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Statute Law Amendment (Directors' Liability) Act 2013
No. 13 of 2013
TABLE OF PROVISIONSSection Page
PART 1—PRELIMINARY 1
1 Purpose 12 Commencement 1
PART 2—AGRICULTURAL AND VETERINARY CHEMICALS (CONTROL OF USE) ACT 1992 2
3 Section 72 amended 24 New sections 72A, 72B and 72C inserted 2
72A Criminal liability of officers of bodies corporate—accessorial liability 2
72B Criminal liability of officers of bodies corporate—failure to exercise due diligence 4
72C Criminal liability of officers of bodies corporate—failure to exercise due diligence (evidential burden of proof) 6
5 Insertion of Notes 86 New Part 10 inserted 10
PART 10—TRANSITIONAL PROVISION 10
78 Transitional provision—Statute Law Amendment (Directors' Liability) Act 2013 10
PART 3—ANZAC DAY ACT 1958 12
7 Section 5 amended 128 Section 5A amended 129 Section 5C amended 1210 New section 5E inserted 12
5E Criminal liability of officers of bodies corporate—accessorial liability 12
11 Insertion of Notes 1412 New section 8 inserted 14
8 Transitional provision—Statute Law Amendment (Directors' Liability) Act 2013 14
1
PART 4—DAIRY ACT 2000 16
13 Section 55 amended 1614 New sections 55A, 55B and 55C inserted 16
55A Criminal liability of officers of bodies corporate—accessorial liability 16
55B Criminal liability of officers of bodies corporate—failure to exercise due diligence 18
55C Criminal liability of officers of bodies corporate—failure to exercise due diligence (legal burden of proof) 19
15 Section 56 amended 2116 Insertion of Notes 2117 New section 72 inserted 22
72 Transitional provision—Statute Law Amendment (Directors' Liability) Act 2013 22
PART 5—ELECTORAL ACT 2002 23
18 Section 179 amended 2319 New section 179A inserted 23
179A Criminal liability of officers of bodies corporate—accessorial liability 23
20 Insertion of Notes 2521 New section 187 inserted 26
187 Transitional provision—Statute Law Amendment (Directors' Liability) Act 2013 26
PART 6—FOOD ACT 1984 27
22 Section 51 amended 2723 New sections 51A and 51B inserted 27
51A Criminal liability of officers of bodies corporate—accessorial liability 27
51B Criminal liability of officers of bodies corporate—failure to exercise due diligence (legal burden of proof) 29
24 Insertion of Notes 3125 New section 81 inserted 33
81 Transitional provision—Statute Law Amendment (Directors' Liability) Act 2013 33
PART 7—LIQUOR CONTROL REFORM ACT 1998 35
26 Section 53 amended 3527 New section 53A, 53B and 53C inserted 35
53A Criminal liability of officers of bodies corporate—accessorial liability 35
53B Criminal liability of officers of bodies corporate—failure to exercise due diligence 38
53C Criminal liability of officers of bodies corporate—failure to exercise due diligence (evidential burden of proof) 39
28 Section 106A amended 4229 Insertion of Notes 4230 New section 183 inserted 44
183 Transitional provision—Statute Law Amendment (Directors' Liability) Act 2013 44
PART 8—LIVESTOCK DISEASE CONTROL ACT 1994 45
31 Section 134 amended 4532 Insertion of Notes 45
PART 9—LOCAL GOVERNMENT ACT 1989 47
33 Section 239 amended 4734 New section 239A inserted 47
239A Criminal liability of officers of bodies corporate—failure to exercise due diligence 47
35 Insertion of Note 4936 New section 245 inserted 49
245 Transitional provision—Statute Law Amendment (Directors' Liability) Act 2013 49
PART 10—SHOP TRADING REFORM ACT 1996 51
37 Section 8 amended 5138 New section 8A inserted 51
8A Criminal liability of officers of bodies corporate—accessorial liability 51
39 Insertion of Note 5340 New section 12 inserted 53
12 Transitional provision—Statute Law Amendment (Directors' Liability) Act 2013 53
PART 11—SURVEILLANCE DEVICES ACT 1999 54
41 Section 32 substituted and new section 32A inserted 5432 Criminal liability of officers of bodies corporate—
accessorial liability 5432A Criminal liability of officers of bodies corporate—
failure to exercise due diligence 5542 Insertion of Notes 5743 New section 42A inserted 58
42A Transitional provision—Statute Law Amendment (Directors' Liability) Act 2013 58
PART 12—TAXATION ADMINISTRATION ACT 1997 59
44 Section 130 amended 5945 New sections 130A, 130B and 130C inserted 59
130A Criminal liability of officers of bodies corporate—accessorial liability 59
130B Criminal liability of officers of bodies corporate—failure to exercise due diligence 62
130C Criminal liability of officers of bodies corporate—failure to exercise due diligence (legal burden of proof) 65
46 Insertion of Notes 6647 New section 138 inserted 67
138 Transitional provision—Statute Law Amendment (Directors' Liability) Act 2013 67
PART 13—UNCLAIMED MONEY ACT 2008 69
48 Section 26 amended 6949 New sections 26A and 26B inserted 69
26A Criminal liability of officers of bodies corporate—accessorial liability 69
26B Criminal liability of officers of bodies corporate—failure to exercise due diligence 71
50 Insertion of Notes 7251 New section 105 inserted 73
105 Transitional provision—Statute Law Amendment (Directors' Liability) Act 2013 73
PART 14—MISCELLANEOUS 75
Division 1—Broiler Chicken Industry Act 1978 75
52 Section 17(1)(c) repealed 75
Division 2—Business Franchise (Petroleum Products) Act 1979 75
53 Section 26 repealed 75
Division 3—Congestion Levy Act 2005 76
54 Insertion of Notes 76
Division 4—Disability Act 2006 76
55 Section 216 repealed 76
Division 5—Duties Act 2000 77
56 Insertion of Notes 77
Division 6—Payroll Tax Act 2007 78
57 Insertion of Notes 78
PART 15—REPEAL OF AMENDING ACT 79
58 Repeal of amending Act 79═══════════════
ENDNOTES 80
Statute Law Amendment (Directors' Liability) Act 2013†
No. 13 of 2013
[Assented to 13 March 2013]
The Parliament of Victoria enacts:
PART 1—PRELIMINARY
1 Purpose
The main purpose of this Act is to revise the statute law of Victoria in relation to the criminal liability of officers of bodies corporate.
2 Commencement
This Act comes into operation on the day after the day on which it receives the Royal Assent.
__________________
Victoria
1
PART 2—AGRICULTURAL AND VETERINARY CHEMICALS (CONTROL OF USE) ACT 1992
3 Section 72 amendeds. 3
See:Act No.46/1992.Reprint No. 5as at13 October 2011and amendingAct No29/2012.LawToday:www.legislation.vic.gov.au
Section 72(1), (2), (3) and (9) of the Agricultural and Veterinary Chemicals (Control of Use) Act 1992 are repealed.
4 New sections 72A, 72B and 72C inserted
After section 72 of the Agricultural and Veterinary Chemicals (Control of Use) Act 1992 insert—
"72A Criminal liability of officers of bodies corporate—accessorial liability
(1) If a body corporate commits an offence against a provision specified in subsection (2), an officer of the body corporate also commits an offence against the provision if the officer—
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(a) authorised or permitted the commission of the offence by the body corporate; or
(b) was knowingly concerned in any way (whether by act or omission) in the commission of the offence by the body corporate.
(2) For the purposes of subsection (1), the following provisions are specified—
(a) section 18(4);
(b) section 20(3);
(c) section 28;
(d) section 46(2);
(e) section 46A(2);
(f) section 49(4);
(g) section 50(4);
(h) section 52(4);
(i) section 52AA;
(j) section 54(3);
(k) section 55(3);
(l) section 56(3);
(m) section 58(4);
(n) section 59(1), (2) and (3);
(o) section 60(3);
(p) section 61(2);
(q) section 62(2);
(r) section 67B(1).
(3) Without limiting any other defence available to the officer, an officer of a body corporate may rely on a defence that would be available to the body corporate if it were
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charged with the offence with which the officer is charged and, in doing so, the officer bears the same burden of proof that the body corporate would bear.
(4) An officer of a body corporate may commit an offence against a provision specified in subsection (2) whether or not the body corporate has been prosecuted for, or found guilty of, an offence against that provision.
(5) In this section—
body corporate has the same meaning as corporation has in section 57A of the Corporations Act;
officer in relation to a body corporate means—
(a) a person who is an officer (as defined by section 9 of the Corporations Act) of the body corporate; or
(b) a person (other than a person referred to in paragraph (a)), by whatever name called, who is concerned in, or takes part in, the management of the body corporate.
(6) This section does not affect the operation of section 323 or 324 of the Crimes Act 1958 or section 52 of the Magistrates' Court Act 1989.
72B Criminal liability of officers of bodies corporate—failure to exercise due diligence
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(1) If a body corporate commits an offence against a provision specified in subsection (2), an officer of the body corporate also commits an offence against the provision if the officer failed to exercise due diligence to prevent the commission of the offence by the body corporate.
