New South Wales Consolidated Acts

BUILDING AND CONSTRUCTION INDUSTRY SECURITY OF PAYMENT ACT 1999 - SECT 34D

34D Liability of directors etc for specified offences by corporation--offences attracting executive liability

(1) For the purposes of this section, an
"executive liability offence" is--

(a) an offence against section 13(7) or (8) that is committed by a corporation, or

(b) an offence against the regulations that--

(i) is created under section 12A, and

(ii) is prescribed by the regulations as an offence to which this section applies, and

(iii) is committed by a corporation.

(2) A person commits an offence against this section if--

(a) a corporation commits an executive liability offence, and

(b) the person is--

(i) a director of the corporation, or

(ii) an individual who is involved in the management of the corporation and who is in a position to influence the conduct of the corporation in relation to the commission of the executive liability offence, and

(c) the person--

(i) knows that the executive liability offence (or an offence of the same type) would be or is being committed or is recklessly indifferent as to whether it would be or is being committed, and

(ii) fails to take all reasonable steps to prevent or stop the commission of that offence.

: Maximum penalty--200 penalty units.

(3) The prosecution bears the legal burden of proving the elements of the offence against this section.

(4) The offence against this section can only be prosecuted by a person who can bring a prosecution for the executive liability offence.

(5) This section does not affect the liability of the corporation for the executive liability offence, and applies whether or not the corporation is prosecuted for, or convicted of, the executive liability offence.

(6) This section does not affect the application of any other law relating to the criminal liability of any persons (whether or not directors or other managers of the corporation) who are accessories to the commission of the executive liability offence or are otherwise concerned in, or party to, the commission of the executive liability offence.

(7) In this section--

"director" has the same meaning it has in the Corporations Act 2001 of the Commonwealth.

"reasonable steps" , in relation to the commission of an executive liability offence, includes, but is not limited to, such action (if any) of the following kinds as is reasonable in all the circumstances--

(a) action towards--

(i) assessing the corporation's compliance with the provision creating the executive liability offence, and

(ii) ensuring that the corporation arranged regular professional assessments of its compliance with the provision,

(b) action towards ensuring that the corporation's employees, agents and contractors are provided with information, training, instruction and supervision appropriate to them to enable them to comply with the provision creating the executive liability offence so far as the provision is relevant to them,

(c) action towards ensuring that--

(i) the plant, equipment and other resources, and

(ii) the structures, work systems and other processes,

relevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,

(d) action towards creating and maintaining a corporate culture that does not direct, encourage, tolerate or lead to non-compliance with the provision creating the executive liability offence.