The Secret Commissions Act 1910 (SA)

GEORGII V REGIS.

A.D. 1910.

No. 1006.

An Act relating to Secret Commissions and Rebates.

[Assented to, November 23rd, 191o.l

it Enacted by the Governor of the State of South Australia, with the advice and consent of the Parliament thereof, as

follo W S :

1, This Act may be cited as "The Secret C~ommissiona Act, 1910," short title and com- mencement.

and shall come4-into operation on a day to be fixed by Proclamation.

2, In the construction of this -4ct the follow in g provisions shall Interpretation.

apply, unless inconsistent with the context or other provisions of Tas. A C ~ 21,1906,

S. 20.

this Act : - Vict. Act 1974. 1906.

Agent" includes 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 in the capacity of agent, attorney, partner, CO-owner, clerk, servant, employ&, banker, broker, auctioneer, architect, clerk of works, engineer, barrister, solicitor, proctor, surveyor, buyer, sales- man, foreman, trustee (as hereinafter defined), liquidator, receiver, director, or manager, or in any of such capacities, or as any other officer or as a member of any committee or govern- ing 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: ab~ted.

" Contract " includes contract of sale or of employment and any

other contract whatever: "-Full

I" GEORGII V, No. 1006.

" Full knowledge" means knowledge of all material facts and circumstwnces:

" Principal " includes a corporation, club, partnership, firm, or other person or persons for or on behalf of whom the agent acts, has acted, or is desirous or int.ending to act:

" Trustee " includes trustee, executor, administrator, liquidator, trustee in insolvency or bankruptcy or under any com- position or scheme of arrangement with creditors or any assignment for the benefit of creditors, receiver, director, guardian, committee or guardian of any lunatic or person of unsound mind or of his estate, and person entitled to obtain probate of the will or letters of administration to

the estate of a deceased person:

" Valuable consideration " includes any-

Money, loan, office, place, employment;

Agreement to give employment, benefit, or advantage

whatsoever;

Commission or rebate, deduction or percentage, bonus

or discount;

Forbearance to demand any money or money's worth or valuable thing or to exercise any right or enforce any claim;

Property right or claim of money's value;

Subject matter of any such property right or claim;

and the acceptance of any of the said matters or things

shall be deemed the receipt of a valuable consideration:

The words " valuable consideration," when used in connection

with the offer thereof, include any offer of any agreement

or promi$e to give, and every holding out of any expectation

of, valuable consideration:

The words valuable consideration," when used in connection

with the receipt thereof, include any acceptance of any agreement, promise, or offer to give, and of any holding out of any expectation of, valuable consideration:

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 ageut who diverts, obstructs, or interferes with the

proper course of business or manufacture, or impedes or

obstructs 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 person interested

in the said negotiation or business, or with intent to obtain

or retain for his own use any moneys or property for which

in

I' GEORGII V, No. 1006.

in the ordinary course of his duty he ought to account to any such person, shall be deemed to have solicited a valu- able consideration from a person having bnsiness relations with the principal of such agent:

The words " person having business relations with the principal " include every corporation, club, partnership, film, or other person or persons, whether as principal or agent, carrying on or having carried on or desirous or intending to carry on any nrgotiation or business with, or engaged or having been engaged or desirous or intending to be engaged in the per- formance of any contract with, or in the execntion of any work or business for, or in the supply of any goods or chattels to, any principal, and also include any agent of such cor- poration or other person:

The words ('in relation to his principal's affairs or business"

imply the additional words " whether within the scope 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, statement, and suggestion, whether written or not, intended to influence the person to whom the same is made or given, and every influence exercised by one person over another.

Provided that when in this section it is stated that any word or expression includes as in this section stated, such statement is not t o be taken to curtail the meaning of such word or expression.

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.

3, (1) Any valuable consideration given or offered to any parent, Secret gitta to parent, wife, child, partner,

husband, wife, or child of any agent, or to his partner, clerk, 01. em- etc., of amn, dMmed

ploy& or at the agent's request to any person, by any person having dftatoagent.

business relations with the principal of such agent, shall be deemed Tas, A C ~. 8 .4. (1)

Vict. A C ~ 8. 3 (1)

to have been g i ~ e n or offered to the agent.

