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This is a Bill, not an Act. For current law, see the Acts databases.
TASMANIA
__________
DIRECTORS' LIABILITY (MISCELLANEOUS
AMENDMENTS) BILL 2012
__________
CONTENTS
1. Short title
2. Commencement
3. Further amendment of regulations not prevented
4. Amendments to legislation
5. Repeal of Act
Schedule 1 - Amendments to Legislation
[Bill 59]-I
2
DIRECTORS' LIABILITY (MISCELLANEOUS
AMENDMENTS) BILL 2012
(Brought in by the Minister for Justice, the Honourable Brian
Neal Wightman)
A BILL FOR
An Act to amend certain enactments in connection with the
liability of directors of bodies corporate and corporations
for offences committed by those bodies corporate or
corporations
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
1. Short title
This Act may be cited as the Directors' Liability
(Miscellaneous Amendments) Act 2012.
2. Commencement
This Act commences on the day on which this
Act receives the Royal Assent.
3. Further amendment of regulations not prevented
The amendment by this Act of a provision of any
regulations does not prevent that or any other
provision of those regulations from being
amended or rescinded by a later regulation.
[Bill 59] 3
Directors' Liability (Miscellaneous Amendments) Act 2012
Act No. of
s. 4
4. Amendments to legislation
The legislation specified in Schedule 1 is
amended as specified in that Schedule.
5. Repeal of Act
This Act is repealed on the three hundred and
sixty fifth day from the day on which it
commences.
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Directors' Liability (Miscellaneous Amendments) Act 2012
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SCHEDULE 1 - AMENDMENTS TO LEGISLATION
Section 4
Animal (Brands and Movement) Act 1984
1. Section 32 is repealed.
Animal Farming (Registration) Act 1994
1. Section 26 is repealed.
Animal Health Act 1995
1. Section 95 is repealed and the following section
is substituted:
95. Liability of officers of bodies corporate -
failure to exercise due diligence
(1) For the purposes of this section -
body corporate has the same meaning
as corporation has in section 57A
of the Corporations Act;
executive liability offence is an
offence against any of the
provisions of this Act, except
sections 12, 16, 76, 78(6) and
clause 8 of Schedule 1;
5
Directors' Liability (Miscellaneous Amendments) Act 2012
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officer, in relation to a body corporate,
means -
(a) a person who is an officer
of a corporation (within
the meaning of 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.
(2) If a body corporate commits an executive
liability offence, an officer of the body
corporate also commits an executive
liability offence if the officer failed to
exercise due diligence to prevent the
commission of the offence by the body
corporate.
(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
6
Directors' Liability (Miscellaneous Amendments) Act 2012
Act No. of
sch. 1
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) It is a defence to a charge for an
executive liability offence for an officer
of a body corporate to prove that the
body corporate would not have been
found guilty of the executive liability
offence because of a defence available to
it.
(5) An officer of a body corporate may
commit an executive liability offence
whether or not the body corporate has
been prosecuted for, or found guilty of,
the executive liability offence.
7
Directors' Liability (Miscellaneous Amendments) Act 2012
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Animal Health Regulations 2006
1. Before regulation 19, the following regulation is
inserted in Part 9:
18A. Liability of officers of bodies corporate -
failure to exercise due diligence
(1) For the purposes of this regulation -
body corporate has the same meaning
as corporation has in section 57A
of the Corporations Act;
executive liability offence is an
offence against any of the
provisions of these regulations,
except regulations 8, 13, 14 and
17;
officer, in relation to a body corporate,
means -
(a) a person who is an officer
of a corporation (within
the meaning of 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
8
Directors' Liability (Miscellaneous Amendments) Act 2012
Act No. of
sch. 1
management of the body
corporate.
(2) If a body corporate commits an executive
liability offence, an officer of the body
corporate also commits an executive
liability offence if the officer failed to
exercise due diligence to prevent the
commission of the offence by the body
corporate.
(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) It is a defence to a charge for an
executive liability offence for an officer
of a body corporate to prove that the
9
Directors' Liability (Miscellaneous Amendments) Act 2012
Act No. of
sch. 1
body corporate would not have been
found guilty of the executive liability
offence because of a defence available to
it.
(5) An officer of a body corporate may
commit an executive liability offence
whether or not the body corporate has
been prosecuted for, or found guilty of,
the executive liability offence.
Animal Welfare Act 1993
1. Section 48A(2) is amended by omitting "this
Act" first occurring and substituting "sections 7,
8 and 9".
