Melbourne Law School - Theses
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ItemThe criminal liability of corporations( 1993)This study is an examination of the various aspects of the criminal liability of corporations, including the existing law and its potential reform. The study begins with an examination of the theory and concept of corporate criminal liability, as it exists in Australian law. Particular reference is given to the persuasive influence of English law on the Australian conceptual framework, and the consequential restrictiveness of common law in relation to corporate criminal liability. This has prompted the use of various legislative techniques in Australia to broaden the application of what are, in practice, personal offences to corporations. The use of legislation has had limited success. The difficulty with much Australian legislation is that it has broadened a narrow doctrine, rather than reassessing some of the fundamental concepts. Other countries are now beginning to re-examine their existing approach to the criminality of corporations, and this study makes particular reference to American involvement in dealing with offending companies and their management. A study of corporate behaviour, indeed in the growth and change of status of the company in our society, raises many issues concerning corporate criminality, the types of crimes that can occur and the reasons why corporations may offend. An examination of corporate offences, and the potential harm that flows from breaches of the law, forms the basis for a re-assessment of existing law, and even the corporation itself as its exists in our society. Indeed the proposed Australian Model Criminal Code, with its recognition of corporate blameworthiness, is one enormous conceptual leap in changing the approach of law in dealing with corporations. However, a re-evaluation still needs to be made of existing criminal legislation, executive procedure, judicial procedure and potential sanctions. Furthermore, there must be a consideration of the end object that is sought by making a company criminally liable. The objective of any reform should be to achieve a law abiding corporation, where legal compliance is reflected in its structures and ethos, not the letter of the law. Sanctions to achieve such an ideal outcome may be found in other ways than merely through traditional punishment, such as fines, the alternatives being examined in this thesis.