366Criminal liability of executive officers

366 Criminal liability of executive officers (1) An executive officer of a corporation commits an offence if— (a) the corporation contravenes a provision of this Act; and (b) the contravention is an offence against this Act (a relevant offence); and (c) the officer was reckless about whether the contravention would happen; and

(d) the officer was in a position to influence the conduct of the corporation in relation to the contravention; and (e) the officer failed to take all reasonable steps to prevent the contravention. Maximum penalty: The maximum penalty that may be imposed for the commission of the relevant offence by an individual. (2) This section applies whether or not the corporation is prosecuted for, or convicted of, the relevant offence. (3) In deciding whether the executive officer took (or failed to take) reasonable steps to prevent the contravention, a court must have regard to the following: (a) any action the officer took directed towards ensuring the following (to the extent that the action is relevant to the act or omission): (i) that the corporation arranges regular professional assessments of the corporation’s compliance with the contravened provision; (ii) that the corporation implements any appropriate recommendation arising from such an assessment; (iii) that the corporation’s employees, agents and contractors have a reasonable knowledge and understanding of the requirement to comply with the contravened provision; (b) any action the officer took when the officer became aware that the contravention was, or might be, about to happen. (4) Subsection (3) does not limit the matters to which the court may have regard. (5) This section does not apply if the corporation would have a defence to a prosecution for the relevant offence.

executive officer, of a corporation, means a person, however described and whether or not the person is a director of the corporation, who is concerned with, or takes part in, the corporation’s management.