(2) For the purposes of subsection (1), the following provisions are specified—
(a) section 6(1);
(b) section 19(1), (3), (4), (5), (6), (7) and (8);
(c) section 21;
(d) section 24(1);
(e) section 25A(1);
(f) section 26(4);
(g) section 30(1);
(h) section 32(1) and (2);
(i) section 39(4);
(j) section 40(1);
(k) section 41(1);
(l) section 48(2);
(m) section 67A(1).
(3) In determining whether an officer of a body corporate failed to exercise due diligence, a court may have regard to—
(a) what the officer knew, or ought reasonably to have known, about the commission of the offence by the body corporate; and
(b) whether or not the officer was in a position to influence the body corporate
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in relation to the commission of the offence by the body corporate; and
(c) what steps the officer took, or could reasonably have taken, to prevent the commission of the offence by the body corporate; and
(d) any other relevant matter.
(4) Without limiting any other defence available to the officer, an officer of a body corporate may rely on a defence that would be available to the body corporate if it were charged with the offence with which the officer is charged and, in doing so, the officer bears the same burden of proof that the body corporate would bear.
(5) An officer of a body corporate may commit an offence against a provision specified in subsection (2) whether or not the body corporate has been prosecuted for, or found guilty of, an offence against that provision.
(6) In this section—
body corporate has the same meaning as in section 72A;
officer in relation to a body corporate, has the same meaning as in section 72A.
72C Criminal liability of officers of bodies corporate—failure to exercise due diligence (evidential burden of proof)
(1) Subject to subsection (3), if a body corporate commits an offence against a provision specified in subsection (2), an officer of the body corporate also commits an offence against the provision.
(2) For the purposes of subsection (1), the following provisions are specified—
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(a) section 18(1);
(b) section 20(1);
(c) section 25(1);
(d) section 42(3);
(e) section 43(2) and (3).
(3) An officer of a body corporate does not commit an offence against a provision specified in subsection (2) if—
(a) the officer presents or points to evidence that suggests a reasonable possibility that the officer exercised due diligence to prevent the commission of the offence by the body corporate; and
(b) the contrary is not proved (beyond reasonable doubt) by the prosecution.
(4) In determining whether an officer of a body corporate exercised due diligence, a court may have regard to—
(a) what the officer knew, or ought reasonably to have known, about the commission of the offence by the body corporate; and
(b) whether or not the officer was in a position to influence the body corporate in relation to the commission of the offence by the body corporate; and
(c) what steps the officer took, or could reasonably have taken, to prevent the commission of the offence by the body corporate; and
(d) any other relevant matter.
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(5) Without limiting any other defence available to the officer, an officer of a body corporate may rely on a defence that would be available to the body corporate if it were charged with the offence with which the officer is charged and, in doing so, the officer bears the same burden of proof that the body corporate would bear.
(6) An officer of a body corporate may commit an offence against a provision specified in subsection (2) whether or not the body corporate has been prosecuted for, or found guilty of, an offence against that provision.
(7) In this section—
body corporate has the same meaning as in section 72A;
officer in relation to a body corporate, has the same meaning as in section 72A.".
5 Insertion of Notes
(1) At the foot of sections 6(1), 24(1), 25A(1), 26(4), 30(1), 39(4), 40(1), 41(1), 48(2) and 67A(1) of the Agricultural and Veterinary Chemicals (Control of Use) Act 1992 insert—"Note
Section 72B applies to an offence against this subsection.".
(2) At the foot of sections 18(1), 20(1), 25(1) and 42(3) of the Agricultural and Veterinary Chemicals (Control of Use) Act 1992 insert—"Note
Section 72C applies to an offence against this subsection.".
(3) At the foot of sections 18(4), 20(3), 46(2), 46A(2), 49(4), 50(4), 52(4), 54(3), 55(3), 56(3), 58(4), 60(3), 61(2), 62(2) and 67B(1) of the
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Agricultural and Veterinary Chemicals (Control of Use) Act 1992 insert—"Note
Section 72A applies to an offence against this subsection.".
(4) At the foot of section 19 of the Agricultural and Veterinary Chemicals (Control of Use) Act 1992 insert—"Note
Section 72B applies to an offence against subsection (1), (3), (4), (5), (6), (7) or (8).".
(5) At the foot of section 21 of the Agricultural and Veterinary Chemicals (Control of Use) Act 1992 insert—"Note
Section 72B applies to an offence against this section.".
(6) At the foot of sections 28 and 52AA of the Agricultural and Veterinary Chemicals (Control of Use) Act 1992 insert—"Note
Section 72A applies to an offence against this section.".
(7) At the foot of section 32 of the Agricultural and Veterinary Chemicals (Control of Use) Act 1992 insert—"Note
Section 72B applies to an offence against subsection (1) or (2).".
(8) At the foot of section 43 of the Agricultural and Veterinary Chemicals (Control of Use) Act 1992 insert—"Note
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Section 72C applies to an offence against subsection (2) or (3).".
(9) At the foot of section 59 of the Agricultural and Veterinary Chemicals (Control of Use) Act 1992 insert—"Note
Section 72A applies to an offence against subsection (1), (2) or (3).".
6 New Part 10 inserted
After Part 9 of the Agricultural and Veterinary Chemicals (Control of Use) Act 1992 insert—
"__________________
PART 10—TRANSITIONAL PROVISION
78 Transitional provision—Statute Law Amendment (Directors' Liability) Act 2013
(1) For the avoidance of doubt, section 72A applies with respect to an offence against a provision specified in subsection (2) of that section that is alleged to have been committed by a body corporate on or after the commencement of section 4 of the Statute Law Amendment (Directors' Liability) Act 2013.
(2) For the avoidance of doubt, section 72B applies with respect to an offence against a provision specified in subsection (2) of that section that is alleged to have been
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committed by a body corporate on or after the commencement of section 4 of the Statute Law Amendment (Directors' Liability) Act 2013.
(3) For the avoidance of doubt, section 72C applies with respect to an offence against a provision specified in subsection (2) of that section that is alleged to have been committed by a body corporate on or after the commencement of section 4 of the Statute Law Amendment (Directors' Liability) Act 2013.
(4) This section does not limit section 14 of the Interpretation of Legislation Act 1984.".
__________________
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PART 3—ANZAC DAY ACT 1958
7 Section 5 amendeds. 7
See:Act No.6198.Reprint No. 4as at3 December 2003and amendingAct Nos45/2004, 98/2005 and 62/2008.LawToday:www.legislation.vic.gov.au
Section 5(4) and (5) of the ANZAC Day Act 1958 are repealed.
8 Section 5A amended
Section 5A(6) and (7) of the ANZAC Day Act 1958 are repealed.
9 Section 5C amended
Section 5C(4) and (5) of the ANZAC Day Act 1958 are repealed.
10 New section 5E inserted
Before section 6 of the ANZAC Day Act 1958 insert—
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"5E Criminal liability of officers of bodies corporate—accessorial liability
(1) If a body corporate commits an offence against a provision specified in subsection (2), an officer of the body corporate also commits an offence against the provision if the officer—
(a) authorised or permitted the commission of the offence by the body corporate; or
(b) was knowingly concerned in any way (whether by act or omission) in the commission of the offence by the body corporate.
(2) For the purposes of subsection (1), the following provisions are specified—
(a) section 5(1);
(b) section 5A(1);
(c) section 5C(1).
(3) Without limiting any other defence available to the officer, an officer of a body corporate may rely on a defence that would be available to the body corporate if it were charged with the offence with which the officer is charged and, in doing so, the officer bears the same burden of proof that the body corporate would bear.
(4) An officer of a body corporate may commit an offence against a provision specified in subsection (2) whether or not the body corporate has been prosecuted for, or found guilty of, an offence against that provision.
(5) In this section—
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body corporate has the same meaning as corporation has in section 57A of the Corporations Act;
officer in relation to a body corporate means—
(a) a person who is an officer (as defined by section 9 of the Corporations Act) of the body corporate; or
(b) a person (other than a person referred to in paragraph (a)), by whatever name called, who is concerned in, or takes part in, the management of the body corporate.
(6) This section does not affect the operation of section 323 or 324 of the Crimes Act 1958 or section 52 of the Magistrates' Court Act 1989.".
11 Insertion of Notes
(1) At the foot of sections 5(1) and 5C(1) of the ANZAC Day Act 1958 insert—"Note
Section 5E applies to an offence against this subsection.".
(2) For the note at the foot of section 5A(1) of the ANZAC Day Act 1958 substitute—"Notes
1 For entertainment, see subsection (8).
2 Section 5E applies to an offence against this subsection.".
12 New section 8 inserted
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After section 7 of the ANZAC Day Act 1958 insert—
"8 Transitional provision—Statute Law Amendment (Directors' Liability) Act 2013
(1) For the avoidance of doubt, section 5E applies with respect to an offence against a provision specified in subsection (2) of that section that is alleged to have been committed by a body corporate on or after the commencement of section 10 of the Statute Law Amendment (Directors' Liability) Act 2013.
(2) This section does not limit section 14 of the Interpretation of Legislation Act 1984.".
__________________
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PART 4—DAIRY ACT 2000
13 Section 55 amendeds. 13
See:Act No.37/2000.Reprint No. 2as at8 February 2008and amendingAct Nos46/2008, 68/2009 and 29/2010.LawToday:www.legislation.vic.gov.au
Section 55(3) and (4) of the Dairy Act 2000 are repealed.
