124Acts and omissions of representatives of individuals

124 Acts and omissions of representatives of individuals (1) In this section: fault element includes intention, knowledge, recklessness, opinion, belief or purpose but does not include negligence. offence against this Act includes— (a) an offence against the Criminal Code in relation to a document given, under or in relation to this Act; and (b) an offence against the Criminal Code in relation to anything else

person means an individual. Note See the Criminal Code, pt 2.5 for provisions about corporate criminal responsibility. representative, of a person, means an employee or agent of the person. (2) This section applies to a prosecution for any offence against this Act. (3) Conduct engaged in by a representative of the person within the scope of the representative’s actual or apparent authority is also taken to have been engaged in by the person. (4) However, subsection (3) does not apply if the person establishes that the person took all reasonable steps to prevent the conduct. (5) In deciding whether the person took all reasonable steps to prevent the conduct, a court must consider— (a) any action the person took to ensure that the representative had a reasonable knowledge and understanding of the requirement to comply with the contravened provision; and (b) the level of management, control or supervision that was appropriate for the person to exercise over the representative. (6) Subsection (5) does not limit the matters that the court may consider. (7) If it is relevant to prove that a person had a fault element or was negligent in relation to a physical element of an offence, it is enough to show that— (a) the conduct relevant to the physical element was engaged in by a representative of the person within the scope of the representative’s actual or apparent authority; and (b) the representative had the fault element or was negligent in relation to the physical element.

(8) A person may rely on the Criminal Code, section 36 (Mistake of fact—strict liability) in relation to conduct by a representative that would make up an offence by the person only if— (a) the representative was under a mistaken but reasonable belief about the facts that, had they existed, would have meant that the conduct would not have been an offence; and (b) the person proves that the person exercised appropriate diligence to prevent the conduct. (9) A person may not rely on the Criminal Code, section 39 (Intervening conduct or event) in relation to a physical element of an offence brought about by someone else if the other person is a representative of the person. (10) A person who is convicted of an offence cannot be punished by imprisonment for the offence if the person would not have been convicted of the offence without subsection (3) or (7).