Chapter heading 1

RECOMMENDATION 40 The model Act should place a positive duty on an officer to exercise due diligence to ensure the compliance by the entity of which they are an officer with the duties of care of that entity under the model Act.

Who is an officer?

32. 
    The definition of officer will be dealt with in our second report, but as it is important to a consideration of substance of the duty of care, we briefly comment as follows. We consider the aim of the duty of care owed by an officer is ensuring the company complies with the model Act.
    
33. 
    Having regard to that aim, we consider the type of person intended to owe the duty of care should be those who are in a position to direct or influence the key decisions of the organisation relating to compliance with relevant OHS duties of care. On this basis, the definition of an officer might include:
    

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  executive officers of a corporation;
  
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  the directors and secretary of a corporation;
  
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  those persons on whose wishes or instructions, managers or directors ordinarily act;
  
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  individuals concerned in the management of the corporation or those persons making decisions that affect the whole or a substantial part of the corporation;
  
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  members where an entity is controlled by members;
  
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  managers of unincorporated associations or partnerships;
  
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  managers of unincorporated joint ventures;
  
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  volunteer officers; or
  
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  directors and/or senior managers of the Crown, public sector agencies and statutory authorities.
  

34. 
    Whether an officer under the model Act will include the range of persons specified or be restricted to the definition as per the Corporations Act 2000 (Cwth) is a matter that will be determined in our second report.