Australian Wine and Brandy Corporation Amendment Act 1989 (Cth)
PART 1—PRELIMINARY
Section
1. Short title etc.
2. Commencement
PART 2—AMENDMENTS CONSEQUENTIAL ON AMENDMENT OF WINE GRAPES LEVY ACT 1979
3. Voting at annual general meeting
4. Payments to Corporation
5. Payments by Corporation to Commonwealth
6. Application of Part
PART 3—LABEL INTEGRITY PROGRAM
7. Insertion of new Part:
PART VIa—LABEL INTEGRITY PROGRAM
39a. Object of Part
39b. Operation of Part
39c. Interpretation
39d. Sales with a label claim
39e. Penalties
TABLE OF PROVISIONS—
Section
39f. Wine manufacturers to keep records of receipt of wine goods
39g. Wine manufacturers to keep records of manufacture of certain single wines
39h. Wine manufacturers to keep records of manufacture of certain blends
39j. Wine manufacturers to keep records of sales of certain wine
39k. Wine manufacturers to keep records of disposals of certain wine
39l. Direct sales
39m. Wine manufacturers to keep records of transfers of certain wine
39n. Wine manufacturers to keep records of production of certain grape extract
39p. Wine manufacturers to keep records of sales of certain grape extract
39q. Wine manufacturers to keep records of disposal of certain grape extract
39r. Wine manufacturers to keep records of transfers of certain grape extract
39s. Making of records
39t. Records to relate to a winery
39u. Keeping of records
39v. Record of person
39w. Characteristics to be recorded
39x. Record of variety
39y. Record of region of origin
39Z. Record of blends etc.
39za. Appointment of inspectors
39zb. Identity cards
39zc. Monitoring powers of inspectors—exercised with consent
39zd. Monitoring warrants
39ze. Offence powers of inspectors—exercised with consent
39zf. Offence related warrants
39zg. Discovery of evidence
39zh. Power to require persons to answer questions and produce documents
39zj. Corporation to assist enforcement of laws on description of wine
39zk. Proceedings not to lie against Corporation etc.
39zl. Corporation may assist in relation to levy
8. Corporation may require information
PART 4––OFFENCES
9. Insertion of new section:
44a. Conduct by directors, servants or agents
10. Application of section 44a
11. Amendment of penalties
SCHEDULE
AMENDMENT OF PENALTIES IN THE PRINCIPAL ACT
[
BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows:
(a) by omitting from paragraph (a) “subparagraph 6 (1) (a) (i) or 6 (1) (b) (i)” and substituting “subsection 6 (1), other than paragraph 6 (1) (g),”;
(b) by omitting from paragraph (b) “subparagraph 6 (1) (a) (i) or 6 (1) (b) (i)” and substituting “subsection 6 (1), other than paragraph 6 (1) (g),”.
“39a. The object of this Part is to advance the objects of this Act by helping to ensure the truth, and the reputation for truthfulness, of statements made on wine labels, or made for commercial purposes in other ways, about the vintage, variety or region of origin of wine manufactured in Australia.
“39b. Without prejudice to its effect apart from this subsection, this Part has the effect it would have if the references in it to a wine manufacturer were, by express provision, confined to a wine manufacturer who is:
(a) a foreign corporation, within the meaning of paragraph 51 (xx) of the Constitution; or
(b) a trading or financial corporation formed within the limits of the Commonwealth, within the meaning of that paragraph; or
(c) a corporation that is controlled by a corporation described by paragraph (a) or (b); or
(d) a partnership at least one of the partners in which is a corporation described by paragraph (a), (b) or (c).
