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This is a Bill, not an Act. For current law, see the Acts databases.

PERSONAL LIABILITY FOR CORPORATE FAULT REFORM BILL 2012

2010-2011-2012
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Personal Liability for Corporate Fault
Reform Bill 2012
No. , 2012
(Treasury)
A Bill for an Act to amend the law relating to
personal liability for offences committed by
corporations, and for related purposes
Personal Liability for Corporate Fault Reform Bill 2012 No. , 2012 i
Contents
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
1
3 Schedule(s)
........................................................................................
2
Schedule 1--Corporations Act 2001
3
Schedule 2--Foreign Acquisitions and Takeovers Act 1975
8
Part 1--Main amendments
8
Part 2--Signalling personal liability
9
Part 3--Signalling personal liability: further amendments
10
Schedule 3--Health Insurance Act 1973
11
Part 1--Main amendments
11
Part 2--Signalling personal liability
12
Part 3--Other amendments
13
Schedule 4--National Vocational Education and Training
Regulator Act 2011
14
Part 1--Main amendments
14
Part 2--Signalling personal liability
16
Part 3--Other amendments
17
Schedule 5--Therapeutic Goods Act 1989
18
Part 1--Main amendments
18
Part 2--Signalling personal liability
21
Part 3--Signalling personal liability: further amendments
24
Part 4--Other amendments
26
Schedule 6--Other Acts amended
27
Child Support (Registration and Collection) Act 1988
27
Classification (Publications, Films and Computer Games) Act 1995
27
Corporations (Aboriginal and Torres Strait Islander) Act 2006
29
Income Tax Assessment Act 1936
31
ii Personal Liability for Corporate Fault Reform Bill 2012 No. , 2012
Insurance Contracts Act 1984
31
National Measurement Act 1960
33
Pooled Development Funds Act 1992
33
Superannuation Guarantee (Administration) Act 1992
33
Taxation Administration Act 1953
34
Veterans' Entitlements Act 1986
34
Schedule 7--Application of amendments
36
Personal Liability for Corporate Fault Reform Bill 2012 No. , 2012 1
A Bill for an Act to amend the law relating to
1
personal liability for offences committed by
2
corporations, and for related purposes
3
The Parliament of Australia enacts:
4
1 Short title
5
This Act may be cited as the Personal Liability for Corporate
6
Fault Reform Act 2012.
7
2 Commencement
8
This Act commences on the day after this Act receives the Royal
9
Assent.
10
2 Personal Liability for Corporate Fault Reform Bill 2012 No. , 2012
3 Schedule(s)
1
Each Act that is specified in a Schedule to this Act is amended or
2
repealed as set out in the applicable items in the Schedule
3
concerned, and any other item in a Schedule to this Act has effect
4
according to its terms.
5
6
Corporations Act 2001 Schedule 1
Personal Liability for Corporate Fault Reform Bill 2012 No. , 2012 3
Schedule 1--Corporations Act 2001
1
2
1 Section 188
3
Repeal the section, substitute:
4
188 Responsibility of secretaries etc. for certain corporate
5
contraventions
6
Responsibility of company secretaries
7
(1) A secretary of a company contravenes this subsection if the
8
company contravenes any of the following provisions (each of
9
which is a corporate responsibility provision):
10
(a) section 142 (registered office);
11
(b) section 145 (public company's registered office to be open to
12
public);
13
(c) section 146 (change of principal place of business);
14
(d) section 178A (change to proprietary company's member
15
register);
16
(e) section 178C (change to proprietary company's share
17
structure);
18
(f) section 205B (lodgement of notices with ASIC);
19
(g) section 254X (issue of shares);
20
(h) section 319 (lodgement of annual reports with ASIC);
21
(i) section 320 (lodgement of half-year reports with ASIC);
22
(j) section 346C (response to extract of particulars);
23
(k) section 348D (response to return of particulars);
24
(l) section 349A (change to proprietary company's ultimate
25
holding company).
26
Note 1:
See section 204A for the circumstances in which a company must
27
have a secretary.
28
Note 2:
This subsection is a civil penalty provision (see section 1317E).
29
Responsibility of directors of proprietary companies
30
(2) Each director of a proprietary company contravenes this subsection
31
if:
32
(a) the proprietary company contravenes a corporate
33
responsibility provision; and
34
Schedule 1 Corporations Act 2001
4 Personal Liability for Corporate Fault Reform Bill 2012 No. , 2012
(b) the proprietary company does not have a secretary when it
1
contravenes that provision.
2
Note 1:
See section 204A for the circumstances in which a company must
3
have a secretary.
4
Note 2:
This subsection is a civil penalty provision (see section 1317E).
