Section 498B — Environment Protection and Biodiversity Conservation Act 1999: Conduct of directors, employees and agents

Bodies corporate—conduct (1) 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 his or her 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; is to be taken, for the purposes of this Act, to have been engaged in also by the body corporate unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct. Bodies corporate—state of mind (2) If, for the purposes of 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 person as mentioned in paragraph (1)(a) or (b); and (b) that the person had that state of mind. Persons other than bodies corporate—conduct (3) Any 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 his or her actual or apparent authority; 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; is to be taken, for the purposes of this Act, to have been engaged in also by the first-mentioned person unless the first-mentioned person establishes that the first-mentioned person took reasonable precautions and exercised due diligence to avoid the conduct. Persons other than bodies corporate—state of mind (4) If, for the purposes of this Act, it is necessary to establish the state of mind of a person other than a body corporate in relation to particular conduct, it is sufficient to show: (a) that the conduct was engaged in by a person as mentioned in paragraph (3)(a) or (b); and (b) that the person had that state of mind. Reasonable precautions (5) For the purposes of subsection (1) or (3), in determining whether a body corporate or other person took reasonable precautions and exercised due diligence to avoid particular conduct, a court must have regard to what steps (if any) the body or person took directed towards ensuring the following (to the extent that the steps are relevant to the conduct): (a) that the body or person arranges regular professional assessments of the body’s or person’s compliance with this Act and the regulations; (b) that the body or person implements any appropriate recommendations arising from such an assessment; (c) that the body or person has an appropriate system established for managing the effects of the body’s or person’s activities on the environment; (d) that the directors of the body, or the employees or agents of the body or person, have a reasonable knowledge and understanding of the requirements to comply with this Act and the regulations, in so far as those requirements affect the directors, employees or agents concerned. Meaning of state of mind (6) A reference in subsection (2) 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. Meaning of director (7) A reference in this section to a director of a body corporate includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, of a State or of a Territory. Meaning of engage in conduct (8) A reference in this section to engaging in conduct includes a reference to failing or refusing to engage in conduct. Disapplying Part 2.5 of Criminal Code (9) Part 2.5 of the Criminal Code does not apply to an offence against this Act. Note: Part 2.5 of the Criminal Code deals with corporate criminal responsibility.