16Conduct by directors, employees and agents

16 Conduct by directors, employees and agents

(1) Subject to subsection (2), in proceedings against a body corporate for an offence against this Act: (a) any conduct engaged in by a director, employee or agent of the body corporate within the actual or apparent scope of his or her employment or within his or her actual or apparent authority is taken to have been engaged in also by the body corporate; and (b) it is taken to be established that conduct (the relevant conduct) was engaged in by the body corporate if it is proved: (i) that the directors of the body corporate engaged in the relevant conduct or expressly, tacitly or impliedly authorised or permitted the relevant conduct to be engaged in; or (ii) that an employee or agent of the body corporate with duties of such responsibility that his or her conduct may fairly be assumed to represent the policy of the body corporate engaged in the relevant conduct or expressly, tacitly or impliedly authorised or permitted the relevant conduct to be engaged in. (2) Subparagraph (1)(b)(ii) does not apply if the body corporate proves that it exercised due diligence to prevent the relevant conduct. (3) Subject to subsection (4), in proceedings against an individual for an offence against this Act: (a) any conduct engaged in by an employee or agent of the individual within the actual or apparent scope of his or her employment or within his or her actual or apparent authority is taken to have been engaged in also by the individual; and (b) it is taken to be established that conduct (the relevant conduct) was engaged in by the individual knowingly if it is proved that an employee or agent of the individual with duties of such responsibility that his or her conduct may fairly be assumed to represent the policy of the individual knowingly engaged in the relevant conduct or expressly, tacitly or impliedly authorised or permitted the relevant conduct to be engaged in. (4) Paragraph (3)(b) does not apply if the individual proves that he or she exercised due diligence to prevent the relevant conduct. (5) If: (a) an individual is convicted of an offence against this Act; and (b) the individual would not have been convicted of the offence if subsections (3) and (4) had not been enacted; the individual is not liable to be punished by imprisonment for the offence. (6) A reference in this section to engaging in conduct includes a reference to failing or refusing to engage in conduct. (7) In this section:

director, in relation to a body corporate incorporated for a public purpose by a law of the Commonwealth, of a State or of a Territory, means:

(a) a constituent member of the body; or
(b) if the body does not have any members—a member of the board or other group of persons responsible for the administration or management of the affairs of the body.