Hansard Daily: Legislative Council - Thursday, March 7 2013

STATUTES AMENDMENT (DIRECTORS' LIABILITY) BILL

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for the Status of Women, Minister for State/Local Government Relations) (17:21): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The purpose of this Bill is to give effect to that part of the National Partnership Agreement to Deliver a Seamless National Economy entered into through the Council of Australian Governments (COAG) in November 2008 in which the Commonwealth and all States and Territories agreed to reform directors' liability provisions in their legislation. These are provisions that impose personal criminal liability on directors of corporations by reason of the position they hold in a corporation that has committed an offence. These reforms will extend to members of management committees of other bodies corporate.

It has been common, not only in South Australia, but in other Australian jurisdictions as well, to include in legislation provisions that impose personal criminal liability that goes beyond the normal principles of accessorial liability. In many Acts there are provisions that hold each director criminally liable on proof of the company's offending, subject to a defence of due diligence that must be proved by the director. Frequently this has applied indiscriminately to every offence against the Act and also to any offences against the Regulations under the Act. Occasionally there was no statutory defence, so that a director became automatically liable to conviction.

The background to COAG's examination of the issue was reports and recommendations from bodies such as the Corporations and Markets Advisory Committee established under the Australian Securities and Investment Commission Act 2001 (Cth) and the Commonwealth Governments Taskforce on Reducing the Regulatory Burden on Business (the Banks Report 2006). These reports found that there was a need for a more consistent and more principled approach to personal liability for corporate offences. They said such an approach would reduce complexity, aid understanding, increase certainty and predictability, and assist efforts to promote effective corporate compliance and risk management. The Australian Institute of Company Directors also made submissions to Governments seeking reforms.

COAG was concerned that the law should not impose unjustifiable burdens on business or discourage competent persons from becoming directors. It considered that reforming directors' liability provisions in a principled and consistent manner would improve productivity and have economic benefits for Australia.

A corporation has a separate legal identity from its shareholders or members, its directors and managers, and a corporation can be convicted of an offence. If directors or others are personally involved in the commission of the offence or have aided, abetted, counselled or procured its commission by the corporation they can be held liable as principal offenders or as accessories. In South Australia, this is generally done, if at all, via section 267 of the Criminal Law Consolidation Act 1935. Further, where a corporation commits an offence as a result of directors breaching their fundamental duties as directors, they may be prosecuted under the Commonwealth Corporations Act.

But in addition to these direct attributions of criminal responsibility, there are some circumstances in which it is justifiable in the public interest to hold the directors vicariously responsible for the wrongdoing of the corporation under State legislation. This is the view that has been taken across Australia for laws directed at very serious harms such as occupational health and safety laws and for some offences that are likely to cause serious environmental harm. These (and other such obligations) are of such public importance that the directors are expected to take an active part in ensuring their companies comply with the law. There are some other offences where there are compelling public policy reasons for making directors liable unless they can establish that they exercised due diligence.

This Bill will amend 50 Acts. It will reform directors' liability provisions in 43 Acts in addition to the reforms to directors' liability provisions in 25 Acts made by the Statutes Amendment (Directors' Liability) Act 2011. The Bill will also amend seven of the Acts amended by the 2011 Act so that directors will not be vicariously liable for offences against regulations made under them unless the regulations specifically provide for such liability.

This additional and more rigorous approach to the reforms is required by COAG decisions made after the Statutes Amendment (Directors' Liability) Bill 2011 had been passed by the House of Assembly. In August 2011 COAG decided that all jurisdictions would conduct another audit of their legislation and make additional reforms in conformity with a new set of Guidelines that were to be developed to supplement the Principles that had previously informed reform. The new Guidelines are entitled Personal Liability for Corporate Fault—Guidelines for Applying the COAG Principles and they were approved by COAG on 25 July 2012. They are much more detailed and prescriptive than the Principles originally approved by COAG. All Australian jurisdictions have now identified additional provisions to be reformed.

