2015
LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY
ATTORNEY-GENERAL AND MINISTER FOR JUSTICE
Statute Law Amendment (Directors’ Liability) Bill 2015
SERIAL NO. 128
EXPLANATORY STATEMENT
GENERAL OUTLINE
The Statute Law Amendment (Directors’ Liability) Bill 2015 amends 40 Northern Territory Acts and two Regulations to align with the Council of Australian Governments (COAG) approved reforms for nationally consistent directors’ (executive officers’) liability provisions in legislation.
A directors’ liability provision imposes personal criminal liability on directors for breaches of laws by corporations.  The COAG reforms aim to ensure that a director is not liable for corporate fault unless they have personally assisted in the commission of an offence or been negligent or reckless in relation to the corporation’s offending.  The reforms also aim to create national consistency in the wording of the provisions to create simplicity and clarity for corporations that operate across multiple jurisdictions.
During 2009-2010, COAG agreed on a set of principles as the basis for the reform of directors’ liability laws across Australia.  It also developed guidelines for the application of the principles.  In the development of this Bill, the COAG principles and guidelines were used to determine whether the imposition of liability was appropriate and if so, what type of liability should be applied.
Where directors’ liability is to apply, the COAG principles set out three types of provisions (Type 1, 2 or 3) that determine the extent to which the onus of establishing whether a director took reasonable steps to prevent the corporation’s offending falls on the defence or the prosecution.  In the absence of a directors’ liability provision, the default liability position will rest with either direct liability or the accessorial provisions of the Criminal Code.
Under COAG’s Type 1 provision, the failure of the director to take reasonable steps to prevent the corporation’s offending must be proved by the prosecution beyond reasonable doubt.  Until this is proved, the director is presumed to be innocent.  This is the standard directors’ liability provision.
In a Type 2 provision, a director is deemed to be liable unless they can produce enough evidence to suggest that there is a reasonable possibility that a defence applies.  It is then up to the prosecution to prove beyond reasonable doubt that the defence does not apply. In this type of provision, a director bears an evidential burden of proof while the more substantial legal burden of proof is retained by the prosecution.
In a Type 3 provision, the director is deemed to be liable for a corporate breach unless they can produce enough evidence to prove their defence on the balance of probabilities. In this type of provision, the director bears a legal burden to establish their defence which reverses the usual onus of proof in criminal law.
Each amended provision contains a subsection that lists the declared provisions relevant to that section and defines executive officer. In each provision, an executive officer of a body corporate is defined to mean a director or other person who is concerned with, 
or takes part in, the management of the body corporate.  It is intended that the term body corporate, used in this Bill, have the same 
meaning as the term corporation as defined in section 57A of the Corporations Act 2001 (Cth).
Two different drafting styles are applied throughout this Bill reflecting the styles applied under Part II of the Criminal Code (Griffiths Code style) and Part IIAA of the Criminal Code (Model Code style).As Northern Territory Acts are reviewed, their offence provisions are converted to the Model Code style.  The differing styles in this Bill are reflective of whether a respective Act has, at the time of Introduction of this Bill, been converted to the Part IIAA Model Code style.
Transitional provisions have been included in the Bill to set out howthe amendments are to apply to a director’s potential liability for corporate offending.  The transitional provisions clarify that the new provisions only apply in circumstances where all of both the body corporate’s and director’s deemed offending occur after commencement.  Additionally, for the new provisions to apply, all of the conduct constituting the offence, and engaged in by both the body corporate and director, must have occurred after commencement. This is to ensure that no element of retrospectivity applies that would disadvantage directors by potentially changing their duties to prevent corporate offending.  On the other hand, where part or all of the offence occurred prior to commencement or where some of the conduct occurred prior to commencement, the transitional provisions dictate that the old provisions will continue to apply, ensuring that there is no gap in the regulatory regime.
NOTES ON CLAUSES
Part 1	Preliminary matters
Clause 1.	Short Title
This is a formal clause which provides for the citation of the Bill. The Bill when passed may be cited as the Statute Law Amendments 
(Directors’ Liability) Act 2015.
Clause 2.	Commencement
This clause provides that the Act will commence on a day fixed by the Administrator by Gazette notice.
