Secret Commissions Act 1905 (WA)

WESTERN AUSTRALIA-

ANNO QUINTO

EDWARDI SEPTIMI REGIS,

XIII.

4M*****4****************************************M*

No. 13 of 1905.

AN ACT for the Prohibition of Secret Com-

missions and Rebates.

[Assented to 23rd December, 1905.]

Legislative Assembly of Western Australia, in this present Parlia-	BE it enacted by the I“ng's Most Excellent Majesty, by and withthe advice and consent of the Legislative Council and
ment assembled, and by the authority of the same, as follows:—

1. This Act may be cited as the Secret Commissions Act, 1905, short title.

and shall come into operation on the first day of April, one

thousand nine hundred and six.

2. If any agent corruptly receives or solicits from any person, Receipt or solicita-tion of secret com-

for himself or for any other person, any valuable consideration

mission by an agent

a misdemeanour.

(a.) as an inducement or reward for, or otherwise on account V. 1905, No. 1974,

of, doing or forbearing to do or having done or forborne

s. 2.

to do any act in relation to his principal's affairs or

business: or

1905, No. 13.] Secret Commissions. [5 EDW. VII.

(h.) the receipt or any expectation of which would in any way tend to influence him to show or to forbear to show favour or disfavour to any person in relation to his principal's affairs or business,

he shall be guilty of a misdemeanour.

Gift or oiler of 3. If any person corruptly gives or offers to any agent any

secret commission

to an agent a	valuable consideration
misdemeanour.

(a.) as an inducement or reward for, or otherwise on account

Ibid.

of, doing or forbearing to do or having done or forborne to do any act in relation to his principal's affairs or business ; or

(b.) the receipt or any expectation of which would in any way tend to influence him to show or to forbear to show favour or disfavour to any person in relation to his principal's affairs or business,

he shall be guilty of a misdemeanour.

Secret gifts to

Parent, wife, child, 4. (l.) Any valuable consideration given or offered to any

partner, etc., of

parent, husband, wife, or child of any agent, or to his partner, clerk,

agent deemed gifts

or employee, or at the agent's request to any person by any person

to agent.

Ibid., s. 8.

having business relations with the principal of such agent, shall be

deemed to have been given or offered to the agent.

Secret gifts received	(2.) Any valuable consideration received or solicited by any
by parent, wife,

child, partner, etc.,	parent, husband, wife, or child of any agent, or by his partner, clerk,
of agent deemed	or employee, from any person having business relations with the
received by agent.	principal of such agent shall be deemed to have been received or
Ibid.
solicited by the agent, unless it be proved that the valuable con- sideration was so received or solicited without the consent, know- ledge, or privity of the agent.
Giving to agent

false or misleading 5. If, with intent to deceive or defraud the principal, any person

receipt or account

gives to any agent, or if any agent receives or uses or gives to the

a misdemeanour.

principal, any receipt, invoice, account, or document in respect of

Ibid., s. 1.

which or in relation to a dealing, transaction, or matter in which the

principal is interested and which

(a.) contains any statement which is false or erroneous or defective in any important particular, or is in any way likely to mislead the principal; or

(b.) omits to state explicitly and fully the fact of any com- mission, percentage, bonus, discount, rebate, repayment, gratuity, or deduction having been made, given, or allowed or agreed to be made, given, or allowed,

he shall be guilty of a misdemeanour.

5 Enw VII.] Secret Commissions. [1905, No. 12.

9. Whenever any advice is given by one person to another, and Gift or receipt of secret commission

such advice is in any way likely or intended to induce or influence

in return for advice

the person advised

given.

Ibid., s. 5 (O.

(a.) to enter into a contract with any third person ; or

(b.) to appoint or join with another in appointing, or to vote

for or to aid in obtaining the election or appointment, or to authorise or join with another in authorising the appointment, of any third person as trustee,

and any valuable consideration is given by such third person to the person giving the advice without the assent of the person advised, the gift or receipt of the valuable consideration shall be a mis- demeanour, but this section shall not apply when the person giving the advice was, to the knowledge of the person advised, the agent' of such third person, or when the valuable consideration was not given in respect of such advice.

7. Any offer or solicitation of a valuable consideration in respect

Offer or solicitation

of secret

of any advice given or to be given by one person to another with a

commission

view to induce or influence the person advised

in return for advice

given.