The COAG Guidelines describe three types of vicarious directors' liability provisions and call them type 1, type 2 and type 3. The Guidelines require an examination of each offence provision to determine whether vicarious directors' liability is justified and, if it is, to determine which of these types of liability is appropriate.

Type 1 provisions are provisions where the prosecution must prove beyond reasonable doubt every element of the offence alleged to have been committed by the director including the director's lack of care.

Type 2 provisions provide that a person is guilty of an offence if certain matters are proved by the prosecution, subject to one or more 'defences'. An accused who wishes to rely on the defence must produce at least enough evidence to suggest that there is a reasonable possibility that the defence applies. If they do this, the onus reverts to the prosecution. Type 2 provisions are not used in South Australia.

Type 3 provisions are the typical reverse onus provisions where directors will be found guilty vicariously for corporate offences unless they prove on the balance of probabilities that they could not by the exercise of due diligence have prevented the company from committing the offence.

This Bill will remove directors' vicarious liability from 19 Acts. It will amend another 24 Acts by repealing the existing directors' liability provision and substituting other provisions. For these 24 Acts decisions have been made about whether there should be type 1, type 3 or no vicarious liability for each of the offences that can be committed by a corporation. When it is considered necessary that type 3 vicarious liability be retained for particular offences, those offences are either specified in the first subsection or described as 'prescribed offences' which are then defined in a separate subsection. The offences for which there is to be type 1 liability are covered by a subsection that requires the prosecution to prove that the corporation committed an offence, that the accused was a director at the time the offence was committed, and in addition that:

the director knew, or ought reasonably to have known, that there was a significant risk that such an offence would be committed; and

the director was in a position to influence the conduct of the corporation in relation to the commission of such an offence; and

the director failed to exercise due diligence to prevent the commission of the offence.

For many of the offences in these 24 Acts there will be no vicarious liability and each of these is listed by section number in a subsection that disapplies the subsection for type 1 liability. These are in addition to the 19 Acts in which the directors' liability provision will be repealed without replacement.

The number of offences that attract vicarious liability, and particularly type 3 liability, will be vastly fewer than currently exist.

In conjunction with the measures in this Bill that modify or remove directors' liability, the opportunity has been taken to raise penalty levels for certain offences in a number of these Acts. It is expected that those measures will act as a significant incentive for bodies corporate to comply with those Acts.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

By way of general comments about this Bill, amendments are made to 50 Acts to modify or remove vicarious liability of directors and other persons in positions of authority in a body corporate, for offences committed by the body corporate against the relevant Act or against regulations under the relevant Act.

Where vicarious liability has been modified, the new provisions provide for one or both of 2 types of liability: type 3 directors' liability and type 1 directors' liability.

Type 3 directors' liability

First, directors (or other persons in positions of authority in a body corporate) will be liable in relation to certain offences committed by the body corporate unless they prove that they could not, by the exercise of due diligence, have prevented the commission of the offence. This is called type 3 directors' liability for the purposes of this clauses explanation and is the more onerous of the two liability types in terms of the burden of proof on a director.

Type 1 directors' liability

Secondly, directors (or other persons in positions of authority in a body corporate) will be liable in relation to certain offences committed by the body corporate if the prosecution proves that they knew, or ought reasonably to have known, that there was a significant risk that such an offence would be committed, were in a position to influence the conduct of the body corporate in relation to the commission of such an offence and failed to exercise due diligence to prevent the commission of the offence. This is called type 1 directors' liability for the purposes of this clauses explanation and is less onerous on a director than type 3 directors' liability.

The term 'directors' liability' is used in this clauses explanation as a generic term to describe the vicarious liability that may be imposed on persons in positions of authority in a body corporate for the acts of the body corporate. This term will be used in this clauses explanation despite the fact that some of the Acts being amended refer to persons other than directors, for example, managers, chief executives, members of the governing body and others.

Penalty increases

In addition to the modification or removal of directors' liability in various Acts, the opportunity has been taken in this Bill to raise penalty levels for certain offences in a number of these Acts.