Part 2			Amendment of Legislation
Division 1		Agricultural and Veterinary Chemicals (Control of Use) Act
Clause 3.		Act amended
This Division of the Bill amends the Agricultural and Veterinary Chemicals (Control of Use) Act.
Clause 4.		Section 111 replaced
This clause replaces an existing executive liability provision with Type 2 liability for an offence against a declared provision.
Clause 5.		Part 14 inserted
This clause inserts Part 14 which provides for transitional matters.
Division 2 		Annual Leave Act
Clause 6.		Act amended
This Division of the Bill amends the Annual Leave Act.
Clause 7.		Section 19 amended
This clause omits section 19(3), an existing executive liability provision.
Clause 8.		Section 19AA amended
This clause removes reference to section 19(3) in section 19AA.
Division 3		Commercial and Private Agents Licensing Act
Clause 9.		Act amended
This Division of the Bill amends the Commercial and Private Agents Licensing Act.
Clause 10.		Section 46 repealed
This clause repeals section 46, an existing executive liability provision.
Division 4		Consumer Affairs and Fair Trading Act
Clause 11.		Act amended
This Division of the Bill amends the Consumer Affairs and Fair Trading Act.
Clause 12.		Section 330 replaced
This clause replaces an existing executive liability provision with Type 1 liability for an offence against a declared provision.
Clause 13.		Schedule 3 amended
This clause inserts Part 3 into Schedule 3 to provide for transitional matters.
Division 5		Criminal Code
Clause 14.		Criminal Code amended
This Division of the Bill amends the Criminal Code.
Clause 15.		Section 125D replaced
This clause replaces an existing executive liability provision, 
with Type 3 liability for an offence against the sections listed in section 125D(1).
Clause 16.		Part XI, Division 11 inserted
This clause inserts Division 11 which provides for transitional matters.
Division 6		Electoral Act
Clause 17.		Act amended
This Division of the Bill amends the Electoral Act.
Clause 18.		Section 299 repealed
This clause repeals section 299, an existing executive liability provision.
Division 7		Electricity Reform Act
Clause 19.		Act amended
This Division of the Bill amends the Electricity Reform Act.
Clause 20.		Section 105 replaced
This clause replaces an existing executive liability provision with Type 1 liability for an offence against a declared provision.
Clause 21.		Part 9 heading replaced
This clause amends the heading to Part 9 to facilitate the insertion of transitional provisions as Parts.
Clause 22.		Part 9 headings inserted
This clause establishes the transitional provisions relating to the Electricity Reform Act 2000 as Part 9.
Clause 23.		Part 11 inserted
This clause inserts Part 11 to provide for transitional provisions for the Statute Law Amendment (Directors’ Liability) Act 2015.
Division 8		Energy Pipelines Act
Clause 24.		Act amended
This Division of the Bill amends the Energy Pipelines Act.
Clause 25.		Section 58G replaced
This clause replaces an existing executive liability provision, with Type 1 liability for an offence against a declared provision.
Clause 26.		Part VIII inserted
This clause inserts Part VIII which provides for transitional provisions for the Statute Law Amendment (Directors’ Liability) Act 2015.
Division 9		Energy Pipelines Regulations
Clause 27.		Regulations amended
This Division of the Bill amends the Energy Pipelines Regulations.
Clause 28.		Part 6, Division 3 inserted
This clause inserts, after regulation 51, in Part 6, regulation 51A which prescribes certain regulations to be declared provisions.
Division 10		Fire and Emergency Act
Clause 29.		Act amended
This Division of the Bill amends the Fire and Emergency Act.
Clause 30.		Section 49 replaced
This clause replaces an existing executive liability provision with Type 2 liability for an offence against a declared provision.
Clause 31.		Part 8 inserted
This clause inserts Part 8 which provides for transitional matters.
Division 11		Firearms Act
Clause 32.		Act amended
This Division of the Bill amends the Firearms Act.
Clause 33.		Section 107 replaced
This clause replaces section 107, an existing executive liability provision, with section 106B, a Type 1 liability provision for an offence against a declared provision; and section 107, a Type 2 liability provision for an offence against a declared provision.
Clause 34.		Section 114 amended
This clause is a mechanical clause that tidies up the Act by renumbering section 114 as section 112.