5
Defence of reasonable steps
6
(3) A person does not contravene subsection (1) or (2) in relation to a
7
company's contravention of a corporate responsibility provision if
8
the person shows that he or she took reasonable steps to ensure that
9
the company complied with the provision.
10
2 Subsection 208(1) (note)
11
Omit "Note", substitute "Note 1".
12
3 At the end of subsection 208(1)
13
Add:
14
Note 2:
For the criminal liability of a person dishonestly involved in a
15
contravention of this subsection, see subsection 209(3). Section 79
16
defines involved.
17
4 Subsection 254J(1) (note)
18
Omit "Note", substitute "Note 1".
19
5 At the end of subsection 254J(1)
20
Add:
21
Note 2:
For the criminal liability of a person dishonestly involved in a
22
contravention of this section, see subsection 254L(3). Section 79
23
defines involved.
24
6 Section 254K (note)
25
Omit "Note", substitute "Note 1".
26
7 At the end of section 254K
27
Add:
28
Note 2:
For the criminal liability of a person dishonestly involved in a
29
contravention of this section, see subsection 254L(3). Section 79
30
defines involved.
31
8 Subsection 254Q(13)
32
Corporations Act 2001 Schedule 1
Personal Liability for Corporate Fault Reform Bill 2012 No. , 2012 5
Omit "and any officer of the company who is involved in the
1
contravention are each", substitute "is".
2
9 At the end of subsection 256B(1)
3
Add:
4
Note 4:
For the criminal liability of a person dishonestly involved in a
5
contravention of subsection 256D(1) based on this subsection, see
6
subsection 256D(4). Section 79 defines involved.
7
10 Subsection 256D(4)
8
Omit "section 256B", substitute "subsection (1)".
9
11 At the end of section 259A
10
Add:
11
Note:
For the criminal liability of a person dishonestly involved in a
12
contravention of this section, see subsection 259F(3). Section 79
13
defines involved.
14
12 At the end of subsection 259B(1)
15
Add:
16
Note:
For the criminal liability of a person dishonestly involved in a
17
contravention of this subsection, see subsection 259F(3). Section 79
18
defines involved.
19
13 At the end of subsection 260A(1)
20
Add:
21
Note:
For the criminal liability of a person dishonestly involved in a
22
contravention of this section, see subsection 260D(3). Section 79
23
defines involved.
24
14 Subsection 319(5A)
25
Repeal the subsection (including the note).
26
15 At the end of subsection 328A(4)
27
Add:
28
Note:
An officer of a company, or of a responsible entity, is in default if the
29
officer is involved in the contravention of subsection (1) by the
30
company, the company's directors or the entity (see section 83).
31
Section 79 defines involved.
32
16 At the end of subsection 328B(2)
33
Schedule 1 Corporations Act 2001
6 Personal Liability for Corporate Fault Reform Bill 2012 No. , 2012
Add:
1
Note:
An officer of a company is in default if the officer is involved in the
2
company's contravention of subsection (1) (see section 83).
3
Section 79 defines involved.
4
17 Subsection 601FC(6)
5
Repeal the subsection.
6
18 After paragraph 1317E(1)(a)
7
Insert:
8
(aa) subsection 188(1) or (2) (responsibilities of secretaries etc.
9
for certain corporate contraventions);
10
19 After subsection 1317G(1B)
11
Insert:
12
Responsibilities of secretaries etc. for certain corporate
13
contraventions
14
(1BA) Without limiting subsection (1), if a declaration of contravention
15
by a person of subsection 188(1) or (2) has been made under
16
section 1317E, a Court may order the person to pay the
17
Commonwealth a pecuniary penalty of up to $3,000.
18
20 Schedule 3 (cells at table items 9, 12, 13, 29A and 29B,
19
column headed "Penalty")
20
Repeal the cells, substitute:
21
60 penalty units.
21 Schedule 3 (table item 31)
22
Repeal the item.
23
22 Schedule 3 (cell at table item 44, column headed
24
"Penalty")
25
Repeal the cell, substitute:
26
60 penalty units or imprisonment for 1 year, or both.
23 Schedule 3 (cell at table item 84, column headed
27
"Penalty")
28
Repeal the cell, substitute:
29
Corporations Act 2001 Schedule 1
Personal Liability for Corporate Fault Reform Bill 2012 No. , 2012 7
60 penalty units.
24 Schedule 3 (cells at table items 112 and 112A, column
1
headed "Penalty")
2
Repeal the cells, substitute:
3
60 penalty units or imprisonment for 1 year, or both.
25 Schedule 3 (cells at table items 118, 119B and 119C,
4
column headed "Penalty")
5
Repeal the cells, substitute:
6
60 penalty units.
26 Schedule 3 (table item 163A)
7
Repeal the item.
