Corporate Crime - Individuals vs. Corporations

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Corporate Crime (BTF2223):
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Research Report Assignment
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Proposition: “In order to effectively punish and deter corporate crime, the law should impose criminal sanctions on individuals rather than on corporations.”
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Table of Contents
Cover page ….…………………………………………………………………… 1
Table of contents………………………………………………………………… 2
Preliminaries……………………………………………………………………… 3
Sanctions, punishment and deterrence ………… ………………………………… 4
Corporations and corporate crime ……………………………………………… 5
Imprisonment as the supreme criminal sanction ………………………………… 5-6
Procedural deficiencies in taking action against a corporation …………………. 6-7
Stifling the role of a director and business prosperity ………………………… 7-8
Determining precisely which party or parties are at fault ………………………… 8-9
Protecting innocent bystanders from the wrongdoing of others ………………… 10
The need for reform in criminal sanctions …………………………………….… 11-13
Conclusion ……………….……………….……………….……………….……. 14
Bibliography ……………….……………….……………….……………….… 15-18

Preliminaries
Corporate criminal liability is imposed in almost every area of corporate activity, including, consumer protection, workplace safety, environmental protection, securities regulation and taxation. For this reason it is vital that it is regulated as close to maximum efficiency as possible. Deciding whether or not criminal sanctions should be imposed on the corporation itself, the individuals or both should not merely be confined to a yes or no question. The law is far too sophisticated and subjective in nature for such a simplistic view to be taken. This research report holds the view that adopting such a narrow mindset would lead to insufficient levels of punishment and deterrence and rather a miscarriage of justice occurring for corporate crime. What essentially is being argued is that engaging legal action under personal or corporate criminal liability should not be viewed as mutually exclusive events. The decision of whether to pursue either corporation or the individual should revolve around a multitude of factors. These factors at hand need to be balanced and feature the area of the law applicable to the case, the unique facts and circumstances surrounding the case and ‘prosecution policy’. The prosecution policy is responsible for judging the likelihood of receiving a criminal conviction in addition to what is in the best interests of society as a collective unit. Furthermore, it is not necessarily just a choice of individuals, corporations or both, but also the criminal sanctions that act as an instrument to punish and deter corporate crime.

Sanctions, punishment and deterrence
Sanctions are defined as a penalty imposed for violating accepted social norms; in addition criminal sanctions are either a fine, imprisonment or both. The reasons behind the existence of sanctions are underpinned by five fundamental legal pillars known as punishment, deterrence, rehabilitation, incapacitation and denunciation. For the purpose of this paper, the focus will be placed on punishment and deterrence.
Punishment, also known as retribution, is the harsh reality that anyone suspected of engaging in unlawful activity will be investigated and prosecuted on the basis that they will be consequently punished, or at least face the threat of punishment if found liable by the court.

The legal notion of deterrence has two key elements. Firstly, ‘specific deterrence’ which focuses on the offender in question and states that sanctions imposed on offenders will discourage or deter them from committing similar crimes in the future. Secondly, ‘general or indirect deterrence’ which is based on the general prevention of crime through making an example out of the lawbreaker.

Punishment and deterrence from the below extract can be seen as interrelated principles, with deterrence in essence being a by-product of punishing the offender:

“One of the main purposes of punishment, ... is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment.”

Corporations and corporate crime
A corporation despite its abstract and fictional nature is indeed regarded by the law as same legal rights as a normal person. Salomon’s case was a landmark case with regards to corporate law and it was this case that established the important legal principle known as the ‘veil of incorporation’ or ‘separate legal entity’. This common law ruling makes it very clear that in the eyes of the law the company is seen as being distinct from its components, that being people such as directors, shareholders and employees. It is important to note that there are situations, such as breach of director’s duties were this veil can be ‘lifted’ or ‘pierced’ and the directors can be made personally liable for some or all of the company’s illegal activities.

Corporate crime, also known as white collar crime, has a broad and complex interpretation with many definitions that can be attributed to it. In saying this, many people regard it as crime committed within the course of one’s occupation by persons of relatively high social class. This specific brand of crime tends to be very shrewd and sophisticated in nature. Corporate crime can be committed by both the body corporate itself as a separate legal entity also by the individuals acting on behalf of the corporation, the directors and employees.

