The Australian Law Reform Commission report, Corporate Criminal Responsibility, has been tabled in the Commonwealth Parliament.
Its 20 recommendations include:
- Corporate conduct should be regulated primarily by civil regulatory provisions.
- A criminal offence should be created in respect of a corporation only when:
- denunciation and condemnation of the conduct constituting the offence is warranted;
- imposition of the stigma that should attach to criminal offending would be appropriate;
- the deterrent characteristics of a civil penalty would be insufficient;
- it is justified by the level of potential harm that may occur as a consequence of the conduct; or
- it is otherwise in the public interest to prosecute the corporation itself for the conduct.
- If a proposed law includes a new criminal offence provision for corporations, government should be required to explain publicly why it is appropriate and necessary.
- Infringement notices should not be available as an enforcement response for criminal offences as applicable to corporations.
- A corporation should be criminally responsible for the conduct of a person acting on its behalf. The nature of the relationship between the person and the corporation should be more important than the person’s job title or job description, when determining whether the person is acting “on behalf of” the corporation.
- There should be new criminal laws that address systems of conduct or patterns of behaviour that result in multiple contraventions of civil penalty provisions.
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Author: David Jacobson
Principal, Bright Corporate Law
About David Jacobson
The information contained in this article is not legal advice. It is not to be relied upon as a full statement of the law. You should seek professional advice for your specific needs and circumstances before acting or relying on any of the content.