Secret Commissions Prohibition Act 1919 (NSW)
| Secret Commissions Prohibition Act. | 255 |
SECRET COM^nSSIONS PROHI
BITION ACT.
| Act No. | 1919. |
A n A ct for tlie proliibitiou o f secret com m issions, George V,
| and for the ])revcntion o f fraud ; and for other | No. 26. |
| purposes. | [A ssented to, 9 th D ecem ber, 1919.] |
'TA li it enacted l)v the King’s Most Excellent iNlajesty, l A by and ■w ith the advice and consent of tlic l^c'gis- lative Council and Legislative Assembly of New" South Wales in Parliament assembled, and l)y the authority of the same, as follows ;—
Preliminary.
1 . ’Phis Act may he cited as the “ Secret Commissions short title
Prohibition Act, 1919,” and sliall come into <d̂ '̂’''̂ hon
| on the lirst day of January, one thousand nine hundred | ’ |
| and t'wenty. |
2 . (1) In the construction of this Act, nidcss the jnicrprc-
| coutext otherwise requires,— | u.tion.̂ ^ |
| “ Agent ” includes any corporation, firm, or person intending to act, for or on behalf of any cor poration, firm, or person, whether as agent, partner, co-owner, clerl:, servant, employee, banker, broker, auctioneer, architect, clerk of | actimr or having been acting, or desirous or a ifiO- any member of the crew" of a vessel, <mgineer, barrister, solicitor, surveyor, buyer, salesman, foreman, trustee, official assignee, executor, administrator, liquidator, trustee in bankruptcy, or of a deed of assignment, receiver, director, manager or otlier officer or member of the committee or governing body of any corjiora- tion, club, partnership, or association, or in |
any
256 Secret Commissions Prohibition Act.
| George V, | any other capacity, either alone or jointly with |
| No. 26. | any other corporation, firm, or person, and whether in his own name or in the name of |
| , | his principal or otherwise, and a person serving under the Crown. |
“ Contract ” includes contract of sale or of employ ment, or any other contract whatever, includ ing an order for any commodity.
“ Court ” means magistrate or justices having juris diction with respect to an offence against this Act.
“ Principal” includes a corporation or other 2ierson for or on behalf of whom the agent acts, has acted, or is desirous or intending to act.
“ Trustee ” includes the public trustee, an executor, administrator, liquidator, official assignee, or trustee in bankruptcy, receiver, committee of an estate under the Lunacy Acts, jierson having power to appoint a trustee or person entitled to obtain jn’obate of the will or letters of administration to the estate of a deceased person, or any other jierson occujiying a fiduciary position.
“ Valuable consideration” includes any money, loan, office, place, employment, agreement to give employment, benefit, or advantage whatso ever, and any commission or rebate, payment in^xcess of actual value of the goods or service, 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.
The oft'er of any valuable consideration includes any offer of any agreement or promise to give, and every holding out of any expectation of valuable consideration.
The receipt of any valuable consideration includes any acceptance of any agreement, promise, or offer to give, or of any holding out of any expectation of valuable consideration.
The
| Itecret Commissions Prohibition Act. | 257 |
The words “ solicit any valuable consideration ” and George V,
| “ valuable consideration solicited,” and words | No. 26. |
| to tbo like effect, shall be construed with | |
| the folloAvin" directions, namely :—That every | |
| agent who diverts, obstructs, gives untruthful | |
| reports, or interferes witli the proper course of | |
| business or manufacture, or impedes or ob | |
| structs, or fails to use due diligence in the | |
| prosecution of any negotiation or business with | |
| the intent to obtain the gift of any valuable |
| consideration from any other person interested | ■ |
| in the said negotiation or business, or with intent to injure any such person, shall be deemed to have solicited a valuable considera tion from a perso)i having busiuess relations with the principal of such agent. |
The words “ person having business relations with the ju’incipal” 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 biisi- ness witli any principal, or engaged or interested or having been engaged or interested 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 prin cipal, and also include any agent or employee of sucli cor})oration or other person.