(a.) to enter into a contract with the person offering or Ibid., s. 5 (a).

solicited ; or

(b.) to appoint or join with another in appointing, or to vote for or to aid in obtaining the election or appointment, or to authorise or join with another in authorising the appointment, of the person offering or solicited as trustee,

and with the intent that the gift or receipt of such valuable consider- ation is not to be made known to the person advised, shall be a mis- demeanour, but tins section shall not apply when such first- mentioned person is the agent of the person offering or solicited.

8. If any person offers or gives any valuable consideration to a trustee, or if any trustee receives or solicits any valuable con-	Secret commission to trustee in return
for substituted
sideration for himself or for any other person, without the assent of	appointment.
the persons beneficially entitled to the estate, or of a Judge of the Supreme Court, as an inducement or reward for appointing or having appointed or for joining or having joined with another in appoint- ing, or for authorising or having authorised or for joining or having joined with another in authorising any person to be appointed in his stead or instead of him and any other person as trustee he shall be guilty of a misdemeanour.

9. Any person who, being within Western Australia, knowingly Aiding and abetting oes within or

aids, ids. , abets, counsels, or procures , or who attempts or takes part i m outside slit Western

is in any way privy to—	Australia,
Ibid., s. 7.

(a.) doing any act or thing in contravention of this Act ;

1905, No. 13.] Secret Commissions. [5 Enw. VII.

(b.) doing any act or thing outside Western Australia, or partly within and partly outside Western Australia, which if clone within Western Australia would be in contravention of this Act ;

shall be guilty of a misdemeanour.

Liability of	10. Any director, manager, or officer of a company, or any person
directors, etc.,

acting without

acting for another, who knowingly takes part in or is in any way

authority.

privy to doing or who attempts to do any act or thing without

Ibid., s. S.

authority which, if authorised, would be in contravention of any of

the provisions of this Act shall be guilty of a misdemeanour.

Penalty on	11. Any person, on conviction of a misdemeanour under any of (a.) be liable, if a corporation, to a penalty not exceeding five hundred pounds, and if any other person, to be imprisoned for any period not exceeding two years, with or without hard labour, or to pay a penalty not exceeding five hundred pounds or imprisonment and penalty as afore- said ; and,
conviction.

Ibid., s. 9. the provisions of this Act, shall

(b.) in addition, be liable to be ordered to pay to such person, and in such manner as the court directs, the amount or value, according to the estimation of the court, of any valuable consideration received or given by him or any part thereof ; and such order shall be enforceable in the same manner as judgment of the court.

Court may order	12. Upon the trial of a person for any offence under this Act,
withdrawal of

trifling or technical	if it appears to the court that the offence charged is in the particular
cases.	case of a trifling or merely technical nature, or that in the particular
Ibid., s. 10.	circumstances it is inexpedient to proceed to a conviction, the court may in its discretion, and for reasons stated on the application of the accused, withdraw the case from the jury, and this shall have the same force and effect as if the jury had returned a verdict of not guilty, except that the court may, if it think fit, make the order mentioned in the last preceding section.

Protection of	13. A person who is called as a witness in any proceedings shall
witness giving

answers criminatiug,	not be excused from answering any question relating to any offence
himself.	under this Act on the ground that the answer thereto may criminate
Ibid., s. 11.	or tend to criminate him

Provided that

(a.) a witness who, in the judgment of the court or justices, answers truly all questions winch he is required. by the court or justices to answer shall be entitled to receive a certificate from the court or justices stating that such witness has so answered; and

5 EDW. VII.] Secret COMMiSSi011 S. [1905, No. 13.

(b.) an answer by a person to a question put by or before the court or justices in any proceeding under this Act shall not, except in the case of any criminal proceedings for perjury in respect of such evidence, be in any proceeding civil or criminal admissible in evidence against him.

When a person has received a certificate as aforesaid, and any criminal proceeding is at any time instituted against him in

Stay of proceedings

against such

witness.

respect of the offence which was in question in the proceeding in

Ibid., s. 12.

which the said person was called as a witness, the court or justices having cognizance of the case shall, on proof of the certificate and of the identity of the offence in question in the two cases, stay the proceedings.

14.

In any prosecution under this Act it shall not amount to a defence to show that any such valuable consideration as is mentioned	Custom of itself no
defence.

15.

in this Act is customary in any trade or calling. s. 13.

