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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Statutes Amendment (Directors' Liability)
Bill 2011
A BILL FOR
An Act to amend the Aboriginal
Heritage Act 1988, the Air
Transport (Route Licensing—Passenger Services) Act 2002, the
Animal
Welfare Act 1985, the ANZAC
Day Commemoration Act 2005, the Architectural
Practice Act 2009, the Authorised
Betting Operations Act 2000, the Controlled
Substances Act 1984, the Employment
Agents Registration Act 1993, the Gaming
Machines Act 1992, the Health
Care Act 2008, the Misrepresentation
Act 1972, the Opal
Mining Act 1995, the Petroleum
Products Regulation Act 1995, the Prohibition
of Human Cloning for Reproduction Act 2003, the Racing
(Proprietary Business Licensing) Act 2000, the Research
Involving Human Embryos Act 2003, the Retirement
Villages Act 1987, the Second-hand
Vehicle Dealers Act 1995, the Security
and Investigation Agents Act 1995, the Supported
Residential Facilities Act 1992, the Survey
Act 1992, the Taxation
Administration Act 1996, the Tobacco
Products Regulation Act 1997, the Travel
Agents Act 1986 and the Veterinary
Practice Act 2003.
Contents
Part 1—Preliminary
1Short
title
2Commencement
3Amendment
provisions
Part 2—Amendment of Aboriginal
Heritage Act 1988
4Amendment of
section 41—Vicarious liability
Part 3—Amendment of Air Transport
(Route Licensing—Passenger Services) Act 2002
5Repeal
of section 23
Part 4—Amendment of Animal Welfare
Act 1985
6Substitution of
section 38
38Offences
by bodies corporate
Part 5—Amendment of ANZAC Day
Commemoration Act 2005
7Amendment of
section 18—Restriction on public sports and entertainment before
12 noon on ANZAC Day
Part 6—Amendment of Architectural
Practice Act 2009
8Repeal of section 64
Part 7—Amendment of Authorised
Betting Operations Act 2000
9Substitution of
section 84
84Offences
by bodies corporate
Part 8—Amendment of Controlled
Substances Act 1984
10Repeal of section 45
Part 9—Amendment of Employment Agents
Registration Act 1993
11Repeal of section 27
Part 10—Amendment of Gaming Machines
Act 1992
12Amendment of section 85—Vicarious
liability
Part 11—Amendment of Health Care
Act 2008
13Repeal of section 94
Part 12—Amendment of
Misrepresentation Act 1972
14Amendment of
section 4—Misrepresentation made in the course of trade or
business
Part 13—Amendment of Opal Mining
Act 1995
15Amendment of
section 82—Offences
Part 14—Amendment of Petroleum
Products Regulation Act 1995
16Amendment of
section 34—Controls during periods of restriction
17Amendment of section 35—Controls
during rationing periods
18Amendment of
section 36—Permits
19Repeal of section 59—Offences
by bodies corporate
Part 15—Amendment of Prohibition of
Human Cloning for Reproduction Act 2003
20Repeal of
section 29
Part 16—Amendment of Racing
(Proprietary Business Licensing) Act 2000
21Repeal of
section 46
Part 17—Amendment of Research
Involving Human Embryos Act 2003
22Repeal of
section 34
Part 18—Amendment of Retirement
Villages Act 1987
23Amendment of
section 42—Offences
Part 19—Amendment of Second-hand
Vehicle Dealers Act 1995
24Amendment of section
45—General defence
25Substitution of
section 47
47Offences
by bodies corporate
Part 20—Amendment of Security and
Investigation Agents Act 1995
26Amendment of section
40—General defence
27Substitution of section
42
42Offences by bodies
corporate
Part 21—Amendment of Supported
Residential Facilities Act 1992
28Amendment of
section 52—Prosecutions
Part 22—Amendment of Survey
Act 1992
29Repeal of section 55B
Part 23—Amendment of Taxation
Administration Act 1996
30Amendment of section
109—General criminal defence
31Amendment of
section 110—Offences by persons involved in management of
corporations
Part 24—Amendment of Tobacco Products
Regulation Act 1997
32Amendment of
section 81—Vicarious liability
Part 25—Amendment of Travel Agents
Act 1986
33Amendment of section 38—General
defence
34Substitution of
section 40
40Offences
by bodies corporate
Part 26—Amendment of Veterinary
Practice Act 2003
35Repeal of section 73
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Statutes Amendment (Directors' Liability)
Act 2011.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Aboriginal Heritage
Act 1988
4—Amendment
of section 41—Vicarious liability
(1) Section 41(2)—delete "an offence against this Act" and
substitute:
a prescribed offence
(2) Section 41—after subsection (2) insert:
(3) In this section—
prescribed offence means—
(a) an offence against Part 3 (other than an offence against
section 20(4), 22(5), 24(10), 32(3) or 36(4)); or
(b) an offence against subsection (1) that relates to such an
offence.