14 New sections 55A, 55B and 55C inserted
After section 55 of the Dairy Act 2000 insert—
"55A Criminal liability of officers of bodies corporate—accessorial liability
(1) If a body corporate commits an offence against a provision specified in subsection (2), an officer of the body corporate also commits an offence against the provision if the officer—
(a) authorised or permitted the commission of the offence by the body corporate; or
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(b) was knowingly concerned in any way (whether by act or omission) in the commission of the offence by the body corporate.
(2) For the purposes of subsection (1), the following provisions are specified—
(a) section 22(2)(a);
(b) section 50;
(c) section 53(1)(a).
(3) Without limiting any other defence available to the officer, an officer of a body corporate may rely on a defence that would be available to the body corporate if it were charged with the offence with which the officer is charged and, in doing so, the officer bears the same burden of proof that the body corporate would bear.
(4) An officer of a body corporate may commit an offence against a provision specified in subsection (2) whether or not the body corporate has been prosecuted for, or found guilty of, an offence against that provision.
(5) In this section—
body corporate has the same meaning as corporation has in section 57A of the Corporations Act;
officer in relation to a body corporate means—
(a) a person who is an officer (as defined by section 9 of the Corporations Act) of the body corporate; or
(b) a person (other than a person referred to in paragraph (a)), by
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whatever name called, who is concerned in, or takes part in, the management of the body corporate.
(6) This section does not affect the operation of section 323 or 324 of the Crimes Act 1958 or section 52 of the Magistrates' Court Act 1989.
55B Criminal liability of officers of bodies corporate—failure to exercise due diligence
(1) If a body corporate commits an offence against a provision specified in subsection (2), an officer of the body corporate also commits an offence against the provision if the officer failed to exercise due diligence to prevent the commission of the offence by the body corporate.
(2) For the purposes of subsection (1), section 30 is specified.
(3) In determining whether an officer of a body corporate failed to exercise due diligence, a court may have regard to—
(a) what the officer knew, or ought reasonably to have known, about the commission of the offence by the body corporate; and
(b) whether or not the officer was in a position to influence the body corporate in relation to the commission of the offence by the body corporate; and
(c) what steps the officer took, or could reasonably have taken, to prevent the
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commission of the offence by the body corporate; and
(d) any other relevant matter.
(4) Without limiting any other defence available to the officer, an officer of a body corporate may rely on a defence that would be available to the body corporate if it were charged with the offence with which the officer is charged and, in doing so, the officer bears the same burden of proof that the body corporate would bear.
(5) An officer of a body corporate may commit an offence against a provision specified in subsection (2) whether or not the body corporate has been prosecuted for, or found guilty of, an offence against that provision.
(6) In this section—
body corporate has the same meaning as in section 55A;
officer in relation to a body corporate, has the same meaning as in section 55A.
55C Criminal liability of officers of bodies corporate—failure to exercise due diligence (legal burden of proof)
(1) If a body corporate commits an offence against a provision specified in subsection (2), an officer of the body corporate also commits an offence against the provision.
(2) For the purposes of subsection (1), the following provisions are specified—
(a) section 22(1);
(b) section 22(2)(b);
(c) section 36(1);
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(d) section 46(4);
(e) section 53(1)(b).
(3) It is a defence to a charge for an offence against a provision specified in subsection (2) for an officer of a body corporate to prove that the officer exercised due diligence to prevent the commission of the offence by the body corporate.
(4) In determining whether an officer of a body corporate exercised due diligence, a court may have regard to—
(a) what the officer knew, or ought reasonably to have known, about the commission of the offence by the body corporate; and
(b) whether or not the officer was in a position to influence the body corporate in relation to the commission of the offence by the body corporate; and
(c) what steps the officer took, or could reasonably have taken, to prevent the commission of the offence by the body corporate; and
(d) any other relevant matter.
(5) Without limiting any other defence available to the officer, an officer of a body corporate may rely on a defence that would be available to the body corporate if it were charged with the offence with which the officer is charged and, in doing so, the officer bears the same burden of proof that the body corporate would bear.
(6) An officer of a body corporate may commit an offence against a provision specified in subsection (2) whether or not the body
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corporate has been prosecuted for, or found guilty of, an offence against that provision.
(7) In this section—
body corporate has the same meaning as in section 55A;
officer in relation to a body corporate, has the same meaning as in section 55A.".
15 Section 56 amended
At the end of section 56 of the Dairy Act 2000 insert—
"(2) This section does not apply to a prosecution or other legal proceeding brought against an officer of a body corporate for an offence against a provision specified in section 55A(2), 55B(2) or 55C(2) in circumstances where the body corporate has committed an offence against that provision.
(3) In subsection (2) officer in relation to a body corporate, has the same meaning as in section 55A.".
16 Insertion of Notes
(1) At the foot of sections 22(1), 36(1) and 46(4) of the Dairy Act 2000 insert—"Note
Section 55C applies to an offence against this subsection.".
(2) At the foot of sections 22(2) and 53(1) of the Dairy Act 2000 insert—"Note
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Section 55A applies to an offence against paragraph (a) and section 55C applies to an offence against paragraph (b).".
(3) At the foot of section 30 of the Dairy Act 2000 insert—"Note
Section 55B applies to an offence against this section.".
(4) At the foot of section 50 of the Dairy Act 2000 insert—"Note
Section 55A applies to an offence against this section.".
17 New section 72 inserted
After section 71 of the Dairy Act 2000 insert—
"72 Transitional provision—Statute Law Amendment (Directors' Liability) Act 2013
(1) For the avoidance of doubt, section 55A applies with respect to an offence against a provision specified in subsection (2) of that section that is alleged to have been committed by a body corporate on or after the commencement of section 14 of the Statute Law Amendment (Directors' Liability) Act 2013.
(2) For the avoidance of doubt, section 55B applies with respect to an offence against a provision specified in subsection (2) of that section that is alleged to have been committed by a body corporate on or after the commencement of section 14 of the Statute Law Amendment (Directors' Liability) Act 2013.
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(3) For the avoidance of doubt, section 55C applies with respect to an offence against a provision specified in subsection (2) of that section that is alleged to have been committed by a body corporate on or after the commencement of section 14 of the Statute Law Amendment (Directors' Liability) Act 2013.
(4) This section does not limit section 14 of the Interpretation of Legislation Act 1984.".
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PART 5—ELECTORAL ACT 2002
18 Section 179 amendeds. 18
See:Act No.23/2002.Reprint No. 3as at20 August 2010and amendingAct No.26/2011.LawToday:www.legislation.vic.gov.au
Section 179(1), (2), (3) and (6) of the Electoral Act 2002 are repealed.
19 New section 179A inserted
After section 179 of the Electoral Act 2002 insert—
"179A Criminal liability of officers of bodies corporate—accessorial liability
(1) If a body corporate commits an offence against a provision specified in subsection (2), an officer of the body corporate also commits an offence against the provision if the officer—
(a) authorised or permitted the commission of the offence by the body corporate; or
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(b) was knowingly concerned in any way (whether by act or omission) in the commission of the offence by the body corporate.
(2) For the purposes of subsection (1), the following provisions are specified—
(a) section 36(1);
(b) section 37(2) and (3);
(c) section 83(1);
(d) section 84(1) and (2);
(e) section 85;
(f) section 86(1);
(g) section 110I;
(h) section 123(4);
(i) section 151(1) and (2);
(j) section 155;
(k) section 158(2)(a), (b), (c), (d), (e) and (f).
(3) Without limiting any other defence available to the officer, an officer of a body corporate may rely on a defence that would be available to the body corporate if it were charged with the offence with which the officer is charged and, in doing so, the officer bears the same burden of proof that the body corporate would bear.
(4) An officer of a body corporate may commit an offence against a provision specified in subsection (2) whether or not the body corporate has been prosecuted for, or found guilty of, an offence against that provision.
(5) In this section—
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body corporate has the same meaning as corporation has in section 57A of the Corporations Act;
officer in relation to a body corporate means—
(a) a person who is an officer (as defined by section 9 of the Corporations Act) of the body corporate; or
(b) a person (other than a person referred to in paragraph (a)), by whatever name called, who is concerned in, or takes part in, the management of the body corporate.
(6) This section does not affect the operation of section 323 or 324 of the Crimes Act 1958 or section 52 of the Magistrates' Court Act 1989.".
20 Insertion of Notes
(1) At the foot of sections 36(1), 83(1), 86(1), 123(4), 151(1) and 151(2) of the Electoral Act 2002 insert—"Note
Section 179A applies to an offence against this subsection.".
(2) At the foot of section 37 of the Electoral Act 2002 insert—"Note
Section 179A applies to an offence against subsection (2) or (3).".
(3) At the foot of section 84 of the Electoral Act 2002 insert—"Note
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Section 179A applies to an offence against subsection (1) or (2).".
(4) At the foot of sections 85, 110I and 155 of the Electoral Act 2002 insert—"Note
Section 179A applies to an offence against this section.".
(5) At the foot of section 158(2) of the Electoral Act 2002 insert—"Note
Section 179A applies to an offence against paragraph (a), (b), (c), (d), (e) or (f).".