The words “ in relaticm to his principaf’s affairs or business” imply the additional words “ whether within the sco]:)e of his authority or course of his employment as agent or not ” ; and
The words “ advice given,” and words to the like
| . | effect, include every report, certificate, state ment, and suggestion intended to influence the person to whom the same is made or given, and every influence exercised by one person over another. |
(2) Any act or thing prohibited by this Act is Prohibition
prohibited Avhether done directlv or indirectlv by the ‘“(lirect
| person mentioned or by or through any other person. | ’ |
| I | Offences |
| 25S | Secret Commissions Prohibition Act. |
| George V, | Offences against this Act. |
| No. 26. | 3. | If any agent corruptly receives or solicits from any |
Receipt or
| solicitation of | person for himself or for any other person any valuable |
| secret | |
| commission | consideration—- |
| by an agent. | fa) as an inducement or rotvard for or otherwise on |
| Viet. Crimes | account of doing or forbearing to do, or having |
| Act, 1915, | |
| 8. 170. | done or forborne to do, any act in relation to his principal’s alfairs or business ; or |
| (b) | tlic 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 ; or |
Gift or offer
| of secret | if any person corruptly gives or offers to any agent any |
| commission to | valuable consideration— |
| an agent. | (a) | as an inducement or reward for or otherwise on account of the agent doing, or forbearing to do, or having done cr forborne to do, any act in relation to his princijial’s affairs or business; |
| (b) | the receipt or any expectation of which would in any way tend to intlueuce the agent to show, or to forbear to show, favour or disfavour to any person in relation to his principal’s affairs or business, |
he shall he guilty of an ofl'ence against this Act
Secret gifts
| received by | 4. (1) Any valuable consideration received or solicited |
| parent, wife, | by any jiarent, husband, wife, or child of any agent, or |
| child, | |
| partner, &o., | by his partner, clerk, or employee, from any person |
| of agent. | having business relations with the principal of such |
| Hid. s. 171. | agent, shall be deemed to have been received or solicited by the agent, unless it he proved that the valuable consideration was so received or solicited without the consent, knowledge, or privity of the agent. |
| Secret gifts to | (2) | Any valuable consideration given or otl'ered |
| parents, wife, |
| child, | to any parent, husband, wife, or child of any agent, or |
| of agent. | |
| partner, Arc., | to his partner, clerk, or employee, or at the agent’s request to any person by any person having business relations with the principal of such agent, shall he |
| False or | deemed to have been given or offered to the agent. |
| misleading | 5. If, Avith intent to deceive or defraud the prin |
| account. |
| receipt or | cipal, any person gives to any agent, or any agent |
| Hid. s. 172. | receives or uses or gives to the principal any receipt, |
invoice,
| Secret Commissions Prohibition Act. | 259 |
invoice, account, or document in respect of which or in Oeorge V,
relation to a dealing, transaction, or matter in which the
principal is interested, and which—
| (a) | contains any statement which is false or errone ous or defective in any important particular, or contains an overcharge, or is in any way likely to mislead the principal; or |
| (b) | omits to state explicitly and fully the fact of any commission, percentage, bonus, discount, rebate, repayment, gratuity, or deduction having been made, given, or allowed, or agreed to be made, given, or allowed, |
h(! shall be guilty of an offence against this Act.
6. (1) 'Whenever any advice is given by one person secret com-
| to another, and such advice is in any way intemded or | attvice given. |
| likely to induce or influence the ])crson advised— | Viet. Crimes |
| (a) to enter into a contract with any | third An, 1915, | s. 173. |
person; or
| (h) | to aj)point or join with another in the appoint ment, or to vote for or to aid in obtaining the election or ap])ointment, or to authorise or join Avith another in authorising the appointment, of any third person as trustee, director, manager or otTicial, |
and any A'aluahle consideration is, witliout the assent of tlic person advised, given by such third person to the person giving the advice, the gift or receipt of the A'alnahle consideration shall he an oifenee against this A c t; but this subsection shall not apply Avhen the person giving the advice was, to the knowledge of the person advised, the agent of such third j)erson, or when the valuable consideration was not given in respect of such advice.
(2) Any offer or solicitation of a valuable con- Offerorsolici
| sideration in respect of any advice given, or to he given, | St cret com- |
| by one person to another ivith | view to induce | 01* irission in |
rt;turn for
| intlueuce the person advised- | ailviee given |
| (a) | to enter into a contract with the person offering orto be given, or 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 w ith another in authorising the appointment of the person offering or solicited as trustee, director, | |
|
260 Secret Commissions Prohibition Act.
| George V, | and with the intent that the gift or receipt of such |
| No. 26. | valuable consideration is not to be made known to the person advised, shall be an offence against this A ct; but this subsection shall not apply Avhen such first- mentioned person is the agent of the person offering or solicited. |
Secret
| commission | 7. I f any person offers or gh^es any valuable con |
| to trustee in | sideration to a trustee, or if any trustee receives or |
| return for | |
| substituted | solicits any valuable consideration for himself or for any |
| appointment. | other person without the assent of the persons beneficially |
| Act, 1915, | |
| Viet. Crimes | entitled to the estate or of a judge of the Supreme |
| s. 174. | Court, as an inducement or reward for appointing or having appointed, or for joining or having joined with another in appointing, 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 an offence against this Act. |
| Aiding and |
| abetting | 8. Any person Avho, being within New South Wales, |
| offences | knowingly aids, abets, counsels, or procures, or attempts |
| within or | |
| without New | or takes part in or is in any way privy to— |
| South Wales. | (a) the doing of any act or thing in contravention |
| Hid. s. 175. | of this A ct; or |
| (b) | the doing of any act or tiling outside New South Wales, or partly within and partly out side New South Wales, which, if done within New South Wales, would be in contravention of this Act, |
shall be guilty of an offence against this Act.