Part 2—Amendment of Agricultural and Veterinary Products (Control of Use) Act 2002

4—Substitution of section 34

Type 3 and type 1 directors' liability (explained above in clause 3) is provided for a reduced number of offences. Directors' liability is removed for all other offences against the Act or regulations committed by the body corporate. The amendments clarify that the regulation making power exists to enable the regulations to impose such liability should that be considered appropriate in particular cases.

5—Amendment of section 36—General defence

The general defence under section 36 will no longer be available to a member of a governing body, or the manager, of a body corporate who is charged with a directors' liability offence under section 34. The defence available to such persons is incorporated within section 34 itself.

Part 3—Amendment of Aṉangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981

6—Amendment of section 23—Offence in relation to obtaining permission to carry out mining operations

Directors' liability is removed for an offence against section 23 committed by a body corporate. There is no other such directors' liability in this Act.

Part 4—Amendment of Animal Welfare Act 1985

7—Amendment of section 38—Offences by bodies corporate

Directors' liability is removed in relation to all offences against the regulations committed by the body corporate. The amendments clarify that the regulation making power exists to enable the regulations to impose such liability should that be considered appropriate in particular cases.

Part 5—Amendment of Aquaculture Act 2001

8—Amendment of section 88—Liability of directors

9—Amendment of section 89—General defence

The general defence under section 89 will no longer be available to a director of a corporation charged with a vicarious liability offence under section 88. The defence available to such a director is incorporated within section 88 itself.

Part 6—Amendment of Authorised Betting Operations Act 2000

10—Amendment of section 84—Offences by bodies corporate

Part 7—Amendment of Building Work Contractors Act 1995

11—Repeal of section 56

Directors' liability is removed in relation to all offences against the Act or regulations committed by the body corporate.

Part 8—Amendment of Citrus Industry Act 2005

12—Repeal of section 24

Directors' liability is removed in relation to all offences against the Act or regulations committed by the body corporate.

Part 9—Amendment of Classification (Publications, Films and Computer Games) Act 1995

13—Amendment of section 86—Proceedings against body corporate

Type 3 directors' liability (explained above in clause 3) is limited to prescribed offences only. Directors' liability is removed in relation to all other offences against the Act or regulations committed by the body corporate.

Part 10—Amendment of Collections for Charitable Purposes Act 1939

14—Amendment of section 15—Accounts, statements and audit

Type 1 directors' liability (explained above in clause 3) is provided for an offence against the section committed by a body corporate or an unincorporated body.

Part 11—Amendment of Conveyancers Act 1994

15—Repeal of section 61

Directors' liability is removed in relation to all offences against the Act or regulations committed by the company.

Part 12—Amendment of Development Act 1993

16—Amendment of section 48—Governor to give decision on development

17—Amendment of section 49—Crown development and public infrastructure

18—Amendment of section 49A—Electricity infrastructure development

19—Amendment of section 69—Emergency orders

20—Amendment of section 71—Fire safety

These clauses increase penalties for offences under the sections specified.

21—Amendment of section 105—General provisions relating to offences

Type 3 and type 1 directors' liability (explained above in clause 3) is provided for a reduced number of offences. Directors' liability is removed in relation to all other offences against the Act or regulations committed by the body corporate. The amendments clarify that the regulation making power exists to enable the regulations to impose such liability should that be considered appropriate in particular cases.

Part 13—Amendment of Electricity Act 1996

22—Amendment of section 61—Electrical installation work

23—Amendment of section 61A—Unsafe installation of electrical equipment

24—Amendment of section 84—Unlawful interference with electricity infrastructure or electrical installation

25—Amendment of section 85—Unlawful taking of electricity, interference with meters or positioning of lines

These clauses increase penalties for offences under the sections specified.

26—Amendment of section 92—General defence

The general defence under section 92(1) will no longer be available to a director of a body corporate charged with a vicarious liability offence under section 93. The defence available to such a director is incorporated within section 93 itself.

27—Substitution of section 93

Type 3 directors' liability (explained above in clause 3) is limited to prescribed offences committed by the body corporate. Directors' liability is removed in relation to all other offences against the Act or regulations committed by the body corporate.