(2) Any valuable consideration received or solicited by any Secret gifts received

parent, husband, wife, or child of any agent, or by his partner, clerk, ~ $ ~ ~ ~ ~ f c ~ ~

or employ&, from any person having business relations with the deemed received by

principal of' such agent shall be deemed to have been received or "gent.

solicited by the agent, unless it is proved that the valuable con- Tae. Act, 8.QM

sidemtion was so received or solicited without the consent, know- Vict. A C ~, 8. 3 (2)

ledge, or privity of the agent.

4, If any agent corruptly receives or solicits from any person, for h i p t or d ic ib t ion

himself or for any other person, any valuable consideration-	of secret commiseion
by an agmt a mis-

( a ) As an inducement or reward for, or otherwise on account of, demeanor-

doing or forbearing to do or having done or forborne to do Tm. Act, 8. 2.

any act in relation to his principal's affairs or business which

Act' '. 2.

he ought in the ordinary course of his duty to do or have

done or forbear or have foreborne from doing; or

( b ) The

I " GEORGII V, No. 11306.

Th Secret Commissions Act .1910.

( b ) The receipt or any expectation of which would in any way

tend to influence him to show or to forbear to show favor or disfavor to any persoil in relation to his principal's affairs or business:

he shall be guilty of a misdemeanor.

Qift or offer of secret

commission to an 5, If any person corruptly gives or offers to any agent any valuable

agent a misdemeanor. consideration-	.
Tae. Act, 8. 3.

Vict. Act, s. 2.

( a ) As an inducement or reward for, or otherwise on account of,

doing or forbearing to do or having done or forbor~~e 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 favor or disfavor to any person in relation to his principal's affairs or business:

he shall be guilty of a misdemeanor.

Giving to agent false

or misleading receipt 6. If, with intent to deceive or defraud the principal, any person

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

or a c c o ~ t a rnisde-

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

TM. A C ~, 8. 5. which, or in relation to a dealing transaction or matter in which, the

Vict. A C ~, 8. 4. principal is ill terested, and which-

( a ) Contains any statement which is false or erroneous or defective

in any important particular, or is in any way likely to mis-

lead 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 ag red to be made, given, or allowed:

such person or agent shall be guilty of a misdemeanor.

Gift or receipt of

secret commiesion 7, Whenever any advice is given by one person to another, and

in return foradvice	such advice is in any way likely or intended to induce or influence
given.	the uerson advised- I

T a. Act, e. 6.

Vict. Ant, 8. 5 (1)	( 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 appoint- ment, of m y third person as trustee:

and any valuable consideration is given by such third person t o the person giving the advice without the assent of the person advised,

the gift or receipt of the valuable consideration shall be a mis-

demeanor, 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.

8. Whenever

I " GEORGII V, 'No. 1006.

The Secret Commissions Act.-191 0.

onsideration in respect of any advice given or to be given by such ,ion in of secret commis- 8, Whenever any person offers to another person any valuable offeroraolieitation

ther person to a third person, or whenever any person solicits from tor advice given-

nother person any valuable consideration in respect of any advice TM. A C ~, e. 7

;iveu or to be given by the pemon soliciting to a third person, such Via. Act, R. @)

~dvice, in either case, being with a view to induce or influence the

)erson advised or to be advised-

(a) To enter into tt contract with the person offering or solicited,

as the case may be; or

( 6 ) 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 appoint- ment, of the person offering or solicited, as the case may

be, as trustee:

and such offer or solicitation is made 'with the intent that the gift or receipt of such valuable consideration is not to be made known to the person advised or to be advised, then in eveiy such case the offer or solicitation shall be a misdemeanor: Provided that this section shall not apply when the person who gave or is to give the advice is the agent of the person offering or solicited, and is not

the agent of the person advised or to be advised.

Q, If any person offers or gives any valuable consideration to a seoret commission

trustee, or if any trustee receives or solicits any valuable considera- ~ ~ ~ ~ i ~ ~ t ~ ~ t u m

tion for himself or for any other person, without the assent of the appointment.

persons beneficially entitled to the estate or of a Judge of the Supreme Taa. A G ~, s. 8.

Court, as an inducement or reward for appointing or having appointed Vict. Act,	6.
or fot joining or having joined with another in appointing, or for authorising or having authorised or for joining or having joined with another in authorising the appointment of, any person as trustee
in his stead or in the stead of him and any other person, he shall
be guilty of' a misdemeanor.