21 New section 187 inserted
After section 186 of the Electoral Act 2002 insert—
"187 Transitional provision—Statute Law Amendment (Directors' Liability) Act 2013
(1) For the avoidance of doubt, section 179A applies with respect to an offence against a provision specified in subsection (2) of that section that is alleged to have been committed by a body corporate on or after the commencement of section 19 of the Statute Law Amendment (Directors' Liability) Act 2013.
(2) This section does not limit section 14 of the Interpretation of Legislation Act 1984.".
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PART 6—FOOD ACT 1984
22 Section 51 amendeds. 22
See:Act No.10082.Reprint No. 9as at1 July 2011and amendingAct Nos58/2011, 43/2012 and 60/2012.LawToday:www.legislation.vic.gov.au
(1) Section 51(1) and (2) of the Food Act 1984 are repealed.
(2) In section 51(3) of the Food Act 1984, for "a person who is concerned or takes part in the management" substitute "an officer".
(3) After section 51(3) of the Food Act 1984 insert—
"(4) In this section—
body corporate has the same meaning as in section 51A;
officer in relation to a body corporate, has the same meaning as in section 51A.".
23 New sections 51A and 51B inserted
After section 51 of the Food Act 1984 insert—
"51A Criminal liability of officers of bodies corporate—accessorial liability
(1) If a body corporate commits an offence against a provision specified in subsection (2), an officer of the body corporate also commits an offence against the provision if the officer—
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(a) authorised or permitted the commission of the offence by the body corporate; or
(b) was knowingly concerned in any way (whether by act or omission) in the commission of the offence by the body corporate.
(2) For the purposes of subsection (1), the following provisions are specified—
(a) section 17(1);
(b) section 29;
(c) section 34;
(d) section 40A;
(e) section 59(1) and (2);
(f) section 59A.
(3) Without limiting any other defence available to the officer, an officer of a body corporate may rely on a defence that would be available to the body corporate if it were charged with the offence with which the officer is charged and, in doing so, the officer bears the same burden of proof that the body corporate would bear.
(4) An officer of a body corporate may commit an offence against a provision specified in subsection (2) whether or not the body corporate has been prosecuted for, or found guilty of, an offence against that provision.
(5) In this section—
body corporate has the same meaning as corporation has in section 57A of the Corporations Act;
officer in relation to a body corporate means—
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(a) a person who is an officer (as defined by section 9 of the Corporations Act) of the body corporate; or
(b) a person (other than a person referred to in paragraph (a)), by whatever name called, who is concerned in, or takes part in, the management of the body corporate.
(6) This section does not affect the operation of section 323 or 324 of the Crimes Act 1958 or section 52 of the Magistrates' Court Act 1989.
51B Criminal liability of officers of bodies corporate—failure to exercise due diligence (legal burden of proof)
(1) If a body corporate commits an offence against a provision specified in subsection (2), an officer of the body corporate also commits an offence against the provision.
(2) For the purposes of subsection (1), the following provisions are specified—
(a) section 8;
(b) section 8A;
(c) section 9;
(d) section 9A;
(e) section 10(1) and (2);
(f) section 10A(1) and (2);
(g) section 11(1) and (2);
(h) section 12(1) and (2);
(i) section 13(1), (2) and (3);
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(j) section 14(1);
(k) section 15(1) and (2);
(l) section 16(1), (2), (3) and (4);
(m) section 19(7) and (8);
(n) section 19AA(8) and (9);
(o) section 19A(7) and (8);
(p) section 19B(7);
(q) section 19CB(6);
(r) section 19F;
(s) section 19GB;
(t) section 35A(1) and (2);
(u) section 38F(2);
(v) section 39B;
(w) section 39C;
(x) section 43I(1);
(y) section 44E.
(3) It is a defence to a charge for an offence against a provision specified in subsection (2) for an officer of a body corporate to prove that the officer exercised due diligence to prevent the commission of the offence by the body corporate.
(4) In determining whether an officer of a body corporate exercised due diligence, a court may have regard to—
(a) what the officer knew, or ought reasonably to have known, about the commission of the offence by the body corporate; and
(b) whether or not the officer was in a position to influence the body corporate
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in relation to the commission of the offence by the body corporate; and
(c) what steps the officer took, or could reasonably have taken, to prevent the commission of the offence by the body corporate; and
(d) any other relevant matter.
(5) Without limiting any other defence available to the officer, an officer of a body corporate may rely on a defence that would be available to the body corporate if it were charged with the offence with which the officer is charged and, in doing so, the officer bears the same burden of proof that the body corporate would bear.
(6) An officer of a body corporate may commit an offence against a provision specified in subsection (2) whether or not the body corporate has been prosecuted for, or found guilty of, an offence against that provision.
(7) In this section—
body corporate has the same meaning as in section 51A;
officer in relation to a body corporate, has the same meaning as in section 51A.".
24 Insertion of Notes
(1) At the foot of sections 8, 8A, 9 and 9A of the Food Act 1984 insert—"Note
Section 51B applies to an offence against this section.".
(2) At the foot of sections 10, 10A, 11, 12, 15 and 35A of the Food Act 1984 insert—"Note
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Section 51B applies to an offence against subsection (1) or (2).".
(3) At the foot of section 13 of the Food Act 1984 insert—"Note
Section 51B applies to an offence against subsection (1), (2) or (3).".
(4) At the foot of sections 14(1), 19B(7), 19CB(6), and 43I(1) of the Food Act 1984 insert—"Note
Section 51B applies to an offence against this subsection.".
(5) At the foot of section 16 of the Food Act 1984 insert—"Note
Section 51B applies to an offence against subsection (1), (2), (3) or (4).".
(6) At the foot of section 17(1) of the Food Act 1984 insert—"Note
Section 51A applies to an offence against this subsection.".
(7) At the foot of sections 19 and 19A of the Food Act 1984 insert—"Note
Section 51B applies to an offence against subsection (7) or (8).".
(8) At the foot of section 19AA of the Food Act 1984 insert—"Note
Section 51B applies to an offence against subsection (8) or (9).".
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(9) At the foot of sections 19F, 19GB, 39B, 39C and 44E of the Food Act 1984 insert—"Note
Section 51B applies to an offence against this section.".
(10) At the foot of sections 29, 34, 40A and 59A of the Food Act 1984 insert—"Note
Section 51A applies to an offence against this section.".
(11) For the note at the foot of section 38F(2) of the Food Act 1984 substitute—"Notes
1 Whether a food premises falls within a higher risk classification is determined in the context of any system used by the Secretary in declaring the classes of food premises under section 19C.
2 Section 51B applies to an offence against this subsection.".
(12) At the foot of section 59 of the Food Act 1984 insert—"Note
Section 51A applies to an offence against subsection (1) or (2).".
25 New section 81 inserted
After section 80 of the Food Act 1984 insert—
"81 Transitional provision—Statute Law Amendment (Directors' Liability) Act 2013
(1) For the avoidance of doubt, section 51A applies with respect to an offence against a provision specified in subsection (2) of that section that is alleged to have been committed by a body corporate on or after the commencement of section 23 of the
s. 25Part 6—Food Act 1984
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Statute Law Amendment (Directors' Liability) Act 2013.
(2) For the avoidance of doubt, section 51B applies with respect to an offence against a provision specified in subsection (2) of that section that is alleged to have been committed by a body corporate on or after the commencement of section 23 of the Statute Law Amendment (Directors' Liability) Act 2013.
(3) This section does not limit section 14 of the Interpretation of Legislation Act 1984.".
__________________
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PART 7—LIQUOR CONTROL REFORM ACT 1998
26 Section 53 amendeds. 26
See:Act No.94/1998.Reprint No. 6as at18 March 2012and amendingAct Nos94/1998, 20/2012, 21/2012 and 43/2012.LawToday:www.legislation.vic.gov.au
After section 53(2) of the Liquor Control Reform Act 1998 insert—
"(2A) Subsection (2) does not apply in respect of an offence against a provision specified in section 53A(2), 53B(2) or 53C(2) that is alleged to have been committed by a body corporate.".
27 New section 53A, 53B and 53C inserted
After section 53 of the Liquor Control Reform Act 1998 insert—
"53A Criminal liability of officers of bodies corporate—accessorial liability
(1) If a body corporate commits an offence against a provision specified in subsection (2) or a body corporate is under section 106A(3) liable for such an offence, an officer
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of the body corporate also commits an offence against the provision if the officer—
(a) authorised or permitted the commission of the offence by the body corporate; or
(b) was knowingly concerned in any way (whether by act or omission) in the commission of the offence by the body corporate.
(2) For the purposes of subsection (1), the following provisions are specified—
(a) section 54(11);
(b) section 99;
(c) section 99A(1);
(d) section 100;
(e) section 101;
(f) section 101A(3);
(g) section 101B(1) and (2);
(h) section 102(1) and (2);
(i) section 103(1) and (2);
(j) section 103A(2);
(k) section 105(1);
(l) section 106B;
(m) section 106K(1), (2), (4) and (5);
(n) section 108(1);
(o) section 108AD(2);
(p) section 108AE(2);
(q) section 108B(1);
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(r) section 109(1);
(s) section 115(1);
(t) section 122(1);
(u) section 148Q(1);
(v) section 148ZA;
(w) section 148ZL(1).
(3) Without limiting any other defence available to the officer, an officer of a body corporate may rely on a defence that would be available to the body corporate if it were charged with the offence with which the officer is charged and, in doing so, the officer bears the same burden of proof that the body corporate would bear.
