In brief - Directors in Queensland now able to rely on presumption of innocence
The Directors' Liability Reform Amendment Act removes nearly all provisions in Queensland legislation which contain a reverse onus of proof. This reform places the onus on the prosecution to prove the required elements of the offence.
Queensland Act designed to promote consistency in directors' liability around Australia
The Directors’ Liability Reform Amendment Act 2013 ("the Act") was passed by the Queensland parliament on 16 October 2013, with the majority of provisions commencing on 1 November 2013. The passing of this Act reflects the Queensland government’s commitment to the principles and guidelines of the Council of Australian Governments (COAG) designed to promote consistency in the imposition of personal liability on directors across Australia.
Legislation intended to reduce number and complexity of provisions related to liability of directors
The Act follows an audit by the Queensland government of over 80 acts containing some 3,800 executive liability offence provisions. The main focus of the Act is the reform of provisions contained in current legislation that impose personal liability on directors for offences committed by their corporations ("Director Liability Provisions").
The policy objectives behind the introduction of the Act include reducing the red tape and regulatory burden placed upon Queensland businesses and addressing the concern in the business and legal communities regarding the number and complexity of Director Liability Provisions.
Two liability standards for Director Liability Provisions
The Act significantly reduces the number of Director Liability Provisions contained in Queensland legislation, and, for those provisions that remain, the Act seeks to categorise them into one of two liability standards:
• Executive liability (standard) provision – liability attaches where the corporation commits an offence and the officer did not take all reasonable steps to ensure the corporation did not engage in the conduct constituting the offence.
• Executive liability (deemed) provision – an officer will be taken to have committed an offence committed by a corporation under this type of liability provision where the officer authorised or permitted the corporation’s conduct constituting the offence; or the officer was directly or indirectly, knowingly concerned in the corporation’s conduct.
Importantly, the Act also removes nearly all Director Liability Provisions in Queensland legislation which contain a reverse onus of proof. Practically, this reform now ensures that directors can take advantage of the presumption of innocence principle and places the onus squarely on the prosecution to prove the required elements of the offence.
Sustainable Planning Act and Child Care Act excluded from reforms
Two important Queensland acts which have been excluded from the reforms are the Sustainable Planning Act 2009, which has been excluded on the basis that it is subject to current comprehensive review and the Child Care Act 2002, which has been excluded on the basis that it is due to be replaced.
Additionally, acts specific to occupational health and safety and the environment were excluded from the reforms on the basis that these areas were not within the scope of the initial COAG review.
None of the liability reforms affect the liability of a corporation itself for the offence, the liability of an executive officer under an executive (deemed) liability provision, or any other person under chapter 2 of the Criminal Code.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.