8
9
Schedule 2 Foreign Acquisitions and Takeovers Act 1975
Part 1 Main amendments
8 Personal Liability for Corporate Fault Reform Bill 2012 No. , 2012
Schedule 2--Foreign Acquisitions and
1
Takeovers Act 1975
2
Part 1--Main amendments
3
1 Section 30 (heading)
4
Repeal the heading, substitute:
5
30 Offences--orders under Part II
6
2 Subsection 31(1)
7
Omit "(1)".
8
3 Subsection 31(1)
9
Omit "an officer of the corporation who is in default", substitute "an
10
officer of the corporation who authorised or permitted the commission
11
of the offence".
12
4 Subsection 31(2)
13
Repeal the subsection.
14
15
Foreign Acquisitions and Takeovers Act 1975 Schedule 2
Signalling personal liability Part 2
Personal Liability for Corporate Fault Reform Bill 2012 No. , 2012 9
Part 2--Signalling personal liability
1
5 Multiple amendments
2
The provisions of the Foreign Acquisitions and Takeovers Act 1975
3
listed in this Part are amended by adding at the end:
4
Note:
For the criminal liability of an officer of a corporation if the
5
corporation contravenes or fails to comply with an order under this
6
subsection, see sections 30 and 31.
7
6 Subsections 18(2), (3) and (4)
8
7 Subsections 19(2), (3) and (4)
9
8 Subsections 20(2) and (3)
10
9 Subsections 21(2) and (3)
11
10 Subsections 21A(2), (3) and (4)
12
11 Subsection 22(1)
13
14
Schedule 2 Foreign Acquisitions and Takeovers Act 1975
Part 3 Signalling personal liability: further amendments
10 Personal Liability for Corporate Fault Reform Bill 2012 No. , 2012
Part 3--Signalling personal liability: further
1
amendments
2
12 Multiple amendments
3
The provisions of the Foreign Acquisitions and Takeovers Act 1975
4
listed in this Part are amended by adding at the end:
5
Note:
For the liability of an officer of a corporation, see section 31.
6
13 Subsection 25(1C)
7
14 Subsection 26(2)
8
15 Subsection 26A(2)
9
16 Subsection 30(1)
10
17 Subsection 36(2)
11
12
Health Insurance Act 1973 Schedule 3
Main amendments Part 1
Personal Liability for Corporate Fault Reform Bill 2012 No. , 2012 11
Schedule 3--Health Insurance Act 1973
1
Part 1--Main amendments
2
1 Subsections 129AA(2) and (3)
3
Repeal the subsections.
4
2 Subsection 129AA(6) (definition of officer)
5
Repeal the definition.
6
7
Schedule 3 Health Insurance Act 1973
Part 2 Signalling personal liability
12 Personal Liability for Corporate Fault Reform Bill 2012 No. , 2012
Part 2--Signalling personal liability
1
3 Multiple amendments
2
The provisions of the Health Insurance Act 1973 listed in this Part are
3
amended by adding at the end:
4
Note:
For the liability of an executive officer of a body corporate, see
5
section 23DZZIT.
6
4 Subsections 23DZZIQ(1), (2), (4) and (5)
7
5 Subsections 23DZZIR(1) and (3)
8
6 Subsections 23DZZIS(1) and (3)
9
10
Health Insurance Act 1973 Schedule 3
Other amendments Part 3
Personal Liability for Corporate Fault Reform Bill 2012 No. , 2012 13
Part 3--Other amendments
1
7 Section 23DZZIO
2
Omit:
3
·
An executive officer of a body corporate might commit an
4
offence under this Part if the body corporate commits an
5
offence under this Part.
6
substitute:
7
·
An executive officer of a body corporate might commit an
8
offence if the body corporate commits an offence against this
9
Division.
10
11
Schedule 4 National Vocational Education and Training Regulator Act 2011
Part 1 Main amendments
14 Personal Liability for Corporate Fault Reform Bill 2012 No. , 2012
Schedule 4--National Vocational Education
1
and Training Regulator Act 2011
2
Part 1--Main amendments
3
1 Section 133 (heading)
4
Repeal the heading, substitute:
5
133 Personal liability of an executive officer of a registered training
6
organisation--general
7
2 Paragraph 133(1)(a)
8
After "offence", insert "covered by section 133A".