(4) An officer of a body corporate may commit an offence against a provision specified in subsection (2) whether or not the body corporate has been prosecuted for, or found guilty of, an offence against that provision.
(5) In this section—
body corporate has the same meaning as corporation has in section 57A of the Corporations Act;
officer in relation to a body corporate means—
(a) a person who is an officer (as defined by section 9 of the Corporations Act) of the body corporate; or
(b) a person (other than a person referred to in paragraph (a)), by whatever name called, who is concerned in, or takes part in, the
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management of the body corporate.
(6) This section does not affect the operation of section 323 or 324 of the Crimes Act 1958 or section 52 of the Magistrates' Court Act 1989.
(7) This section does not apply at any time when a nominee of the body corporate is in place under section 54.
(8) Nothing in subsection (7) affects or limits the application of Part 6.
53B Criminal liability of officers of bodies corporate—failure to exercise due diligence
(1) If a body corporate commits an offence against a provision specified in subsection (2) or a body corporate is under section 106A(3) liable for such an offence, an officer of the body corporate also commits an offence against the provision if the officer failed to exercise due diligence to prevent the commission of the offence by the body corporate.
(2) For the purposes of subsection (1), the following provisions are specified—
(a) section 108AA(3);
(b) section 108AB(2);
(c) section 108AC(2);
(d) section 148ZK;
(e) clause 25(5) and (7) of Schedule 3.
(3) In determining whether an officer of a body corporate failed to exercise due diligence, a court may have regard to—
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(a) what the officer knew, or ought reasonably to have known, about the commission of the offence by the body corporate; and
(b) whether or not the officer was in a position to influence the body corporate in relation to the commission of the offence by the body corporate; and
(c) what steps the officer took, or could reasonably have taken, to prevent the commission of the offence by the body corporate; and
(d) any other relevant matter.
(4) Without limiting any other defence available to the officer, an officer of a body corporate may rely on a defence that would be available to the body corporate if it were charged with the offence with which the officer is charged and, in doing so, the officer bears the same burden of proof that the body corporate would bear.
(5) An officer of a body corporate may commit an offence against a provision specified in subsection (2) whether or not the body corporate has been prosecuted for, or found guilty of, an offence against that provision.
(6) In this section—
body corporate has the same meaning as in section 53A;
officer in relation to a body corporate, has the same meaning as in section 53A.
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(7) This section does not apply at any time when a nominee of the body corporate is in place under section 54.
(8) Nothing in subsection (7) affects or limits the application of Part 6.
53C Criminal liability of officers of bodies corporate—failure to exercise due diligence (evidential burden of proof)
(1) Subject to subsection (3), if a body corporate commits an offence against a provision specified in subsection (2) or a body corporate is under section 106A(3) liable for such an offence, an officer of the body corporate also commits an offence against the provision.
(2) For the purposes of subsection (1), the following provisions are specified—
(a) section 106(1);
(b) section 108(4);
(c) section 115A(2);
(d) section 119(1) and (2);
(e) section 120(1);
(f) section 148ZJ(1).
(3) An officer of a body corporate does not commit an offence against a provision specified in subsection (2) if—
(a) the officer presents or points to evidence that suggests a reasonable possibility that the officer exercised due diligence to prevent the commission of the offence by the body corporate; and
(b) the contrary is not proved (beyond reasonable doubt) by the prosecution.
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(4) In determining whether an officer of a body corporate exercised due diligence, a court may have regard to—
(a) what the officer knew, or ought reasonably to have known, about the commission of the offence by the body corporate; and
(b) whether or not the officer was in a position to influence the body corporate in relation to the commission of the offence by the body corporate; and
(c) what steps the officer took, or could reasonably have taken, to prevent the commission of the offence by the body corporate; and
(d) any other relevant matter.
(5) Without limiting any other defence available to the officer, an officer of a body corporate may rely on a defence that would be available to the body corporate if it were charged with the offence with which the officer is charged and, in doing so, the officer bears the same burden of proof that the body corporate would bear.
(6) An officer of a body corporate may commit an offence against a provision specified in subsection (2) whether or not the body corporate has been prosecuted for, or found guilty of, an offence against that provision.
(7) In this section—
body corporate has the same meaning as in section 53A;
officer in relation to a body corporate, has the same meaning as in section 53A.
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(8) This section does not apply at any time when a nominee of the body corporate is in place under section 54.
(9) Nothing in subsection (8) affects or limits the application of Part 6.".
28 Section 106A amended
After section 106A(4) of the Liquor Control Reform Act 1998 insert—
"(4A) Subsection (4) does not apply in respect of an offence against a provision specified in section 53A(2), 53B(2) or 53C(2) that is alleged to have been committed by a body corporate.".
29 Insertion of Notes
(1) At the foot of sections 54(11), 99A(1), 101A(3), 103A(2), 105(1), 108(1), 108AD(2), 108AE(2), 108B(1), 109(1), 115(1), 122(1), 148Q(1) and 148ZL(1) of the Liquor Control Reform Act 1998 insert—"Note
Section 53A applies to an offence against this subsection.".
(2) At the foot of sections 99, 100, 101, 106B and 148ZA of the Liquor Control Reform Act 1998 insert—"Note
Section 53A applies to an offence against this section.".
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(3) At the foot of sections 101B, 102 and 103 of the Liquor Control Reform Act 1998 insert—"Note
Section 53A applies to an offence against subsection (1) or (2).".
(4) At the foot of sections 106(1), 108(4), 115A(2), 120(1) and 148ZJ(1) of the Liquor Control Reform Act 1998 insert—"Note
Section 53C applies to an offence against this subsection.".
(5) At the foot of section 106K of the Liquor Control Reform Act 1998 insert—"Note
Section 53A applies to an offence against subsection (1), (2), (4) or (5).".
(6) At the foot of sections 108AA(3), 108AB(2) and 108AC(2) of the Liquor Control Reform Act 1998 insert—"Note
Section 53B applies to an offence against this subsection.".
(7) At the foot of section 119 of the Liquor Control Reform Act 1998 insert—"Note
Section 53C applies to an offence against subsection (1) or (2).".
(8) At the foot of section 148ZK of the Liquor Control Reform Act 1998 insert—
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"Note
Section 53B applies to an offence against this section.".
(9) At the foot of clause 25 of Schedule 3 to the Liquor Control Reform Act 1998 insert—"Note
Section 53B applies to an offence against subclause (5) or (7).".
30 New section 183 inserted
After section 182 of the Liquor Control Reform Act 1998 insert—
"183 Transitional provision—Statute Law Amendment (Directors' Liability) Act 2013
(1) For the avoidance of doubt, section 53A applies with respect to an offence against a provision specified in subsection (2) of that section that is alleged to have been committed by a body corporate on or after the commencement of section 27 of the Statute Law Amendment (Directors' Liability) Act 2013.
(2) For the avoidance of doubt, section 53B applies with respect to an offence against a provision specified in subsection (2) of that section that is alleged to have been committed by a body corporate on or after the commencement of section 27 of the Statute Law Amendment (Directors' Liability) Act 2013.
(3) For the avoidance of doubt, section 53C applies with respect to an offence against a
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provision specified in subsection (2) of that section that is alleged to have been committed by a body corporate on or after the commencement of section 27 of the Statute Law Amendment (Directors' Liability) Act 2013.
(4) This section does not limit section 14 of the Interpretation of Legislation Act 1984.".
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PART 8—LIVESTOCK DISEASE CONTROL ACT 1994
31 Section 134 amendeds. 31
See:Act No.115/1994.Reprint No. 6as at1 January 2011and amendingAct Nos7/2007, 48/2010, 29/2011, 69/2011 and 60/2012.LawToday:www.legislation.vic.gov.au
In section 134(2) of the Livestock Disease Control Act 1994, after "Act" insert "(other than an offence under Part 6)".
32 Insertion of Notes
(1) At the foot of section 92 of the Livestock Disease Control Act 1994 insert—"Note
Section 130A of the Taxation Administration Act 1997 applies to an offence against subsection (1), (1A) or (2).".
(2) At the foot of section 94A of the Livestock Disease Control Act 1994 insert—"Note
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Section 130B of the Taxation Administration Act 1997 applies to an offence against subsection (1) or (2).".
(3) At the foot of section 94B of the Livestock Disease Control Act 1994 insert—"Note
Section 130A of the Taxation Administration Act 1997 applies to an offence against this section.".
(4) At the foot of sections 95, 95A and 95B of the Livestock Disease Control Act 1994 insert—"Note
Section 130A of the Taxation Administration Act 1997 applies to an offence against subsection (5) or (7) and section 130B of that Act applies to an offence against subsection (1), (2), (3) or (4).".
(5) At the foot of section 96(2) of the Livestock Disease Control Act 1994 insert—"Note
Section 130B of the Taxation Administration Act 1997 applies to an offence against this subsection.".
(6) At the foot of section 96B of the Livestock Disease Control Act 1994 insert—"Note
Section 130B of the Taxation Administration Act 1997 applies to an offence against this section.".
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PART 9—LOCAL GOVERNMENT ACT 1989
33 Section 239 amendeds. 33
See:Act No.11/1989.Reprint No. 11as at1 January 2012and amendingAct Nos65/2010, 20/2012 and 63/2012.LawToday:www.legislation.vic.gov.au
Section 239(3) and (4) of the Local Government Act 1989 are repealed.
