CRIMINAL While a corporation is deemed to be
At the other end of the spectrum,
MANSLAUGHTERINTHE a legal person for the purposes of
the criminal law, corporations
WORKPLACE cannot be tried in Australia for an
Dr Rick Sarre offence that can only be punished
Associate Professor of Law by imprisonment. This notion is set
University of South Australia to change. Legislation in this
country is now being drafted and
enacted to provide custodial
sentences in situations where,
despite the existence of
documentation that appeared to
require and ensure compliance
with the law, the reality was that
non-compliance was expected or
the key players were indifferent
about compliance. That is, if the
persons who made the error of
judgment orwho acted in a callous
way could be shown to be the
'guiding mind' of the corporation,
then sentences of imprisonment
may apply.
The framers of the Criminal Code
Act(Cth), and the Crimes
[Workplace Deaths and Serious
Injuries) Bill (Vic) appearto have
had this in mind.
DEATH IN THE
WORKPLACE
In 1998, 18-year-old Anthony
Carrick was crushed and killed by a
5-tonne concrete panel on his first
day at work at a bulk livestock feed
store in Melbourne. Drybulk Pty Ltd
was fined $65,000. The Carrick
family was outraged at the
insufficiency of the penalty. But
what could be done byway of
reform? The suggestion by some
was that fi rms in these
circumstances should be charged
with manslaughter, and their
principals could be jailed in the
event of a guilty verdict. The
Victorian Bill (discussed below)
grew out of this concern. It is
worthwhile, however, to reflect on
the purposes of the law (and its
reform) in seeking to prevent
danger in the workplace.
There are those who argue for
deregulation and self-regulation,
suggesting that enticing companies
towards safe behaviour is best done
24 AUSTRALIAN CONSTRUCTION LAW NEWSLETTER #89 MARCH/APRIL 2003
without the heavy hand of the law.
there are those who call for
uncompromising criminalisation of
any dangerous acts, and
imprisonment in the most serious
cases. Most commentators fall
somewhere in between, seeing the
value of self-regulation,
encouraging rewards forthose
directors who foster a 'culture of
compliance', while at the same time
recognising that punitive sanctions
have their place in a broader
regulatory framework. 1
According to Fisse and Braithwaite,
compliance is best understood:
[W}ithin a dynamic enforcement
game where enforcers try to get
commitment from corporations to
comply with the law and can back
up their negotiations with credible
threats about the dangers faced by
defendants if they choose to go
down the path of non-compliance. 2
In this light, most regulators now
accept and adopt the notion of an
enforcement ·pyramid'. At the base
of the pyramid, most matters are
dealt with informally, that is,
responded to by cautions, stern
warnings and the like. As conduct
becomes more serious, so too do
the responses, for example, civil
actions for recovery of damages
and monetary penalties. 3 Further
up still are prosecutions, and, at the
top of the pyramid, the most severe
criminal penalties. It is at this level,
the pinnacle, that the proposed
manslaughter laws would be
designed to apply.
RESPONSIBILITY FOR
CORPORATE KILLING
In Australia, the idea of a specific
corporate criminal responsibility
has been pursued for more than a
decade. 4 The current common law
approach is straightforward and
conservative. While a corporation is
deemed to be a legal 'person' for
the purposes of the criminal law in
all Australian jurisdictions, a
corporation cannot be convicted for
an offence which can only be
punished by imprisonment, and
where the persons who made the
error of judgment orwho acted in a
callous way were not the 'guiding
mind' of the corporation, or did not
'embody' the corporation. 5 Forthat
reason a corporation can never be
found guilty of murderin Australia.
There has been a preparedness of
some prosecutorial authorities, in
the last decade, to charge
corporations with manslaughter,
although the success rate is very
poor. 6 These common law principles
are changing. The two most obvious
examples are found in the Criminal
Code Act 7995(Cth) and the Crimes
(Workplace Deaths and Serious
Injuries) Bill (Vic).
CRIMINAL CODE ACT 1995
This Act attempts to give some
greatertangibilityto the notion of
corporate criminalliability.7 Section
12.1 confirms that the Code applies
to corporations, and says that they
may be found guilty of any offence,
including those punishable by
imprisonment. The Code explicitly
states that ha rm ca used by
employees acting within the scope
of their employment is considered
to be harm caused by the body
corporate, and introduces the
crucial concept of 'corporate
culture', defined in s.12.3 (6) of the
Code as an 'attitude, policy, rule,
course of conduct or practice
existing within the body corporate
generally or in the part of the body
corporate in which the relevant
activities take place'.8 A company
with a poor corporate culture may
be considered as culpable under
this legislation as individual
directors or senior managers. 9 The
change was designed to catch
situations where, despite the
existence of documentation
appearing to require compliance,
the reality was that non-compliance
was expected. 1O For example, a
company would be guilty of
reckless endangerment under the
Code where its corporate culture
tacitly authorised breaches of the
safety codes (for example, by There has been a
removing equipment guards, or preparedness of some
allowing drivers to ingest drugs in
prosecutorial authorities, in
orderto drive longer hours).