Part 14—Amendment of Emergency Management Act 2004

28—Amendment of section 28—Failure to comply with directions

Type 3 directors' liability (explained above in clause 3) is retained in the principal Act only for an offence committed by a body corporate against section 28.

29—Repeal of section 35

Directors' liability is removed in relation to all other offences against the Act or regulations committed by the body corporate.

Part 15—Amendment of Energy Products (Safety and Efficiency) Act 2000

30—Amendment of section 8—Prohibition of sale or use of unsafe energy products

Type 1 directors' liability (explained above in clause 3) is provided for an offence committed by a body corporate against section 8.

31—Amendment of section 17—General defence

The general defence under section 17 will no longer be available to a director of a body corporate charged with a vicarious liability offence under section 8(6). The defence available to such a director is incorporated within section 8(6) itself.

32—Repeal of section 18

Directors' liability is removed in relation to all other offences against the Act or regulations committed by the body corporate. Note that it is retained for an offence committed by a body corporate against section 8 (see clause 30).

Part 16—Amendment of Essential Services Act 1981

33—Repeal of section 10B

Directors' liability is removed in relation to all offences against the Act or regulations committed by the body corporate.

Part 17—Amendment of Essential Services Commission Act 2002

34—Repeal of section 46

Directors' liability is removed in relation to all offences against the Act or regulations committed by the body corporate.

Part 18—Amendment of Fair Trading Act 1987

35—Amendment of section 43—Unlawful actions and representations

This clause increases the penalty for an offence under section 43(2).

36—Amendment of section 88—Defences

The general defence under section 88 will no longer be available to a director of a body corporate charged with a directors' liability offence under section 90(3). The defence available to such a director is incorporated within section 90(3) itself.

37—Amendment of section 90—Vicarious liability

Type 1 directors' liability (explained above in clause 3) is provided for offences committed by the body corporate against section 28A or 37. Directors' liability is removed in relation to all other offences against the Act or the regulations committed by the body corporate.

Part 19—Amendment of Fire and Emergency Services Act 2005

38—Amendment of section 86—Fire safety at premises

This clause increases the penalty for an offence under section 86(4).

39—Substitution of section 138

Type 1 directors' liability (explained above in clause 3) is provided for a limited number of offences committed by the body corporate against the Act. Directors' liability is removed in relation to all other offences against the Act or regulations committed by the body corporate. The amendments clarify that the regulation making power exists to enable the regulations to impose such liability should that be considered appropriate in particular cases.

Part 20—Amendment of Fisheries Management Act 2007

40—Amendment of section 71—Taking, injuring etc aquatic mammals and protected species prohibited

The defence under section 71 is not available to a director of a body corporate charged with a directors' liability offence under section 120(1) or (1a). The defence available to such a director is incorporated within section 120(1) or (1a).

41—Amendment of section 120—Offences committed by bodies corporate or agents, or involving registered boats

Part 21—Amendment of Gaming Machines Act 1992

42—Amendment of section 85—Vicarious liability

Directors' liability is removed for offences committed by a body corporate against the regulations. The amendments clarify that the regulation making power exists to enable the regulations to impose such liability should that be considered appropriate in particular cases.

Part 22—Amendment of Gas Act 1997

43—Amendment of section 81—Unlawful interference with distribution system or gas installation

44—Amendment of section 82—Unlawful abstraction or diversion of gas

These clauses increase penalties for offences under the sections specified.

45—Amendment of section 88—General defence

The general defence under section 88 will no longer be available to a director of a body corporate charged with a directors' liability offence under section 89. The defence available to such a director is incorporated within section 89 itself.

46—Substitution of section 89

Part 23—Amendment of Genetically Modified Crops Management Act 2004

47—Amendment of section 22—Offences by bodies corporate

Type 3 directors' liability (explained above in clause 3) is provided for a reduced number of offences. Directors' liability is removed in relation to all other offences against the Act or regulations committed by the body corporate. The amendments clarify that the regulation making power exists to enable the regulations to impose such liability should that be considered appropriate in particular cases.