34 New section 239A inserted
After section 239 of the Local Government Act 1989 insert—
"239A Criminal liability of officers of bodies corporate—failure to exercise due diligence
(1) If a body corporate commits an offence against a provision specified in subsection (2), an officer of the body corporate also commits an offence against the provision if the officer failed to exercise due diligence to
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prevent the commission of the offence by the body corporate.
(2) For the purposes of subsection (1), the following provisions are specified—
(a) section 59(1);
(b) section 59(2).
(3) In determining whether an officer of a body corporate failed to exercise due diligence, a court may have regard to—
(a) what the officer knew, or ought reasonably to have known, about the commission of the offence by the body corporate; and
(b) whether or not the officer was in a position to influence the body corporate in relation to the commission of the offence by the body corporate; and
(c) what steps the officer took, or could reasonably have taken, to prevent the commission of the offence by the body corporate; and
(d) any other relevant matter.
(4) Without limiting any other defence available to the officer, an officer of a body corporate may rely on a defence that would be available to the body corporate if it were charged with the offence with which the officer is charged and, in doing so, the officer bears the same burden of proof that the body corporate would bear.
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(5) An officer of a body corporate may commit an offence against a provision specified in subsection (2) whether or not the body corporate has been prosecuted for, or found guilty of, an offence against that provision.
(6) In this section—
body corporate has the same meaning as corporation has in section 57A of the Corporations Act;
officer in relation to a body corporate means—
(a) a person who is an officer (as defined by section 9 of the Corporations Act) of the body corporate; or
(b) a person (other than a person referred to in paragraph (a)), by whatever name called, who is concerned in, or takes part in, the management of the body corporate.".
35 Insertion of Note
At the foot of section 59 of the Local Government Act 1989 insert—"Note
Section 239A applies to an offence against subsection (1) or (2).".
36 New section 245 inserted
After section 244 of the Local Government Act 1989 insert—
"245 Transitional provision—Statute Law Amendment (Directors' Liability) Act 2013
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(1) For the avoidance of doubt, section 239A applies with respect to an offence against a provision specified in subsection (2) of that section that is alleged to have been committed by a body corporate on or after the commencement of section 34 of the Statute Law Amendment (Directors' Liability) Act 2013.
(2) This section does not limit section 14 of the Interpretation of Legislation Act 1984.".
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PART 10—SHOP TRADING REFORM ACT 1996
37 Section 8 amendeds. 37
See:Act No.38/1996.Reprint No. 4as at13 October 2011and amendingAct No.43/2012.LawToday:www.legislation.vic.gov.au
Section 8(2) of the Shop Trading Reform Act 1996 is repealed.
38 New section 8A inserted
After section 8 of the Shop Trading Reform Act 1996 insert—
"8A Criminal liability of officers of bodies corporate—accessorial liability
(1) If a body corporate commits an offence against a provision specified in subsection (2), an officer of the body corporate also commits an offence against the provision if the officer—
(a) authorised or permitted the commission of the offence by the body corporate; or
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(b) was knowingly concerned in any way (whether by act or omission) in the commission of the offence by the body corporate.
(2) For the purposes of subsection (1), the following provisions are specified—
(a) section 5(2);
(b) section 5(3).
(3) Without limiting any other defence available to the officer, an officer of a body corporate may rely on a defence that would be available to the body corporate if it were charged with the offence with which the officer is charged and, in doing so, the officer bears the same burden of proof that the body corporate would bear.
(4) An officer of a body corporate may commit an offence against a provision specified in subsection (2) whether or not the body corporate has been prosecuted for, or found guilty of, an offence against that provision.
(5) In this section—
body corporate has the same meaning as corporation has in section 57A of the Corporations Act;
officer in relation to a body corporate means—
(a) a person who is an officer (as defined by section 9 of the Corporations Act) of the body corporate; or
(b) a person (other than a person referred to in paragraph (a)), by whatever name called, who is concerned in, or takes part in, the
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management of the body corporate.
(6) This section does not affect the operation of section 323 or 324 of the Crimes Act 1958 or section 52 of the Magistrates' Court Act 1989.".
39 Insertion of Note
At the foot of section 5 of the Shop Trading Reform Act 1996 insert—"Note
Section 8A applies to an offence against subsection (2) or (3).".
40 New section 12 inserted
After section 11 of the Shop Trading Reform Act 1996 insert—
"12 Transitional provision—Statute Law Amendment (Directors' Liability) Act 2013
(1) For the avoidance of doubt, section 8A applies with respect to an offence against a provision specified in subsection (2) of that section that is alleged to have been committed by a body corporate on or after the commencement of section 38 of the Statute Law Amendment (Directors' Liability) Act 2013.
(2) This section does not limit section 14 of the Interpretation of Legislation Act 1984.".
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PART 11—SURVEILLANCE DEVICES ACT 1999
41 Section 32 substituted and new section 32A inserteds. 41
See:Act No.21/1999.Reprint No. 2as at27 May 2010and amendingAct Nos72/2011 and 13/2012.LawToday:www.legislation.vic.gov.au
For section 32 of the Surveillance Devices Act 1999 substitute—
"32 Criminal liability of officers of bodies corporate—accessorial liability
(1) If a body corporate commits an offence against a provision specified in subsection (2), an officer of the body corporate also commits an offence against the provision if the officer—
(a) authorised or permitted the commission of the offence by the body corporate; or
(b) was knowingly concerned in any way (whether by act or omission) in the commission of the offence by the body corporate.
(2) For the purposes of subsection (1), the following provisions are specified—
(a) section 23;
(b) section 24(1) and (2);
(c) section 31.
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(3) Without limiting any other defence available to the officer, an officer of a body corporate may rely on a defence that would be available to the body corporate if it were charged with the offence with which the officer is charged and, in doing so, the officer bears the same burden of proof that the body corporate would bear.
(4) An officer of a body corporate may commit an offence against a provision specified in subsection (2) whether or not the body corporate has been prosecuted for, or found guilty of, an offence against that provision.
(5) In this section—
body corporate has the same meaning as corporation has in section 57A of the Corporations Act;
officer in relation to a body corporate means—
(a) a person who is an officer (as defined by section 9 of the Corporations Act) of the body corporate; or
(b) a person (other than a person referred to in paragraph (a)), by whatever name called, who is concerned in, or takes part in, the management of the body corporate.
(6) This section does not affect the operation of section 323 or 324 of the Crimes Act 1958 or section 52 of the Magistrates' Court Act 1989.
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32A Criminal liability of officers of bodies corporate—failure to exercise due diligence
(1) If a body corporate commits an offence against a provision specified in subsection (2), an officer of the body corporate also commits an offence against the provision if the officer failed to exercise due diligence to prevent the commission of the offence by the body corporate.
(2) For the purposes of subsection (1), the following provisions are specified—
(a) section 6(1);
(b) section 7(1);
(c) section 8(1);
(d) section 9B(1);
(e) section 9C(1);
(f) section 11(1);
(g) section 30E(1) and (2).
(3) In determining whether an officer of a body corporate failed to exercise due diligence, a court may have regard to—
(a) what the officer knew, or ought reasonably to have known, about the commission of the offence by the body corporate; and
(b) whether or not the officer was in a position to influence the body corporate in relation to the commission of the offence by the body corporate; and
(c) what steps the officer took, or could reasonably have taken, to prevent the
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commission of the offence by the body corporate; and
(d) any other relevant matter.
(4) Without limiting any other defence available to the officer, an officer of a body corporate may rely on a defence that would be available to the body corporate if it were charged with the offence with which the officer is charged and, in doing so, the officer bears the same burden of proof that the body corporate would bear.
(5) An officer of a body corporate may commit an offence against a provision specified in subsection (2) whether or not the body corporate has been prosecuted for, or found guilty of, an offence against that provision.
(6) In this section—
body corporate has the same meaning as in section 32;
officer in relation to a body corporate, has the same meaning as in section 32.".
42 Insertion of Notes
(1) At the foot of sections 6(1), 7(1), 8(1), 9B(1), 9C(1) and 11(1) of the Surveillance Devices Act 1999 insert—"Note
Section 32A applies to an offence against this subsection.".
(2) At the foot of sections 23 and 31 of the Surveillance Devices Act 1999 insert—"Note
Section 32 applies to an offence against this section.".
(3) At the foot of section 24 of the Surveillance Devices Act 1999 insert—
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"Note
Section 32 applies to an offence against subsection (1) or (2).".
(4) At the foot of section 30E of the Surveillance Devices Act 1999 insert—"Note
Section 32A applies to an offence against subsection (1) or (2).".
43 New section 42A inserted
After section 42 of the Surveillance Devices Act 1999 insert—
"42A Transitional provision—Statute Law Amendment (Directors' Liability) Act 2013
(1) For the avoidance of doubt, section 32 applies with respect to an offence against a provision specified in subsection (2) of that section that is alleged to have been committed by a body corporate on or after the commencement of section 41 of the Statute Law Amendment (Directors' Liability) Act 2013.
(2) For the avoidance of doubt, section 32A applies with respect to an offence against a provision specified in subsection (2) of that section that is alleged to have been committed by a body corporate on or after the commencement of section 41 of the Statute Law Amendment (Directors' Liability) Act 2013.