“39c. In this Part, unless the contrary intention appears:
‘approved’ means approved by the Corporation in writing;
‘blend’ means wine manufactured by blending different wines;
‘different wines’ means wines that are different because at least one of their characteristics of vintage, variety or region of origin is different;
‘direct sale’ means a sale of wine to a consumer visiting a winery or ordering the wine from its manufacturer;
‘examinable document’ means:(a) any document required to be kept under this Part; or
(b) any wine label or other document relating to the vintage, variety or region of origin of wine goods; or
(c) any document relating to advertising the vintage, variety or region of origin of wine goods;
‘geographical area’ includes a vineyard, a district and a State, but does not include Australia or a larger area;
‘grape extract’ means grape juice, must, or concentrate obtained from grapes;
‘inspection power’, in relation to wine premises, means:(a) power to search any part of the premises; or
(b) power to inspect, examine, take measurements of, or conduct tests (including by the taking of samples) concerning, any wine goods or other thing on the premises; or
(c) power to take extracts from, and make copies of, any examinable documents on the premises; or
(d) power to take onto the premises such equipment and materials as the inspector requires for the purpose of exercising any other inspection power on the premises;
‘inspector’ means a person appointed under section 39za;
‘label claim’, in relation to wine goods, means a claim about their vintage, variety or region of origin made on a wine label, in a commercial document or in an advertisement, and includes a claim so made about the vintage, variety or region of origin of wine goods from which they were manufactured;
‘label law’ means:(a) this Part; or
(b) the regulations; or
(c) another law of the Commonwealth relating to the description of wine; or
(d) a law of a State or an internal Territory relating to the description of wine;
‘label offence’ means an offence against a label law;
‘made’, in relation to a claim, includes implied;
‘manufacturer’, in relation to wine, means the wine manufacturer who operates the winery where the wine is made;
‘manufacturing wine’ includes blending different wines;
‘package’, in relation to wine, means a container in which the wine is sold or transferred for sale;
‘principal employee’ means the person holding the position of principal employee (however described) of the Corporation;
‘region of origin’ means:(a) in relation to grapes—any geographical area in which they were grown; or
(b) in relation to wine or grape extract—any geographical area in which the grapes from which it was obtained were grown;
‘single wine’ means a wine other than a blend;
‘supplier’, in relation to wine goods received by a wine manufacturer, means:(a) where the wine manufacturer produced them—the wine manufacturer; or
(b) where another person produced them—the person who supplied them to the wine manufacturer;
‘variety’, in relation to wine or grape extract, means the variety of the grapes from which it was obtained;
‘vintage’ means:(a) in relation to grapes—the year in which they were harvested; or
(b) in relation to wine or grape extract—the year in which the grapes from which it was obtained were harvested;
‘wine’ includes a grape product declared by the regulations to be wine for the purposes of this Part;
‘wine goods’ means wine, grapes or grape extract;
‘wine label’ means a label attached to a bottle or other package of wine and includes that part of a package of wine on which there is writing;
‘wine manufacturer’ means a person who operates a winery;
‘wine premises’ means a winery or other premises occupied by a wine manufacturer, and includes premises at which wine goods or examinable documents are held on behalf of a wine manufacturer;
‘winery’ means an establishment at which:(a) wine is manufactured for commercial purposes; or
(b) grape extract is manufactured for use in the manufacture of wine for commercial purposes;
and, in relation to a wine manufacturer, means a winery operated by the manufacturer.
“39d. (1) For the purposes of this Part, wine is sold with a label claim if a label claim is made in relation to the wine when or before it is sold.
“(2) For the purposes of this Part, where a blend is sold with a label claim, the claim not only relates to the blend but also relates to a wine used in the blend unless:
(a) the claim is one that the blend, or wine used in the blend, has a particular characteristic; and
(b) the first-mentioned wine does not have, but another wine used in the blend does have, that characteristic.
“39e. (1) Penalties of $15,000 specified in this Part are for offences committed by corporations.
“(2) Where a natural person is convicted of any offence against this Part for which such a penalty is specified, the maximum penalty for the offence is $3,000.
“39f. A wine manufacturer who receives wine goods for processing at the manufacturer’s winery must make and keep a record in writing of their receipt showing:
(a) the date of their receipt; and
(b) their quantity; and
(c) their vintage, variety and region of origin; and
(d) the identity of their supplier.
Penalty: $15,000.
“39g. (1) This section applies to a single wine if its manufacturer:
(a) intends to sell the wine with a label claim; or
(b) where the wine was manufactured on behalf of another person— knows that that person intends to sell the wine with a label claim; or
(c) intends to use the wine in manufacturing a blend on the manufacturer’s behalf and sell the blend with a label claim relating to the wine; or
(d) intends to use the wine in manufacturing a blend on behalf of another person and knows that that person intends to sell the blend with a label claim relating to the wine.
“(2) A wine manufacturer who manufactures a single wine to which this section applies must make and keep a record in writing of its manufacture showing:
(a) the date of its manufacture; and
(b) its quantity; and
(c) such of its characteristics as are required by section 39w.
Penalty: $15,000.
“39h. (1) This section applies to a blend if its manufacturer:
(a) intends to sell the blend with a label claim; or
(b) where the blend was manufactured on behalf of another person— knows that that person intends to sell the blend with a label claim.
