Criminal Code Act 1995

Schedule - The Criminal Code  

Section 3

CHAPTER 2 - GENERAL PRINCIPLES OF CRIMINAL RESPONSIBILITY  

Part 2.5 - Corporate criminal responsibility  

Division 12  

SECTION 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.




This information is provided by CCH Australia Limited Link opens in new window. View the disclaimer and notice of copyright.