For the purposes of this Act, where it is shown that any valuable consideration has been received or solicited by an agent

Burden of proof

that gift not secret

commission.

16.

from or given or offered to an agent by any person having business	s.
relations with the principal, without the assent of the principal, the burden of proving that such valuable consideration was not received, solicited, given, or offered in contravention of any of the provisions of this Act shall be on the accused.

No prosecution for an offence under this Act shall be commenced after the expiration of two years next after the com-	prosecution.
Limit of time for
Ibid., s. 15.
mission of the offence, or six months next after the first discovery thereof by the principal or the person advised, as the case may be. whichever expiration first happens.

17.

18. No prosecution for an offence under this Act shall be Consent of Attorney tioeneral i i n. toprosecu -

commenced without the consent of the Attorney General.

Ibid., s. 16.

19.      Every information for an offence under this Act shall be Prosecution of

upon oath.	offences.
Ibid., s. 17.

20.        In the construction of this Act, the following provisions Interpretations.

shall apply:-- s. 18.

( The word " agent " shall include any corporation or other person acting or having been acting or desirous or intending to act for or on behalf of any corporation or other person, whether as agent, partner, co-owner, clerk, servant, employee, banker, broker, auctioneer, architect. clerk of works, engineer, solicitor, surveyor, buyer, salesman, foreman, trustee, executor, administrator, liquidator, trustee in bankruptcy or of a deed of arrangement, receiver, director, manager, or other

1905, No. 13.] Secret Commissions. [5 EDW. VII.

officer or member of committee or governing body of any corporation, club, partnership, or association, or in any other capacity, either alone or jointly with any other person, and whether in his own name or in the name of his principal, or otherwise ; and a person serving under the Crown is an agent within the meaning of this Act : .

(2.) The word " principal " shall include a corporation or other person for or on behalf of whom the agent acts, has acted, or is desirous or intending to act:

The word " trustee " shall include trustee, executor,

(3.) administrator, liquidator, trustee in bankruptcy or of a deed of arrangement, receiver, director, committee of the estate of an insane person, having power to appoint a trustee, or person entitled to obtain probate of the will or letters of administration to the estate of a deceased person :

(4.) The words " valuable consideration " shall include any money, loan, office, place, employment, agreement to give employment, benefit, or advantage whatsoever, and any commission or rebate, deduction, or percentage, bonus. or discount, or any forbearance to demand any money or money's worth or valuable thing ; and the acceptance of any of the said things shall be deemed the receipt of a valuable consideration :

(s.) The words "valuable consideration," when used in connection with the offer thereof, shall include any offer of any agreement or promise to give, and every holding out of any expectation of valuable consideration :

(6.) The words " valuable consideration," when used in connection with the receipt thereof, shall include any acceptance of any agreement, promise, or offer to give, and of any holding out of any expectation of valuable consideration:

(v.) The word " contract " shall include contract of sale or of employment or any other contract whatever :

(8.) Any act or thing prohibited by this Act is prohibited whether done directly or indirectly by the person mentioned or by or through any other person :

(g.) The words "solicit any valuable consideration," and " valuable consideration solicited," and words to the like extent shall be construed with the following direction, namely :—That every agent who shall divert, obstruct, or interfere with the proper course of business or manu- facture, or shall impede or obstruct, or shall fail to use due diligence in the prosecution of any negotiation or business with the intent to obtain the gift of any valu- able consideration from any person interested in the said

5 Enw. VII.] Secret Commissions. [1905, No. 13.

negotiation or business or with intent to injure any such person shall be deemed to have solicited a valuable consideration from a person having business relations with the principal of such agent:

(i o.) The words " person having business relations with the principal " shall include every corporation or other person, whether as principal or agent, carrying on or having carried on or desirous or intending to carry on any negotiation or business with or engaged or having been engaged or desirous or intending to be engaged in the performance of any contract with or in the execution of any work or business for or in the supply of any goods or chattels to any principal, and shall also include any agent of such corporation or other person:

(i i.) The words "in relation to his principal's affairs or business " shall imply the additional words " whether within the scope of his authority or course of his em- ployment as agent or not:" and

( 12.) The words " advice given " and words to the like effect shall include every report, certificate, statement, and suggestion intended to influence the person to whom the same may be made or given, and every influence exercised by one person over another.

By Authority : A. Cuntris, Acting Government Printer, Perth.