“(2) A wine manufacturer who manufactures a blend to which this section applies must make and keep a record in writing of its manufacture showing:
(a) the date of its manufacture; and
(b) its quantity; and
(c) such of its characteristics as are required by section 39w.
Penalty: $15,000.
“39j. (1) This section applies to the sale of wine by a wine manufacturer if the manufacturer makes a label claim in relation to the wine.
“(2) A wine manufacturer who sells wine in a sale to which this section applies must make and keep a record in writing of the sale showing:
(a) subject to section 39l, the date of the sale; and
(b) subject to section 39l, the wine’s quantity; and
(c) such of the wine’s characteristics as are required by section 39w; and
(d) subject to subsections (3) and (4), the identity of the purchaser.
Penalty: $15,000.
“(3) Where:
(a) a wine manufacturer sells wine packaged for sale to consumers; and
(b) the package has a wine label showing that the wine was made by, and setting out the name and address of, the manufacturer;
the manufacturer is not required to make and keep a record of the identity of the purchaser.
“(4) Where a wine manufacturer sells wine in a direct sale, the manufacturer is not required to make and keep a record of the identity of the purchaser.
“39k. (1) Where a wine manufacturer:
(a) manufactures wine on behalf of another person at the manufacturer’s winery; and
(b) disposes of the wine in accordance with the instructions of that person;
this section applies to the disposal if the manufacturer:
(c) makes a label claim in relation to the wine; or
(d) knows that that person intends to sell the wine with a label claim.
“(2) A wine manufacturer who disposes of wine by a disposal to which this section applies must make and keep a record in writing of the disposal showing:
(a) subject to section 39l, the date of the disposal; and
(b) subject to section 39l, the wine’s quantity; and
(c) such of the wine’s characteristics as are required by section 39w; and
(d) the identity of that person; and
(e) subject to subsections (3) and (4), where it is disposed of by being delivered to a person other than that person—the identity of the person to whom it is delivered.
Penalty: $15,000.
“(3) Where:
(a) a wine manufacturer disposes of wine by delivering the wine to a person other than the person on whose behalf it was manufactured; and
(b) the wine is packaged for sale to consumers; and
(c) the package has a wine label showing that the wine was made by, and setting out the name and address of, the manufacturer;
the manufacturer is not required to make and keep a record of the identity of the person to whom it is delivered.
“(4) Where a wine manufacturer disposes of wine in a direct sale, the manufacturer is not required to make and keep a record of the identity of the person to whom it is delivered.
“39l. Where wine manufactured at a winery is sold in direct sales, then, in respect of such wine:
(a) in relation to which identical label claims are made by the wine manufacturer who operates the winery; and
(b) sold during a particular period (not being longer than a year);
the manufacturer may, instead of making and keeping a record of the date of sales and quantities, make and keep a record of the period and of the total quantity of the wine sold in the period.
“39m. (1) Where a wine manufacturer transfers wine from a winery of the manufacturer to another winery of the manufacturer for use in manufacturing a blend, this section applies to the transfer if the manufacturer:
(a) makes a label claim in relation to the wine; or
(b) intends to sell the blend with a label claim relating to the wine; or
(c) where the blend is to be manufactured on behalf of another person— knows that that person intends to sell the blend with a label claim relating to the wine.
“(2) A wine manufacturer who transfers wine in a transfer to which this section applies must make and keep a record in writing of the transfer showing:
(a) the date of the transfer; and
(b) the wine’s quantity; and
(c) the winery from which the wine is transferred; and
(d) the winery to which the wine is transferred; and
(e) such of the wine’s characteristics as are required by section 39w.
Penalty: $15,000.
“39n. (1) Where grape extract is produced by a wine manufacturer at a winery of the manufacturer for use in the manufacture of wine at another winery of the manufacturer, this section applies to the extract if the manufacturer:
(a) where the wine is to be a single wine made on the manufacturer’s behalf—intends to sell the wine with a label claim; or
(b) where the wine is to be a blend made on the manufacturer’s behalf—intends to sell the blend with a label claim relating to wine manufactured from the extract; or
(c) where the wine is to be a single wine made on behalf of another person—knows that that person intends to sell the wine with a label claim; or
(d) where the wine is to be a blend made on behalf of another person— knows that that person intends to sell the blend with a label claim relating to wine manufactured from the extract.