the last decade, to charge
There is, however, a constitutional corporations with
limitation to the Code. It is designed
manslaughter, although the
primarily as a model code for
States and Territories to follow and success rate is very poor:
develop uniformity. If the
Commonwealth does not have a
criminal law applicable to the
activity under question, then the
Code cannot apply. As it happens,
there is no Commonwealth law that
deals with manslaughter. It
therefore falls to each of the States
and Territories to adopt some
similar provisions to the
Commonwealth Code in its criminal
code or (in the case of common law
States) other criminal legislation.
The Commonwealth Code is in the
process of being adopted in the
ACT.ll It has not been adopted in
any of the States. 12 Victoria has
made the only serious attempt at
adoption of this aspect of the Code,
as described below.
CRIMES (WORKPLACE
DEATHS AND SERIOUS
INJURIES) BILL (VIC)
In late November 2001, the Bracks
government introduced the Crimes
(Workplace Deaths and Serious
Injuries) Bill into the Victorian
parliament. Underthis Bill, if an
employer has failed to provide a
safe place of work, his or her
corporation could be fined up to
$600,000 (up from $250,000) and
an individual up to $120,000 (up
from $50,000) and he or she could
serve a maximum term of 12
months imprisonment. If an
employer has obstructed health
and safety inspectors, discriminated
against employees for health and
safety activities or failed to comply
with prohibition notices issued by
WorkSafe, maximum fines will
increase to $750,000 (up from
$250,000) for a corporation and
$150,000 (up from $50,000) for
individuals.
AUSTRALIAN CONSTRUCTION LAW NEWSLETTER #89 MARCH/APRIL 2003 25
If the company is found
guilty, the Bill would have
allowed prosecutions of
~senior officers' of
corporations where they
knew about the high risk to
theirworkers' safety and
were able to do something to
prevent the death or serious
injury but did not.
26 AUSTRALIAN CONSTRUCTION LAW NEWSLETTER #89 MARCH/APRIL 2003
The Bill was rejected in the Upper
House in May 2002, following
sustained pressure from the
Australian Industry Group and the
Victorian Employers Chamber of
Commerce. The feeling was that
there was insufficient requirement
of a causal nexus between the
prescribed conduct and the serious
injury or death. It is worth reviewing
the main provisions of the Bill given
the likelihood of its being given a
new lease of life in 2003.
The Bill was designed to allow a
court to look at the conduct of the
corporation as a whole, ratherthan
just the conduct of one person who
may have been the 'directing mind
and will' of the corporation (which is
the case under the current law).
Given the nature of modern
corporations and decision-making
processes, a court, under this Bill,
would have been able to consider
and add togetherthe negligence of
any number of employees or
agents or officers of the
corporation. If the combined
conduct amounted to gross
negligence, the corporation could
have been found guilty. A
corporation found guilty of
corporate manslaughterwould be
liable for fines of up to $5 million
for a death and up to $2 million for
a serious injury. A court can also,
under the Bill, orderthe company
to publicise its wrongdoing. 13 If the
company is found guilty, the Bill
would have allowed prosecutions of
'senior officers' of corporations
where they knew about the high risk
to their workers' safety and were
able to do something to prevent the
death or serious injury but did not.
Maximum penalties for senior
officers found guilty were set at
$180,000 fine or five years
imprisonment where death
occurred, and $120,000 fine ortwo
years imprisonment where serious
injury occurred.
Following the overwhelming
electoral victory of the Labor Party
on 30 November 2002, control of
the Upper House is nowwith the
Bracks government. It may be the
Bill is reintroduced in due course,
perhaps in anotherform. According
to a report in The Australian, 14 the
government maywaterdown many
of the harsh penalties described
above, and may rethink the
imprisonment provisions.
It is also worth noting that former
Industrial Relations Commissioner
Robert Liang, in his November
2002 report to the WA government
on the Occupational Health And
SafetyAct (WA), set out cogently
the arguments that apply to this
issue, and found favourwith the
general thrust of the Victorian Bill. 15
His recommendations included the
following:
Recommendation 43: It is
recommended the [OH&S} Act be
amended to provide for negligent
senior officers of corporations to be
held accountable for the death or
serious injury of employees.