Clause 35.		Part 13 and Part 13, Division 1 headings inserted
This clause inserts headings to facilitate the insertion of transitional provisions as Divisions.
Clause 36.		Part 13, Division 2 inserted
This clause inserts Division 2 which provides for transitional provisions for the Statute Law Amendment (Directors’ Liability) Act 2015.
Division 12		Flag and Emblem Act
Clause 37		Act amended
This Division of the Bill amends the Flag and Emblem Act.
Clause 38.		Section 10 repealed
This clause repeals section 10, an existing executive liability provision.
Division 13		Food Act
Clause 39.		Act amended
This Division of the Bill amends the Food Act.
Clause 40.		Section 114 replaced
This clause replaces section 114, an existing executive liability provision, with section 114, a Type 1 liability provision for an offence against a declared provision; and section 114A, a Type 2 liability provision for an offence against a declared provision.
Clause 41.		Part 14 inserted
This clause inserts Part 14 which provides for transitional matters.
Division 14		Gaming Control Act
Clause 42.		Act amended
This Division of the Bill amends the Gaming Control Act.
Clause 43.		Section 17 amended
This clause replaces the term corporation with body corporate to maintain consistency throughout the Act.
Clause 44.		Section 20 amended
This clause replaces the term corporation with body corporate to maintain consistency throughout the Act.
Clause 45.		Section 40 amended
This clause replaces the term corporation with body corporate to maintain consistency throughout the Act.
Clause 46.		Section 46C amended
This clause replaces the term corporation with body corporate to maintain consistency throughout the Act.
Clause 47.		Section 46F amended
This clause replaces the term corporation with body corporate to maintain consistency throughout the Act.
Clause 48.		Section 47C amended
This clause replaces the term corporation with body corporate to maintain consistency throughout the Act.
Clause 49.		Section 47F amended
This clause replaces the term corporation with body corporate to maintain consistency throughout the Act.
Clause 50.		Section 72 replaced
This clause replaces an existing executive liability provision with Type 2 liability for an offence against a declared provision.
Clause 51.		Part 7, Division 4 inserted
This clause inserts Division 4 in Part 7 to provide for transitional matters.
Division 15		Gaming Machine Act
Clause 52.		Act amended
This Division of the Bill amends the Gaming Machine Act.
Clause 53.		Section 180 replaced
This clause replaces section 180, an existing executive liability provision, with section 180, a Type 1 liability provision for an offence against a declared provision; and section 180A, a Type 2 liability provision for an offence against a declared provision.
Clause 54.		Part 12 inserted
This clause inserts Part 12 to provide for transitional matters.
Division 16		Health Practitioners Act
Clause 55.		Act amended
This Division of the Bill amends the Health Practitioners Act.
Clause 56.		Section 127 replaced
This clause replaces an existing executive liability provision with Type 2 liability for an offence against a declared provision.
Clause 57.		Part 14 inserted
This clause inserts Part 14 to provide for transitional matters.
Division 17		Higher Education Act
Clause 58.		Act amended
This Division of the Bill amends the Higher Education Act.
Clause 59.		Section 55 repealed
This clause repeals section 55, an existing executive liability provision.
Division 18		Kava Management Act
Clause 60.		Act amended
This Division of the Bill amends the Kava Management Act.
Clause 61.		Section 26 replaced
This clause replaces an existing executive liability provision with Type 2 liability for an offence against a declared provision.
Clause 62.		Part 13 inserted
This clause inserts Part 13 to provide for transitional matters.
Division 19		Liquor Act
Clause 63.		Act amended
This Division of the Bill amends the Liquor Act.
Clause 64.		Section 25 amended
This clause repeals sections 25(3), (5), (6) and (7) and inserts a new section 25(5).  The purpose of this clause is to give effect to the new executive officer liability provision while maintaining the present licensing regime that deems a nominee to be a joint licensee with the body corporate.
Clause 65.		Section 123B inserted	
This clause inserts section 123B, a Type 2 liability provision for an offence against a declared provision.
Clause 66.		Part XXI inserted
This clause inserts Part XXI to provide for transitional matters.
Division 20		Livestock Act
Clause 67.		Act amended
This Division of the Bill amends the Livestock Act.
Clause 68.		Section 134 replaced
This clause replaces an existing executive liability provision with Type 2 liability for an offence against a declared provision.