“(2) Where grape extract is produced by a wine manufacturer at a winery of the manufacturer for use in the manufacture of wine at a winery of another person, this section applies to the extract if the manufacturer makes a label claim relating to the extract.
“(3) A wine manufacturer who produces grape extract to which this section applies must make and keep a record in writing of its production showing:
(a) the date of its production; and
(b) its quantity; and
(c) such of its characteristics as are required by section 39w.
Penalty: $15,000.
“39p. (1) Where grape extract produced by a wine manufacturer at the manufacturer’s winery is sold by the manufacturer for use in manufacturing wine, this section applies to the extract if the manufacturer makes a label claim in relation to the extract.
“(2) A wine manufacturer who sells grape extract in a sale to which this section relates must make and keep a record in writing of the sale showing:
(a) the date of the sale; and
(b) the extract’s quantity; and
(c) such of the extract’s characteristics as are required by section 39w; and
(d) the identity of the purchaser.
Penalty: $15,000.
“39q. (1) Where a wine manufacturer:
(a) produces grape extract at the manufacturer’s winery on behalf of another person; and
(b) disposes of the extract in accordance with the instructions of that person;
this section applies to the disposal if the manufacturer makes a label claim in relation to the extract.
“(2) A wine manufacturer who disposes of grape extract by a disposal to which this section applies must make and keep a record in writing of the disposal showing:
(a) the date of the disposal; and
(b) the extract’s quantity; and
(c) such of the extract’s characteristics as are required by section 39w; and
(d) the identity of that person; and
(e) where the extract is disposed of by being delivered to yet another person—the identity of the person to whom it is delivered.
Penalty: $15,000.
“39r. (1) Where a wine manufacturer transfers grape extract from a winery of the manufacturer to another winery of the manufacturer for use in manufacturing wine, this section applies to the transfer if the manufacturer:
(a) where the wine is to be a single wine—intends to sell the wine with a label claim; or
(b) where the wine is to be a blend—intends to sell the blend with a label claim relating to wine manufactured from the extract.
“(2) Where a wine manufacturer transfers grape extract from a winery of the manufacturer to a winery of another person for use in manufacturing wine, this section applies to the transfer if the manufacturer makes a label claim in relation to the extract.
“(3) A wine manufacturer who transfers grape extract in a transfer to which this section applies must make and keep a record in writing of:
(a) the date of the transfer; and
(b) the extract’s quantity; and
(c) the winery from which the extract is transferred; and
(d) the winery to which the extract is transferred; and
(e) such of its characteristics as are required by section 39w.
Penalty: $15,000.
“39s. A requirement of this Division to make a record is a requirement to make the record as soon as it is practicable to do so.
“39t. A requirement of this Division (other than sections 39m and 39r) to make a record includes a requirement to make a record that shows the winery to which the record relates.
“39u. A requirement of this Division to keep a record is a requirement to keep the record for 7 years, or a shorter approved period, after the record is made.
“39v. For the purposes of this Division, a record of the identity of a person is a record of particulars of the person’s name and address that are enough to identify the person.
“39w. Where, under section 39g, 39h, 39j, 39k, 39m, 39n, 39p, 39q, or 39r, a record relating to wine or grape extract is to show such characteristics of the wine or extract as are required by this section, the requirement is for the record to show:
(a) where the section requiring the record applies because of a claim about vintage—the vintage of the wine or extract; or
(b) where that section applies because of a claim about variety—the variety of the wine or extract; or
(c) where that section applies because of a claim about region of origin—the region of origin of the wine or extract.
“39x. (1) For the purposes of this Division, where there is uncertainty about the variety of wine goods, a record showing their variety is a record showing whichever variety the wine manufacturer making the record considers on reasonable grounds most likely to be their variety.
“(2) For the purposes of this Division, where a variety of wine goods is known by more than one name, a record showing the variety is a record showing any one of those names.
“39y. For the purposes of this Division, a record showing the region of origin of wine goods is a record showing the name or description of any geographical area that is a region of origin of the goods.
“39z. (1) For the purposes of this Division, where:
(a) a wine manufacturer makes only one label claim about wine; and
(b) the wine is a blend manufactured by blending wine with the characteristic claimed and other wine;
a record showing the characteristic of the blend required because of the claim is a record showing what proportion of the blend is represented by wine with the characteristic claimed.
“(2) For the purposes of this Division, where:
(a) a wine manufacturer makes label claims about 2 or more of the characteristics of wine; and
(b) the wine is a blend manufactured by blending wine with all the characteristics claimed and other wine;
a record showing the characteristics of the blend required because of the claims is a record showing what proportion of the blend is represented by wine with the characteristics claimed.