(3) This section does not limit section 14 of the Interpretation of Legislation Act 1984.".
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PART 12—TAXATION ADMINISTRATION ACT 1997
44 Section 130 amendeds. 44
See:Act No.40/1997.Reprint No. 5as at13 October 2011and amendingAct No.69/2011.LawToday:www.legislation.vic.gov.au
(1) Insert the following heading to section 130 of the Taxation Administration Act 1997—
"Offences by officers of bodies corporate".
(2) Section 130(1), (2), (3) and (5) of the Taxation Administration Act 1997 are repealed.
(3) In section 130(4) of the Taxation Administration Act 1997, for "This section does" substitute "Sections 130A, 130B and 130C do".
45 New sections 130A, 130B and 130C inserted
After section 130 of the Taxation Administration Act 1997 insert—
"130A Criminal liability of officers of bodies corporate—accessorial liability
(1) If a body corporate commits an offence against a provision specified in subsection (2), an officer of the body corporate also commits an offence against the provision if the officer—
(a) authorised or permitted the commission of the offence by the body corporate; or
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(b) was knowingly concerned in any way (whether by act or omission) in the commission of the offence by the body corporate.
(2) For the purposes of section (1)—
(a) the following provisions of this Act are specified—
(i) section 22(2);
(ii) section 47(6);
(iii) section 54(1);
(iv) section 60;
(v) section 89;
(vi) section 91(1);
(b) the following provisions of the Congestion Levy Act 2005 are specified—
(i) section 27(1);
(ii) section 28(1) and (2);
(c) the following provisions of the Duties Act 2000 are specified—
(i) section 69D(2);
(ii) section 89X(4);
(iii) section 139(5);
(iv) section 142(1);
(v) section 199;
(vi) section 257(3);
(vii) section 258(6);
(viii) section 270(1);
(ix) section 271(1);
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(d) the following provisions of the Livestock Disease Control Act 1994 are specified—
(i) section 92(1), (1A) and (2);
(ii) section 94B;
(iii) section 95(5) and (7);
(iv) section 95A(5) and (7);
(v) section 95B (5) and (7);
(e) the following provisions of the Payroll Tax Act 2007 are specified—
(i) section 97(1) and (3);
(ii) clause 21 of Schedule 2.
(3) Without limiting any other defence available to the officer, an officer of a body corporate may rely on a defence that would be available to the body corporate if it were charged with the offence with which the officer is charged and, in doing so, the officer bears the same burden of proof that the body corporate would bear.
(4) An officer of a body corporate may commit an offence against a provision specified in subsection (2) whether or not the body corporate has been prosecuted for, or found guilty of, an offence against that provision.
(5) In this section—
body corporate has the same meaning as corporation has in section 57A of the Corporations Act;
officer in relation to a body corporate means—
(a) a person who is an officer (as defined by section 9 of the
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Corporations Act) of the body corporate; or
(b) a person (other than a person referred to in paragraph (a)), by whatever name called, who is concerned in, or takes part in, the management of the body corporate.
(6) This section does not affect the operation of section 323 or 324 of the Crimes Act 1958 or section 52 of the Magistrates' Court Act 1989.
130B Criminal liability of officers of bodies corporate—failure to exercise due diligence
(1) If a body corporate commits an offence against a provision specified in subsection (2), an officer of the body corporate also commits an offence against the provision if the officer failed to exercise due diligence to prevent the commission of the offence by the body corporate.
(2) For the purposes of subsection (1)—
(a) the following provisions of this Act are specified—
(i) section 10(1) and (2);
(ii) section 43(1) and (2);
(iii) section 50(1);
(iv) section 51(2);
(v) section 52(1);
(vi) section 53;
(vii) section 55(1);
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(viii) section 56;
(ix) section 58;
(x) section 59;
(xi) section 73(8);
(xii) section 88(1);
(xiii) section 94(1);
(xiv) section 116E(1);
(xv) section 116I(1);
(b) the following provisions of the Duties Act 2000 are specified—
(i) section 21B;
(ii) section 21C(1);
(iii) section 21D(2);
(iv) section 24(6);
(v) section 89O(2);
(vi) section 140(2);
(vii) section 185;
(viii) section 188(1);
(ix) section 205(1);
(x) section 253(1);
(xi) section 264B(3);
(xii) section 266(1);
(xiii) section 269;
(c) the following provisions of the Livestock Disease Control Act 1994 are specified—
(i) section 94A(1) and (2);
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(ii) section 95(1), (2), (3) and (4);
(iii) section 95A(1), (2), (3) and (4);
(iv) section 95B(1), (2), (3) and (4);
(v) section 96(2);
(vi) section 96B.
(3) In determining whether an officer of a body corporate failed to exercise due diligence, a court may have regard to—
(a) what the officer knew, or ought reasonably to have known, about the commission of the offence by the body corporate; and
(b) whether or not the officer was in a position to influence the body corporate in relation to the commission of the offence by the body corporate; and
(c) what steps the officer took, or could reasonably have taken, to prevent the commission of the offence by the body corporate; and
(d) any other relevant matter.
(4) Without limiting any other defence available to the officer, an officer of a body corporate may rely on a defence that would be available to the body corporate if it were charged with the offence with which the officer is charged and, in doing so, the officer bears the same burden of proof that the body corporate would bear.
(5) An officer of a body corporate may commit an offence against a provision specified in
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subsection (2) whether or not the body corporate has been prosecuted for, or found guilty of, an offence against that provision.
(6) In this section—
body corporate has the same meaning as in section 130A;
officer in relation to a body corporate, has the same meaning as in section 130A.
130C Criminal liability of officers of bodies corporate—failure to exercise due diligence (legal burden of proof)
(1) If a body corporate commits an offence against a provision specified in subsection (2), an officer of the body corporate also commits an offence against the provision.
(2) For the purposes of subsection (1)—
(a) the following provisions of this Act are specified—
(i) section 57(1);
(ii) section 61;
(b) section 268(1) and (2) of the Duties Act 2000 is specified.
(3) It is a defence to a charge for an offence against a provision specified in subsection (2) for an officer of a body corporate to prove that the officer exercised due diligence to prevent the commission of the offence by the body corporate.
(4) In determining whether an officer of a body corporate exercised due diligence, a court may have regard to—
(a) what the officer knew, or ought reasonably to have known, about the
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commission of the offence by the body corporate; and
(b) whether or not the officer was in a position to influence the body corporate in relation to the commission of the offence by the body corporate; and
(c) what steps the officer took, or could reasonably have taken, to prevent the commission of the offence by the body corporate; and
(d) any other relevant matter.
(5) Without limiting any other defence available to the officer, an officer of a body corporate may rely on a defence that would be available to the body corporate if it were charged with the offence with which the officer is charged and, in doing so, the officer bears the same burden of proof that the body corporate would bear.
(6) An officer of a body corporate may commit an offence against a provision specified in subsection (2) whether or not the body corporate has been prosecuted for, or found guilty of, an offence against that provision.
(7) In this section—
body corporate has the same meaning as in section 130A;
officer in relation to a body corporate, has the same meaning as in section 130A.".
46 Insertion of Notes
(1) At the foot of sections 10 and 43 of the Taxation Administration Act 1997 insert—
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"Note
Section 130B applies to an offence against subsection (1) or (2).".
(2) At the foot of sections 22(2), 47(6), 54(1) and 91(1) of the Taxation Administration Act 1997 insert—"Note
Section 130A applies to an offence against this subsection.".
(3) At the foot of sections 50(1), 51(2), 52(1), 55(1), 73(8), 88(1), 94(1), 116E(1) and 116I(1) of the Taxation Administration Act 1997 insert—"Note
Section 130B applies to an offence against this subsection.".
(4) At the foot of sections 53, 56, 58 and 59 of the Taxation Administration Act 1997 insert—"Note
Section 130B applies to an offence against this section.".
(5) At the foot of section 57(1) of the Taxation Administration Act 1997 insert—"Note
Section 130C applies to an offence against this subsection.".
(6) At the foot of sections 60 and 89 of the Taxation Administration Act 1997 insert—"Note
Section 130A applies to an offence against this section.".
(7) At the foot of section 61 of the Taxation Administration Act 1997 insert—"Note
Section 130C applies to an offence against this section.".
47 New section 138 inserted
After section 137 of the Taxation Administration Act 1997 insert—
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"138 Transitional provision—Statute Law Amendment (Directors' Liability) Act 2013
(1) For the avoidance of doubt, section 130A applies with respect to an offence against a provision specified in subsection (2) of that section that is alleged to have been committed by a body corporate on or after the commencement of section 45 of the Statute Law Amendment (Directors' Liability) Act 2013.
(2) For the avoidance of doubt, section 130B applies with respect to an offence against a provision specified in subsection (2) of that section that is alleged to have been committed by a body corporate on or after the commencement of section 45 of the Statute Law Amendment (Directors' Liability) Act 2013.
(3) For the avoidance of doubt, section 130C applies with respect to an offence against a provision specified in subsection (2) of that section that is alleged to have been committed by a body corporate on or after the commencement of section 45 of the Statute Law Amendment (Directors' Liability) Act 2013.
