Commonwealth Consolidated Acts

EXPORT CONTROL ACT 2020 - SECT 364C

Basic contravention

  (1)   An executive officer of a body corporate is liable to a civil penalty if:

  (a)   the body corporate contravenes any of the following civil penalty provisions:

  (i)   subsection   30(4);

  (ii)   subsection   33(4);

  (iii)   subsection   33(8);

  (iv)   subsection   34(4);

  (v)   subsection   37(4);

  (vi)   subsection   37(8);

  (vii)   subsection   38(4);

  (viii)   subsection   41(3);

  (ix)   subsection   41(6);

  (x)   subsection   42(4);

  (xi)   subsection   45(3);

  (xii)   subsection   45(6);

  (xiii)   subsection   46(5);

  (xiv)   subsection   47(5);

  (xv)   subsection   48(4);

  (xvi)   subsection   49(4);

  (xvii)   subsection   184(4);

  (xviii)   subsection   184(8);

  (xix)   subsection   217(4);

  (xx)   subsection   217(8);

  (xxi)   subsection   320(4);

  (xxii)   subsection   427A(3); and

  (b)   the officer knew that, or was reckless or negligent as to whether, the contravention would occur; and

  (c)   the officer was in a position to influence the conduct of the body corporate in relation to the contravention; and

  (d)   the officer failed to take all reasonable steps to prevent the contravention.

Civil penalty:   960 penalty units.

Contravention involving intention to obtain commercial advantage or economic consequences for Australia

  (2)   An executive officer of a body corporate is liable to a civil penalty if:

  (a)   the body corporate contravenes any of the following civil penalty provisions:

  (i)   subsection   31(5);

  (ii)   subsection   32(5);

  (iii)   subsection   35(5);

  (iv)   subsection   36(5);

  (v)   subsection   39(5);

  (vi)   subsection   40(5);

  (vii)   subsection   43(5);

  (viii)   subsection   44(5); and

  (b)   the officer knew that, or was reckless or negligent as to whether, the contravention would occur; and

  (c)   the officer was in a position to influence the conduct of the body corporate in relation to the contravention; and

  (d)   the officer failed to take all reasonable steps to prevent the contravention.

Civil penalty:   10,000 penalty units.

Contravention involving making false or misleading representation about non - prescribed goods that are entered for export

  (3)   An executive officer of a body corporate is liable to a civil penalty if:

  (a)   the body corporate contravenes subsection   50(4); and

  (b)   the officer knew that, or was reckless or negligent as to whether, the contravention would occur; and

  (c)   the officer was in a position to influence the conduct of the body corporate in relation to the contravention; and

  (d)   the officer failed to take all reasonable steps to prevent the contravention.

Civil penalty:   600 penalty units.

Recklessness

  (4)   For the purposes of subsection   (1), (2) or (3), the executive officer was reckless as to whether the contravention would occur if:

  (a)   the officer was aware of a substantial risk that the contravention would occur; and

  (b)   having regard to the circumstances known to the officer, it was unjustifiable to take the risk.

Negligence

  (5)   For the purposes of subsection   (1), (2) or (3), the executive officer was negligent as to whether the contravention would occur if the officer's conduct involved:

  (a)   such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and

  (b)   such a high risk that the contravention would occur;

that the conduct merits the imposition of a pecuniary penalty.

Reasonable steps to prevent contravention

  (6)   For the purposes of paragraph   (1)(d), (2)(d) or (3)(d), in determining whether an executive officer of a body corporate failed to take all reasonable steps to prevent a contravention, a court may have regard to all relevant matters, including:

  (a)   what action (if any) the officer took directed towards ensuring the following (to the extent that the action is relevant to the contravention):

  (i)   that the body corporate arranges regular professional assessments of the body corporate's compliance with the civil penalty provisions referred to in paragraphs   (1)(a), (2)(a) and (3)(a);

  (ii)   that the body corporate implements any appropriate recommendations arising from such an assessment;

  (iii)   that the body corporate's employees, agents and contractors have a reasonable knowledge and understanding of the requirements to comply with the civil penalty provisions referred to in paragraphs   (1)(a), (2)(a) and (3)(a) in so far as those requirements affect the employees, agents or contractors concerned;

  (iv)   that the body corporate had in place adequate procedures to prevent the contravention; and

  (b)   what action (if any) the officer took when the officer became aware of the contravention.

  (7)   Subsection   (6) does not limit subsection   (1), (2) or (3).