“(3) Subject to subsections (1) and (2), for the purposes of this Division, a record showing the vintage, variety or region of origin of a blend is:
(a) a record showing what proportions of the blend are represented by each different wine in the blend; and
(b) a record, in respect of each of those wines, showing its vintage, variety or region of origin, as the case may be.
“(4) For the purposes of this Division, a record showing the vintage, variety or region of origin of grape extract derived from grapes of different vintages, varieties or regions of origin is:
(a) a record showing what proportions of the goods are derived from each kind of grape; and
(b) a record, in respect of each kind of grape, showing its vintage, variety or region of origin, as the case may be.
“39za
(a) appoint an eligible person to be an inspector; or
(b) appoint a class of eligible persons to be inspectors.
“(2) The appointment of an inspector ceases if he or she ceases to be an eligible person.
“(3) For the purposes of this section, the following are eligible persons:
(a) employees of the Corporation;
(b) officers and employees of the Commonwealth or of authorities of the Commonwealth;
(c) officers and employees of a State or internal Territory whom a Minister of the Crown of the State, or Minister of the Territory, has agreed may be appointed as inspectors;
(d) officers and employees of a local government body whom the body has agreed may be appointed as inspectors.
“39zb. (1) The principal employee may cause an identity card to be issued to an inspector.
“(2) An identity card must:
(a) contain a recent photograph of the inspector to whom it is issued; and
(b) be in an approved form.
“(3) An inspector whose appointment ceases must, as soon as practicable, return his or her identity card to the Corporation.
Penalty: $100.
“39zc. For the purpose of finding out whether label laws are being complied with, an inspector may, with the consent of, and after producing the inspector’s identity card for inspection by, the occupier of wine premises, enter, and exercise inspection powers on, the premises.
“39zd
“(2) Subject to subsection (3), the magistrate may issue the warrant if the magistrate is satisfied, by information on oath, that it is reasonably necessary that the inspector should have access to the premises for the purpose of finding out whether label laws are being complied with.
“(3) The magistrate must not issue the warrant unless the inspector or some other person has given to the magistrate, either orally or by affidavit, such further information (if any) as the magistrate requires concerning the grounds on which the issue of the warrant is being sought.
“(4) The warrant must:
(a) authorise an inspector (whether or not named in the warrant), with such assistance and by such force as is necessary and reasonable:
(i) to enter the premises; and
(ii) to exercise inspection powers on the premises; and
(b) state whether the entry is authorised to be made at any time of the day or night or during specified hours of the day or night; and
(c) specify the day (not more than 6 months after the issue of the warrant) on which the warrant ceases to have effect; and
(d) state the purpose for which the warrant is issued.
“39ze. (1) Where an inspector has reasonable grounds for suspecting that there is on wine premises a particular thing that may afford evidence of the commission of a label offence, the inspector may, with the consent of, and after producing the inspector’s identity card for inspection by, the occupier of the premises, enter, and exercise inspection powers on, the premises.
“(2) An inspector who has entered premises under subsection (1) must leave them if requested to do so by their occupier.
“39zf. (1) An inspector may apply to a magistrate for a warrant under this section in relation to particular wine premises.
“(2) Subject to subsection (3), the magistrate may issue the warrant if the magistrate is satisfied, by information on oath, that there are reasonable grounds for suspecting that there is, or there may be within the next 72 hours, on the premises a particular thing that may afford evidence of the commission of a label offence.
“(3) The magistrate must not issue the warrant unless the inspector or some other person has given to the magistrate, either orally or by affidavit, such further information (if any) as the magistrate requires concerning the grounds on which the issue of the warrant is being sought.
“(4) The warrant must:
(a) state the name of the inspector; and
(b) authorise the inspector, with such assistance and by such force as is necessary and reasonable:
(i) to enter the place; and
(ii) to exercise inspection powers on the premises; and
(iii) to seize the thing that might afford evidence; and
(c) state whether the entry is authorised to be made at any time of the day or night or during specified hours of the day or night; and
(d) specify the day (not more than one month after the issue of the warrant) on which the warrant ceases to have effect; and
(e) state the purpose for which the warrant is issued.