Part 24—Amendment of Harbors and Navigation Act 1993

48—Repeal of section 86

Directors' liability is removed in relation to all offences against the Act or regulations committed by the body corporate.

Part 25—Amendment of Health Practitioner Regulation National Law (South Australia) Act 2010

49—Substitution of section 72

Part 26—Amendment of Heritage Places Act 1993

50—Amendment of section 36—Damage or neglect

This clause increases the penalty for an offence under section 36(3).

51—Amendment of section 42—General provisions relating to offences

Type 3 and type 1 directors' liability (explained above in clause 3) is provided for a reduced number of offences. Directors' liability is removed in relation to all other offences committed by the body corporate including offences under the regulations. The amendments clarify that the regulation making power exists to enable the regulations to impose such liability should that be considered appropriate in particular cases.

Part 27—Amendment of Highways Act 1926

52—Amendment of section 39G—Power to close roads or railway lines

This amendment is a drafting tidy up.

53—Repeal of section 41A

Directors' liability is removed in relation to all offences against the Act or regulations committed by the body corporate.

Part 28—Amendment of Hydroponics Industry Control Act 2009

54—Substitution of section 31

55—Amendment of section 33—General defence

The general defence under section 33 will no longer be available to a director of a body corporate charged with a directors' liability offence under section 31. The defence available to such a director is incorporated within section 31 itself.

Part 29—Amendment of Irrigation Act 2009

56—Amendment of section 40—Protection and facilitation of systems

57—Amendment of section 62—Protection of irrigation system etc

58—Amendment of section 63—Unauthorised use of water

These clauses increase penalties for offences under the sections specified.

59—Repeal of section 64

Directors' liability is removed in relation to all offences against the Act or regulations committed by the body corporate.

Part 30—Amendment of Land Agents Act 1994

60—Repeal of section 59

Directors' liability is removed in relation to all offences against the Act or regulations committed by the body corporate.

Part 31—Amendment of Land and Business (Sale and Conveyancing) Act 1994

61—Repeal of section 39

Directors' liability is removed in relation to all offences against the Act or regulations committed by the body corporate.

Part 32—Amendment of Land Valuers Act 1994

62—Repeal of section 20

Directors' liability is removed in relation to all offences against the Act or regulations committed by the body corporate.

Part 33—Amendment of Legal Practitioners Act 1981

63—Substitution of section 27

Type 1 directors' liability (explained above in clause 3) is provided for a reduced number of offences. Directors' liability is removed in relation to all other offences against the Act or any other Act or the regulations committed by the company. The amendments clarify that the regulation making power exists to enable the regulations to impose such liability should that be considered appropriate in particular cases.

Part 34—Amendment of Liquor Licensing Act 1997

64—Amendment of section 134—Vicarious liability

Directors' liability is removed in relation to all offences against the Act or regulations committed by the body corporate. Similarly, liability is removed from persons occupying positions of authority in a trust for the commission by the trustee of offences against the Act or regulations.

Part 35—Amendment of Livestock Act 1997

65—Amendment of section 27—Requirement to report notifiable conditions

This clause increases the penalty under section 27(1) and (2) for an offence involving an exotic disease.

66—Amendment of section 33—Prohibition on entry of livestock or other property absolutely or without required health certificate etc

This clause increases the penalty for an offence under section 33(4).

67—Amendment of section 78—General defence

The general defence under section 78 will no longer be available to a director of a body corporate charged with a directors' liability offence under section 80. The defence available to such a director is incorporated within section 80 itself.

68—Substitution of section 80

Part 36—Amendment of Maralinga Tjarutja Land Rights Act 1984

69—Amendment of section 25—Offence in relation to obtaining permission to carry out mining operations

Directors' liability is removed in relation to an offence against section 25 committed by the body corporate. There is no further directors' liability in the Act.

Part 37—Amendment of Motor Vehicles Act 1959

70—Repeal of section 143A

Directors' liability is removed in relation to all offences against the Act or regulations committed by the body corporate.

