Commonwealth Consolidated Acts

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THERAPEUTIC GOODS ACT 1989 - SECT 55

Conduct by directors, employees and agents

             (1)  Where, in proceedings for an offence against this Act, or for a contravention of a civil penalty provision, 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 director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; and

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

             (2)  Any conduct engaged in on behalf of a body corporate by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority is to be taken, for the purposes of a prosecution for an offence against this Act, or for a contravention of a civil penalty provision, 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.

             (3)  Where, in proceedings for an offence against this Act, or for a contravention of a civil penalty provision, 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 that:

                     (a)  the conduct was engaged in by an employee or agent of the person within the scope of his or her actual or apparent authority; and

                     (b)  the employee or agent had the state of mind.

             (4)  Any conduct engaged in on behalf of a person other than a body corporate (in this subsection called the employer ) by an employee or agent of the employer within the scope of his or her actual or apparent authority is to be taken, for the purposes of a prosecution for an offence against this Act, or for a contravention of a civil penalty provision, to have been engaged in also by the employer unless the employer establishes that he or she took reasonable precautions and exercised due diligence to avoid the conduct.

             (5)  Where:

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

                     (b)  the person would not have been convicted of the offence if subsections (3) and (4) had not been enacted;

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

             (6)  A reference in subsection (1) or (3) 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.

             (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.

             (8)  A reference in this section to engaging in conduct includes a reference to failing or refusing to engage in conduct.



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