114Conduct of employee or agent

114 Conduct of employee or agent (1) This section applies to a prosecution for an offence against this Act. This section deals with prosecutions of individuals. Part IIAA, Division 5, of the Criminal Code contains provisions about corporate criminal responsibility. (2) Conduct engaged in by an employee or agent of an individual within the scope of the employee or agent's actual or apparent authority is taken to have been also engaged in by the individual. (3) It is a defence to a prosecution for the offence if the individual took reasonable steps to prevent the conduct. (4) In deciding whether the individual took reasonable steps to prevent the conduct, a court must consider: (a) any action the individual took to ensure the employee or agent 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 individual to exercise over the representative. Petroleum Act 1984 133 (5) Subsection (4) does not limit the matters the court may consider. (6) If it is relevant to prove an individual had a fault element in relation to a physical element of an offence, it is enough to show: (a) the conduct relevant to the physical element was engaged in by an employee or agent of the individual within the scope of the employee or agent's actual or apparent authority; and (b) the employee or agent had the fault element in relation to the physical element. (7) An individual may rely on section 43AX of the Criminal Code in relation to conduct by an employee or agent that would be an offence by the individual only if: (a) the employee or agent was under a mistaken but reasonable belief about the facts that, had they existed, would have meant that the conduct would not have constituted an offence; and (b) the individual proves the individual exercised due diligence to prevent the conduct. Note for subsection (7) Section 43AX of the Criminal Code provides a person is not criminally responsible if the person engaged in conduct under a mistake of fact in relation to an offence of strict liability. (8) An individual (the defendant) may not rely on section 43BA of the Criminal Code in relation to a physical element of an offence caused by another individual if the other individual is an employee or agent of the defendant. Note for subsection (8) Section 43BA of the Criminal Code provides a person is not criminally responsible in circumstances of an intervening conduct or event. (9) An individual who is convicted of an offence cannot be punished by imprisonment for the offence if the individual would not have been convicted of the offence without subsection (2) or (6). (10) In this section: fault element means intention, knowledge or recklessness. Petroleum Act 1984 134