Fault elements other than negligence
244B Fault elements other than negligence
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—
the body corporate’s board of directors—
engaged in the conduct constituting the offence and had that state of mind in relation to the physical element of the offence; or
expressly, tacitly or impliedly authorised or permitted the conduct constituting the offence; or
an authorised person for the body corporate—
engaged in the conduct constituting the offence and had that state of mind in relation to the physical element of the offence; or
expressly, tacitly or impliedly authorised or permitted the conduct constituting the offence; or
a corporate culture existed within the body corporate that directed, encouraged, tolerated or led to the conduct constituting the offence.
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.
For how negligence applies in relation to a body corporate, see s 244BA.
Also—
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
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.
Factors relevant to the application of subsection (1) (c) include—
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
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.
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.
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