Clause 69.		Part 11 inserted
This clause inserts Part 11 to provide for transitional matters.
Division 21		Long Service Leave Act
Clause 70.		Act amended
This Division of the Bill amends the Long Service Leave Act.
Clause 71.		Section 18 amended
This clause repeals section 18(3), an existing executive liability provision.
Division 22		Major Cricket Events Act
Clause 72.		Act amended
This Division of the Bill amends the Major Cricket Events Act.
Clause 73.		Section 9 repealed
This clause repeals section 9, an existing executive liability provision.
Division 23		Medicines, Poisons and Therapeutic Goods Act
Clause 74.		Act amended
This Division of the Bill amends the Medicines, Poisons and Therapeutic Goods Act.
Clause 75.		Section 215 amended
This clause replaces an existing executive liability provision with Type 2 liability for an offence against a declared EO liability provision.
Clause 76.		Part 9.3 inserted
This clause inserts Part 9.3 to provide for transitional matters.
Division 24		Medicines, Poisons and Therapeutic Goods Regulations
Clause 77.		Regulations amended
This Division of the Bill amends the Medicines, Poisons and Therapeutic Goods Regulations.
Clause 78.		Regulation 81A inserted
This clause prescribes regulation 31 as a declared EO liability provision for the purpose of the Medicines, Poisons and Therapeutic Goods Act.
Division 25		Misuse of Drugs Act
Clause 79.		Act amended
This Division of the Bill amends the Misuse of Drugs Act.
Clause 80.		Section 39 replaced
This clause replaces an existing executive liability provision with Type 2 liability for an offence against a declared provision.
Clause 81.		Part IV and Part IV, Division 1 headings inserted
This clause amends the headings of Part IV to facilitate the insertion of transitional provisions as Divisions.
Clause 82.		Part IV, Division 2 inserted
This clause inserts transitional provisions for the Statute Law Amendment (Directors’ Liability) Act 2015.
Division 26		Ombudsman Act
Clause 83.		Act amended
This Division of the Bill amends the Ombudsman Act.
Clause 84.		Section 131 repealed	
This clause repeals section 131, an existing executive liability provision.
Division 27		Plant Health Act
Clause 85		Act amended
This Division of the Bill amends the Plant Health Act.
Clause 86.		Section 67 replaced
This clause replaces section 67, an existing executive liability provision, with section 67, a Type 1 liability provision for an offence against a declared provision; and section 67A, a Type 2 liability provision for an offence against a declared provision.
Clause 87.		Part 6 inserted
This clause inserts Part 6 to provide for transitional matters.
Division 28		Poppy Regulation Act
Clause 88.		Act amended
This Division of the Bill amends the Poppy Regulation Act.
Clause 89.		Section 42 replaced
This clause replaces an existing executive liability provision with Type 1 liability for an offence against a declared provision.
Clause 90.		Part 6 inserted
This clause inserts Part 6 to provide for transitional matters.
Division 29		Price Exploitation Prevention Act
Clause 91.		Act amended
This Division of the Bill amends the Price Exploitation Prevention Act.
Clause 92.		Section 59 replaced
This clause replaces an existing executive liability provision with Type 2 liability for an offence against a declared provision.
Clause 93.		Section 66 inserted
This clause inserts section 66 to provide for transitional matters.
Division 30		Printers and Newspapers Act
Clause 94.		Act amended
This Division of the Bill amends the Printers and Newspapers Act.
Clause 95.		Section 10 replaced
This clause replaces an existing executive liability provision with Type 2 liability for an offence against a declared provision.
Clause 96.		Part IV inserted
This clause inserts Part IV to provide for transitional matters.
Division 31		Prostitution Regulation Act
Clause 97.		Act amended
This Division of the Bill amends the Prostitution Regulation Act.
Clause 98.		Section 48 repealed
This clause repeals section 48, an existing executive liability provision.
Division 32		Public and Environmental Health Act
Clause 99.		Act amended
This Division of the Bill amends the Public and Environmental Health Act.
Clause 100.		Section 119 amended
This clause replaces an existing executive liability provision with Type 1 liability for an offence against certain declared provisions.
Clause 101.		Part 11, Division 3 inserted
This clause inserts Division 3 in Part 11 to provide for transitional matters.
