Mr HOCKEY (Minister for Financial Services and Regulation) (6:34 PM) —by leave—I move:

The amendments that I move today will prevent a potential gap arising due to the application of the code—the Commonwealth government's criminal code—to the Superannuation Industry (Supervision) Act. In particular, the amendments will ensure that section 338 of the SI(S) Act, which relates to vicarious liability, will continue to apply to offences against the act. Section 338 provides that in certain circumstances a corporation or an individual is taken to be engaged in conduct or to hold a certain state of mind if their directors, servants or agents engage in the relevant conduct or hold the relevant state of mind.

Although part 2.5 of the criminal code also contains provisions relating to vicarious liability, they are not as extensive as section 338 of the SI(S) Act. Most importantly, the code provisions relate only to vicarious liability of corporations but not to individuals. It is important for the purposes of prosecuting offences under the SI(S) Act that individuals are also capable of attracting liability for the actions of their servants and agents, therefore, section 338 is being retained in preference to applying part 2.5 of the code. For the purposes of properly informing the House, I present a supplementary explanatory memorandum in relation to these issues.