ABSTRACT
Although s 75B can only operate (in conjunction with other provisions) to ground civil liability in the secondary party, it employs the familiar language of the criminal law. As the High Court noted in Yorke v Lucas LBC,30 s 75B(1) employs the language of the criminal law. Its primary paragraph, para (a), referring to the person who has ‘aided, abetted, counselled or procured’, is drawn directly from the common law. At common law, these words collectively denote accessorial participation in the principal’s crime. The phrase has also been used in crimes statutes (such as s 5 of the Crimes Act, 1914 (Cth)). It was the use of this distinctive phrase, with its well-settled meaning, which persuaded the bench in Yorke v Lucas to conclude that notwithstanding that s 75B(1) is directed to grounding civil liability in a person for secondary participation in a company’s breach of the Act, it is to be construed in light of the criminal law authorities dealing with the incidents of accessorial liability at common law.31 It follows that the elements of secondary liability under, say, s 75B(1)(a), are defined in the same terms as accessorial criminal liability at common law. In particular, as it will be noted below, the s 75B secondary participant must act with the equivalent of the mens rea required to ground accessorial liability for another’s crime, viz, with knowledge of the facts that establish that the primary party’s conduct amounts to a contravention of the law.
