APPENDIX 1
AUSTRALIA CRIMINAL
CODE ACT
1995
Part 2.5—Corporate Criminal Responsibility
Division 12 General principles
12.1(1) This Code applies to bodies corporate
in the same way as it applies to individuals. It so applies with
such modifications as are set out in this Part, and with such
other modifications as are made necessary by the fact that criminal
liability is being imposed on bodies corporate rather than individuals.
(2) A body corporate may be found guilty of any
offence, including one punishable by imprisonment. Note: Section
4B of the Crimes Act 1914 enables a fine to be imposed for offences
that only specify imprisonment as a penalty.
Physical elements
12.2 If a physical element of an offence
is committed by an employee, agent or officer of a body corporate
acting within the actual or apparent scope of his or her employment,
or within his or her actual or apparent authority, the physical
element must also be attributed to the body corporate.
Fault elements other than negligence
12.3(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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