Building Act 2000
1. Section 239 is repealed and the following section
is substituted:
239. Liability of officers of bodies corporate -
failure to exercise due diligence (evidential
burden of proof)
(1) For the purposes of this section -
body corporate has the same meaning
as corporation has in section 57A
of the Corporations Act;
executive liability offence is an
offence against any of the
following provisions of this Act:
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Directors' Liability (Miscellaneous Amendments) Act 2012
Act No. of
sch. 1
(a) section 60;
(b) section 75;
(c) section 85;
(d) section 86;
(e) section 93;
(f) section 103;
(g) section 105;
(h) section 117;
(i) section 120(1);
(j) section 162;
(k) section 170;
(l) section 172;
officer, in relation to a body corporate,
means -
(a) a person who is an officer
of a corporation (within
the meaning of 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
11
Directors' Liability (Miscellaneous Amendments) Act 2012
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management of the body
corporate.
(2) Subject to subsection (3), if a body
corporate commits an executive liability
offence, an officer of the body corporate
also commits the executive liability
offence.
(3) An officer of a body corporate does not
commit an executive liability offence if -
(a) the officer presents or points to
evidence that suggests a
reasonable possibility that the
officer exercised due diligence to
prevent the commission of the
offence by the body corporate;
and
(b) the contrary is not proved
(beyond reasonable doubt) by the
prosecution.
(4) In determining whether an officer of a
body corporate exercised 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
12
Directors' Liability (Miscellaneous Amendments) Act 2012
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sch. 1
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.
(5) It is a defence to a charge for an
executive liability offence for an officer
of a body corporate to prove that the
body corporate would not have been
found guilty of the executive liability
offence because of a defence available to
it.
(6) An officer of a body corporate may
commit an executive liability offence
whether or not the body corporate has
been prosecuted for, or found guilty of,
the executive liability offence.
Dangerous Substances (Safe Handling) Act 2005
1. Section 87(1) is amended by inserting ", except
section 60" after "Act".
Egg Industry Act 2002
1. Section 21 is repealed.
13
Directors' Liability (Miscellaneous Amendments) Act 2012
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Farm Water Development Act 1985
1. Section 13 is amended by omitting subsections
(5) and (6).
Fire Service Act 1979
1. Section 77I is repealed and the following section
is substituted:
77I. Liability of officers of bodies corporate -
failure to exercise due diligence (evidential
burden of proof)
(1) For the purposes of this section -
body corporate has the same meaning
as corporation has in section 57A
of the Corporations Act;
executive liability offence is an
offence against any of the
following provisions of this Act:
(a) section 71;
(b) section 77B;
(c) section 77E;
(d) section 77G;
(e) section 77GA;
(f) section 77H;
(g) section 128(2);
14
Directors' Liability (Miscellaneous Amendments) Act 2012
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sch. 1
officer, in relation to a body corporate,
means -
(a) a person who is an officer
of a corporation (within
the meaning of 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.
(2) Subject to subsection (3), if a body
corporate commits an executive liability
offence, an officer of the body corporate
also commits the executive liability
offence.
(3) An officer of a body corporate does not
commit an executive liability offence if -
(a) the officer presents or points to
evidence that suggests a
reasonable possibility that the
officer exercised due diligence to
prevent the commission of the
offence by the body corporate;
and
15
Directors' Liability (Miscellaneous Amendments) Act 2012
Act No. of
sch. 1
(b) the contrary is not proved
(beyond reasonable doubt) by the
prosecution.
(4) In determining whether an officer of a
body corporate exercised 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.
(5) It is a defence to a charge for an
executive liability offence for an officer
of a body corporate to prove that the
body corporate would not have been
found guilty of the executive liability
offence because of a defence available to
it.
(6) An officer of a body corporate may
commit an executive liability offence
16
Directors' Liability (Miscellaneous Amendments) Act 2012
Act No. of
sch. 1
whether or not the body corporate has
been prosecuted for, or found guilty of,
the executive liability offence.
Gas Act 2000
1. Section 131 is repealed and the following section
is substituted:
131. Liability of officers of bodies corporate -
failure to exercise due diligence (evidential
burden of proof)
(1) For the purposes of this section -
body corporate has the same meaning
as corporation has in section 57A
of the Corporations Act;
executive liability offence is an
offence against any of the
provisions of this Act, except
sections 27, 98, 126, 127 and
128;
officer, in relation to a body corporate,
means -
(a) a person who is an officer
of a corporation (within
the meaning of section 9
of the Corporations Act)
of the body corporate; or
(b) a person (other than a
person referred to in
paragraph (a)), by
17
Directors' Liability (Miscellaneous Amendments) Act 2012
Act No. of
sch. 1
whatever name called,
who is concerned in, or
takes part in, the
management of the body
corporate.
