Western Australian Consolidated Acts Western Australian Consolidated Acts [Heading inserted by No. 67 of 2004 s. 42.]
[s. 14A]
Division 1 — General duties of chief executive officer
[Heading inserted by No. 67 of 2004 s. 42.]
1 . Duties of chief executive officer
(1) It is declared
that the chief executive officer has —
(a) the
same fiduciary relationship with the Authority; and
(b) the
same duties to the Authority to act with loyalty and in good faith,
as a director of a
company incorporated under the Corporations Act has with and to the company.
(2) The duties
referred to in subclause (1) are enforceable by the board of the
Authority and not otherwise.
[Clause 1 inserted by No. 67 of 2004
s. 42.]
Division 2 — Particular duties stated
[Heading inserted by No. 67 of 2004 s. 42.]
(1) In this Division
—
officer means —
(a) the
chief executive officer; or
(b) an
executive officer or other member of staff of the Authority;
summary conviction penalty , in relation to a
crime, has the same meaning as in section 5 of The Criminal Code .
(2) A person who
attempts (within the meaning in section 4 of The Criminal Code ) to
commit an offence against a provision of this Division is guilty of that
offence.
(3) For the chief
executive officer, the duties provided for by this Division are in addition to
those in clause 1.
[Clause 2 inserted by No. 67 of 2004
s. 42.]
(1) The chief
executive officer or an executive officer must at all times act honestly in
the performance of the functions of his or her office, whether within or
outside the State.
(2) A person who
contravenes subclause (1) —
(a) with
intent to deceive or defraud —
(i)
the Authority; or
(ii)
creditors of the Authority or of any other person;
or
(b) for
any other fraudulent purpose,
is guilty of a crime
and is liable to a fine of $20 000 or imprisonment for 5 years, or
both.
Summary conviction penalty: A fine of $12 000
or imprisonment for 3 years, or both.
(3) If
subclause (2) does not apply a person who contravenes subclause (1)
is liable to a fine of $5 000.
[Clause 3 inserted by No. 67 of 2004
s. 42.]
4 . Duty to exercise reasonable care and diligence
The chief executive
officer or an executive officer must at all times exercise the degree of care
and diligence in the performance of the functions of his or her office,
whether within or outside the State, that a reasonable person in that position
would reasonably be expected to exercise in the Authority’s
circumstances.
Penalty: $5 000.
[Clause 4 inserted by No. 67 of 2004
s. 42.]
5 . Duty not to make improper use of information
(1) An officer or a
former officer of the Authority must not, whether within or outside the State,
make improper use of information acquired by virtue of his or her position as
such to gain, directly or indirectly, an advantage for himself or herself or
for any other person or to cause detriment to the Authority.
(2) A person who
contravenes subclause (1) is guilty of a crime and is liable to a fine of
$20 000 or imprisonment for 5 years, or both.
Summary conviction penalty: A fine of $12 000
or imprisonment for 3 years, or both.
[Clause 5 inserted by No. 67 of 2004
s. 42.]
6 . Duty not to make improper use of position
(1) An officer must
not, whether within or outside the State, make improper use of his or her
position as such to gain, directly or indirectly, an advantage for himself or
herself or for any other person or to cause detriment to the Authority.
(2) A person who
contravenes subclause (1) is guilty of a crime and is liable to a fine of
$20 000 or imprisonment for 5 years, or both.
Summary conviction penalty: A fine of $12 000
or imprisonment for 3 years, or both.
[Clause 6 inserted by No. 67 of 2004
s. 42.]
[Heading inserted by No. 67 of 2004 s. 42.]
7 . Payment of compensation may be ordered
(1) Where —
(a) a
person is convicted of an offence for a contravention of clause 3, 4, 5
or 6; and
(b) the
court is satisfied that the Authority has suffered loss or damage as a result
of the act or omission that constituted the offence,
the court by which the
person is convicted may, in addition to imposing a penalty, order the
convicted person to pay compensation to the Authority of such amount as the
court specifies.
(2) Any such order may
be enforced as if it were a judgment of the court.
[Clause 7 inserted by No. 67 of 2004
s. 42.]
8 . Civil proceedings for recovery
Where a person
contravenes clause 3, 4, 5 or 6, the Authority may, whether or not the
person has been convicted of an offence in respect of that contravention,
recover from the person as a debt due to the Authority by action in any court
of competent jurisdiction —
(a) if
that person or any other person made a profit as a result of the
contravention, an amount equal to that profit; and
(b) if
the Authority has suffered loss or damage as a result of the contravention, an
amount equal to that loss or damage.