10, Any pcrson who, being within South Australia, aids, abets, Aidingand abetting

counsels, procures, or attempt8 or takes part in or is in any way outaide south

offences within or

directly or indirectly knowingly concerned in or privy to the-

Australia.

Tas. Act, s. 9.

(a) Doing of any act or thing in contravention of this Act:	Vict. Act, s. 7.
( h ) Doing of any act or thing outside South Australia, or partly

within and partly outside South Australia, which if done	I
within South Australia would be in contravention of this

*

Act:

shall be guilty of a miedemeanor.

11, Any director, manager, or officer of a company. or any person L i a b a i ~ of

acting for another, who knowingly takes part in or is in any way dimtom, &C., acting without

directly or indirectly concerned in ur privy to doing, or who attempts authority.

to do, any act or thing without authority which, if authorised, T-. A C ~, r 10.

would be in contravention of any of the provisions of this Act, Vict. ~ c t, e. 8.

shall be guilty of a misdemeanor. 12, Any

Penalty on

conviction. 12, Any person, on conviction of a misdemeanor under any of

the provisions of this Act, shall-

Tar. dot, 8. l l .

Vict. Act, a. 9.	( a ) Be liable, if a corporation, to a penalty not exceeding Two Hundred and Fifty Pounds, and, if any other person, to a penalty not exceeding One Hundred Pounds; and
( 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

a judgment of the Court.

Court may order

withdrawal of 13, TJpon the trial of a person for any offence under this Act,

trifling or technical	if it appears to the ('ourt that the offence charged is in the particular
caaea.	case of a trifling or merely technical nature, or that in the particular

Tm. Act, a. 12. circumstances it is inexpedient to proceed to a conviction, the Court

Vic. Act, a. 10.	may in its discletion, 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 thinks fit, make the order mentioned in the next preceding section.
Protection of

witneae giving 14. A person who is called as a witness in any proceedings shall

answers criminating	not be excused from answering any question relating to any offence
himaelf.	under this Act in respect of the particular charge on which he is
Tss. Act, a. 13.	being examined on the ground that the answer thereto may criminate
Vict. Ad, a. 11.	or tend to criminate him-

Provided that- $

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

(6) An answer by a person to a question put by or before the	Court in any proceedings under this Act shall not, except
in the case df any criminal proceedings for perjury in respect of such evidence, be in any proceeding, civil or criminal, admissible in evidence against hi m.

Btey of proceedings

agRinst auch 15, When a person has received a certificate as aforesaid, and

witnwa.	any criminal proceeding is at any time instituted against him in
Tas. Act, a. 14.	respect of the offence which was in question in the proceedings in
Vict. Act. a. 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 proceeding.

custom of iteelf no 16. In any prosecution under this Act it shall not amount to a

defence. defence to show that any such valuable consideration as is mentioned

Actn 8- 16. in this Act is c u s t o m a ~ in any trade or calling.

Vict. Act, e. 13.

I" GEORGII V, No. 1006.

The Secret Commissions Ad.-19 10.

17, For the purposes of this Act, where it is proved that any Burdenof proof to be on accused

valuable consideration has been received or solicited by an agent not wont

from or given or offered to an agent by any person having buainess oom&ion.

relations with the principal, without the assent of the principal, the TW. A&, a. 16.

burden of proving that such valuable consideration was not received,	"G	a. 14-
solicited, given, or offered in contravention of any of the provisions of this Act shall be on the accused.

18. No prosecution for an offence under this Act shall be corn- Limit of time of

mencetl after the expiration of' two years next after the commission proaWution.

of the offence, or of- six months next after the first discovery thereof Tm. Act, 8.17- Vict. Act, e. 16.

by the principal or the person advised, m the case may be, whichever

expiration first happens.

Coneent of Attotney-

19. No prosecution for an offence under this Act shall be corn- General to prosecu- tion .

menced without the consent of the Attorney-General.	Tss. Act, S. 18.
Vict. Act, 8. 16.

20. Every information for an offence under this Act shall be upon Proawtion for offences.

oath or affirmation.	Tss. Act, a. 19.
Viot. ~ c t, a. 17.

In the name and on behalf of His Majesty, I hereby assent to

this Bill.

DAY H. BOSANQUET, Governor.

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Adelaide : By authority, R. E. E. R o o m ~, Government Priuter, North Terrace.