The Impact of the Corporate Form on Corporate Liability for ...

3.2 Criminal liability <strong>of</strong> corporations in Australia
(a)
Pursuant to Statute - <strong>The</strong> Criminal Code
17. As legal persons, corporations can be held to account under Australian law for direct or
indirect involvement in international crimes committed in Australia or overseas. Part 2.5 <strong>of</strong>
<strong>the</strong> Criminal Code, which creates forms <strong>of</strong> corporate liability that apply to all federal
statutes, sets out <strong>the</strong> manner in which corporations can be found to have criminal
responsibility.
18. Under this Part <strong>of</strong> <strong>the</strong> Criminal Code, corporations can be found guilty <strong>of</strong> an <strong>of</strong>fence,
including an <strong>of</strong>fence punishable by imprisonment (s12.1). 5 Even where legislation does not
expressly state that a corporation can be liable for an <strong>of</strong>fence, <strong>the</strong> Acts Interpretation Act
1901 (Cth) states that 'person' is defined to include a body corporate (s22). Corporations
may also be liable for breach <strong>of</strong> criminal laws enacted at <strong>the</strong> State and Territory level.
19. <strong>The</strong> physical element <strong>of</strong> an <strong>of</strong>fence (actus reus) can be established where <strong>the</strong> <strong>of</strong>fence is
committed by an employee, agent or <strong>of</strong>ficer <strong>of</strong> a company acting within <strong>the</strong> actual or
apparent scope <strong>of</strong> his or her employment, or within his or her actual or apparent authority
(s12.2).
20. Significantly, <strong>the</strong> Criminal Code varies <strong>the</strong> common law, so that corporations can be found
guilty <strong>of</strong> an <strong>of</strong>fence even where this <strong>of</strong>fence requires intention on <strong>the</strong> part <strong>of</strong> <strong>the</strong> principal.
21. To this end, <strong>the</strong> mens rea <strong>of</strong> a corporation can be established where a corporation
'expressly, tacitly or impliedly authorised or permitted <strong>the</strong> commission <strong>of</strong> <strong>the</strong> <strong>of</strong>fence'
(s12.3(1)). Authorisation or permission can be established (s12.3):
• where <strong>the</strong> corporation's board <strong>of</strong> directors or high managerial agent intentionally,
knowingly or recklessly carried out <strong>the</strong> relevant conduct, or expressly, tacitly or
impliedly authorised or permitted <strong>the</strong> commission <strong>of</strong> <strong>the</strong> <strong>of</strong>fence;
• where a corporate culture existed within <strong>the</strong> body corporate that directed,
encouraged, tolerated or led to non-compliance with <strong>the</strong> relevant provision; or
• where a corporation failed to create and maintain a corporate culture that required
compliance with <strong>the</strong> relevant provision ( 12.3).
22. We note that <strong>the</strong>se corporate culture provisions are an innovative feature <strong>of</strong> Australia's
Criminal Code, that to a significant extent redefine <strong>the</strong> criminal liability <strong>of</strong> corporations.
However, this paper does not seek to address specifically, on request <strong>of</strong> <strong>the</strong> ICJ, forms <strong>of</strong>
corporate liability in criminal law. Fur<strong>the</strong>r, under <strong>the</strong> Criminal Code, a person (or
corporation) who aids, abets, counsels or procures <strong>the</strong> commission <strong>of</strong> an <strong>of</strong>fence by
ano<strong>the</strong>r person is taken to have committed that <strong>of</strong>fence (s11.2). <strong>The</strong>refore a corporation
can be liable as an aider and abetter <strong>of</strong> an <strong>of</strong>fence committed by an employee, or an
employee can be liable as an aider and abetter <strong>of</strong> an <strong>of</strong>fence committed by <strong>the</strong> corporation.
5
Note that sanctions imposed on corporations will vary according to <strong>the</strong> legislation in which <strong>the</strong> <strong>of</strong>fence is created.
For discussion <strong>of</strong> various penalties that may apply to corporations see footnote to survey 'Commerce Crime &
Conflict: A Comparative Survey <strong>of</strong> Legal Remedies for Private Sector Liability for Grave Breaches <strong>of</strong> International
Law and Related Illicit Economic Activities' Australia Survey Questions and Responses.
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