(2) Subject to subsection (3), if a body
corporate commits an executive liability
offence, an officer of the body corporate
also commits the executive liability
offence.
(3) An officer of a body corporate does not
commit an executive liability offence if -
(a) the officer presents or points to
evidence that suggests a
reasonable possibility that the
officer exercised due diligence to
prevent the commission of the
offence by the body corporate;
and
(b) the contrary is not proved
(beyond reasonable doubt) by the
prosecution.
(4) In determining whether an officer of a
body corporate exercised 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
18
Directors' Liability (Miscellaneous Amendments) Act 2012
Act No. of
sch. 1
(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.
(5) It is a defence to a charge for an
executive liability offence for an officer
of a body corporate to prove that the
body corporate would not have been
found guilty of the executive liability
offence because of a defence available to
it.
(6) An officer of a body corporate may
commit an executive liability offence
whether or not the body corporate has
been prosecuted for, or found guilty of,
the executive liability offence.
19
Directors' Liability (Miscellaneous Amendments) Act 2012
Act No. of
sch. 1
Listening Devices Act 1991
1. Section 25 is repealed and the following section
is substituted:
25. Liability of officers of corporation - failure
to exercise due diligence
(1) For the purposes of this section -
corporation has the same meaning as
in section 57A of the
Corporations Act;
executive liability offence is an
offence against any of the
provisions of this Act;
officer, in relation to a corporation,
means -
(a) a person who is an officer
of a corporation (within
the meaning of section 9
of the Corporations Act);
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
corporation.
20
Directors' Liability (Miscellaneous Amendments) Act 2012
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(2) If a corporation commits an executive
liability offence, an officer of the
corporation also commits an executive
liability offence if the officer failed to
exercise due diligence to prevent the
commission of the offence by the
corporation.
(3) In determining whether an officer of a
corporation 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 corporation; and
(b) whether or not the officer was in
a position to influence the
corporation in relation to the
commission of the offence by the
corporation; and
(c) what steps the officer took, or
could reasonably have taken, to
prevent the commission of the
offence by the corporation; and
(d) any other relevant matter.
(4) It is a defence to a charge for an
executive liability offence for an officer
of a corporation to prove that the
corporation would not have been found
guilty of the executive liability offence
because of a defence available to it.
21
Directors' Liability (Miscellaneous Amendments) Act 2012
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(5) An officer of a corporation may commit
an executive liability offence whether or
not the corporation has been prosecuted
for, or found guilty of, the executive
liability offence.
Meat Hygiene Act 1985
1. Section 64 is repealed and the following section
is substituted:
64. Liability of officers of bodies corporate -
failure to exercise due diligence (evidential
burden of proof)
(1) For the purposes of this section -
body corporate has the same meaning
as corporation has in section 57A
of the Corporations Act;
executive liability offence is an
offence against the following
provisions of this Act:
(a) section 30(6);
(b) section 62;
officer, in relation to a body corporate,
means -
(a) a person who is an officer
of a corporation (within
the meaning of section 9
of the Corporations Act)
of the body corporate; or
22
Directors' Liability (Miscellaneous Amendments) Act 2012
Act No. of
sch. 1
(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.
(2) Subject to subsection (3), if a body
corporate commits an executive liability
offence, an officer of the body corporate
also commits the executive liability
offence.
(3) An officer of a body corporate does not
commit an executive liability offence if -
(a) the officer presents or points to
evidence that suggests a
reasonable possibility that the
officer exercised due diligence to
prevent the commission of the
offence by the body corporate;
and
(b) the contrary is not proved
(beyond reasonable doubt) by the
prosecution.
(4) In determining whether an officer of a
body corporate exercised due diligence, a
court may have regard to -
(a) what the officer knew, or ought
reasonably to have known, about
23
Directors' Liability (Miscellaneous Amendments) Act 2012
Act No. of
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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.
(5) It is a defence to a charge for an
executive liability offence for an officer
of a body corporate to prove that the
body corporate would not have been
found guilty of the executive liability
offence because of a defence available to
it.
(6) An officer of a body corporate may
commit an executive liability offence
whether or not the body corporate has
been prosecuted for, or found guilty of,
the executive liability offence.
24
Directors' Liability (Miscellaneous Amendments) Act 2012
Act No. of
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Occupational Licensing (Electrical Work) Regulations 2008
1. Regulation 25 is amended by inserting after
subregulation (2) the following subregulation:
(3) An offence against this regulation is not
an executive liability offence within the
meaning of section 87 of the Act.
Occupational Licensing (Gas-fitting Work) Regulations 2010
1. Regulation 12 is amended by inserting after
subregulation (2) the following subregulation:
(3) An offence against this regulation is not
an executive liability offence within the
meaning of section 87 of the Act.