Part 38—Amendment of Natural Resources Management Act 2004

71—Amendment of section 218—General defence

The general defence under section 218 will no longer be available to a member of the governing body, or the manager, of a body corporate charged with a directors' liability offence under section 219. The defence available to such a member or manager is incorporated within section 219 itself.

72—Substitution of section 219

Part 39—Amendment of Passenger Transport Act 1994

73—Amendment of section 5—Application of Act

74—Amendment of section 27—Accreditation of operators

75—Amendment of section 28—Accreditation of drivers

76—Amendment of section 29—Accreditation of centralised booking services

77—Amendment of section 31—Conditions

78—Amendment of section 35—Related matters

79—Amendment of section 36—Disciplinary powers

80—Amendment of section 39—Service contracts

81—Amendment of section 42—Assignment of rights under contract

82—Amendment of section 45—Requirement for licence

83—Amendment of section 49—Transfer of licences

84—Amendment of section 54—Inspections

These clauses increase penalties for offences under the sections specified.

85—Amendment of section 59—General provisions relating to offences

Directors' liability is removed in relation to all offences against the Act or regulations committed by the body corporate.

Part 40—Amendment of Plant Health Act 2009

86—Amendment of section 54—Vicarious liability

Part 41—Amendment of Plumbers, Gas Fitters and Electricians Act 1995

87—Repeal of section 38

Directors' liability is removed in relation to all offences against the Act or regulations committed by the body corporate.

Part 42—Amendment of Primary Produce (Food Safety Schemes) Act 2004

88—Amendment of section 43—General defence

The general defence under section 43 will no longer be available to a director or the manager of a body corporate charged with a directors' liability offence under section 44. The defence available to such a director is incorporated within section 44 itself.

89—Substitution of section 44

Part 43—Amendment of Renmark Irrigation Trust Act 2009

90—Amendment of section 41—Protection and facilitation of systems

91—Amendment of section 67—Protection of irrigation system etc

92—Amendment of section 68—Unauthorised use of water

These clauses increase penalties for offences under the sections specified.

93—Repeal of section 69

Directors' liability is removed in relation to all offences against the Act or regulations committed by the body corporate.

Part 44—Amendment of Second-hand Vehicle Dealers Act 1995

94—Amendment of section 47—Offences by bodies corporate

Part 45—Amendment of Security and Investigation Agents Act 1995

95—Amendment of section 42—Offences by bodies corporate

Part 46—Amendment of South Australian Public Health Act 2011

96—Amendment of section 59—Defence of due diligence

The general defence under section 59 will no longer be available to a director or the manager of a body corporate charged with a directors' liability offence under section 106. The defence available to such a director is incorporated within section 106 itself.

97—Substitution of section 106

Part 47—Amendment of Taxation Administration Act 1996

98—Amendment of section 110—Offences by persons involved in management of corporations

Part 48—Amendment of Teachers Registration and Standards Act 2004

99—Amendment of section 59—Liability of members of governing bodies of bodies corporate

100—Amendment of section 60—General defence

The general defence under section 60 will no longer be available to a member of the governing body, or the manager, of a body corporate charged with a directors' liability offence under section 59. The defence available to such persons is incorporated within section 59 itself.

Part 49—Amendment of Travel Agents Act 1986

101—Amendment of section 40—Offences by bodies corporate

Part 50—Amendment of Water Efficiency Labelling and Standards Act 2006

102—Amendment of section 72B—Liability of officers of body corporate

The amendment of section 72B has the effect of removing the vicarious liability of officers of a body corporate that has committed an offence against the Act or the regulations whilst retaining the liability of officers who knowingly promoted or acquiesced in a contravention of the Act or regulations by the body corporate.

Part 51—Amendment of Water Industry Act 2012

103—Amendment of section 103—General defence

The general defence under section 103(1) will no longer be available to a director of a body corporate charged with a vicarious liability offence under section 104. The defence available to such a director is incorporated within section 104 itself.

104—Substitution of section 104

Debate adjourned on motion of Hon. D.W. Ridgway.

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