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Competition and Consumer Act 2010 (Cth)

Section 84
Conduct by directors, employees or agents

 

The provision

(1) If, in:

(a) a prosecution for an offence against section 44ZZRF or 44ZZRG in respect of conduct engaged in by a body corporate; or

(b) a proceeding under this Part in respect of conduct engaged in by a body corporate, being conduct in relation to which section 44ZZRJ or 44ZZRK, Division 1A of Part IV, section 46 or 46A, Part IVB, section 55B or Part V applies;

it is necessary to establish the state of mind of the body corporate, it is sufficient to show that:

(c) a director, employee or agent of the body corporate engaged in that conduct; and

(d) the director, employee or agent was, in engaging in that conduct, acting within the scope of his or her actual or apparent authority; and

(e) the director, employee or agent had that state of mind.

(2) Any conduct engaged in on behalf of a body corporate:

(a) by a director, employee or agent of the body corporate within the scope of the person’s actual or apparent authority; or

(b) by any other person at the direction or with the consent or agreement (whether express or implied) of a director, employee or agent of the body corporate, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, employee or agent;

shall be deemed, for the purposes of this Act, to have been engaged in also by the body corporate.

(3) If, in:

(a) a prosecution for an offence against section 44ZZRF or 44ZZRG in respect of conduct engaged in by a person other than a body corporate; or

(b) a proceeding under this Part in respect of conduct engaged in by a person other than a body corporate, being conduct in relation to which section 44ZZRJ or 44ZZRK, Division 1A of Part IV, Part IVB, section 55B or Part V applies;

it is necessary to establish the state of mind of the person, it is sufficient to show that:

(c) an employee or agent of the person engaged in that conduct; and

(d) the employee or agent was, in engaging in that conduct, acting within the scope of his or her actual or apparent authority; and

(e) the employee or agent had that state of mind.

(4) Conduct engaged in on behalf of a person other than a body corporate:

(a) by an employee or agent of the person within the scope of the actual or apparent authority of the employee or agent; or

(b) by any other person at the direction or with the consent or agreement (whether express or implied) of an employee or agent of the first-mentioned person, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the employee or agent;

shall be deemed, for the purposes of this Act, to have been engaged in also by the first-mentioned person.

(4A) If:

(a) a person other than a body corporate is convicted of an offence; and

(b) subsection (3) or (4) applied in relation to the conviction on the basis that the person was the person first mentioned in that subsection; and

(c) the person would not have been convicted of the offence if that subsection had not been enacted;

the person is not liable to be punished by imprisonment for that offence.

(5) A reference in this section to the state of mind of a person includes a reference to the knowledge, intention, opinion, belief or purpose of the person and the person’s reasons for the person’s intention, opinion, belief or purpose.

 

Legislative history

Amended by Competition and Consumer Amendment (Payment Surcharges) Act 2016 (Act 9 of 2016)

In paragraphs 84(1)(b) and (3)(b) omitted 'or Part IVB or V' and substituted 'Part IVB, section 55B or Part V'

Amended by Competition and Consumer Amendment Act (No 1) 2011 (Act 185 of 2011)

  • Amendments containing reference to Division 1A of Part IV (price signalling) inserted - to come into operation on 6 June 2012.

    Schedule 1

    Section 3: Paragraph 84(1)(b)

    Omit "44ZZRJ, 44ZZRK,", substitute "44ZZRJ or 44ZZRK, Division 1A of Part IV, section".

    Section 4: Paragraph 84(3)(b)

    After "44ZZRK", insert ", Division 1A of Part IV,".

More history forthcoming

 

Commentary

Forthcoming