Australian Capital Territory Numbered Acts Australian Capital Territory Numbered Actssubstitute
Division 13.4 Offences by bodies corporate
244 Definitions—div 13.4
In this division:
"authorised person", for a body corporate, means an officer, employee or agent of the body corporate acting within their actual or apparent authority.
"board of directors", of a body corporate, means the body, whatever it is called, exercising the executive authority of the body corporate.
244A Physical elements
The conduct constituting the physical element of an offence is taken to have been engaged in by a body corporate if the conduct is engaged in by—
(a) the body corporate's board of directors; or
(b) 1 or more authorised people for the body corporate; or
(c) 1 or more people acting at the direction of or with the express or implied agreement or consent of—
(i) an authorised person for the body corporate; or
(ii) the body corporate's board of directors.
244B Fault elements other than negligence
(1) If it is necessary to establish that a body corporate had a state of mind in relation to a physical element of an offence, it is sufficient to show that—
(a) the body corporate's board of directors—
(i) engaged in the conduct constituting the offence and had that state of mind in relation to the physical element of the offence; or
(ii) expressly, tacitly or impliedly authorised or permitted the conduct constituting the offence; or
(b) an authorised person for the body corporate—
(i) engaged in the conduct constituting the offence and had that state of mind in relation to the physical element of the offence; or
(ii) expressly, tacitly or impliedly authorised or permitted the conduct constituting the offence; or
(c) a corporate culture existed within the body corporate that directed, encouraged, tolerated or led to the conduct constituting the offence.
(1A) For subsection (1), having a state of mind in relation to a physical element of an offence does not include being negligent in relation to that physical element.
Note For how negligence applies in relation to a body corporate, see s 244BA.
(2) Also—
(a) subsection (1) (b) and (c) do not apply if the body corporate proves it took reasonable precautions to prevent the conduct constituting the offence; and
(b) subsection (1) (b) (ii) does not apply if the body corporate proves it took reasonable precautions to prevent the authorised person from authorising or permitting the conduct constituting the offence.
(3) Factors relevant to the application of subsection (1) (c) include—
(a) whether authority or permission to engage in the conduct constituting an offence, of the same or a similar character, had previously been given by a corporate officer of the body corporate; and
(b) whether the person who engaged in the conduct constituting the offence believed on reasonable grounds, or had a reasonable expectation, that a corporate officer of the body corporate would have authorised or permitted the conduct.
(4) In this section:
"corporate culture", within a body corporate, means 1 or more attitudes, policies, rules, courses of conduct or practices existing within the body corporate generally or in the part of the body corporate in which the relevant activity takes place.
"corporate officer", of a body corporate, means an officer within the meaning of the Corporations Act
, section 9AD.
244BA Negligence
(1) If negligence is a fault element in relation to a physical element of an offence, the fault element may exist on the part of a body corporate, despite no individual authorised person for the body corporate having the fault element, if the body corporate's conduct is negligent when viewed as a whole, determined by aggregating the conduct of more than 1 authorised person.
Note The test of negligence for a body corporate is that set out in the Criminal Code
, s 21.
(2) Negligence may be evidenced by the fact that the prohibited conduct was substantially attributable to—
(a) inadequate corporate management, control or supervision of the conduct of 1 or more authorised people; or
(b) failure to provide adequate systems for conveying relevant information to relevant people in the body corporate.
244C Mistake of fact
If mistake of fact is relevant to determining liability for an offence, a body corporate may rely on mistake of fact only if—
(a) the employee, agent or officer of the body corporate who engaged in the conduct constituting the offence was under a mistaken but reasonable belief about facts that, had they existed, would have meant the conduct would not have constituted the offence; and
(b) the body corporate proves it took reasonable precautions to prevent the conduct.
244D Failure to take reasonable precautions
For sections 244B (2) and 244C (b), a failure to take reasonable precautions may be evidenced by the fact that the conduct constituting the offence was substantially attributable to—
(a) inadequate management, control or supervision of the conduct of 1 or more of the body corporate's employees, agents or officers; or
(b) failure to provide adequate systems for conveying relevant information to relevant persons in the body corporate.
244E How this division applies to public authorities
If a body corporate is a public authority, this division applies in relation to the body corporate in accordance with section 251.