Annex
CRIMINAL CODE ACT 1995—SECT 12.3 Fault
elements other than negligence
1. If intention, knowledge or recklessness
is a fault element in relation to a physical element of an offence,
that fault element must be attributed to a body corporate that
expressly, tacitly or impliedly authorised or permitted the commission
of the offence.
2. The means by which such an authorisation
or permission may be established include:
(a) proving that the body corporate's board
of directors intentionally, knowingly or recklessly carried out
the relevant conduct, or expressly, tacitly or impliedly authorised
or permitted the commission of the offence; or
(b) proving that a high managerial agent
of the body corporate intentionally, knowingly or recklessly engaged
in the relevant conduct, or expressly, tacitly or impliedly authorised
or permitted the commission of the offence; or
(c) proving that a corporate culture existed
within the body corporate that directed, encouraged, tolerated
or led to non-compliance with the relevant provision; or
(d) proving that the body corporate failed
to create and maintain a corporate culture that required compliance
with the relevant provision.
3. Paragraph (2)(b) does not apply if the
body corporate proves that it exercised due diligence to prevent
the conduct, or the authorisation or permission.
4. Factors relevant to the application of
paragraph (2)(c) or (d) include:
(a) whether authority to commit an offence
of the same or a similar character had been given by a high managerial
agent of the body corporate; and
(b) whether the employee, agent or officer
of the body corporate who committed the offence believed on reasonable
grounds, or entertained a reasonable expectation, that a high
managerial agent of the body corporate would have authorised or
permitted the commission of the offence.
5. If recklessness is not a fault element
in relation to a physical element of an offence, subsection (2)
does not enable the fault element to be proved by proving that
the board of directors, or a high managerial agent, of the body
corporate recklessly engaged in the conduct or recklessly authorised
or permitted the commission of the offence.
6. In this section:
board of directors means the body (by
whatever name called) exercising the executive authority of the
body corporate.
corporate culture means an attitude, policy,
rule, course of conduct or practice existing within the body corporate
generally or in the part of the body corporate in which the relevant
activities takes place.
high managerial agent means an employee,
agent or officer of the body corporate with duties of such responsibility
that his or her conduct may fairly be assumed to represent the
body corporate's policy.
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