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Friday, 10 May 1985
Page: 2069

Mr CONNOLLY(12.26) —I draw the attention of the Committee to clause 17 of the Bill which relates to vicarious liability. We have received representations on this matter from the Law Council of Australia. I also note, for the benefit of the Committee, that the Senate Standing Committee for the Scrutiny of Bills has also brought to the attention of that chamber questions of trespassing unduly on personal rights and liberties. It was noted, for example, by the Senate Committee that clause 17 inserts a new section 257 into the Customs Act which makes bodies corporate and other persons responsible for conduct engaged in by, and the state of mind of, their servants or agents acting within the scope of their actual or apparent authority. The Committee noted, for example, in relation to a judgment of the High Court of Australia in R. v Australasian Films Ltd (1921) 29 Commonwealth Law Reports 195:

. . . that a principal may be responsible for an act done by his or her servant or agent in the course of his or her employment and for the state of mind of the agent or servant in doing that act if that can be said to be the intention of the legislature having regard to the ordinary principles of statutory interpretation. However the Committee is concerned that new section 257 may be broader in its scope than the existing law and it raises for the consideration of Senators whether it is just that a natural person in particular should be made criminally liable for the acts of servants or agents of which that person had no knowledge and for which that person had given no express authorisation.

I note also in relation to this matter that the Law Council drew to our attention that proposed new section 257 of the Customs Act and new section 145A of the Excise Act would attribute to a company the state of mind of a director or servant acting not only within actual authority but in terms of his apparent authority. The notion of apparent authority has no applicability or usefulness in criminal matters. The Council also drew attention to the fact that an affected employee could in fact therefore be given the means of making a company liable.

The Council said:

These sections go even further by attributing to a company the intent of a stranger to the company who acts with consent (even implied consent) of a servant acting within the scope only of his apparent authority.

While the effect of this clause would be to enable more prosecutions to be successful, it would expose to conviction companies which ought not to be convicted.

There is no need for this provision especially having regard to the fact that a company is in any event liable for any duty evaded.

The Opposition has examined these matters carefully in the context of the time available to us-I received this advice from the Law Council only yesterday evening-but we have decided not to move an amendment at this stage. However, we will continue to review the matter in the context of the debate that takes place in the Senate on this legislation.