Liabilitj- of
| director, &c., | 9. Any director, manager, or officer of a company, |
| acting | or any officer or member of the crew of any A'cssel, |
| without | |
| authority. | or any’person actin g for another, who knowingly takes |
| Ihid. s. 176. | part in or is in any way priA’y to doing, or attempts to do, any act or thing without authority wdiich, if authorised, wmuld be in contravention of any of the pro\n>ions of this Act, shall be guilty of an offence against this Act. |
| Penalty on | |
| conviction. | 1 0 . Any person guilty of an offence against this Act shall, on conviction by a stipendiary or police magistrate, or any twm justices,— |
| (a) | be liable, if a corporation, to a penalty not exceeding one thousand pounds, and if any other person to imprisonment for any period not exceeding six months, with or Avithout hard |
labour,
| Secret Commissions Prohibition Act. | 261 |
labour, or to a ponalty not oxcoediu" five George V, hundred pounds, or to imprisonment and No. 26. penalty as aforesaid ; and
| (b) | in addition bo liable to be ordered to pay to such Iverson and in such manner as the court directs the amount or value, accordins? to tbo estimation of the court, of any valuable con sideration received or given by him, or any part thereof, and such order shall be ('nforceable in the same manner as an ordT̂ r of the court. |
Frucedare.
| 1 1 . If in any prosecution under this Aet it appears t ouit | may |
| ■ | " | " | ■ | ■ | * | 0 'tier |
to the court that the offence charged is, in the „iti„havviii tieular ease, of a trilling or merely technical natui’c, or of tnHins or that in the partieular cii’cumstances it is inexpedi(*nt to
proceed to a conviction, the court may in its discretion, Y i, t crimes
| and for reasons stat('d on the application of the accused, | _i9i5, |
| dismiss the case. |
1 2 . (1) A person who is called as a witness in any vr it ness
| proceeding under this Act shall not bt' excused from answering any question relating to any olVence against criminating this Act on the ground that tint answer thereto may | Ihi'l. | s. | I 7 l i . |
| criminate, or tend to criminate, him. | |||
| (2) An answer to a question in any such pro ceeding shall not, except in the said proceeding or in the case of any prosecution for perjury in respect of such answer, be in any proceeding, civil or criminal, admis sible in evidence against the person so answering. |
1 3 . (1) A witness in any proceeding under this Acttcniim ̂
| who, in the judgment of the court, answers truly all | ̂j;s |
| questions which lie is requinal by the court to answer shall be entitled to receive a certificate from the court stating that such witness has so answered. |
(2) When a person has received a certificate as stay of
| aforesaid, and any criminal proceeding is at any time | "m h |
| instituted against him in respect of the offence Avhich vritncps, was in question in the pi’ocecding in which the said person was called as a witness, the court having cognizance of the case shall, on proof of the certificate and of the identity of the olfence in question in the tAvo cases, stay the proceedings. |
262 Loan Act.
| George V, No. 26. | 14. (1) In any prosecution under this Act it shall |
amount to a deh'uce to s I ioav that tlie rocciviu",
soliciting, < îviny, or olTering of any valuahlc considcra-
Vict. Crimes tiou thcrciii mcntiotu'd or referi-ed to is customary iu any
| 8 | .'^180 (at’ | trade, business, or calling. |
Biireien of { - ) H iu uuy prosocutiou under this Act it is
proof that gift npoved that auv valuable consideration has been received
| n o t SGCl’o t | ^ |
commission, or solicitcd by an agent from or given or ottered to an
| I Sid. s. ISO agent by any person having l)iisincss relations with the | b). | principal, Avithout the assent of the principal, the Imrdon of proving that such valuahl(' consideration Avas not received, .solicited, given, or ottered in contraAumtion of any of the provisions of this Act shall he on the accused. |
| Limit of | (3) Xo ]U’osecution under this Act shall he |
| time for |
| prosecution | commenced after the expiration of tAvo years from the |
| Ihid, s. 180 | commission of the olfence (diargcd, or six months from |
| ( e ) . | the first discovery tlu'reof l)y the principal or the person advised, as tlie cast- may hi', Avhicliever (‘xpiration first happens. |
| Consent to |
| prosecution. | (4) X'o prosi'cution under this Act shall he |
| Hid. s. ISO | commenced Avithoiit the consent of the Attorm'y- |
| (<')• | General. |
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