Imprisonment as the supreme sanction
Imprisonment is considered by many as the ultimate sanction for breaches criminal offences can only be applied to the individual. On the other hand, a body corporate cannot physically be imprisoned and only has the threat of fines to instil fear and deter their criminal conduct. Imprisonment related offences can arise from the breach of director’s duties such as insider trading or the good faith, use of position and use of information provision. The appropriateness of incarceration as an alternative sanction to fines can be seen by the comment of an anonymous senior executive of a large American company:

‘So long as you are only talking about money, the company can at the end of the day take care of me – but once you begin talking about taking away my liberty, there is nothing the company can do for me.’

The effectiveness of imprisonment as a sanction in endorsing punishment and deterrence can also be seen by the simple fact that the Director of Public Prosecutions (DPP) is still yet to see an offer made by a defendant to plead on the basis that a lengthy term of imprisonment should be imposed in lieu of a fine. The lack of imprisonment for a body corporate highlights the need for an array of sanctions to be available for judges when criminally prosecuting a corporation. This concept is examined later in the report. If imprisonment is deemed to be a necessary punishment for deterrence and is applicable to the case being brought before the courts it can be logically contended that action should be taken against the individuals first and foremost.

Procedural deficiencies in taking action against a corporation
Most aspects of criminal law were designed for proceedings to be brought against individuals, not companies. These procedural irregularities often arise as a direct result of the corporation’s intangible and fictional nature which has been outlined on a few occasions throughout this report. The way in which a corporation cannot be arrested or physically present at a trial is a demonstration of this. Whilst a corporation can indeed be able to appoint a representative to appear on behalf of the company, this is not mandatory. On the other hand in criminal proceedings against an individual this is not the case. Given the fact that juries are every day average people and always present in the more serious criminal trials it seems a bit farfetched that they are expected decide to hold the fate of a corporate offender. The intricate analysis of law and evidence relating to this complex area of corporate crime could be seen by many as too much for a typical juror’s feeble mind to handle. The sheer time consuming process of criminal litigation in comparison to civil litigation could mean that the real perpetrator has left the organisation by the time the truth has surfaced. This point is exemplified by the fact that the Bhopal gas-leak case took an enormous 28 years to unravel after the date of the first incident. The impractical application of a corporation to criminal litigation can make the tedious process of identifying, investigating and enforcing white corporate crime all the more cumbersome. On this basis, it could be argued that sanctions should be imposed on individuals before the corporation under the criminal sphere of law.

Stifling the role of a director and business prosperity
Excessively imposing personal liability in the area of derivative liability can impede the role of a director whilst also scaring potential suitable directors from being appointed to such a post. Derivative liability is the situation in which individuals are held personally liable for the misconduct of the corporation. As the law currently stands the majority of directors are becoming increasingly reluctant to serve on boards and are becoming overly concerned down with compliance issues and not taking the necessary risks and entrepreneurship for wealth creation. A distinct fine line has to be drawn between supporting a reasonable money-making structure versus punishing and deterring the individuals responsible for causing companies to fail. Too little or too much of one or the other can have dire consequences and because of this a suitable mix has to be incorporated into derivative liability. One of these dire consequences would directors taking exorbitant risks and driving companies into the ground for their own personal agendas, such as was the case in the collapse of HIH Insurance. The conundrum with regards to striking this appropriate balance can also be pronounced as the problem of the ‘golden egg’:

‘How do we ensure that Australia's corporations continue to present the golden eggs essential to economic growth, job creation, product quality and economic wealth without strangling the goose with an excess of well intentioned red tape devised by legislative rules, administrative directions and court decisions?’

A number of law and economics theorists have reinforced claims that the more the obligations directors are forced to bear as a result of law, the less efficient they will be. These claims have been substantiated by a government and Australian Institute of Company Directors (AICD) survey conducted of 100 S&P/ASX-200 directors which produced an alarming outcome. The results of the questionnaire by and large displayed a clear influence and hesitancy from directors with regards to the way they make business based decisions because of the derivative liability. When directors were asked whether the risk of personal liability caused them or the board to have an overly cautious approach to decision making, approximately 80% of participants believed this occurred occasionally or frequently. With regards to board retention and recruitment, the survey indicated that approximately 70% of respondents had declined the offer of a company directorship purely due to the risk of personal liability.

