Biodiversity Conservation Act 2016 No 63
13.6 Liability of directors etc for offences by corporation—offences attracting executive liability
(1) For the purposes of this section, an executive liability offence is an offence against any of the following provisions that is committed by a corporation:(a) section 2.1 or 2.2 (Harming animals or picking plants), in the case of an animal or plant that is (or is part of) a threatened species or threatened ecological community,(b) section 2.3 (Damaging declared areas of outstanding biodiversity value),(c) section 2.4 (Damaging habitat of threatened species or ecological community),(d) section 2.5 (Dealing in animals or plants), in the case of an animal or plant that is (or is part of) a threatened species or threatened ecological community,(e) section 60N of the Local Land Services Act 2013 (Unauthorised clearing of native vegetation in regulated rural area—offence),(e1) section 60ZZA of the Local Land Services Act 2013 (Offence of contravening requirements of plan or code of practice),(e2) section 69SA of the Forestry Act 2012 (Offence of contravening requirements of approval),(f) section 11.5, 11.12, 11.22 or 11.27 (Contravening stop work order, interim protection order, remediation order or biodiversity offsets enforcement order),(g) section 13.26 (Offence of failing to comply with court order), being an order in relation to an offence involving threatened species, threatened ecological communities, declared areas of outstanding biodiversity value or the clearing of native vegetation, but not being an order in relation to costs and expenses incurred by a public authority or agency.(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 or ought reasonably to know that the executive liability offence (or an offence of the same type) 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: The maximum penalty for the executive liability offence if committed by an individual.(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 as 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, andrelevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,(ii) the structures, work systems and other processes,(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.