Part 3—Amendment
of Air Transport (Route
Licensing—Passenger Services) Act 2002
Section 23—delete the section
Part 4—Amendment
of Animal Welfare
Act 1985
Section 38—delete the section and substitute:
38—Offences by bodies
corporate
(1) If a body corporate is guilty of a prescribed offence, each member of
the governing body of the body corporate is guilty of an offence and liable to
the same penalty as is prescribed for the principal offence unless the member
proves that he or she could not by the exercise of due diligence have prevented
the commission of the offence.
(2) If a body corporate
is guilty of any other offence against this Act, each member of the governing
body of the body corporate is guilty of an offence and liable to the same
penalty as is prescribed for the principal offence if the prosecution proves
that—
(a) the member knew, or ought reasonably to have known, that there was a
significant risk that such an offence would be committed; and
(b) the member was in a position to influence the conduct of the body
corporate in relation to the commission of such an offence; and
(c) the member failed to exercise due diligence to prevent the commission
of the offence.
(3)
Subsection (2) does
not apply if the principal offence is—
(a) an offence against section 15A, 31B or 31E; or
(b) an offence against section 40 that relates to such an offence;
or
(c) an offence against the regulations that is specified as an offence to
which
subsection (2) does
not apply.
(4) In this section—
prescribed offence means—
(a) an offence against section 13(1) or (2) or section 14(1),
(2) or (4); or
(b) an offence against section 40 that relates to such an
offence.
Part 5—Amendment
of ANZAC Day Commemoration
Act 2005
7—Amendment
of section 18—Restriction on public sports and entertainment before
12 noon on ANZAC Day
Section 18(8)—delete subsection (8)
Part 6—Amendment
of Architectural Practice
Act 2009
Section 64—delete the section
Part 7—Amendment
of Authorised Betting Operations
Act 2000
Section 84—delete the section and substitute:
84—Offences by bodies
corporate
(1) If a body corporate is guilty of a prescribed offence, the manager of
the body corporate and each member of the governing body of the body corporate
is guilty of an offence and liable to the same penalty as is prescribed for the
principal offence unless the manager or member (as the case may be) proves that
he or she could not by the exercise of due diligence have prevented the
commission of the offence.
(2) If a body
corporate is guilty of an offence against this Act other than a prescribed
offence, the manager of the body corporate and each member of the governing body
of the body corporate is guilty of an offence and liable to the same penalty as
is prescribed for the principal offence if the prosecution proves
that—
(a) the manager or member (as the case may be) knew, or ought reasonably
to have known, that there was a significant risk that such an offence would be
committed; and
(b) the manager or member (as the case may be) was in a position to
influence the conduct of the body corporate in relation to the commission of
such an offence; and
(c) the manager or member (as the case may be) failed to exercise due
diligence to prevent the commission of the offence.
(3)
Subsection (2)
does not apply if the principal offence is an offence against section 24(3)
or 66 or is an offence against the regulations that is specified as an
offence to which
subsection (2)
does not apply.
(4) In this section—
prescribed offence means an offence against section 18,
20(1), 27, 32, 33, 40, 61, 62E, 69 or 72.
Part 8—Amendment
of Controlled Substances
Act 1984
Section 45—delete the section
Part 9—Amendment
of Employment Agents Registration
Act 1993
Section 27—delete the section
Part 10—Amendment
of Gaming Machines
Act 1992
12—Amendment
of section 85—Vicarious liability
(1) Section 85—delete subsection (1) and substitute:
(1) If a body corporate that holds a licence is guilty of a prescribed
offence, each person occupying a position of authority in the body corporate is
guilty of an offence and liable to the same penalty as is prescribed for the
principal offence unless the person proves that he or she could not by the
exercise of due diligence have prevented the commission of the
offence.
(1a) If a body
corporate that holds a licence is guilty of any other offence against this Act,
each person occupying a position of authority in the body corporate is guilty of
an offence and liable to the same penalty as is prescribed for the principal
offence if the prosecution proves that—
(a) the person knew, or ought reasonably to have known, that there was a
significant risk that such an offence would be committed; and
(b) the person was in a position to influence the conduct of the body
corporate in relation to the commission of such an offence; and
(c) the person failed to exercise due diligence to prevent the commission
of the offence.
