115Criminal liability of executive officer of body corporate

115 Criminal liability of executive officer of body corporate (1) This section applies in relation to the following offences: (a) an offence against section 77(2), (4), (6) or (7), 89M(1), 89Q(1) or (3), 89S(1), 89Z(1) or (3), 89ZA(3) or (5), 105(1), (3), (5) or (7) or 117AAB(1), (3), (5), (6) or (7); (b) a prescribed offence against a provision of the regulations. (2) An executive officer of a body corporate commits an offence if: (a) the body corporate commits the offence and the officer was reckless about whether the offence would be committed; and (b) the officer was in a position to influence the conduct of the body corporate in relation to the commission of the offence; and (c) the officer recklessly failed to take reasonable steps to prevent the commission of the offence. Maximum penalty: The maximum penalty that may be imposed for the commission of the relevant offence by an individual. (3) Strict liability applies to subsection (2)(b). (4) In deciding whether the executive officer took reasonable steps to prevent the commission of the offence, a court must consider the following to the extent relevant: (a) any action the officer took directed towards ensuring that: (i) the body corporate arranged regular professional assessments of the body corporate's compliance with the provision to which the offence relates; and (ii) the body corporate implemented any appropriate recommendation arising from an assessment referred to in subparagraph (i); and (iii) the body corporate's employees, agents and contractors had reasonable knowledge and understanding of the requirement to comply with the provision to which the offence relates; (b) any action the officer took when the officer became aware that the relevant offence was, or could be, or was about to be, committed.

Petroleum Act 1984 135 (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 offence with which the executive officer was charged. (8) Without limiting any other defence available to the officer, an executive officer may rely on a defence that would be available to the body corporate if it were charged with the offence with which the executive officer is charged and, in so doing, the officer bears the same burden of proof that the body corporate would bear. Note for subsection (8) subsection (8) (see section 43BU of the Criminal Code). (9) In this section: 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.