Page 598 - Week 02 - Thursday, 14 February 2013
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in relation to a large range of offences across the 13 acts. In those cases, corporations, directors and managers can still be prosecuted for the relevant offences, but those matters will follow the normal course through the legal system. A number of prosecutions can still lie against directors and managers for offences committed by staff, but the burden of proof lies against the prosecution. In that case, the court must consider a number of elements prescribed in the legislation. This is referred to as type 1 executive responsibility.
I am advised that the Law Society has considered this bill and supports it because, in the main, it tidies things up. The scrutiny of bills committee also reviewed the bill and considers that it positively engages the Human Rights Act by the enhancement of the right of directors and managers to be presumed innocent. It is perhaps unusual for this Labor-Greens government to actually take steps to free up burdens on business in this city. However, there is a first time for everything. We will be supporting this piece of legislation.
MR RATTENBURY (Molonglo) (12.11): This bill has come about as a result of a long-running national process called the seamless national economy national partnership agreement. The bill implements one of the priority areas for regulatory reforms under the national agreement. To quote from the explanatory statement of the bill, the goal of this particular reform is to create a nationally consistent and principled approach to the imposition of personal criminal liability of directors or other corporate officers for corporate fault.
As a general comment on the seamless national economy reforms, I would emphasise that we must be vigilant not to rush to cut what is sometimes referred to as “green tape” and in the process remove rules that are important in the protection of our environment. There is sometimes a tension between the desire of business—and our country’s largest and wealthiest companies are usually the most vocal—and the legitimate need to protect our natural resources and environment from exploitation.
On this occasion, I am satisfied with the reforms proposed in this bill. They follow a comprehensive audit of the ACT statute book and of all the instances where a director or manager is presumed responsible for an offence committed by the corporation, also referred to as “executive liability”. The reforms in this bill refine and simplify these offences so that, instead of having various levels of executive liability, there is one level.
The effect is essentially the removal of a type of executive responsibility where the director or manager was presumed to be responsible for the acts of the corporation, without the need for further proof. So in some cases the prosecution will now be required to prove responsibility of the director or manager when it previously did not. This only applies for executive or attributable liability. It does not impact on cases where the director or manager is shown to have been an accessory to the offence of the corporation. I understand that in practice this will often be the case.
I recognise that these reforms are part of a national harmonisation process and I recognise that there is also a benefit in effectively cleaning up and harmonising our statute book. A seamless set of liability rules makes it easier for directors to
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