that may be imposed on an individual for the relevant offence. (2) An offence against subsection (1) is an offence of absolute liability. (a) was not in a position to influence the conduct of the body corporate in relation to the contravention; or (b) took reasonable steps to prevent the contravention; or (c) did not know, and could not reasonably have been expected to know, that the contravention would happen. (4) In deciding whether the defendant took (or failed to take) reasonable steps to prevent the contravention, 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 contravention): (i) the body corporate arranged regular professional assessments of the body corporate's compliance with the declared provision; (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 declared provision; Misuse of Drugs Act 1990 77 (b) any action the defendant took when the defendant became aware that the contravention was, or could be, about to happen. (5) Subsection (4) does not limit the matters the court may consider. (6) This section does not affect the liability of the body corporate. (7) This section applies whether or not the body corporate is prosecuted for, or found guilty of, the relevant offence. (8) This section does not apply if the body corporate would have a defence to a prosecution for the relevant offence. (9) In this section: declared provision means: (a) Part II, Division 1, Subdivision 1 or 2 or section 8(1) or (2) or 8A(1); or (b) a provision of the Regulations prescribed by regulation. 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.