9
3 After section 133
10
Insert:
11
133A Personal liability of an executive officer of a registered
12
training organisation--offences covered
13
For the purposes of paragraph 133(1)(a), this section covers
14
offences against the provisions of this Act listed in the following
15
table:
16
17
Corporate offences for which executive officers may be personally liable
Item
Provisions of this Act
1 Section
93
2 Section
95
3 Section
97
4 Section
99
5
Subsections 101(1) and (2)
6
Subsections 103(1) and (2)
7
Subsections 105(1) and (2)
8 Section
107
9 Section
109
10 Section
114
National Vocational Education and Training Regulator Act 2011 Schedule 4
Main amendments Part 1
Personal Liability for Corporate Fault Reform Bill 2012 No. , 2012 15
Corporate offences for which executive officers may be personally liable
Item
Provisions of this Act
11
Subsections 116(1) and (2)
12 Section
122
13 Section
124
14 Section
126
15 Section
128
16 Subsection
140(5)
1
Schedule 4 National Vocational Education and Training Regulator Act 2011
Part 2 Signalling personal liability
16 Personal Liability for Corporate Fault Reform Bill 2012 No. , 2012
Part 2--Signalling personal liability
1
4 Multiple amendments
2
The provisions of the National Vocational Education and Training
3
Regulator Act 2011 listed in this Part are amended by adding at the end:
4
Note:
For the liability of an executive officer of a registered training
5
organisation, see sections 133 and 133A.
6
5 Section 93
7
6 Section 95
8
7 Section 97
9
8 Section 99
10
9 Subsections 101(1) and (2)
11
10 Subsections 103(1) and (2)
12
11 Subsections 105(1) and (2)
13
12 Section 107
14
13 Section 109
15
14 Section 114
16
15 Subsection 116(1)
17
16 Section 122
18
17 Section 124
19
18 Section 126
20
19 Section 128
21
20 Subsection 140(5)
22
23
National Vocational Education and Training Regulator Act 2011 Schedule 4
Other amendments Part 3
Personal Liability for Corporate Fault Reform Bill 2012 No. , 2012 17
Part 3--Other amendments
1
21 Subsection 116(2)
2
Omit "Note", substitute "Note 1".
3
22 At the end of subsection 116(2)
4
Add:
5
Note 2:
For the liability of an executive officer of a body corporate, see
6
sections 133 and 133A.
7
8
Schedule 5 Therapeutic Goods Act 1989
Part 1 Main amendments
18 Personal Liability for Corporate Fault Reform Bill 2012 No. , 2012
Schedule 5--Therapeutic Goods Act 1989
1
Part 1--Main amendments
2
1 Section 54B (heading)
3
Repeal the heading, substitute:
4
54B Personal liability of an executive officer of a body corporate--
5
general
6
2 Paragraph 54B(1)(a)
7
After "Act", insert "covered by section 54BA".
8
3 After section 54B
9
Insert:
10
54BA Personal liability of an executive officer of a body corporate--
11
offences covered
12
For the purposes of paragraph 54B(1)(a), this section covers
13
offences against:
14
(a) the provisions of this Act listed in the following table; and
15
(b) a provision of a regulation prescribed for the purpose of this
16
paragraph; and
17
(c) section 6 of the Crimes Act 1914, or section 11.1, 11.4 or
18
11.5 of the Criminal Code, in relation to an offence
19
mentioned in paragraph (a) or (b) of this subsection; and
20
(d) section 136.1, 137.1 or 137.2 of the Criminal Code in
21
relation to this Act or a regulation.
22
23
Corporate offences for which executive officers may be personally liable
Item
Provisions of this Act
1
Subsection 14(1), (2), (6), (7), (10) or (11)
2
Subsection 15(2) or (3)
3
Subsection 19B(1) or (2)
4
Subsection 21A(1), (2), (5) or (6)
5 Subsection
22(7AB)
Therapeutic Goods Act 1989 Schedule 5
Main amendments Part 1
Personal Liability for Corporate Fault Reform Bill 2012 No. , 2012 19
Corporate offences for which executive officers may be personally liable
Item
Provisions of this Act
6
Subsection 22A(1) or (2)
