South Australian Numbered Acts

TRAINING AND SKILLS DEVELOPMENT (MISCELLANEOUS) AMENDMENT ACT 2011 (NO 8 OF 2011) - SECT 26

26—Insertion of sections 75A and 75B

After section 75 insert:

75A—Imputation of conduct or state of mind of officer etc

        (1)         For the purposes of proceedings for an offence against this Act—

            (a)         the conduct and state of mind of an officer, employee or agent of a body corporate acting within the scope of his or her actual, usual or ostensible authority will be imputed to the body corporate;

            (b)         the conduct and state of mind of an employee or agent of a natural person acting within the scope of his or her actual, usual or ostensible authority will be imputed to that person,

(but not so as to affect any personal liability of the officer, employee or agent).

        (2)         It will be a defence in any criminal proceedings under the Act against a body corporate or a natural person where conduct or a state of mind is imputed to the body or person under subsection (1) if it is proved that the alleged contravention did not result from any failure on the defendant's part to take all reasonable and practicable measures to prevent the contravention or contraventions of the same or a similar nature.

        (3)         For the purposes of this section, a reference to "conduct" or "acting" includes a reference to failure to act.

75B—Offences by bodies corporate and employees

        (1)         If a body corporate is guilty of an offence against this Act, each director of the body corporate, and each person concerned in the management of the body corporate, is guilty of an offence and liable to the same penalty as is prescribed for the principal offence where the offender is a natural person.

        (2)         It is a defence to a charge of an offence arising under subsection (1) if the defendant establishes that the defendant took reasonable precautions and exercised due diligence to prevent the commission of an offence by the body corporate.

        (3)         If an employee is guilty of an offence against this Act, the employer is liable to the same penalty as is prescribed for the principal offence.

        (4)         It is a defence to a charge of an offence arising under subsection (3) if the defendant establishes that—

            (a)         the defendant had no knowledge of the actual offence; or

            (b)         the defendant took reasonable precautions and exercised due diligence to prevent the commission of an offence by the employee.