Occupational Licensing (Plumbing Work) Regulations 2010
1. Regulation 12 is amended by inserting after
subregulation (2) the following subregulation:
(3) An offence against this regulation is not
an executive liability offence within the
meaning of section 87 of the Act.
25
Directors' Liability (Miscellaneous Amendments) Act 2012
Act No. of
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Occupational Licensing Act 2005
1. Section 87 is repealed and the following sections
are substituted:
87. Liability of officers of corporation - failure
to exercise due diligence (evidential burden
of proof)
(1) For the purposes of this section -
corporation has the same meaning as
in section 57A of the
Corporations Act;
executive liability offence is an
offence against any of the
provisions of this Act, except
section 24, 41(3), 44, 47 and
98(4);
officer, in relation to a corporation,
means -
(a) a person who is an officer
of a corporation (within
the meaning of section 9
of the Corporations Act);
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
26
Directors' Liability (Miscellaneous Amendments) Act 2012
Act No. of
sch. 1
management of the
corporation.
(2) Subject to subsection (3), if a corporation
commits an executive liability offence,
an officer of the corporation also
commits an executive liability offence.
(3) An officer of a corporation does not
commit an executive liability offence if -
(a) the officer presents or points to
evidence that suggests a
reasonable possibility that the
officer exercised due diligence to
prevent the commission of the
offence by the corporation; and
(b) the contrary is not proved
(beyond reasonable doubt) by the
prosecution.
(4) In determining whether an officer of a
corporation exercised 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 corporation; and
(b) whether or not the officer was in
a position to influence the
corporation in relation to the
commission of the offence by the
corporation; and
27
Directors' Liability (Miscellaneous Amendments) Act 2012
Act No. of
sch. 1
(c) what steps the officer took, or
could reasonably have taken, to
prevent the commission of the
offence by the corporation; and
(d) any other relevant matter.
(5) It is a defence to a charge for an
executive liability offence for an officer
of a corporation to prove that the
corporation would not have been found
guilty of the executive liability offence
because of a defence available to it.
(6) An officer of a corporation may commit
an executive liability offence whether or
not the corporation has been prosecuted
for, or found guilty of, the executive
liability offence.
87A. Offences by partnerships, &c.
(1) If a partner in a partnership commits an
offence against this Act in the course of
the activities of the partnership, each
other person who is a partner in the
partnership is also guilty of the offence
and liable to the penalty prescribed for
the offence.
(2) If a person who is concerned in the
management of an unincorporated
association commits an offence against
this Act in the course of the activities of
the unincorporated association, each
other person who is at the time of the
commission of the offence concerned in
28
Directors' Liability (Miscellaneous Amendments) Act 2012
Act No. of
sch. 1
the management of the unincorporated
association is also guilty of the offence
and liable to the penalty prescribed for
the offence.
(3) It is a defence to a charge brought under
this section if the person charged proves
that -
(a) the commission of the offence
occurred without the knowledge
of the person; or
(b) the person was not in a position
to influence the conduct of the
person who committed the
offence; or
(c) the person, being in such a
position, used all reasonable
diligence to prevent the
commission of the offence; or
(d) the person who committed the
offence would not have been
found guilty of the offence by
reason of a defence available
under this Act.
29
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Passenger Transport Services Act 2011
1. Section 62 is repealed and the following section
is substituted:
62. Liability of officers of bodies corporate -
failure to exercise due diligence
(1) For the purposes of this section -
body corporate has the same meaning
as corporation has in section 57A
of the Corporations Act;
executive liability offence is an
offence against any of the
provisions of this Act;
officer, in relation to a body corporate,
means -
(a) a person who is an officer
of a corporation (within
the meaning of 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.
30
Directors' Liability (Miscellaneous Amendments) Act 2012
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sch. 1
(2) If a body corporate commits an executive
liability offence, an officer of the body
corporate also commits an executive
liability offence if the officer failed to
exercise due diligence to prevent the
commission of the offence by the body
corporate.
(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) It is a defence to a charge for an
executive liability offence for an officer
of a body corporate to prove that the
body corporate would not have been
found guilty of the executive liability
31
Directors' Liability (Miscellaneous Amendments) Act 2012
Act No. of
sch. 1
offence because of a defence available to
it.
(5) An officer of a body corporate may
commit an executive liability offence
whether or not the body corporate has
been prosecuted for, or found guilty of,
the executive liability offence.