(1b)
Subsection (1a)
does not apply if the principal offence is an offence against section 6,
50A, 54, 57, 64, 65, 71 or 80 or is an offence against the regulations that
is specified as an offence to which
subsection (1a)
does not apply.
(1c) If a body corporate that holds a licence is guilty of an offence
against this Act, any approved gaming machine manager for the licensed premises
is guilty of an offence and liable to the same penalty as is prescribed for the
principal offence unless the manager proves that he or she could not by the
exercise of due diligence have prevented the commission of the
offence.
(2) Section 85—after subsection (3) insert:
(4) In this section—
prescribed offence means any offence for which the maximum
penalty includes a term of imprisonment of 2 or more years.
Part 11—Amendment
of Health Care
Act 2008
Section 94—delete the section
Part 12—Amendment
of Misrepresentation
Act 1972
14—Amendment
of section 4—Misrepresentation made in the course of trade or
business
Section 4(5)—delete subsection (5)
Part 13—Amendment
of Opal Mining
Act 1995
15—Amendment
of section 82—Offences
Section 82(7)—delete subsection (7)
Part 14—Amendment
of Petroleum Products Regulation
Act 1995
16—Amendment
of section 34—Controls during periods of
restriction
Section 34(6), penalty provisions—delete the penalty provisions
and substitute:
Maximum penalty:
(a) in the case of a body corporate—$250 000;
(b) in the case of a natural person—$10 000.
17—Amendment
of section 35—Controls during rationing periods
Section 35(1) and (2), penalty provisions—delete the
penalty provisions and substitute in each case:
Maximum penalty:
(a) in the case of a body corporate—$250 000;
(b) in the case of a natural person—$10 000.
18—Amendment
of section 36—Permits
Section 36(5) and (7), penalty provisions—delete the
penalty provisions and substitute in each case:
Maximum penalty:
(a) in the case of a body corporate—$250 000;
(b) in the case of a natural person—$10 000.
19—Repeal
of section 59—Offences by bodies corporate
Section 59—delete the section
Part 15—Amendment
of Prohibition of Human Cloning for Reproduction
Act 2003
Section 29—delete the section
Part 16—Amendment
of Racing (Proprietary Business Licensing)
Act 2000
Section 46—delete the section
Part 17—Amendment
of Research Involving Human Embryos
Act 2003
Section 34—delete the section
Part 18—Amendment
of Retirement Villages
Act 1987
23—Amendment
of section 42—Offences
Section 42(3)—delete subsection (3)
Part 19—Amendment
of Second-hand Vehicle Dealers
Act 1995
24—Amendment
of section 45—General defence
Section 45—after its present contents (now to be designated as
subsection (1)) insert:
(2) This section does not apply in relation to a person who is charged
with an offence under section 47.
Section 47—delete the section and substitute:
47—Offences by bodies
corporate
(1) If a body corporate is guilty of a prescribed offence, each director
of the body corporate is guilty of an offence and liable to the same penalty as
is prescribed for the principal offence unless the director proves that he or
she could not by the exercise of due diligence have prevented the commission of
the offence.
(2) If a body
corporate is guilty of any other offence against this Act, each director of the
body corporate is guilty of an offence and liable to the same penalty as is
prescribed for the principal offence if the prosecution proves
that—
(a) the director knew, or ought reasonably to have known, that there was a
significant risk that such an offence would be committed; and
(b) the director was in a position to influence the conduct of the body
corporate in relation to the commission of such an offence; and
(c) the director failed to exercise due diligence to prevent the
commission of the offence.
(3)
Subsection (2)
does not apply if the principal offence is an offence against section 14,
16, 17, 18, 20, 21, 22, 25A or 42 or is an offence against the regulations
that is specified as an offence to which
subsection (2)
does not apply.
(4) In this section—
prescribed offence means an offence against section 7,
13, 13A, or 32.
Part 20—Amendment
of Security and Investigation Agents
Act 1995
26—Amendment
of section 40—General defence
Section 40—after its present contents (now to be designated as
subsection (1)) insert:
(2) This section does not apply in relation to a person who is charged
with an offence under section 42.
Section 42—delete the section and substitute:
42—Offences by bodies
corporate
(1) If a body corporate is guilty of a prescribed offence, each director
of the body corporate is guilty of an offence and liable to the same penalty as
is prescribed for the principal offence unless the director proves that he or
she could not by the exercise of due diligence have prevented the commission of
the offence.
