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Carbon Pollution Reduction Scheme Bill 2009

Part 20 Liability of executive officers of bodies corporate

   

323   Simplified outline

                   The following is a simplified outline of this Part:

•      If a body corporate contravenes a civil penalty provision, and an executive officer of the body corporate was involved in the contravention, the officer will contravene a civil penalty provision.

324   Civil penalties for executive officers of bodies corporate

             (1)  If:

                     (a)  a body corporate contravenes a civil penalty provision; and

                     (b)  an executive officer of the body corporate knew that, or was reckless or negligent as to whether, the contravention would occur; and

                     (c)  the officer was in a position to influence the conduct of the body corporate in relation to the contravention; and

                     (d)  the officer failed to take all reasonable steps to prevent the contravention;

the officer contravenes this subsection.

             (2)  For the purposes of subsection (1), the officer is reckless as to whether the contravention would occur if:

                     (a)  the officer is aware of a substantial risk that the contravention would occur; and

                     (b)  having regard to the circumstances known to the officer, it is unjustifiable to take the risk.

             (3)  For the purposes of subsection (1), the officer is negligent as to whether the contravention would occur if the officer’s conduct involves:

                     (a)  such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and

                     (b)  such a high risk that the contravention would occur;

that the conduct merits the imposition of a pecuniary penalty.

Civil penalty provision

             (4)  Subsection (1) is a civil penalty provision.

Note:          Part 21 provides for pecuniary penalties for breaches of civil penalty provisions.

325   Reasonable steps to prevent contravention

             (1)  For the purposes of section 324, in determining whether an executive officer of a body corporate failed to take all reasonable steps to prevent a contravention, the Federal Court may have regard to all relevant matters, including:

                     (a)  what action (if any) the officer took directed towards ensuring the following (to the extent that the action is relevant to the contravention):

                              (i)  that the body corporate arranges regular professional assessments of the body corporate’s compliance with civil penalty provisions;

                             (ii)  that the body corporate implements any appropriate recommendations arising from such an assessment;

                            (iii)  that the body corporate’s employees, agents and contractors have a reasonable knowledge and understanding of the requirements to comply with civil penalty provisions in so far as those requirements affect the employees, agents or contractors concerned; and

                     (b)  what action (if any) the officer took when he or she became aware of the contravention.

             (2)  This section does not limit section 324.