Pharmacy Control Act 2001
1. Section 79 is repealed and the following section
is substituted:
79. Liability of officers of bodies corporate -
failure to exercise due diligence
(1) For the purposes of this section -
body corporate has the same meaning
as corporation has in section 57A
of the Corporations Act;
executive liability offence is an
offence against any of the
provisions of this Act;
officer, in relation to a body corporate,
means -
(a) a person who is an officer
of a corporation (within
the meaning of section 9
of the Corporations Act)
of the body corporate; or
32
Directors' Liability (Miscellaneous Amendments) Act 2012
Act No. of
sch. 1
(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.
(2) If a body corporate commits an executive
liability offence, an officer of the body
corporate also commits an executive
liability offence if the officer failed to
exercise due diligence to prevent the
commission of the offence by the body
corporate.
(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
33
Directors' Liability (Miscellaneous Amendments) Act 2012
Act No. of
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offence by the body corporate;
and
(d) any other relevant matter.
(4) It is a defence to a charge for an
executive liability offence for an officer
of a body corporate to prove that the
body corporate would not have been
found guilty of the executive liability
offence because of a defence available to
it.
(5) An officer of a body corporate may
commit an executive liability offence
whether or not the body corporate has
been prosecuted for, or found guilty of,
the executive liability offence.
Plant Quarantine Act 1997
1. Section 84 is repealed and the following section
is substituted:
84. Liability of officers of bodies corporate -
failure to exercise due diligence
(1) For the purposes of this section -
body corporate has the same meaning
as corporation has in section 57A
of the Corporations Act;
executive liability offence is an
offence against the provisions of
this Act, except sections 62, 63,
34
Directors' Liability (Miscellaneous Amendments) Act 2012
Act No. of
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100, 101, 101A and 103 and any
regulation made under this Act;
officer, in relation to a body corporate,
means -
(a) a person who is an officer
of a corporation (within
the meaning of 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.
(2) If a body corporate commits an executive
liability offence, an officer of the body
corporate also commits an executive
liability offence if the officer failed to
exercise due diligence to prevent the
commission of the offence by the body
corporate.
(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
35
Directors' Liability (Miscellaneous Amendments) Act 2012
Act No. of
sch. 1
(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) It is a defence to a charge for an
executive liability offence for an officer
of a body corporate to prove that the
body corporate would not have been
found guilty of the executive liability
offence because of a defence available to
it.
(5) An officer of a body corporate may
commit an executive liability offence
whether or not the body corporate has
been prosecuted for, or found guilty of,
the executive liability offence.
36
Directors' Liability (Miscellaneous Amendments) Act 2012
Act No. of
sch. 1
Poisons Act 1971
1. Section 86 is repealed and the following section
is substituted:
86. Liability of officers of bodies corporate -
failure to exercise due diligence
(1) For the purposes of this section -
body corporate has the same meaning
as corporation has in section 57A
of the Corporations Act;
executive liability offence is an
offence against any of the
provisions of this Act;
officer, in relation to a body corporate,
means -
(a) a person who is an officer
of a corporation (within
the meaning of 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.
37
Directors' Liability (Miscellaneous Amendments) Act 2012
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sch. 1
(2) If a body corporate commits an executive
liability offence, an officer of the body
corporate also commits an executive
liability offence if the officer failed to
exercise due diligence to prevent the
commission of the offence by the body
corporate.
(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) It is a defence to a charge for an
executive liability offence for an officer
of a body corporate to prove that the
body corporate would not have been
found guilty of the executive liability
38
Directors' Liability (Miscellaneous Amendments) Act 2012
Act No. of
sch. 1
offence because of a defence available to
it.
(5) An officer of a body corporate may
commit an executive liability offence
whether or not the body corporate has
been prosecuted for, or found guilty of,
the executive liability offence.
Prepaid Funerals Act 2004
1. Section 26 is amended by omitting subsection
(2).
Property Agents and Land Transactions Act 2005
1. Section 210 is repealed.
Retirement Villages Act 2004
1. Section 43 is repealed and the following section
is substituted:
43. Liability of officers of bodies corporate -
failure to exercise due diligence
(1) For the purposes of this section -
body corporate has the same meaning
as corporation has in section 57A
of the Corporations Act;
executive liability offence is an
offence against the provisions of
this Act, except sections 16, 21
and 33;
39
Directors' Liability (Miscellaneous Amendments) Act 2012
Act No. of
sch. 1
officer, in relation to a body corporate,
means -
(a) a person who is an officer
of a corporation (within
the meaning of 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.
(2) If a body corporate commits an executive
liability offence, an officer of the body
corporate also commits an executive
liability offence if the officer failed to
exercise due diligence to prevent the
commission of the offence by the body
corporate.