“39zg. (1) Where an inspector enters wine premises under a warrant under section 39zf and finds the thing (in this section called the
(a) the inspector may seize the evidence; and
(b) the inspector may keep the evidence for 60 days, or, if a prosecution for a label offence in the commission of which the evidence may have been used or otherwise involved is instituted within that period, until the completion of the proceedings for the offence and of any appeal from the decision in relation to the proceedings; and
(c) if the evidence is a book, record or document—while the inspector has possession of the evidence, the inspector must allow it to be inspected at any reasonable time by a person who would be entitled to inspect it if it were not in the inspector’s possession.
“(2) If, in the course of searching wine premises entered under section 39ze or a warrant under section 39zf, the inspector:
(a) finds a thing that the inspector believes, on reasonable grounds to be:
(i) a thing (other than the evidence) that will afford evidence of the commission of the label offence mentioned in subsection (1);or
(ii) a thing that will afford evidence of the commission of another label offence; and
(b) the inspector believes, on reasonable grounds, that it is necessary to seize the thing to prevent its concealment, loss or destruction, subsection (1) applies to the thing as if it were the evidence.
“39zh
(a) answer any questions put by the inspector; and
(b) produce any examinable documents requested by the inspector.
“(2) A person must not, without reasonable excuse, refuse or fail to comply with a requirement under subsection (1).
Penalty: $3,000.
“(3) It is a reasonable excuse for a person to refuse or fail to answer a question or produce a document if answering the question, or producing the document would tend to incriminate the person.
“39zj. (1) For the purpose of achieving the object of this Part, the Corporation may give information obtained under this Part or section 42, and other assistance, to:
(a) the Trade Practices Commission; or
(b) a Department of, or an authority or other body established for a public purpose by, the Commonwealth, a State or a Territory with responsibilities relating to the labelling, description or quality of wine; or
(c) a person prosecuting, or taking other proceedings against, or proposing to prosecute or take other proceedings against, a person in relation to the false description of the vintage, variety or region of origin of any wine.
“(2) This section does not limit any powers and duties of the Corporation.
“39zk. No proceedings lie against:
(a) the Corporation; or
(b) a member of the Corporation; or
(c) an employee of the Corporation; or
(d) an inspector;
in relation to any loss incurred or damage suffered because of information or assistance given under section 39zh.
“39zl. (1) For the purpose of assisting, and achieving administrative savings in connection with, the calculation and collection of levy imposed by the
“(2) A wine manufacturer is to be taken to have consented to the giving of information under subsection (1) where the occupier of the wine premises where the information is kept or held gave such consent.”.
(a) by inserting in subsection (1) “, not being less than 14 days” after “notice” (second occurring);
(b) by inserting in subsection (1) “, to matters about which records are required to be kept under Part VIa or other matters relating to the description of wine” after “products” (first occurring);
(c) by inserting in subsection (4) “the person knows” after “that”.
“44a. (1) Where, in proceedings for an offence against 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 director, servant or agent of the body corporate within the scope of his or her actual or apparent authority; and
(b) that the director, servant or agent had the state of mind.
“(2) Any conduct engaged in on behalf of a body corporate by a director, servant 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, to have been engaged in also by the body corporate unless the body corporate establishes that it took reasonable precautions to avoid the conduct.
“(3) Where, in proceedings for an offence against this Act, it is necessary to establish the state of mind of a natural person in relation to particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by a servant or agent of the person within the scope of his or her actual or apparent authority; and
(b) that the servant or agent had the state of mind.
“(4) Any conduct engaged in on behalf of a natural person by a servant or agent of the person 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, 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 to avoid the conduct.
“(5) Where:
(a) a natural person 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.
“(9) A reference in this section to an offence against this Act includes a reference to:
(a) an offence created by the regulations; and
(b) an offence created by section 6, 7 or 7a, or subsection 86 (1), of the
Crimes Act 1914 , being an offence that related to the Act or the regulations.”.
AMENDMENT OF PENALTIES IN THE PRINCIPAL ACT
Omit “$5,000”, substitute “$6,000”.
Omit “$5,000”, substitute “$6,000”.
Omit “$1,000 or imprisonment for 6 months, or both”, substitute “imprisonment for 6 months”.
Omit “$5,000”, substitute “$6,000”.
Omit “$500”, substitute “$1,000”.
Omit “$2,500”, substitute “$5,000”.
1. No. 161, 1980, as amended. For previous amendments, see No. 48, 1982; Nos. 72 and 165, 1984; No. 65, 1985; No. 60, 1986; and No. 51, 1988.
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House of Representatives on 25 October 1989
Senate on 2 November 1989
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