The Council of Australian Government (COAG), comprising of both Commonwealth and state government is a formal body responsible for making Australian law more uniformed. The COAG principles state corporations should be held answerable to derivative liability in the first, not individuals. The Commonwealth government, as early as this year, have introduced the Personal Liability for Corporate Fault Reform Bill to ensure that legislation going forward is harmonised in line the COAG’s assertions.

Determining precisely which party or parties are at fault
As has been previously stated exact way in which a corporation is perceived in relation to the facts of the case and the specific area of law in question will be at the forefront with prosecution policy in determining who is deemed answerable for the wrongdoing. If a ‘holistic’ interpretation is taken, that being the corporation is intertwined and inseparable, than action should be taken against the corporation. If in the other case an ‘atomistic’ stance is taken the corporation is seen as being separable with disparate elements which act as a driving force for action to be taken the relevant individuals. Given the intricate nature by which a corporation operates there is often a considerable degree of difficulty in ascertaining which individuals are responsible for the misconduct in the eyes of the law. It is not uncommon for individuals to mask themselves behind the body corporate. The following citation addresses this observation appropriately:

‘Committed to the infliction of pain as its primary weapon against crime, the law has been particularly confounded by the screening mechanism of the corporate form.’

In some cases such as the Zeebrugge ferry sinking it will be much clearer which individuals should be held directly accountable. Conversely, in other cases with a different and more complicated set of facts such as the Concorde crash it can be less obvious.
The topic of ‘scapegoating’ individuals can arise in situations where there is no clear cut culprit behind the corporate criminal activity that occurred. Essentially what can happen is blame games in which no one accepts responsibility but rather accuses any and every one bar them for wrongdoing in order to save their own skin. This is a common trait seen in many corporate negligence and manslaughter cases and is not beneficial to the equitable administration of the law. The Concorde crash and the Zeebrugge ferry sinking mention earlier are two prime examples of this unproductive phenomenon. A sensible argument made the Law Reform Comission of Canada states:

‘In a society moving toward group action, it may become impractical to try deal with systems through their components, that being the individuals.’

Corporations can potentially have several people who could be responsible for the wrongdoing of the corporation and identifying these under the subjective nature of corporations can be an extremely arduous task. This notion can often lead legal action down so many different pathways and result in a dilution of blame with many guilty individuals getting off scot free. A corporation is indeed an essentially intertwined system made up of a numerous stakeholders all of which need to interact to function together a collective unit. This synergetic outlook on a company does not make it conducive to try and dissect the various elements of a company to pinpoint exactly who should be held responsible. Following on from this claim it can be said that taking action against the corporation instead of individuals may be a necessary avenue to increase the likelihood of a guilty conviction.

Protecting innocent bystanders from the wrongdoing of others
What also has to be taken into consideration is the burden that a sanction such as a fine places on the corporation and the ‘overspill effect’ this has onto presumed innocent stakeholders. Stakeholders commonly affected include shareholders through a reduced share price, creditors due to increased credit risk, employees if the sanction results in a loss of jobs and consumers through increased prices. It could be ruthlessly disputed that these stakeholders are getting their ‘just deserts’ for there is an assumed level risk in engaging in business activity. However from a moralistic perspective compassion should be given to protecting these assumed innocent stakeholders given their degree of importance to the sustainability of the economy. Many of these parties are ‘blue collar’ individuals carrying out there business in an honest and ethical manner and to let them wither because of criminal activity would be inhumane. Job cuts increase unemployment rates which are in no way beneficial to the state of economy and almost always an unreasonable consequence of extreme corporate penalties. As a result the prosecution when establishing their prosecution policy must carefully consider the broader implications that any prosecution would have on guilt free parties and the industry as a whole. Bringing forth civil liability in these situations could be more equitable on the corporation and its stakeholders as a whole because the people that actually suffer the damagers get reimbursed whereas if a company gets fined the money essentially goes to the government’s war chest. This reinforces the need for judges to have a diverse range of alternative criminal sanctions to apply as they see fit to a case.

