104Criminal liability of officers of bodies corporate—failure to exercise due diligence

104 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—

(a) section 8(3);

(b) section 22(6);

(c) section 29(4);

(d) section 43(2);

S. 104(2)(da) inserted by No. 25/2025 s. 76.

(da) section 49D(2);

S. 104(2)(db) inserted by No. 25/2025 s. 76.

(db) section 49R(5);

S. 104(2)(dc) inserted by No. 25/2025 s. 76.

(dc) section 49ZA(4);

S. 104(2)(dd) inserted by No. 25/2025 s. 76.

(dd) section 49ZN(2);

(e) section 58(1);

(f) section 63(1);

(g) section 73;

(h) section 86;

(i) section 90(4);

S. 104(2)(j) repealed by No. 41/2019 s. 72.

(k) section 103(1), (2) or (3);

(l) section 110(9);

(m) section 111(5);

(n) section 126.

(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;