[Clause 8 inserted by No. 67 of 2004
s. 42.]
Division 4 — Relief from liability
[Heading inserted by No. 67 of 2004 s. 42.]
For the purposes of
clause 1, 7 or 8, if it appears to the court that a person —
(a) is,
or may be, liable under that section; and
(b) has
acted honestly; and
(c)
ought fairly to be excused having regard to all the circumstances of the case,
including those connected with the person’s appointment,
the court may relieve
the person either wholly or partly from liability on such terms as the court
thinks fit.
[Clause 9 inserted by No. 67 of 2004
s. 42.]
(1) Where a person has
reason to believe that any claim will or might be made against him or her
under clause 1, 7 or 8, the person may apply to the Supreme Court for
relief.
(2) On an application
under subclause (1) the Supreme Court has the same power to relieve the
person as it would have had under clause 9 if it had been a court
exercising jurisdiction under clause 1, 7 or 8.
[Clause 10 inserted by No. 67 of 2004
s. 42.]
11 . Case may be withdrawn from jury
Where a case to which
clause 9 applies is being tried by a judge with a jury, the judge after
hearing the evidence may, if he or she is satisfied that the person ought
under that section to be relieved either wholly or partly from liability
sought to be enforced against the person —
(a)
withdraw the case in whole or in part from the jury; and
(b)
direct judgment to be entered for the person on such terms as to costs or
otherwise as the judge thinks proper.
[Clause 11 inserted by No. 67 of 2004
s. 42.]
12 . Compliance with directions
(1) A person does not
contravene clause 1, 3 or 4 by doing or omitting to do anything in
compliance with a direction received in the course of the person’s
employment.
(2) Subclause (1)
does not extend to the manner in which a thing is done or omitted if it is
done or omitted in a manner that is contrary to clause 3 or 4 and the
direction did not require that it be done in that manner.
[Clause 12 inserted by No. 67 of 2004
s. 42.]
Division 5 — Restrictions on indemnities and exemptions
[Heading inserted by No. 67 of 2004 s. 42.]
13 . Indemnification and exemption of chief
executive officer and executive officers
(1) The Authority or a
subsidiary must not exempt a person (whether directly or through an interposed
entity) from a liability to the Authority incurred as the chief executive
officer or an executive officer.
(2) The Authority or a
subsidiary must not indemnify a person (whether by agreement or by making a
payment and whether directly or through an interposed entity) against any of
the following liabilities incurred as the chief executive officer or an
executive officer —
(a) a
liability owed to the Authority or a subsidiary;
(b) a
liability that is owed to someone other than the Authority or a subsidiary and
did not arise out of conduct in good faith.
(3) Subclause (2)
does not apply to a liability for legal costs.
(4) The Authority or a
subsidiary must not indemnify a person (whether by agreement or by making a
payment and whether directly or through an interposed entity) against legal
costs incurred in defending an action for a liability incurred as the chief
executive officer or an executive officer if the costs are incurred —
(a) in
defending or resisting a proceeding in which the person is found to have a
liability for which the person could not be indemnified under
subclause (2); or
(b) in
defending or resisting criminal proceedings in which the person is found
guilty; or
(c) in
connection with proceedings for relief under clause 9 or 10 in which the
Supreme Court denies the relief.
(5) In determining the
outcome of proceedings for the purposes of subclause (4), the result of
any appeal in relation to the proceedings is to be taken into account.
[Clause 13 inserted by No. 67 of 2004
s. 42.]
14 . Insurance premiums for certain liabilities of
chief executive officer and executive officers
(1) The Authority or a
subsidiary must not pay, or agree to pay, a premium for a contract insuring
the chief executive officer or an executive officer against a liability (other
than one for legal costs) arising out of —
(a)
conduct involving a wilful breach of duty in relation to the Authority; or
(b) a
contravention of clause 5 or 6.
(2) Subclause (1)
applies to a premium whether it is paid directly or through an interposed
entity.
[Clause 14 inserted by No. 67 of 2004
s. 42.]
15 . Certain indemnities, exemptions, payments and
agreements not authorised and certain documents void
(1) Clauses 13
and 14 do not authorise anything that would otherwise be unlawful.
(2) Anything that
purports to indemnify or insure a person against a liability or exempt a
person from a liability is void to the extent that it contravenes
clause 13 or 14.
[Clause 15 inserted by No. 67 of 2004
s. 42.]