226Criminal liability of officers of bodies corporate—failure to exercise due diligence

226 Criminal liability of officers of bodies corporate—failure to exercise due diligence (1) If a body corporate commits an offence against a provision specified in subsection (2), 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 (2) For the purposes of subsection (1), the following provisions are specified— S. 226(2) (a)‒(n) repealed by No. 63/2017 s. 21(Sch. 1 item 10.26). (o) section 224(1); (p) section 225(2) or (3); (q) section 225B; (r) section 225C(2); (s) section 228DA; (t) section 228DB; (u) section 228G; (v) section 228H(1), (4) or (6); S. 226(2)(w) amended by No. 35/2014 s. 38(a). (w) section 228QA(6); S. 226(2)(x) inserted by No. 35/2014 s. 38(b), repealed by No. 63/2017 s. 21(Sch. 1 item 10.26). (3) In determining whether an officer of a body corporate failed to exercise due diligence, a court may have regard to— (a) what the officer knew, or ought reasonably to have known, about the commission of the offence by the body corporate; and (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; and (c) what steps the officer took, or could reasonably have taken, to prevent the commission of the offence by the body corporate; and (d) any other relevant matter. (4) Without limiting any other defence available to the officer, an officer of a body corporate 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. (5) An officer of a body corporate may commit an offence against a provision specified in subsection (2) whether or not the body corporate has been prosecuted for, or found guilty of, an offence against that provision. (6) In this section— ***body corporate*** has the same meaning as corporation has in 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. S. 226A inserted by No. 43/2013 s. 30, repealed by No. 63/2017 s. 21(Sch. 1 item 10.27). S. 227 substituted by No. 71/2006 s. 17.