7 Subsection
29A(1)
8
Subsection 29B(3) or (4)
9
Subsection 30EC(1) or (2)
10
Subsection 30F(4B) or (4C)
11
Subsection 31(5A) or (5B)
12 Subsection
31D(1)
13 Subsection
31E(1)
14
Subsection 32BA(1) or (2)
15
Subsection 32BB(1) or (2)
16
Subsection 32BC(1) or (2)
17
Subsection 32BD(1) or (2)
18 Subsection
32CH(1)
19
Subsection 32CJ(6) or (7)
20
Subsection 32DO(1) or (2)
21 Subsection
32DQ(1)
22
Subsection 32DR(3) or (4)
23
Subsection 32EF(1) or (2)
24
Subsection 32HC(1) or (2)
25
Subsection 32JB(2) or (3)
26 Subsection
32JI(2)
27
Subsection 35(1), (2), (5) or (7)
28
Subsection 41EI(1) or (2)
29
Subsection 41FE(1) or (2)
30
Subsection 41JB(4) or (5)
31 Section
41JH
32 Subsection
41JI(1)
33
Subsection 41KC(1) or (2)
34 Subsection
41MA(1),
(2), (5), (6), (9) or (10)
35
Subsection 41MC(2) or (3)
36
Subsection 41ME(1), (2), (5) or (6)
37
Subsection 41MF(1) or (3)
Schedule 5 Therapeutic Goods Act 1989
Part 1 Main amendments
20 Personal Liability for Corporate Fault Reform Bill 2012 No. , 2012
Corporate offences for which executive officers may be personally liable
Item
Provisions of this Act
38 Section
41MH
39
Subsection 41MI(1) or (2)
40
Subsection 41MN(1) or (2)
41 Subsection
41MNB(1)
42 Subsection
41MP(1)
43
Subsection 41MQ(3) or (4)
44 Subsection
42E(1)
45
Subsection 42T(1) or (2)
46
Subsection 42V(6) or (6A)
47
Subsection 42W(1) or (2)
48 Subsection
54AB(1)
1
Therapeutic Goods Act 1989 Schedule 5
Signalling personal liability Part 2
Personal Liability for Corporate Fault Reform Bill 2012 No. , 2012 21
Part 2--Signalling personal liability
1
4 Multiple amendments
2
The provisions of the Therapeutic Goods Act 1989 listed in this Part are
3
amended by adding at the end:
4
Note:
For the liability of an executive officer of a body corporate, see
5
sections 54B and 54BA.
6
5 Subsections 14(2), (7) and (11)
7
6 Subsection 15(3)
8
7 Subsections 21A(2) and (6)
9
8 Subsection 22A(2)
10
9 Subsection 29A(1)
11
10 Subsections 29B(3) and (4)
12
11 Subsection 30EC(2)
13
12 Subsection 30F(4C)
14
13 Subsection 31(5B)
15
14 Subsection 31D(1)
16
15 Subsection 31E(1)
17
16 Subsection 32BA(2)
18
17 Subsection 32BB(2)
19
18 Subsection 32BC(2)
20
19 Subsection 32BD(2)
21
20 Subsection 32CH(1)
22
21 Subsections 32CJ(6) and (7)
23
Schedule 5 Therapeutic Goods Act 1989
Part 2 Signalling personal liability
22 Personal Liability for Corporate Fault Reform Bill 2012 No. , 2012
22 Subsection 32DO(2)
1
23 Subsection 32DQ(1)
2
24 Subsections 32DR(3) and (4)
3
25 Subsection 32EF(2)
4
26 Subsection 32HC(2)
5
27 Subsection 32JB(3)
6
28 Subsection 32JI(2)
7
29 Subsections 35(2) and (7)
8
30 Subsection 41EI(2)
9
31 Subsection 41FE(2)
10
32 Subsection 41JB(5)
11
33 Section 41JH
12
34 Subsection 41JI(1)
13
35 Subsection 41KC(2)
14
36 Subsections 41MA(2), (6) and (10)
15
37 Subsection 41MC(3)
16
38 Subsections 41ME(2) and (6)
17
39 Section 41MH
18
40 Subsection 41MI(2)
19
41 Subsection 41MN(2)
20
42 Subsection 41MNB(1)
21
43 Subsection 41MP(1)
22
Therapeutic Goods Act 1989 Schedule 5
Signalling personal liability Part 2
Personal Liability for Corporate Fault Reform Bill 2012 No. , 2012 23
44 Subsections 41MQ(3) and (4)
1
45 Subsection 42E(1)
2
46 Subsections 42T(1) and (2)
3
47 Subsection 42V(6A)
4
48 Subsections 42W(1) and (2)
5
49 Subsection 54AB(1)
6
7
Schedule 5 Therapeutic Goods Act 1989
Part 3 Signalling personal liability: further amendments
24 Personal Liability for Corporate Fault Reform Bill 2012 No. , 2012
Part 3--Signalling personal liability: further
1
amendments
2
50 Multiple amendments
3
The provisions of the Therapeutic Goods Act 1989 listed in this Part are
4
amended by:
5
(a) omitting "Note" and substituting "Note 1"; and
6
(b) adding at the end:
7
Note 2:
For the liability of an executive officer of a body corporate, see
8
sections 54B and 54BA.