(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
40
Directors' Liability (Miscellaneous Amendments) Act 2012
Act No. of
sch. 1
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) It is a defence to a charge for an
executive liability offence for an officer
of a body corporate to prove that the
body corporate would not have been
found guilty of the executive liability
offence because of a defence available to
it.
(5) An officer of a body corporate may
commit an executive liability offence
whether or not the body corporate has
been prosecuted for, or found guilty of,
the executive liability offence.
Second-hand Dealers and Pawnbrokers Act 1994
1. Section 22 is repealed.
41
Directors' Liability (Miscellaneous Amendments) Act 2012
Act No. of
sch. 1
Security-sensitive Dangerous Substances Act 2005
1. Section 68 is repealed and the following section
is substituted:
68. Liability of officers of bodies corporate -
failure to exercise due diligence (evidential
burden of proof)
(1) For the purposes of this section -
body corporate has the same meaning
as corporation has in section 57A
of the Corporations Act;
executive liability offence is an
offence against the provisions of
this Act, except sections 33, 34,
36, 37(3), 38(2), 40(1), 50, 60, 61
and 76;
officer, in relation to a body corporate,
means -
(a) a person who is an officer
of a corporation (within
the meaning of 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
42
Directors' Liability (Miscellaneous Amendments) Act 2012
Act No. of
sch. 1
management of the body
corporate.
(2) Subject to subsection (3), if a body
corporate commits an executive liability
offence, an officer of the body corporate
also commits the executive liability
offence.
(3) An officer of a body corporate does not
commit an executive liability offence if -
(a) the officer presents or points to
evidence that suggests a
reasonable possibility that the
officer exercised due diligence to
prevent the commission of the
offence by the body corporate;
and
(b) the contrary is not proved
(beyond reasonable doubt) by the
prosecution.
(4) In determining whether an officer of a
body corporate exercised 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
43
Directors' Liability (Miscellaneous Amendments) Act 2012
Act No. of
sch. 1
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.
(5) It is a defence to a charge for an
executive liability offence for an officer
of a body corporate to prove that the
body corporate would not have been
found guilty of the executive liability
offence because of a defence available to
it.
(6) An officer of a body corporate may
commit an executive liability offence
whether or not the body corporate has
been prosecuted for, or found guilty of,
the executive liability offence.
Tasmanian Qualifications Authority Act 2003
1. Section 66 is repealed.
44
Directors' Liability (Miscellaneous Amendments) Act 2012
Act No. of
sch. 1
Taxation Administration Act 1997
1. Section 109 is repealed and the following section
is substituted:
109. Liability of officers of bodies corporate -
failure to exercise due diligence (evidential
burden of proof)
(1) For the purposes of this section -
body corporate has the same meaning
as corporation has in section 57A
of the Corporations Act;
executive liability offence is an
offence against any of the
provisions of a taxation law;
officer, in relation to a body corporate,
means -
(a) a person who is an officer
of a corporation (within
the meaning of 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.
45
Directors' Liability (Miscellaneous Amendments) Act 2012
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(2) Subject to subsection (3), if a body
corporate commits an executive liability
offence, an officer of the body corporate
also commits the executive liability
offence.
(3) An officer of a body corporate does not
commit an executive liability offence if -
(a) the officer presents or points to
evidence that suggests a
reasonable possibility that the
officer exercised due diligence to
prevent the commission of the
offence by the body corporate;
and
(b) the contrary is not proved
(beyond reasonable doubt) by the
prosecution.
(4) In determining whether an officer of a
body corporate exercised 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
46
Directors' Liability (Miscellaneous Amendments) Act 2012
Act No. of
sch. 1
(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.
(5) It is a defence to a charge for an
executive liability offence for an officer
of a body corporate to prove that the
body corporate would not have been
found guilty of the executive liability
offence because of a defence available to
it.
(6) An officer of a body corporate may
commit an executive liability offence
whether or not the body corporate has
been prosecuted for, or found guilty of,
the executive liability offence.
Unauthorized Documents Act 1986
1. Section 6 is repealed and the following section is
substituted:
6. Liability of officers of bodies corporate -
failure to exercise due diligence
(1) For the purposes of this section -
body corporate has the same meaning
as corporation has in section 57A
of the Corporations Act;
47
Directors' Liability (Miscellaneous Amendments) Act 2012
Act No. of
sch. 1
executive liability offence is an
offence against any of the
provisions of this Act;
officer, in relation to a body corporate,
means -
(a) a person who is an officer
of a corporation (within
the meaning of 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.
(2) If a body corporate commits an executive
liability offence, an officer of the body
corporate also commits an executive
liability offence if the officer failed to
exercise due diligence to prevent the
commission of the offence by the body
corporate.
