Superannuation Industry (Supervision) Act 1993

PART 30 - MISCELLANEOUS  

SECTION 338   CONDUCT BY DIRECTORS, SERVANTS AND AGENTS  

338(1)   State of mind of body corporate.  

If, in proceedings for an offence against this Act, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show:

(a) that the conduct was engaged in by a director, servant or agent of the body corporate within the scope of actual or apparent authority; and

(b) that the director, servant or agent had the state of mind.

338(2)   Conduct of director, servant or agent.  

Subject to subsection (3), any conduct engaged in on behalf of a body corporate by a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority is taken, for the purposes of a prosecution for an offence against this Act, to have been engaged in also by the body corporate.

338(3)   Exception to (2).  

Subsection (2) does not apply if the body corporate establishes that it took reasonable precautions and exercised due diligence to avoid the conduct.

338(4)   State of mind of individual.  

If, in proceedings for an offence against this Act, it is necessary to establish the state of mind of an individual in relation to particular conduct, it is sufficient to show:

(a) that the conduct was engaged in by a servant or agent of the individual within the scope of actual or apparent authority; and

(b) that the servant or agent had the state of mind.

338(5)   Conduct of servant or agent.  

Subject to subsection (6), any conduct engaged in on behalf of an individual by a servant or agent of the individual within the scope of his or her actual or apparent authority is taken, for the purposes of a prosecution for an offence against this Act, to have been engaged in also by the individual.

338(6)   Exception to (5).  

Subsection (5) does not apply if the individual establishes that he or she took reasonable precautions and exercised due diligence to avoid the conduct.

338(7)   No imprisonment in (4) or (5) cases.  

If:

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

(b) the individual would not have been convicted of the offence if subsections (4) and (5) had not been enacted;

the individual is not liable to imprisonment for that offence.

338(8)   Reference to state of mind .  

A reference in subsection (1) or (4) 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.

338(9)   Reference to director .  

A reference in this section to a director of a body corporate includes a reference to a constituent member of, or to a member of a board or other group of persons administering or managing the affairs of, a body corporate incorporated for a public purpose by a law of the Commonwealth, of a State or of a Territory.

338(10)   Reference to engaging in conduct .  

A reference in this section to engaging in conduct includes a reference to failing or refusing to engage in conduct.

338(11)   Reference to offence against this Act .  

A reference in this section to an offence against this Act includes a reference to:

(a) an offence created by the regulations; and

(b) an offence created by section 6 of the Crimes Act 1914 , being an offence that relates to this Act or the regulations.

338(12)   Part 2.5 of the Criminal Code not to apply.  

Part 2.5 of the Criminal Code does not apply in relation to an offence against this Act.