9
51 Subsections 14(1), (6) and (10)
10
52 Subsection 15(2)
11
53 Subsection 19B(2)
12
54 Subsections 21A(1) and (5)
13
55 Subsection 22A(1)
14
56 Subsection 30EC(1)
15
57 Subsection 30F(4B)
16
58 Subsection 31(5A)
17
59 Subsection 32BA(1)
18
60 Subsection 32BB(1)
19
61 Subsection 32BC(1)
20
62 Subsection 32BD(1)
21
63 Subsection 32DO(1)
22
64 Subsection 32EF(1)
23
65 Subsection 32HC(1)
24
Therapeutic Goods Act 1989 Schedule 5
Signalling personal liability: further amendments Part 3
Personal Liability for Corporate Fault Reform Bill 2012 No. , 2012 25
66 Subsection 32JB(2)
1
67 Subsections 35(1) and (5)
2
68 Subsection 41EI(1)
3
69 Subsection 41FE(1)
4
70 Subsection 41JB(4)
5
71 Subsection 41KC(1)
6
72 Subsections 41MA(1), (5) and (9)
7
73 Subsection 41MC(2)
8
74 Subsections 41ME(1) and (5)
9
75 Subsections 41MF(1) and (3)
10
76 Subsection 41MI(1)
11
77 Subsection 41MN(1)
12
78 Subsection 42V(6)
13
14
Schedule 5 Therapeutic Goods Act 1989
Part 4 Other amendments
26 Personal Liability for Corporate Fault Reform Bill 2012 No. , 2012
Part 4--Other amendments
1
79 At the end of subsection 19B(1)
2
Add:
3
Note 3:
For the liability of an executive officer of a body corporate, see
4
sections 54B and 54BA.
5
80 At the end of subsection 22(7AB)
6
Add:
7
Note 3:
For the liability of an executive officer of a body corporate, see
8
sections 54B and 54BA.
9
10
Other Acts amended Schedule 6
Personal Liability for Corporate Fault Reform Bill 2012 No. , 2012 27
Schedule 6--Other Acts amended
1
2
Child Support (Registration and Collection) Act 1988
3
1 At the end of subsection 62(2)
4
Add:
5
Note:
See section 62A for alternative ways to give a notice to, or serve a
6
process on, a company (through its officers, attorneys or agents).
7
2 Subsection 62(7)
8
Repeal the subsection.
9
3 After section 62
10
Insert:
11
62A Notifying and serving companies
12
For the purposes of this Act, if the Registrar thinks fit, a notice or
13
process may be given to, or served on, a company by giving the
14
notice to, or serving the process on:
15
(a) a director, the secretary or another officer of the company; or
16
(b) an attorney or agent of the company.
17
Note:
See subsection 62(2) for alternative ways to serve a document or
18
requisition on a company (through its public officer or someone else
19
acting or appearing to act for the company).
20
Classification (Publications, Films and Computer Games)
21
Act 1995
22
23
4 At the end of sections 101 and 102
24
Add:
25
Note:
For the liability of a body corporate manager, or a State/Territory
26
body corporate manager, see section 104.
27
5 At the end of subsections 103(1) and (2)
28
Add:
29
Note:
For the liability of a body corporate manager, or a State/Territory
30
body corporate manager, see section 104.
31
Schedule 6 Other Acts amended
28 Personal Liability for Corporate Fault Reform Bill 2012 No. , 2012
6 Section 104
1
Repeal the section, substitute:
2
104 Liability of body corporate managers
3
Body corporate managers generally
4
(1) A body corporate manager commits an offence if:
5
(a) the body corporate commits an offence against this Part; and
6
(b) the manager knew that the offence would be committed; and
7
(c) the manager was in a position to influence the conduct of the
8
body corporate in relation to the commission of the offence;
9
and
10
(d) the manager failed to take all reasonable steps to prevent the
11
commission of the offence.
12
State/Territory body corporate managers
13
(2) A State/Territory body corporate manager for a State or Territory
14
commits an offence if:
15
(a) the body corporate commits an offence against this Part
16
within the State or Territory; and
17
(b) the manager knew that the offence would be committed; and
18
(c) the manager was in a position to influence the conduct of the
19
body corporate in relation to the commission of the offence;
20
and
21
(d) the manager failed to take all reasonable steps to prevent the
22
commission of the offence.
23
Maximum penalties
24
(3) The maximum penalty for an offence against subsection (1) or (2)
25
is one-fifth of the maximum penalty that could be imposed for the
26
offence committed by the body corporate, subject to subsection (4).
27
(4) An offence against subsection (1) or (2) that relates to an offence
28
committed by a body corporate against subsection 103(2)
29
(supplying 5 or more items in or to a prescribed area) is punishable
30
by either or both of the following:
31
(a) a pecuniary penalty not exceeding 200 penalty units;
32
(b) imprisonment for a term not exceeding 2 years.
33
Other Acts amended Schedule 6
Personal Liability for Corporate Fault Reform Bill 2012 No. , 2012 29
Corporations (Aboriginal and Torres Strait Islander) Act
1
2006
2
7 Section 69-20 (note)
3
Repeal the note, substitute:
4
Note:
A secretary of an Aboriginal and Torres Strait Islander corporation
5
may be liable for a civil penalty for a contravention of subsection (1)
6
or (2). See sections 265-40 and 386-10.
