Commonwealth Numbered Acts

SOCIAL SECURITY LEGISLATION AMENDMENT ACT 1994 No. 63, 1994 - SECT 26

26. After Division 3 of Part 8.1 of the Principal Act the following Division
is inserted in Part 8.1:



"Division 4-Liability of corporations", employers and principals for
offences Proceedings against corporations

"1358A.(1) If, in proceedings for an offence against this Act in respect of
conduct engaged in by a corporation, it is necessary to establish the state of
mind of the corporation, it is sufficient to show that:

   (a)  a director, employee or agent of the corporation engaged in that
        conduct; and

   (b)  the director, employee or agent was, in engaging in that conduct,
        acting within the scope of the director's, employee's or agent's
        actual or apparent authority; and

   (c)  the director, employee or agent had that state of mind.



"(2) If:

   (a)  conduct is engaged in on behalf of a corporation by a director,
        employee or agent of the corporation; and

   (b)  the conduct is within the scope of his or her actual or apparent
        authority; the conduct is taken, for the purposes of a prosecution for
        an offence against this Act, to have been engaged in by the
        corporation unless the corporation establishes that it took reasonable
        precautions and exercised due diligence to avoid the conduct.



"(3) A reference in this section 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.



"(4) A reference in this section to a director of a corporation includes a
reference to a constituent member of a corporation incorporated for a public
purpose by a law of the Commonwealth, a State or a Territory.



"(5) A reference in this section to engaging in conduct includes a reference
to failing or refusing to engage in conduct.



"(6) A reference in this section to an offence against this Act includes a
reference to an offence created by section 5, 6, 7 or 7A, or subsection 86(1),
of the Crimes Act 1914 that relates to this Act.

Proceedings against non-corporations

"1358B.(1) If, in proceedings for an offence against this Act in respect of
conduct engaged in by a person other than a corporation, it is necessary to
establish the state of mind of the person, it is sufficient to show that:

   (a)  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)
        the employee or agent had that state of mind.



"(2) If:

   (a)  conduct is engaged in on behalf of a person other than a corporation
        by an employee or agent of the person; and

   (b)  the conduct is within the employee's or agent's actual or apparent
        authority; the conduct is taken, for the purposes of a prosecution for
        an offence against this Act, to have been engaged in by the person
        unless the person establishes that he or she took reasonable
        precautions and exercised due diligence to avoid the conduct.



"(3) Despite any other provision in this Act, if:

   (a)  a person is convicted of an offence; and

   (b)  the person would not have been convicted of the offence if subsections
        (1) and (2) had not been in force; the person is not liable to be
        punished by imprisonment for that offence. Note: The following is an
        example of how subsection (3) applies to a person. A person who is an
        employee is convicted of an offence under section 1316. The employer
        is also convicted of the offence (see subsections 1358B(1) and (2)).
        The penalty for an offence under section 1316 is imprisonment for 2
        years. Because of subsection (3) the employer cannot be imprisoned.



"(4) A reference in this section 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.



"(5) A reference in this section to engaging in conduct includes a reference
to failing or refusing to engage in conduct.



"(6) A reference in this section to an offence against this Act includes a
reference to an offence created by section 5, 6, 7 or 7A, or subsection 86(1),
of the Crimes Act 1914 that relates to this Act.".