(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
48
Directors' Liability (Miscellaneous Amendments) Act 2012
Act No. of
sch. 1
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) It is a defence to a charge for an
executive liability offence for an officer
of a body corporate to prove that the
body corporate would not have been
found guilty of the executive liability
offence because of a defence available to
it.
(5) An officer of a body corporate may
commit an executive liability offence
whether or not the body corporate has
been prosecuted for, or found guilty of,
the executive liability offence.
49
Directors' Liability (Miscellaneous Amendments) Act 2012
Act No. of
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Veterinary Surgeons Act 1987
1. Section 40 is repealed and the following section
is substituted:
40. Liability of officers of veterinary services
companies - failure to exercise due diligence
(1) For the purposes of this section -
executive liability offence is an
offence against the provisions of
this Act, except sections 58 and
58A;
officer, in relation to a veterinary
services company, means -
(a) a person who is an officer
of a corporation (within
the meaning of section 9
of the Corporations Act)
of the veterinary services
company; 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
veterinary services
company;
50
Directors' Liability (Miscellaneous Amendments) Act 2012
Act No. of
sch. 1
veterinary services company has the
same meaning as corporation has
in section 57A of the
Corporations Act.
(2) If a veterinary services company
commits an executive liability offence,
an officer of the veterinary services
company also commits an executive
liability offence if the officer failed to
exercise due diligence to prevent the
commission of the offence by the
veterinary services company.
(3) In determining whether an officer of a
veterinary services company 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 veterinary services company;
and
(b) whether or not the officer was in
a position to influence the
veterinary services company in
relation to the commission of the
offence by the veterinary services
company; and
(c) what steps the officer took, or
could reasonably have taken, to
prevent the commission of the
51
Directors' Liability (Miscellaneous Amendments) Act 2012
Act No. of
sch. 1
offence by the veterinary services
company; and
(d) any other relevant matter.
(4) It is a defence to a charge for an
executive liability offence for an officer
of a veterinary services company to
prove that the veterinary services
company would not have been found
guilty of the executive liability offence
because of a defence available to it.
(5) An officer of a veterinary services
company may commit an executive
liability offence whether or not the
veterinary services company has been
prosecuted for, or found guilty of, the
executive liability offence.
Water Management (Electoral and Polling) Regulations
2009
1. Regulation 17 is amended by inserting after
subregulation (5) the following subregulation:
(5A) Subregulation (5) is taken to have been a
provision specified in section 291(2) of
the Act.
52
Directors' Liability (Miscellaneous Amendments) Act 2012
Act No. of
sch. 1
Water Management (Safety of Dams) Regulations 2011
1. Regulation 9 is rescinded and the following
regulation is substituted:
9. Guidelines and information to be followed
by persons constructing, &c., dams
(1) A person must not carry out any activity
for the purpose of, or in connection with,
the design, construction, surveillance or
decommissioning of a dam unless the
person -
(a) carries out the activity, where
appropriate, in accordance with
the relevant provisions of the
ANCOLD guidelines; and
(b) carries out the activity generally
in accordance with Information
Sheet DSC 2C issued by the
Dams Safety Committee
constituted by the Dams Safety
Act 1978 of New South Wales.
Penalty: In the case of -
(a) a body corporate, a fine
not exceeding 50 penalty
units; and
(b) a natural person, a fine
not exceeding 20 penalty
units.
53
Directors' Liability (Miscellaneous Amendments) Act 2012
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(2) Subregulation (1) is taken to have been a
provision specified in section 291(2) of
the Act.
2. Regulation 10 is amended by inserting after
subregulation (4) the following subregulation:
(5) Subregulations (2), (3) and (4) are taken
to have been provisions specified in
section 291(2) of the Act.
3. Regulation 13 is amended by inserting after
subregulation (2) the following subregulation:
(2A) Subregulation (2) is taken to have been a
provision specified in section 291(2) of
the Act.
Water Management Act 1999
1. Section 291 is repealed and the following section
is substituted:
291. Liability of officers of bodies corporate -
failure to exercise due diligence
(1) In this section -
body corporate has the same meaning
as corporation has in section 57A
of the Corporations Act;
executive liability offence is an
offence against a provision of this
54
Directors' Liability (Miscellaneous Amendments) Act 2012
Act No. of
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Act, other than the prescribed
provisions;
officer, in relation to a body corporate,
means -
(a) a person who is an officer
of a corporation (within
the meaning of 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.
(2) For the purposes of subsection (1), the
prescribed provisions are sections 23, 52,
61(8), 121(6), 123E, 126, 128, 129, 133,
135C, 135D, 136D, 136E, 136I, 147,
148, 165J(7), 182, 199, 222, 227, 228,
235, 236, 239, 246, 281, 282, 283 and
284.