7
8 Subsection 88-1(2) (note)
8
Repeal the note, substitute:
9
Note:
A secretary of an Aboriginal and Torres Strait Islander corporation
10
may be liable for a civil penalty for a contravention of this section.
11
See sections 265-40 and 386-10.
12
9 Section 112-5 (note 2)
13
Repeal the note, substitute:
14
Note 2:
A secretary of an Aboriginal and Torres Strait Islander corporation
15
may be liable for a civil penalty for a contravention of subsection (5),
16
(6) or (7). See sections 265-40 and 386-10.
17
10 Section 180-35 (note 2)
18
Repeal the note, substitute:
19
Note 2:
A secretary of an Aboriginal and Torres Strait Islander corporation
20
may be liable for a civil penalty for a contravention of this section.
21
See sections 265-40 and 386-10.
22
11 Section 265-40
23
Repeal the section, substitute:
24
265-40 Responsibility of secretaries for certain contraventions
25
Responsibilities of secretaries
26
(1) A secretary of an Aboriginal and Torres Strait Islander corporation
27
contravenes this subsection if the corporation contravenes any of
28
the following provisions:
29
(a) subsection 69-20(1) or (2) (requirement to lodge copy of
30
constitutional changes);
31
Schedule 6 Other Acts amended
30 Personal Liability for Corporate Fault Reform Bill 2012 No. , 2012
(b) section 88-1 (requirement to lodge material about change of
1
name);
2
(c) subsection 112-5(5), (6) or (7) (requirements about registered
3
office);
4
(d) section 180-35 (requirement to give copy of register of
5
members or register of former members);
6
(e) subsection 304-5(1), (3), (5) or (6) (requirement to lodge
7
details of directors and secretaries);
8
(f) section 330-10 (requirement to lodge general report);
9
(g) section 348-1 (requirement to lodge annual report).
10
Note:
This subsection is a civil penalty provision (see section 386-1).
11
Defence of reasonable steps
12
(2) A person does not contravene subsection (1) in relation to a
13
corporation's contravention of a provision mentioned in that
14
subsection if the person shows that he or she took reasonable steps
15
to ensure that the corporation complied with the provision.
16
12 Section 304-5 (note 2)
17
Repeal the note, substitute:
18
Note 2:
A secretary of an Aboriginal and Torres Strait Islander corporation
19
may be liable for a civil penalty for a contravention of subsection (1),
20
(3), (5) or (6). See sections 265-40 and 386-10.
21
13 Subsection 330-10(1) (note)
22
Repeal the note, substitute:
23
Note:
A secretary of an Aboriginal and Torres Strait Islander corporation
24
may be liable for a civil penalty for a contravention of this section.
25
See sections 265-40 and 386-10.
26
14 Subsection 348-1(1) (note)
27
Repeal the note, substitute:
28
Note:
A secretary of an Aboriginal and Torres Strait Islander corporation
29
may be liable for a civil penalty for a contravention of this section.
30
See sections 265-40 and 386-10.
31
15 After paragraph 386-1(1)(a)
32
Insert:
33
(aa) subsection 265-40(1) (secretaries' responsibilities);
34
Other Acts amended Schedule 6
Personal Liability for Corporate Fault Reform Bill 2012 No. , 2012 31
16 After subsection 386-10(1)
1
Insert:
2
Responsibilities of secretaries for certain corporate contraventions
3
(1A) Without limiting subsection (1), if a declaration of contravention
4
by a person of subsection 265-40(1) has been made under
5
section 386-1, a Court may order the person to pay the
6
Commonwealth a pecuniary penalty of up to $3,000.
7
Income Tax Assessment Act 1936
8
17 At the end of paragraph 252(1)(e)
9
Add:
10
Note:
See section 253 for alternative ways to give a notice to, or serve a
11
process on, a company (through its officers, attorneys or agents).
12
18 Paragraph 252(1)(j)
13
Repeal the paragraph.
14
19 After section 252A
15
Insert:
16
253 Notifying and serving companies
17
For the purposes of this Act, or a regulation under this Act, if the
18
Commissioner thinks fit, a notice or process may be given to, or
19
served on, a company by giving the notice to, or serving the
20
process on:
21
(a) a director, the secretary or another officer of the company; or
22
(b) an attorney or agent of the company.
23
Note:
See paragraph 252(1)(e) for alternative ways to serve documents on a
24
company (through its public officer or someone else acting or
25
appearing to act for the company).
26
Insurance Contracts Act 1984
27
20 At the end of subsections 11C(2) and 11D(2) and (3)
28
Add:
29
Schedule 6 Other Acts amended
32 Personal Liability for Corporate Fault Reform Bill 2012 No. , 2012
Note:
For the liability of a director, employee or agent of an insurer, see
1
section 11DA.
