601Criminal liability of officers of bodies corporate—failure to exercise due diligence

601 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 16; (b) section 17(1) and (3); S. 601(2)(ba) inserted by No. 44/2014 s. 20(a). (ba) section 31(3); (c) section 73(1) and (2); (d) section 103(1); (e) section 104(1); (f) section 105(1); (g) section 106(1); (h) section 107(1) and (2); (i) section 108(1); (j) section 109(2); (k) section 120(2); (l) section 136(4); (m) section 139(2); (n) section 143(2); (o) section 146; (p) section 147; (q) section 179(3); (r) section 292; (s) section 295; (t) section 384(5); (u) section 389(2) and (3); (v) section 403(4); (w) section 407(4); S. 601(2)(x) repealed by No. 48/2017 s. 38. (y) section 412(3); S. 601(2)(ya) inserted by No. 44/2014 s. 20(b). (ya) section 434(3); S. 601(2)(yb) inserted by No. 44/2014 s. 20(b). (yb) section 438(1); S. 601(2)(yc) inserted by No. 44/2014 s. 20(b). (yc) section 439; S. 601(2)(yd) inserted by No. 44/2014 s. 20(b). (yd) section 442(1); S. 601(2)(ye) inserted by No. 44/2014 s. 20(b). (ye) section 443(1) and (2); S. 601(2)(z) amended by No. 44/2014 s. 20(c). (z) section 554(1), (2) and (3); (za) section 558(8), (9) and (10); (zb) section 561; (zc) section 563(1); (zd) section 564(5); (ze) section 566(3); (zf) section 575(1); (zg) section 581(1) and (2); (zh) section 582(1) and (2); (zi) section 583(1) and (2); (zj) section 584(1) and (2); (zk) section 585(1) and (3); (zl) section 588; (zm) section 589. (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) 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. ***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 (Corporations Act). (7) 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; ***volunteer*** means a person who is acting on a voluntary basis (irrespective of whether the person receives out-of-pocket expenses).