The need for reform in criminal sanctions
Criminal sanctions arise when a civil penalty provisions are contravened in the following manner, knowingly, intentionally or reckless; and either: dishonestly and intending to gain, an advantage for that or any other person; or intending to deceive or defraud someone. A comprehensive review of criminal sanctions conducted by the Department of Treasury has deduced that the legal system is underpinned by a severe lack of appropriate sanctions to cater for the need of differing cases. Reform in criminal sanctions for corporate crime is vital so that more effective penalties can be allocated to the offender which will in turn more accurately satisfy punishment and deterrence. Parliament, the legislatures have intervened at various stages to strengthen criminal sanctions in particular segments of corporate law, however their responses are usually very conservative and ‘piecemeal’ in nature. An appropriate metaphor for this is a mere few jigsaw pieces in what is a large and complicated puzzle.

The inadequacy of criminal sanctions can be highlighted by the Esso case under which industrial manslaughter occurred for breaches of the Occupational Health and Safety (OHS) Act 1985 (Vic). Two deaths and eight serious injuries were a direct result of this unfortunate incident. As punishment and deterrence for this tragedy two million dollars of fines was handed out to Esso, the largest fine for a workplace offence in history to that date. Despite the fine perhaps on face value looking like an extreme and perhaps fitting sanction, Justice Phillip Cummins who issued the sanction criticised the ‘limited penalties’ and lack of flexibility at his disposal in his obiter dictum. The two issues that this case tells us about corporate law as it stands is firstly the lack of a meaningful fine for a corporation and secondly, a lack of alternative sanctions. Given the judge’s comments it is evident that sentencing practices need to be more multifaceted as opposed to their current one dimensional approach whereby fines are seen as a superlative sanction. Sanctions need to be able to address a corporation’s peculiarities and be an appropriate exponent of punishment and deterrence for the case at hand. Whilst fines may very well be the most appropriate penalty for a large proportion of cases it should not be seen as the be all and end all of criminal sanctions. Implementing a ‘one size fits all’ approach is a naïve way of treating white collar crime which is such a convoluted and murky area of the law.

In order for fines to be more effective they need to be tailored in size to the particular corporate defender’s wealth in order for punishment and the deterrent effect to be induced. The two million dollar fine given to Esso needs to be looked at in context to determine its merit as a criminal sanction. The parent company of Esso, Exxon Mobil, who can effectively bail Esso out reported a colossal net income of eighteen billion US dollars for the year of the incident. Having a cap on fines creates the danger of corporations such as Esso and Exxon Mobil viewing it as a ‘public morality tax’, that being merely a cost of doing business. The English and Canadian legal systems have both incorporated the relative wealth of a company belief in their law.

In recent times the Australia government has shown enthusiasm for change in the operation of fines by increasing the maxima for specific offences with maximum penalties to one million dollars. This can be seen through pecuniary penalties for serious pollution offences and breaches of the Trade Practices Act (TPA) 1974 (Cth) rising to one million dollars. However, even if fines are imposed at these thresholds, the fundamental problem, labelled as the ‘deterrence trap’ still remains. The issue is the maximum fine is still limited by the wealth of the offender. While enormous penalties have proven to be necessary in order to deter certain large corporations the difficulty still lies in finding this happy medium. Striking an appropriate balance between imposing a fine sufficiently large enough to influence corporate governance, while simultaneously not being excessive as to cripple the corporation is the difficult task of legislatures.

A flaw and argument for boundaries on fines is that the magnitude of the fine should be aligned with the gravity and seriousness of the offence as opposed to how much money the corporation has in its coffers for the regulator to plunder. Whilst the capacity to pay a fine should be a relevant factor in determining a criminal sanction to significance punishment deterrence, it should not be the only factor or better yet overemphasised. Another point that should be taken into account is the indirect impact the penalty has on the brand and fabric of a corporation. Whilst the fine might not be regarded as being excessive enough to act as a successful deterrent on its own looking at the compounding effects the fine has can bring perspective into this issue. The adverse publicity that would likely arise from court’s identifying wrongdoing and financially penalising the company would significantly damage it’s goodwill. Once again the effects of negative publicity needs to be carefully considered and managed to ensure that punishment is not over the top.
A proposed solution to make the legal system less rigid and reduce the legal system’s dependency on fines as almost the sole avenue for legal enforcement could be Ayres and Braithwaite’s ‘enforcement pyramid’ as seen in the diagram below. The abstract suggests that regulatory agencies are best able to punish and deter corporate crime when they are ‘benign big guns’. In other words, they will be able to administer both serious and lesser crimes more effectively when they carry big sticks and more varied sticks, with sticks being a metaphor for sanctions. The exhibit acknowledges both the need for high level and low level sanctions in the judge’s arsenal to be appropriately deployed as weapons in the battle against corporate crime under a ‘match and fit’ approach. The structure of the model is very to the ‘hierarchy of courts’ doctrine that operates currently within the Australian legal system. This gives rise to the legitimacy of the proposal and the assertion that the two ideologies could function well in tandem.

