104Criminal liability of executive officers

104 Criminal liability of executive officers (1) An executive officer of a corporation commits an offence if— (a) the corporation commits a relevant offence; and (b) the officer was reckless about whether the relevant offence would be committed; and (c) the officer was in a position to influence the conduct of the corporation in relation to the commission of the relevant offence; and (d) the officer failed to take reasonable steps to prevent the commission of the relevant offence. Maximum penalty: The maximum penalty that may be imposed for the commission of the relevant offence by an individual. (2) In deciding whether the executive officer took (or failed to take) reasonable steps to prevent the commission of the relevant offence, a court must consider 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 provision to which the relevant offence relates; (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 provision to which the relevant offence relates; (b) any action the officer took when the officer became aware that the relevant offence was, or might be, about to be committed. (3) Subsection (2) does not limit the matters the court may consider. (4) Subsection (1) does not apply if the corporation would have a defence to a prosecution for the relevant offence. Note The defendant has an evidential burden in relation to the matters mentioned in s (4) (see Criminal Code, s 58). (5) This section applies whether or not the corporation is prosecuted for, or convicted of, the relevant offence. (6) In this section: executive officer, of a corporation, means a person, by whatever name called and whether or not the person is a director of the corporation, who is concerned with, or takes part in, the corporation’s management. relevant offence means an offence against any of the following: (a) section 77C (Offence—do waterway work without licence); (b) section 77H (Offence—contravene notice prohibiting or restricting taking of water); (c) section 77I (Offences—contravene directions).