Section 245AU — Civil liability of executive officers of bodies corporate

245AU Civil liability of executive officers of bodies corporate

(1) An executive officer of a body corporate contravenes this subsection if:

(a) the body contravenes (the sponsorship-related contravention) a civil penalty provision in this Subdivision; and

(b) the officer knew that, or was reckless or negligent as to whether, the sponsorship-related contravention would occur; and

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

(d) the officer failed to take all reasonable steps to prevent the sponsorship-related contravention. Note: Section 486ZF (which provides that a person’s state of mind does not need to be proven in proceedings for a civil penalty order) does not apply in relation to a contravention of this subsection.

Civil penalty provision

(2) An executive officer of a body corporate is liable to a civil penalty if the officer contravenes subsection (1). Civil penalty: 240 penalty units.

Reasonable steps to prevent the contravention

(3) In determining whether the executive officer of the body corporate failed to take all reasonable steps to prevent the sponsorship-related contravention by the body, a court must have regard to:

(a) what action (if any) the officer took towards ensuring that the body’s employees, agents and contractors had a reasonable knowledge and understanding of the requirements to comply with this Subdivision, insofar as those requirements affected the employees, agents or contractors concerned; and

(b) what action (if any) the officer took when he or she became aware that the body was engaging in the sponsorship-related contravention.

(4) Subsection (3) does not limit subsection (1).

Definitions

(5) In this section: negligent: an executive officer of a body corporate is negligent as to whether a sponsorship-related 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 sponsorship-related contravention would occur;

that the conduct merits the imposition of a pecuniary penalty. reckless: an executive officer of a body corporate is reckless as to whether a sponsorship-related contravention would occur if:

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

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