(4) This section does not limit section 14 of the Interpretation of Legislation Act 1984.".
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PART 13—UNCLAIMED MONEY ACT 2008
48 Section 26 amendeds. 48
See:Act No.44/2008and amendingAct Nos44/2008, 68/2009 and 83/2009.LawToday:www.legislation.vic.gov.au
(1) In the heading to section 26 of the Unclaimed Money Act 2008, for "persons involved in management of bodies corporate" substitute "officers of bodies corporate".
(2) Section 26(1), (2), (3) and (5) of the Unclaimed Money Act 2008 are repealed.
(3) In section 26(4) of the Unclaimed Money Act 2008, for "This section does" substitute "Sections 26A and 26B do".
49 New sections 26A and 26B inserted
After section 26 of the Unclaimed Money Act 2008 insert—
"26A Criminal liability of officers of bodies corporate—accessorial liability
(1) If a body corporate commits an offence against a provision specified in subsection (2), an officer of the body corporate also commits an offence against the provision if the officer—
(a) authorised or permitted the commission of the offence by the body corporate; or
(b) was knowingly concerned in any way (whether by act or omission) in the
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commission of the offence by the body corporate.
(2) For the purposes of subsection (1), the following provisions are specified—
(a) section 17;
(b) section 19;
(c) section 21;
(d) section 22;
(e) section 23;
(f) section 24;
(g) section 25;
(h) section 70(6) and (7).
(3) Without limiting any other defence available to the officer, an officer of a body corporate may rely on a defence that would be available to the body corporate if it were charged with the offence with which the officer is charged and, in doing so, the officer bears the same burden of proof that the body corporate would bear.
(4) An officer of a body corporate may commit an offence against a provision specified in subsection (2) whether or not the body corporate has been prosecuted for, or found guilty of, an offence against that provision.
(5) In this section—
body corporate has the same meaning as corporation has in section 57A of the Corporations Act;
officer in relation to a body corporate means—
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(a) a person who is an officer (as defined by section 9 of the Corporations Act) of the body corporate; or
(b) a person (other than a person referred to in paragraph (a)), by whatever name called, who is concerned in, or takes part in, the management of the body corporate.
(6) This section does not affect the operation of section 323 or 324 of the Crimes Act 1958 or section 52 of the Magistrates' Court Act 1989.
26B Criminal liability of officers of bodies corporate—failure to exercise due diligence
(1) If a body corporate commits an offence against a provision specified in subsection (2), an officer of the body corporate also commits an offence against the provision if the officer failed to exercise due diligence to prevent the commission of the offence by the body corporate.
(2) For the purposes of subsection (1), the following provisions are specified—
(a) section 18;
(b) section 20(1) and (2);
(c) section 69(4).
(3) In determining whether an officer of a body corporate failed to exercise due diligence, a court may have regard to—
(a) what the officer knew, or ought reasonably to have known, about the
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commission of the offence by the body corporate; and
(b) whether or not the officer was in a position to influence the body corporate in relation to the commission of the offence by the body corporate; and
(c) what steps the officer took, or could reasonably have taken, to prevent the commission of the offence by the body corporate; and
(d) any other relevant matter.
(4) Without limiting any other defence available to the officer, an officer of a body corporate may rely on a defence that would be available to the body corporate if it were charged with the offence with which the officer is charged and, in doing so, the officer bears the same burden of proof that the body corporate would bear.
(5) An officer of a body corporate may commit an offence against a provision specified in subsection (2) whether or not the body corporate has been prosecuted for, or found guilty of, an offence against that provision.
(6) In this section—
body corporate has the same meaning as in section 26A;
officer in relation to a body corporate, has the same meaning as in section 26A.".
50 Insertion of Notes
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(1) At the foot of sections 17, 19, 21, 22, 23, 24 and 25 of the Unclaimed Money Act 2008 insert—"Note
Section 26A applies to an offence against this section.".
(2) At the foot of section 18 of the Unclaimed Money Act 2008 insert—"Note
Section 26B applies to an offence against this section.".
(3) At the foot of section 20 of the Unclaimed Money Act 2008 insert—"Note
Section 26B applies to an offence against subsection (1) or (2).".
(4) At the foot of section 69(4) of the Unclaimed Money Act 2008 insert—"Note
Section 26B applies to an offence against this subsection.".
(5) At the foot of section 70 of the Unclaimed Money Act 2008 insert—"Note
Section 26A applies to an offence against subsection (6) or (7).".
51 New section 105 inserted
After section 104 of the Unclaimed Money Act 2008 insert—
"105 Transitional provision—Statute Law Amendment (Directors' Liability) Act 2013
(1) For the avoidance of doubt, section 26A applies with respect to an offence against a provision specified in subsection (2) of that section that is alleged to have been
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committed by a body corporate on or after the commencement of section 49 of the Statute Law Amendment (Directors' Liability) Act 2013.
(2) For the avoidance of doubt, section 26B applies with respect to an offence against a provision specified in subsection (2) of that section that is alleged to have been committed by a body corporate on or after the commencement of section 49 of the Statute Law Amendment (Directors' Liability) Act 2013.
(3) This section does not limit section 14 of the Interpretation of Legislation Act 1984.".
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PART 14—MISCELLANEOUS
Division 1—Broiler Chicken Industry Act 1978
52 Section 17(1)(c) repealeds. 52
See:Act No.9199.Reprint No. 2as at16 September 1999and amendingAct Nos56/2003, 108/2004 and 50/2011.LawToday:www.legislation.vic.gov.au
(1) In section 17(1)(b) of the Broiler Chicken Industry Act 1978, for "offence; and" substitute "offence—".
(2) Section 17(1)(c) of the Broiler Chicken Industry Act 1978 is repealed.
Division 2—Business Franchise (Petroleum Products) Act 1979
53 Section 26 repealed
Section 26 of the Business Franchise (Petroleum Products) Act 1979 is repealed.
See:Act No.9272.Reprint No. 4as at19 March 1998and amendingAct Nos103/1998, 6/2000, 12/2004, 36/2005 and 6/2010.LawToday:www.legislation.vic.gov.au
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Division 3—Congestion Levy Act 2005
54 Insertion of Notess. 54
See:Act No.74/2005.Reprint No. 1as at17 October 2012.LawToday:www.legislation.vic.gov.au
(1) At the foot of section 27(1) of the Congestion Levy Act 2005 insert—"Note
Section 130A of the Taxation Administration Act 1997 applies to an offence against this subsection.".
(2) At the foot of section 28 of the Congestion Levy Act 2005 insert—"Note
Section 130A of the Taxation Administration Act 1997 applies to an offence against subsection (1) or (2).".
Division 4—Disability Act 2006
55 Section 216 repealed
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Section 216 of the Disability Act 2006 is repealed.
Division 5—Duties Act 2000
56 Insertion of Notess. 56
See:Act No.79/2000.Reprint No. 9as at27 September 2012.LawToday:www.legislation.vic.gov.au
(1) At the foot of sections 21B, 185 and 269 of the Duties Act 2000 insert—"Note
Section 130B of the Taxation Administration Act 1997 applies to an offence against this section.".
See:Act No.23/2006.Reprint No. 1as at31 October 2012and amendingAct Nos20/2012 and 22/2012.LawToday:www.legislation.vic.gov.au
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(2) At the foot of sections 21C(1), 21D(2), 24(6), 89O(2), 140(2), 188(1), 205(1), 253(1), 264B(3) and 266(1) of the Duties Act 2000 insert—"Note
Section 130B of the Taxation Administration Act 1997 applies to an offence against this subsection.".
(3) At the foot of sections 69D(2), 89X(4), 139(5), 142(1), 257(3), 258(6), 270(1) and 271(1) of the Duties Act 2000 insert—"Note
Section 130A of the Taxation Administration Act 1997 applies to an offence against this subsection.".
(4) At the foot of section 199 of the Duties Act 2000 insert—"Note
Section 130A of the Taxation Administration Act 1997 applies to an offence against this section.".
(5) At the foot of section 268 of the Duties Act 2000 insert—"Note
Section 130C of the Taxation Administration Act 1997 applies to an offence against subsection (1) or (2).".
Division 6—Payroll Tax Act 2007
57 Insertion of Notess. 57
See:Act No.26/2007.Reprint No. 1as at20 May 2010and amendingAct Nos
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36/2010, 28/2011, 29/2011 and 69/2011.LawToday:www.legislation.vic.gov.au
(1) At the foot of section 97 of the Payroll Tax Act 2007 insert—"Note
Section 130A of the Taxation Administration Act 1997 applies to an offence against subsection (1) or (3).".
(2) At the foot of clause 21 of Schedule 2 to the Payroll Tax Act 2007 insert—"Note
Section 130A of the Taxation Administration Act 1997 applies to an offence against this clause.".
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PART 15—REPEAL OF AMENDING ACT
58 Repeal of amending Act
This Act is repealed on the first anniversary of its commencement.
Note
The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).
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ENDNOTES
Endnotes
Statute Law Amendment (Directors' Liability) Act 2013No. 13 of 2013
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† Minister's second reading speech—
Legislative Assembly: 12 December 2012
Legislative Council: 21 February 2013
The long title for the Bill for this Act was "A Bill for an Act to revise the statute law of Victoria in relation to the criminal liability of officers of bodies corporate and for other purposes."