2
21 After section 11D
3
Insert:
4
11DA Supervisory powers--liability of directors, employees and
5
agents of insurers
6
(1) A person commits an offence if:
7
(a) the person is:
8
(i) a director of a company that is an insurer; or
9
(ii) an employee or agent of an insurer; and
10
(b) the person permits or authorises the insurer to engage in
11
conduct; and
12
(c) the conduct constitutes an offence (the insurer offence)
13
against subsection 11C(2) or 11D(2) or (3); and
14
(d) the insurer commits the insurer offence.
15
Penalty: 150 penalty units.
16
(2) There is no fault element for the physical element described in
17
paragraph (1)(d) other than the fault elements (if any) for the
18
physical elements of the insurer offence.
19
(3) To avoid doubt:
20
(a) an insurer does not commit the insurer offence, for the
21
purposes of subsection (1), if the insurer has a defence to the
22
insurer offence; and
23
(b) a person may be convicted of an offence against
24
subsection (1) even if the insurer concerned has not been
25
prosecuted for, or convicted of, the insurer offence.
26
(4) In this section:
27
conduct means:
28
(a) an act; or
29
(b) an omission to perform an act.
30
engage in conduct means:
31
(a) do an act; or
32
(b) omit to perform an act.
33
Other Acts amended Schedule 6
Personal Liability for Corporate Fault Reform Bill 2012 No. , 2012 33
22 Section 76A
1
Repeal the section.
2
National Measurement Act 1960
3
23 Section 19G
4
Repeal the section.
5
Pooled Development Funds Act 1992
6
24 Section 50
7
Repeal the section.
8
25 Section 51 (heading)
9
Repeal the heading, substitute:
10
51 Offences--failure to comply with directions or requirements
11
26 Subsection 51(2)
12
Omit ", not being a PDF,".
13
Superannuation Guarantee (Administration) Act 1992
14
27 At the end of subsection 57(2)
15
Add:
16
Note:
See section 57A for alternative ways to give a notice to, or serve
17
another document on, a company (through its officers, attorneys or
18
agents).
19
28 Subsection 57(7)
20
Repeal the subsection.
21
29 After section 57
22
Insert:
23
Schedule 6 Other Acts amended
34 Personal Liability for Corporate Fault Reform Bill 2012 No. , 2012
57A Notifying and serving companies
1
For the purposes of this Act, if the Commissioner thinks fit, a
2
notice or process may be given to, or served on, a company by
3
giving the notice to, or serving the process on:
4
(a) a director, the secretary or another officer of the company; or
5
(b) an attorney or agent of the company.
6
Note:
See subsection 57(2) for alternative ways to serve a notice or another
7
document on a company (through its public officer or someone else
8
acting or appearing to act for the company).
9
Taxation Administration Act 1953
10
30 At the end of subsection 444-10(5) in Schedule 1
11
Add:
12
Note:
See section 444-15 for alternative ways to give a notice to, or serve a
13
process on, a company (through its officers, attorneys or agents).
14
31 Section 444-15 in Schedule 1
15
Repeal the section, substitute:
16
444-15 Notifying and serving companies
17
For the purposes of an
*
indirect tax law or the
*
MRRT law, if the
18
Commissioner considers it appropriate, a notice or process may be
19
given to, or served on, a company by giving the notice to, or
20
serving the process on:
21
(a) a director, the secretary or another officer of the company; or
22
(b) an attorney or agent of the company.
23
Note:
See subsection 444-10(5) for alternative ways to serve a notice or
24
another document on a company (through its public officer or
25
someone else acting or appearing to act for the company).
26
Veterans' Entitlements Act 1986
27
32 Subsection 93D(6)
28
Omit "an officer of the corporation who is in default", substitute "an
29
officer of the corporation who intentionally authorised or permitted the
30
commission of the offence".
31
Other Acts amended Schedule 6
Personal Liability for Corporate Fault Reform Bill 2012 No. , 2012 35
33 Subsection 93D(7)
1
Repeal the subsection.
2
34 Subsection 93E(6)
3
Omit "an officer of the corporation who is in default", substitute "an
4
officer of the corporation who intentionally authorised or permitted the
5
commission of the offence".
6
35 Subsection 93E(7)
7
Repeal the subsection.
8
9
Schedule 7 Application of amendments
36 Personal Liability for Corporate Fault Reform Bill 2012 No. , 2012
Schedule 7--Application of amendments
1
2
1 Application of amendments made by this Act
3
The amendments made by this Act apply in relation to an act or
4
omission by a body corporate occurring on or after the day this Act
5
commences.
6

 

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