144Liability of officers of bodies corporate

144 Liability of officers of bodies corporate S. 144(1) amended by No. 50/2019 s. 6. (1) If a body corporate (including a body corporate representing the Crown) contravenes a provision of this Act or the regulations and the contravention is attributable to an officer of the body corporate failing to take reasonable care, the officer is guilty of an offence and liable to— (a) if the provision contravened was section 39G(1), a fine not exceeding 10 000 penalty units; or (b) otherwise, a fine not exceeding the maximum fine for an offence constituted by a contravention by a natural person of the provision contravened by the body corporate. (2) An offence against subsection (1) is summary or indictable in nature according to whether the offence constituted by the contravention by the body corporate is summary or indictable. (3) In determining whether an officer of a body corporate is guilty of an offence, regard must be had to— (a) what the officer knew about the matter concerned; and (b) the extent of the officer's ability to make, or participate in the making of, decisions that affect the body corporate in relation to the matter concerned; and (c) whether the contravention by the body corporate is also attributable to an act or omission of any other person; and (d) any other relevant matter. (4) An officer of a body corporate may be convicted or found guilty of an offence in accordance with subsection (1) whether or not the body corporate has been convicted or found guilty of the offence committed by it. (5) An officer of a body corporate (including a body corporate representing the Crown) who is a volunteer is not liable to be prosecuted under this section for anything done or not done by him or her as a volunteer. 1 ***Officer*** of a body corporate includes a person who makes or participates in the making of decisions that affect the whole or a substantial part of the body corporate's business and a person who has the capacity to affect significantly the body corporate's financial standing (see section 5). 2 For ***volunteer***, see section 5. Division 5—Offences by partnerships and unincorporated bodies or associations 145 Liability of officers of partnerships and unincorporated bodies or associations (1) Subject to subsection (2), if— S. 145(1)(a) amended by No. 48/2017 s. 24. (a) this Act or the regulations imposes a duty on a person or provides that a person is guilty of an offence; and (b) the person is a partnership or an unincorporated body or association (including a partnership or an unincorporated body or association representing the Crown)— the reference to the person is taken to be instead a reference to each officer of the partnership, body or association (as the case may be). S. 145(2) amended by No. 48/2017 s. 24. (2) If an offence against this Act or the regulations is committed by an officer of a partnership or an unincorporated body or association because of the effect of subsection (1), the officer is only guilty of the offence if the commission of the offence is attributable to the officer failing to take reasonable care. S. 145(3) substituted by No. 50/2019 s. 7. (3) The penalty to which an officer of a partnership or an unincorporated body or association is liable for an offence committed by the officer because of the effect of subsection (1) is— (a) if the offence is against section 39G(1), a fine not exceeding 10 000 penalty units; or (b) otherwise, a fine not exceeding the maximum fine that could be imposed by a court on a natural person found guilty of the same offence committed at the same time (otherwise than because of the effect of subsection (1)). (4) In determining whether an officer of a partnership or unincorporated body or association is guilty of an offence, regard must be had to— (a) what the officer knew about the matter concerned; and (b) the extent of the officer's ability to make, or participate in the making of, decisions that affect the partnership, body or association in relation to the matter concerned; and (c) whether the commission of the offence is also attributable to an act or omission of any other person; and (d) any other relevant matter. (5) An officer of a partnership or unincorporated body or association who is a volunteer is not liable to be prosecuted under this section for anything done or not done by him or her as a volunteer. 1 ***Officer*** of a partnership or unincorporated body or association includes a person who makes or participates in the making of decisions that affect the whole or a substantial part of the business of the partnership, body or association and a person who has the capacity to affect significantly the financial standing of the partnership, body or association (see section 5). 2 For ***volunteer***, see section 5. Division 6—Proceedings against the Crown 146 Responsible agency for the Crown (1) If the Crown is to be served with an infringement notice, or proceedings are brought against the Crown, for an offence against this Act or the regulations the responsible agency in respect of the offence may be specified in the infringement notice or any document initiating, or relating to, the proceedings (as the case may be). (2) In this section, the ***responsible agency*** in respect of an offence is the agency of the Crown— (a) whose acts or omissions are alleged to constitute the offence; or (b) if that agency has ceased to exist, that is the successor of that agency; or (c) if that agency has ceased to exist and there is no clear successor, that the court declares to be the responsible agency. (3) The responsible agency in respect of an offence is entitled to act in proceedings against the Crown for the offence and, subject to any relevant rules of court, the procedural rights and obligations of the Crown as the accused in the proceedings are conferred or imposed on the responsible agency. (4) The person prosecuting the offence may change the responsible agency during the proceedings with the court's leave.