(2) If a body
corporate is guilty of any other offence against this Act, each director of the
body corporate is guilty of an offence and liable to the same penalty as is
prescribed for the principal offence if the prosecution proves
that—
(a) the director knew, or ought reasonably to have known, that there was a
significant risk that such an offence would be committed; and
(b) the director was in a position to influence the conduct of the body
corporate in relation to the commission of such an offence; and
(c) the director failed to exercise due diligence to prevent the
commission of the offence.
(3)
Subsection (2)
does not apply if the principal offence is an offence against section 18,
19, 22, 23C, 23G, 23P or 36 or is an offence against the regulations that
is specified as an offence to which
subsection (2)
does not apply.
(4) In this section—
prescribed offence means an offence against section 6,
12A, 13, 23(1), 23(2) or 30.
Part 21—Amendment
of Supported Residential Facilities
Act 1992
28—Amendment
of section 52—Prosecutions
Section 52(3)—delete subsection (3)
Part 22—Amendment
of Survey Act 1992
Section 55B—delete the section
Part 23—Amendment
of Taxation Administration
Act 1996
30—Amendment
of section 109—General criminal defence
Section 109—after its present contents (now to be designated as
subsection (1)) insert:
(2) This section does not apply in relation to a person who is charged
with an offence under section 110.
31—Amendment
of section 110—Offences by persons involved in management of
corporations
Section 110—delete subsections (1) and (2) and
substitute:
(1) If a body corporate is guilty of a prescribed offence, a person who is
concerned in, or takes part in, the management of the corporation is guilty of
an offence and liable to the same penalty as may be imposed for the principal
offence when committed by a natural person unless the person proves that he or
she could not by the exercise of due diligence have prevented the commission of
the offence.
(2) If a body
corporate is guilty of any other offence against a taxation law, each person who
is concerned in, or takes part in, the management of the corporation is guilty
of an offence and liable to the same penalty as is prescribed for the principal
offence if the prosecution proves that—
(a) the person knew, or ought reasonably to have known, that there was a
significant risk that such an offence would be committed; and
(b) the person was in a position to influence the conduct of the body
corporate in relation to the commission of such an offence; and
(c) the person failed to exercise due diligence to prevent the commission
of the offence.
(2a)
Subsection (2)
does not apply if the principal offence is—
(a) an offence against sections 75, 76, and 106 of this Act;
or
(b) an offence against sections 5(7) and 5(9) of the Land
Tax Act 1936; or
(c) an offence against section 97 of the Payroll
Tax Act 2009; or
(d) an offence against section 31L of the Stamp
Duties Act 1923; or
(e) an offence against the regulations made under a taxation law that is
specified as an offence to which
subsection (2)
does not apply.
(2b) In this section—
prescribed offence means an offence against—
(a) section 59 of this Act; or
(b) section 14 of the Debits
Tax Act 1994.
Part 24—Amendment
of Tobacco Products Regulation
Act 1997
32—Amendment
of section 81—Vicarious liability
Section 81(1)—delete subsection (1)
Part 25—Amendment
of Travel Agents
Act 1986
33—Amendment
of section 38—General defence
Section 38—after its present contents (now to be designated as
subsection (1)) insert:
(2) This section does not apply in relation to a person who is charged
with an offence under section 40.
Section 40—delete the section and substitute:
40—Offences by bodies
corporate
(1) If a body corporate is guilty of a prescribed offence, each director
of the body corporate is guilty of an offence and liable to the same penalty as
is prescribed for the principal offence unless the director proves that he or
she could not by the exercise of due diligence have prevented the commission of
the offence.
(2) If a body
corporate is guilty of any other offence against this Act, each director of the
body corporate is guilty of an offence and liable to the same penalty as is
prescribed for the principal offence if the prosecution proves
that—
(a) the director knew, or ought reasonably to have known, that there was a
significant risk that such an offence would be committed; and
(b) the director was in a position to influence the conduct of the body
corporate in relation to the commission of such an offence; and
(c) the director failed to exercise due diligence to prevent the
commission of the offence.
(3)
Subsection (2)
does not apply if the principal offence is an offence against
section 14A(2), 33 or 34 or is an offence against the regulations that
is specified as an offence to which
subsection (2)
does not apply.
(4) In this section—
prescribed offence means an offence against section 7,
13, 18C or 35.
Part 26—Amendment
of Veterinary Practice
Act 2003
Section 73—delete the section