Corporate Criminal Responsibility
Under the provisions in relation to corporate criminal responsibility, a body corporate may be found guilty of any offence, including one punishable by imprisonment. If a physical element of an offence is committed by an employee, agent or officer of a body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, the physical element must also be attributed to the body corporate.
In addition, under Part 2.5, Division 12.3, 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.
The means by which such an authorisation or permission may be established include:
- 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
- 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
- proving that a corporate culture existed within the body corporate that directed, encouraged, tolerated or led to non‑compliance with the relevant provision; or
- proving that the body corporate failed to create and maintain a corporate culture that required compliance with the relevant provision.
Paragraph (2) does not apply if the body corporate proves that it exercised due diligence to prevent the conduct, or the authorisation or permission.
The Criminal Code regulates the bribery of foreign public officials as well as Commonwealth public officials.
A person commits an offence if the person:
- provides a benefit to another person;
- causes a benefit to be provided to another person;
- offers to provide, or promises to provide, a benefit to another person; or
- causes an offer of the provision of a benefit, or a promise of the provision of a benefit, to be made to another person; and
the benefit is not legitimately due to the other person, and the firstmentioned person does so with the intention of influencing a foreign public official (who may be the other person) in the exercise of the official’s duties as a foreign public official in order to:
- obtain or retain business; or
- obtain or retain a business advantage that is not legitimately due to the recipient, or intended recipient, of the business advantage (who may be the firstmentioned person).
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The Australian Criminal Code 1995 (as amended) provides for several offences, including in relation to corporate criminal responsibility and bribery of public officials.
Last Updated: July 30, 2019
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