Conclusion
Deciding which party to bring legal action against is not black and white, there are indeed shades of grey. These shades of grey must be examined in conjunction by both the prosecution and the judge in accordance with intricacies of the case, the area of law applicable and the best interests of everyone involved in the outcome of the case. To not do so would be an inadequate application of punishment and deterrence to the detriment of the community’s welfare. Furthermore, to not look at the wider implications of corporate crime enforcement would be contradictory to the existence of a legal system in the first place, protecting the innocent. The law especially with regards to sanctions need to be far more fluent and flexible to accommodate for the unique cases brought before it. Consequently a match and fit approach not a one size fits all approach needs to be taken to the law. The courts reluctance to introduce broad and dynamic legislation for criminal sanctions has resulted in the law becoming stagnant and out dated. It seems as though they are merely applying a band aid fix to an area of law that in reality requires quite substantial alternations. If these necessary changes are not implemented criminal sanctions are simply not going to be effective, a direct effect of lack of punishment and deterrence. Instead white collar crime will continue to be swept under the carpet. Parliament, the legislatures of law, need to adhere to the professional advice given to them by reputable legal bodies such as the Australian Law Reform Commission, the DPP and the COAG. It is important to note that the government actually supports and establishes these legal participants with taxpayer’s money. For the government to not implement any recommendations from these bodies would be highly hypocritical and simply bad practice. They all exist for one simple reason to ensure improvement and the effective administration of the law.

Hopefully this research report can play a small part in encouraging the players in the legal system to ensure the legal system receives the necessary innovation and continued improvement to ensure it is more in line with a world’s best practice approach. As it stands corporate crime remains area of law that is highly undeveloped and ad hoc at best. Whilst the government seems to do a lot of talking regarding to matters concerning law in Parliament the simple yet effective phrase, ‘actions speak louder than words’ applies. Given the dependency of the economy on companies, as can be seen in Global Financial Crisis, there is no alternative but to get it right.

Bibliography
Australian Law Reform Commission, revised 2006, http://www.austlii.edu.au/au/other/alrc/publications/reports/103/10.html, viewed 13 August, 2012.

BBC News, “1987: Zeebrugge disaster was no accident”, BBC News, 1998, http://news.bbc.co.uk/onthisday/hi/dates/stories/october/8/newsid_2626000/2626265.stm, viewed 19 August, 2012.

BBC News, “Concorde crash kills 113”, BBC News, 2000, http://news.bbc.co.uk/2/hi/europe/851209.stm, viewed 20 August, 2012.

Bhattacharya, P., “Court Rules Union Carbide Not Liable in Bhopal Case”, The Wall Street Journal, 2012, http://online.wsj.com/article/SB10001424052702303561504577493642502980690.html, viewed 1 September, 2012.

Clough. J, Sentencing the Corporate Offender: The Neglected Dimension of Corporate Criminal Liability (Paper presented to the Corporate Crime Workshop), Monash University, Dept. of Business Law and Taxation, Melbourne, 2002.

Clough, J. & Mulhern, C., The prosecution of corporations, Oxford University Press, South Melbourne, Vic., 2002.

Coffee, J.C., “’No Soul to Damn: No Body to Kick’: An Unscandalized Inquiry into the Problem of Corporate Punishment”, Michigan Law Review, Vol. 97, No. 3, 1981, pp. 386-393.

Croall, H., Understanding white collar crime, Open University, Buckingham, 2001.

Current issues in civil and criminal litigation arising from the regulation of commerce and public authorities in Australia: the interplay between civil penalties and criminal penalties in Australian regulation, Department of Public Prosecution, Western Australia, 2006.

Department of Treasury, “Review of Sanctions in Corporate Law”, Australian Government, 2007, http://archive.treasury.gov.au/documents/1182/PDF/Review_of_Sanctions.pdf, viewed 23 August, 2012.

