Miscellaneous Acts Amendment (Directors' Liability) Bill 2012 – Onus on prosecutors of corporate offences to prove criminal responsibility of directors and officers
On 20 November 2012, the New South Wales Legislative Council passed the Miscellaneous Acts Amendment (Directors' Liability) Bill 2012 (Bill). When it becomes law, the Bill will introduce a nationally consistent reform of legislation regulating the criminal responsibility of directors and officers for corporate offences.
The Bill amends various Acts so that directors and officers are no longer automatically liable for offences committed by a corporation unless they acted as an accessory, eg by aiding and abetting, in that particular offence. This is recognition of the fact that legislative provisions have imposed criminal liability on directors and officers for corporate offences for years which have been applied inconsistently and without clear justification.
This is a significant change from the current regimes and is in line with normal principles of accessorial liability. Currently, personal criminal liability for corporate offences in most cases is imposed on directors and officers, requiring them to then argue their innocence.
The proposed amendments remove this reverse onus of proof, except particular environmental and safety offences where reverse onus provisions are justified for public policy reasons. Prosecutors will now have the responsibility under the amendments of proving such criminal responsibility.
The Bill will amend a wide range of legislation including:
- Animal Research Act 1985
- Building and Construction Industry Long Service Leave Payments Act 1986
- Children and Young Persons (Care and Protection) Act 1998
- Classification (Publications, Films and Computer Games) Enforcement Act 1995
- Contaminated Land Management Act 1997
- Conveyancers Licensing Act 2003
- Drug Misuse and Trafficking Act 1985
- Drug Misuse and Trafficking Regulation 2011
- Duties Act 1997
- Electricity (Consumer Safety) Act 2004
- Environmentally Hazardous Chemicals Act 1985
- Explosives Act 2003
- Food Act 2003
- Forestry Act 1916
- Health Insurance Levies Act 1982
- Heritage Act 1977
- Jury Act 1977
- Landlord and Tenant (Amendment) Act 1948
- Liquor Act 2007
- Loan Fund Companies Act 1976
- Long Service Leave Act 1955
- Long Service Leave (Metalliferous Mining Industry) Act 1963
- Mining Act 1992
- Motor Dealers Act 1974
- Motor Vehicle Repairs Act 1980
- National Parks and Wildlife Act 1974
- Native Vegetation Act 2003
- Payroll Tax Act 2007
- Pesticides Act 1999
- Printing and Newspapers Act 1973
- Property Stock and Business Agents Act 2002
- Protection of The Environment Operations Act 1997
- Racing Administration Act 1998
- Rural Workers Accommodation Act 1969
- Security Industry Act 1997
- Sydney Water Catchment Management Act 1998
- Sydney Water Catchment Management Regulation 2008
- Taxation Administration Act 1996
- Threatened Species Conservation Act 1995
- Unlawful Gambling Act 1998
- Valuers Act 2003
- Veterinary Practice Act 2003
- Water Industry Competition Act 2006
- Workplace Injury Management and Workers Compensation Act 1998.
The reforms will also reduce the number of offences to which special directors' liability provisions apply from over 1000 to about 50.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
