42Conduct of company directors, employees or agents

#### 42 Conduct of company directors, employees or agents (1) If, in proceedings for an offence, 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 within the scope of his or her actual or apparent authority; and (b) that the director, employee or agent had the relevant state of mind. (2) For the purposes of a prosecution for an offence, conduct engaged in on behalf of a body corporate by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority is taken to have been engaged in also by the body corporate, unless the body corporate establishes that it took reasonable precautions and exercised due diligence to avoid the conduct. (3) If, in proceedings for an offence, 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 within the scope of his or her actual or apparent authority; and (b) that the employee or agent had the relevant state of mind. (4) Conduct engaged in on behalf of a person other than a body corporate (the employer) by an employee or agent of the person within the scope of his or her actual or apparent authority is taken, for the purposes of a prosecution for an offence, to have been engaged in also by the employer unless the employer establishes that the employer took reasonable precautions and exercised due diligence to avoid the conduct. (5) If a body corporate commits an offence against this Act, a person who is a director, secretary or manager of the body corporate or who is otherwise concerned in the management of the body corporate is liable to be punished as an individual who has been found guilty of the offence unless the person satisfies the court that: (a) the person did not know that the offence was committed; or (b) the person was not in a position to influence the conduct of the body corporate in relation to the offence; or (c) the person took reasonable precautions and exercised due diligence to prevent the commission of the offence. (6) Despite anything in this Act, a person is not liable to be punished by imprisonment for an offence if: (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), (4) and (5) had not been enacted. (7) Proceedings for an offence against this Act may be brought against a director of a body corporate whether or not proceedings for the offence are brought against the body corporate. (8) In this section: > director, of a body corporate, includes a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth or of a State or Territory. > engaging in conduct includes failing or refusing to engage in conduct. > state of mind of a person includes: (a) the knowledge, intention, opinion, belief or purpose of the person; and (b) the person’s reasons for the intention, opinion, belief or purpose.