164Conduct of directors, employees and agents

#### 164 Conduct of directors, employees and agents (1) Where, in proceedings for an offence against this Act it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show: (a) that the conduct was engaged in by a director, employee or agent of the body corporate; and (b) that the director, employee or agent had the state of mind. (2) Any conduct engaged in by a director, employee or agent of a body corporate is taken, for the purposes of a prosecution for an offence against this Act, to have been engaged in also by the body corporate unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to prevent the conduct. (2A) For the purposes of subsection (2), in determining whether a body corporate took reasonable precautions and exercised due diligence to prevent conduct engaged in by a director, employee or agent of the body corporate, the matters to which regard is to be had include: (a) any action the body corporate took to inform the director, employee or agent of the legal obligations of the body corporate, director, employee or agent, in relation to the conduct; and (b) any action the body corporate took to ensure that those obligations were understood and complied with by the director, employee or agent; and (c) when any such action was taken; and (d) whether there were any other actions that the body corporate could reasonably have taken that may have prevented the conduct. (3) Where, in proceedings for an offence against this Act, it is necessary to establish the state of mind of a person other than a body corporate in relation to particular conduct, it is sufficient to show: (a) that the conduct was engaged in by an employee or agent of the person; and (b) that the employee or agent had the state of mind. (4) Any conduct engaged in by an employee or agent of a person other than a body corporate is taken, for the purposes of a prosecution for an offence against this Act, to have been engaged in also by the person unless the person establishes that the person took reasonable precautions and exercised due diligence to prevent the conduct. (4A) For the purposes of subsection (4), in determining whether a person took reasonable precautions and exercised due diligence to prevent conduct engaged in by an employee or agent of the person, the matters to which regard is to be had include: (a) any action the person took to inform the employee or agent of the legal obligations of the person, employee or agent, in relation to the conduct; and (b) any action the person took to ensure that those obligations were understood and complied with by the employee or agent; and (c) when any such action was taken; and (d) whether there were any other actions that the person could reasonably have taken that may have prevented the conduct. (5) Where: (a) a person other than a body corporate is convicted of an offence; and (b) the person would not have been convicted of the offence if subsections (3) and (4) had not been enacted; the person is not liable to be punished by imprisonment for that offence. (6) A reference in subsection (1) or (3) to the state of mind of a person includes a reference to: (a) the knowledge, intention, opinion, belief or purpose of the person; and (b) the person’s reasons for the intention, opinion, belief or purpose. (7) A reference in this section to a director of a body corporate includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, of a State or of a Territory. (8) A reference in this section to engaging in conduct includes a reference to failing or refusing to engage in conduct. (9) A reference in this section to an offence against this Act includes a reference to: (a) an offence created by the regulations; and (b) an offence against section 6 of the Crimes Act 1914, or section 11.1, 11.4 or 11.5 of the Criminal Code, that relates to an offence against this Act or the regulations. (10) Part 2.5 of the Criminal Code does not apply to an offence against this Act. > Note: Part 2.5 of the Criminal Code deals with corporate criminal responsibility.