Director of Public Prosecutions v Esso Australia Pty Ltd [2001] VSC 263.

Gobert, J.J. & Punch, M., Rethinking corporate crime, Butterworths, London, 2003.

Gregory, P., & Shaw, M., “Esso Fined a Record $2M”, The Age, 31 July, 2001, Business, pp. 1.

Keay, A., "Directors' Duties to Creditors: Contractarian Concerns Relating to Efficiency and Over-protection of Creditors", Modern Law Review, Vol. 6, No. 5, 2003, pp. 686-687.

Kennedy, C., “Criminal Sentences for Corporations: Alternative Fining Mechanisms”, California Law Review, Vol. 73, No. 2, 1985, pp. 443.

Kirby, M., "Rethinking Company Law and Practice", Australian Journal of Corporate Law, Vol. 5, No. 1, 1995, pp. 176-177.

Law Reform Commission of Canada, Criminal Responsibility for Group Action (Working Paper No. 16), Law Reform Commission of Canada, Ottawa, 1976.

Lipton. P, Herzberg, A. & Welsh, M., Understanding Company Law, 16th edn, Thompson Reuters, Pyrmont, 2012.

NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285.

Personal Liability for Corporate Fault Discussion Paper, Corporation and Markets Advisory Committee, Canberra, 2005.

Personal Liability for Corporate Fault Reform Bill 2012 - Explanatory Document, Department of Treasury, Canberra, 2012.

Proposed Directors' Liability Reforms Released for Public Consultation, Department of Treasury, Canberra, 2010.

R v Radich [1954] NZLR 86, 87.
Ramsay, I.M. & Noakes, D.B., “Piercing the Corporate Veil in Australia”, Company and Securities Law Journal, Vol. 19, No. 1, 2001, pp. 250-271.

s.19 Criminal Justice Act 1991 (UK), R v Browning Arms Co of Canada Ltd (1974) 15 CPR (2d) 97 & R v Shell Canada Products Ltd (1990) 29 CPR (3d) 32.
s.59E Environmental Protection Act 1970 (Vic) & s.76 Trade Practices Act 1974 (Cth).

s.124 Corporations Act 2001 (Cth).

s.1043A Corporations Act 2001 (Cth) & s.184 of the Corporations Act 2001 (Cth)

Salomon v. A. Salomon & Co. Ltd. (1897) AC 22.

Survey of Company Directors, Department of Treasury, Canberra, 2008.

The HIH Royal Comission, revised 2012, http://www.hihroyalcom.gov.au/, viewed August 14, 2012.

Waller, P.L., Williams, C.R. & Peter, B., Brett, Waller and Williams criminal law: text and cases, 8th edn, Butterworths, Sydney, 1997.

Your Dictionary, revised 2012, http://law.yourdictionary.com/sanction, viewed 25 August, 2012.