(3) If a body corporate commits an executive
liability offence, an officer of the body
corporate also commits an executive
liability offence if the officer failed to
exercise due diligence to prevent the
commission of the offence by the body
corporate.
55
Directors' Liability (Miscellaneous Amendments) Act 2012
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(4) 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.
(5) It is a defence to a charge for an
executive liability offence for an officer
of a body corporate to prove that the
body corporate would not have been
found guilty of the executive liability
offence because of a defence available to
it.
(6) An officer of a body corporate may
commit an executive liability offence
whether or not the body corporate has
been prosecuted for, or found guilty of,
the executive liability offence.
56
Directors' Liability (Miscellaneous Amendments) Act 2012
Act No. of
sch. 1
Water Management Regulations 2009
1. Regulation 4 is amended by inserting after
subregulation (3) the following subregulation:
(3A) Subregulation (3) is taken to have been a
provision specified in section 291(2) of
the Act.
Water and Sewerage Industry (General) Regulations 2009
1. Regulation 5 is amended by inserting after
subregulation (2) the following subregulation:
(3) An offence against this regulation is not
an executive liability offence within the
meaning of section 105 of the Act.
2. Regulation 8 is amended by inserting after
subregulation (2) the following subregulation:
(3) An offence against this regulation is not
an executive liability offence within the
meaning of section 105 of the Act.
3. Regulation 15 is amended by inserting after
subregulation (4) the following subregulation:
(5) An offence against this regulation is not
an executive liability offence within the
meaning of section 105 of the Act.
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Directors' Liability (Miscellaneous Amendments) Act 2012
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Water and Sewerage Industry Act 2008
1. Section 105 is repealed and the following section
is substituted:
105. Liability of officers of corporation - failure
to exercise due diligence
(1) For the purposes of this Act -
corporation has the same meaning as
in section 57A of the
Corporations Act;
executive liability offence is an
offence against the provisions of
this Act, except sections 56K,
56ZF, 56ZG, 59, 61, 62, 65, 75
and 107;
officer, in relation to a corporation,
means -
(a) a person who is an officer
of a corporation (within
the meaning of section 9
of the Corporations Act);
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
58
Directors' Liability (Miscellaneous Amendments) Act 2012
Act No. of
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management of the
corporation.
(2) If a corporation commits an executive
liability offence, an officer of the
corporation also commits an executive
liability offence if the officer failed to
exercise due diligence to prevent the
commission of the offence by the
corporation.
(3) In determining whether an officer of a
corporation 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 corporation; and
(b) whether or not the officer was in
a position to influence the
corporation in relation to the
commission of the offence by the
corporation; and
(c) what steps the officer took, or
could reasonably have taken, to
prevent the commission of the
offence by the corporation; and
(d) any other relevant matter.
(4) It is a defence to a charge for an
executive liability offence for an officer
of a corporation to prove that the
corporation would not have been found
59
Directors' Liability (Miscellaneous Amendments) Act 2012
Act No. of
sch. 1
guilty of the executive liability offence
because of a defence available to it.
(5) An officer of a corporation may commit
an executive liability offence whether or
not the corporation has been prosecuted
for, or found guilty of, the executive
liability offence.
Weed Management Act 1999
1. Section 55 is repealed and the following section
is substituted:
55. Liability of officers of bodies corporate -
failure to exercise due diligence
(1) For the purposes of this section -
body corporate has the same meaning
as corporation has in section 57A
of the Corporations Act;
executive liability offence is an
offence against the provisions of
this Act, except sections 35, 40,
41, 44, 47, 48, 50, 51, 56, 57 and
58 and any regulation made under
this Act;
officer, in relation to a body corporate,
means -
(a) a person who is an officer
of a corporation (within
the meaning of section 9
60
Directors' Liability (Miscellaneous Amendments) Act 2012
Act No. of
sch. 1
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.
(2) If a body corporate commits an executive
liability offence, an officer of the body
corporate also commits an executive
liability offence if the officer failed to
exercise due diligence to prevent the
commission of the offence by the body
corporate.
(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
61
Directors' Liability (Miscellaneous Amendments) Act 2012
Act No. of
sch. 1
prevent the commission of the
offence by the body corporate;
and
(d) any other relevant matter.
(4) It is a defence to a charge for an
executive liability offence for an officer
of a body corporate to prove that the
body corporate would not have been
found guilty of the executive liability
offence because of a defence available to
it.
(5) An officer of a body corporate may
commit an executive liability offence
whether or not the body corporate has
been prosecuted for, or found guilty of,
the executive liability offence.
62 Government Printer, Tasmania