Division 33		Public Holidays Act
Clause 102		Act amended
This Division of the Bill amends the Public Holidays Act.
Clause 103.		Section 16 amended
This clause repeals section 16(3), an existing executive liability provision.
Clause 104.		Section 16A amended
This clause removes reference to section 16(3) in section 16A.
Division 34		Residential Tenancies Act
Clause 105.		Act amended
This Division of the Bill amends the Residential Tenancies Act.
Clause 106.		Section 11 repealed
This clause repeals section 11, an existing executive liability provision.
Division 35		Sexual Offences (Evidence and Procedure) Act
Clause 107.		Act amended
This Division of the Bill amends the Sexual Offences (Evidence and Procedure) Act.
Clause 108.		Section 13 replaced
This clause replaces section 13, an existing executive liability provision with section 13, a Type 2 liability provision for an offence against declared provisions; and section 14 which provides for transitional matters.
Division 36		Surveillance Devices Act
Clause 109.		Act amended
This Division of the Bill amends the Surveillance Devices Act.
Clause 110.		Section 72 replaced
This clause replaces an existing executive liability provision with Type 2 liability for an offence against declared provisions.
Clause 111.		Part 11, Division 1 heading inserted
This clause amends the headings of Part 11 to facilitate the insertion of transitional provisions as Divisions.
Clause 112.		Section 79 amended
This clause amends section 79 to facilitate the insertion of transitional provisions as Divisions.
Clause 113.		Part 11, Division 2 inserted
This clause inserts Part 11, Division 2 to provide for transitional matters in relation to the Statute Law Amendment (Directors’ Liability) Act 2015.
Division 37		Taxation Administration Act
Clause 114.		Act amended
This Division of the Bill amends the Taxation Administration Act.
Clause 115.		Section 137 replaced
This clause replaces an existing executive liability provision with Type 1 liability for an offence against declared provisions under the 
Taxation Administration Act and the Stamp Duty Act.
Clause 116.		Part 17 inserted
This clause inserts Part 17 to provide for transitional matters.
Division 38		Totalisator Licensing and Regulation Act
Clause 117		Act amended
This Division of the Bill amends the Totalisator Licensing and Regulation Act.
Clause 118.		Section 106 replaced
This clause replaces an existing executive liability provision with Type 1 liability for an offence against a declared provision.
Clause 119.		Part 13 inserted
This clause inserts Part 13 to provide for transitional matters.
Division 39		Transport of Dangerous Goods by Road and Rail (National Uniform Legislation) Act
Clause 120.		Act amended
This Division of the Bill amends the Transport of Dangerous Goods by Road and Rail (National Uniform Legislation) Act.
Clause 121.		Section 126 amended
This clause replaces an existing executive liability provision with Type 1 liability for an offence against declared EO liability provisions.
Clause 122.		Part 9 inserted
This clause inserts Part 9 to provide for transitional matters.
Division 40		Utilities Commission Act
Clause 123.		Act amended
This Division of the Bill amends the Utilities Commission Act.
Clause 124.		Section 39 repealed
This clause repeals an existing executive liability provision.
Division 41		Waste Management and Pollution Control Act
Clause 125.		Act amended
This Division of the Bill amends the Waste Management and Pollution Control Act.
Clause 126.		Section 91 replaced
This clause replaces an existing executive liability provision with Type 3 liability for an offence against a declared provision.
Clause 127.		Part 15 inserted
This clause inserts Part 15 to provide for transitional matters.
Division 42		Water Supply and Sewerage Services Act
Clause 128.		Act amended
This Division of the Bill amends the Water Supply and Sewerage Services Act.
Clause 129.		Section 112 replaced
This clause replaces an existing executive liability provision with Type 1 liability for an offence against a declared provision.
Clause 130.		Part 7 and Part 7, Division 1 headings inserted
This clause inserts headings to facilitate the insertion of transitional provisions as Divisions.
Clause 131.		Part 7, Division 2 inserted
This clause inserts Division 2 in Part 7 to provide for transitional matters.
Part 3 			Expiry
Clause 88.		Expiry of Act
This clause provides that the Statute Law Amendment (Directors’ Liability) Act 2015 will expire on the day after it commences.