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[ 1 ]. J. Clough, Sentencing the Corporate Offender: The Neglected Dimension of Corporate Criminal Liability (Paper presented to the Corporate Crime Workshop), Monash University, Dept. of Business Law and Taxation, Melbourne, 2002.
[ 2 ]. Your Dictionary, revised 2012, http://law.yourdictionary.com/sanction, viewed 25 August, 2012.
[ 3 ]. Australian Law Reform Commission, revised 2006, http://www.austlii.edu.au/au/other/alrc/publications/reports/103/10.html, viewed 13 August, 2012.
[ 4 ]. ibid, above n 3.
[ 5 ]. op cit., above n 3.
[ 6 ]. R v Radich [1954] NZLR 86, 87.
[ 7 ]. s.124 Corporations Act 2001 (Cth).
[ 8 ]. Salomon v. A. Salomon & Co. Ltd. (1897) AC 22.
[ 9 ]. I.M. Ramsay & D.B. Noakes, “Piercing the Corporate Veil in Australia”, Company and Securities Law Journal, Vol. 19, No. 1, 2001, pp. 250-271.
[ 10 ]. H. Croall, Understanding white collar crime, Open University, Buckingham, 2001.
[ 11 ]. J.J. Gobert & M. Punch, Rethinking corporate crime, Butterworths, London, 2003.
[ 12 ]. s.1043A Corporations Act 2001 (Cth) & s.184 of the Corporations Act 2001 (Cth).
[ 13 ]. Current issues in civil and criminal litigation arising from the regulation of commerce and public authorities in Australia: the interplay between civil penalties and criminal penalties in Australian regulation, Department of Public Prosecution, Western Australia, 2006.
[ 14 ]. loc cit., above n 13.
[ 15 ]. P.L. Waller, C.R. Williams & B. Peter, Brett, Waller and Williams criminal law: text and cases, 8th edn, Butterworths, Sydney, 1997.
[ 16 ]. P. Bhattacharya, “Court Rules Union Carbide Not Liable in Bhopal Case”, The Wall Street Journal, 2012, http://online.wsj.com/article/SB10001424052702303561504577493642502980690.html, viewed 1 September, 2012.
[ 17 ]. Personal Liability for Corporate Fault Discussion Paper, Corporation and Markets Advisory Committee, Canberra, 2005.
[ 18 ]. The HIH Royal Comission, revised 2012, http://www.hihroyalcom.gov.au/, viewed August 14, 2012.
[ 19 ]. M. Kirby, "Rethinking Company Law and Practice", Australian Journal of Corporate Law, Vol. 5, No. 1, 1995, pp. 176-177.
[ 20 ]. A. Keay, "Directors' Duties to Creditors: Contractarian Concerns Relating to Efficiency and Over-protection of Creditors", Modern Law Review, Vol. 6, No. 5, 2003, pp. 686-687.
[ 21 ]. Survey of Company Directors, Department of Treasury, Canberra, 2008.
[ 22 ]. Proposed Directors' Liability Reforms Released for Public Consultation, Department of Treasury, Canberra, 2010.
[ 23 ]. Personal Liability for Corporate Fault Reform Bill 2012 - Explanatory Document, Department of Treasury, Canberra, 2012.
[ 24 ]. C. Kennedy, “Criminal Sentences for Corporations: Alternative Fining Mechanisms”, California Law Review, Vol. 73, No. 2, 1985, pp. 443.
[ 25 ]. BBC News, “1987: Zeebrugge disaster was no accident”, BBC News, 1998, http://news.bbc.co.uk/onthisday/hi/dates/stories/october/8/newsid_2626000/2626265.stm, viewed 19 August, 2012.
[ 26 ]. BBC News, “Concorde crash kills 113”, BBC News, 2000, http://news.bbc.co.uk/2/hi/europe/851209.stm, viewed 20 August, 2012.
[ 27 ]. id., above n 25.
[ 28 ]. loc cit., above n 24.
[ 29 ]. Law Reform Commission of Canada, Criminal Responsibility for Group Action (Working Paper No. 16), Law Reform Commission of Canada, Ottawa, 1976.
[ 30 ]. Clough, above n 1.
[ 31 ]. id., above n 13.
[ 32 ]. Department of Treasury, “Review of Sanctions in Corporate Law”, Australian Government, 2007, http://archive.treasury.gov.au/documents/1182/PDF/Review_of_Sanctions.pdf, viewed 23 August, 2012.
[ 33 ]. Director of Public Prosecutions v Esso Australia Pty Ltd [2001] VSC 263.
[ 34 ]. P. Gregory & M. Shaw, “Esso Fined a Record $2M”, The Age, 31 July, 2001, Business, pp. 1.
[ 35 ]. J. Clough & C. Mulhern, The prosecution of corporations, Oxford University Press, South Melbourne, Vic., 2002.
[ 36 ]. J.C. Coffee, “’No Soul to Damn: No Body to Kick’: An Unscandalized Inquiry into the Problem of Corporate Punishment”, Michigan Law Review, Vol. 97, No. 3, 1981, pp. 386-393.
[ 37 ]. s.19 Criminal Justice Act 1991 (UK), R v Browning Arms Co of Canada Ltd (1974) 15 CPR (2d) 97 & R v Shell Canada Products Ltd (1990) 29 CPR (3d) 32.
[ 38 ]. s.59E Environmental Protection Act 1970 (Vic) & s.76 Trade Practices Act 1974 (Cth).
[ 39 ]. Coffee, p. 390, above n 35.
[ 40 ]. NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285.
[ 41 ]. id., above n 11.
[ 42 ]. op cit., above n 11.