Offences would apply where a
corporation owes a duty of care to
the deceased or injured person,
where senior officers have
breached their duty of care and the
breach amounts to gross
negligence. In the event that
investigation procedures under the
Criminal Code and/oramendment
of the Criminal Code provide an
effective alternative process, this
recommendation should lapse.
Again, further developments may
eventuate. Will the WA government
act upon this recommendation and
enact such legislation? Would the
legislation contemplate
punishments of imprisonment in the
most serious of cases?
INITIATIVES ELSEWHERE
The Australian trend has been
mirrored overseas. Following
sustained public pressure at the
failure of the courts to secure
convictions arising out of the
Southall rail crash in September
1997,16 and a Law Commission
Review in 1996, the Home Office
explored the idea of a new crime of
'corporate killing', an offence that
would correspond to the (proposed)
individual offence of 'killing by
gross carelessness'.17 'Corporate
killing' would be alleged to have
name a few, have all incorporated
criminal punishments against
errant corporations under their new
or revised penal codes. 21 Two
Council of Europe treaties include
corporate criminalliability.22
support for more appropriate and
penal responses to corporate
conduct that can be described as
'appalling' orwhere conduct
'conspicuously fail[s] to observe the
standards laid down by law' .23 feel
1

occurred when there is that we owe it to the Carrick family,

'management failure', that is, where
the corporation's conduct in causing
death fell far belowwhat could
reasonably have been expected
(e.g. where the entity's activities are
so poorly planned and organised
that they fail to ensure the health
and safety of employees or those
affected by its activities). According
to the Law Commission, such a
failure should be regarded as
causative of death even if the more
immediate cause is the act or
omission of an individual. In that
case, both individual and corporate
liability could flow from the same
incident. In its response,18 the UK
government, in accepting the thrust
of the Law Commission's
recommendations, proposed that
any individual who could be shown
to have had responsibility for the
circumstances in which
management failure fell far below
what could reasonably be expected
should. be disqualified from carrying
on business henceforth, but it
~top~ed short of recommending
ImpriSOnment. 19
Finally, it is interesting to note that
many European Civil Code
countries, where 'non-human'
liability under the penal law has
been historically unacceptable,
have enacted a raft of
administrative penalties for
corporate wrongs. France amended
its Penal Code in 1991 to remove
the general principle that liability
cannot attach to non-human
entities. It has enacted corporate
criminal liability since 1 March
1994, with rules that apply not only
to corporate entities but also to
other entities such as trade unions
and local authorities. 20
Countries such as Portugal, Spain,
Norway, Finland and Denmark, to
CONCLUSION
and the families of many other
The above initiatives, national and
employees killed at work, to do
international, are a response to the
more than wring our hands in
challenges thrown to law-makers
regret.
by those keen to reduce the
numbers of workplace deaths. The
question is the extent to which
directors of companies ought to be
criminally liable in circumstances
where a culture of sloppiness
pervades the organisation, and
whetherthe penalties attaching to
that behaviour should include
imprisonment for principals of the
company. There is much to
commend a legislative initiative that
allows criminal penalties to fall
upon directors and managers of
companies where their conduct
falls below a certain level and
death results. There are grave
limitations, of course, on the use of
imprisonment as a regulatory tool,
although there may be something
quite satisfying about the ability to
imprison someone in circumstances
that demand it, even forthose of us
who are committed to
imprisonment as a last resort, and
in circumstances where the
perpetrators no longer present a
grave threat to human safety.
To what extent, however, are these
types of changes capable of
protecting workers from dangerous
corporate practices? Is this the best
way to avert preventable death in
the workplace? The jury is still well
and truly out on whether harsh
sentences act as a deterrent in the
corporate boardroom. Similarly
untested is the ability of lawmakers
to convince the sceptics that
accumulating a numberof
'controlling minds' into a guilty mind
is sufficient forthe causal nexus
required for mens rea.
Whatever choices are made, it is
clear that there is great public

AUSTRALIAN CONSTRUCTION LAW NEWSLETTER #89 MARCH/APRIL 2003 27

REFERENCES
1. Pearce, F. and Tombs, S.
(1990), 'Ideology, hegemony and
empiricism: compliance theories
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2. Fisse, B. and Braithwaite, J.
(1993), Corporations, Crime and
Accountability, Cambridge: CUP,
143.
3. See Ayres, I. and Braithwaite,
J. Responsive Regulation, NY: OUP,
1995, at 35-53.
4. For example, Tomasic, R. and
Bottomley, S. (1995) Corporations
Law in Australia, Sydney:
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(2002), 'Corporate Criminal Liability
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6. Bronitt, S. and McSherry, B.
(2000), Principles of Criminal Law,
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failure of manslaughter in R vA.C.
Hatrick Chemicals Pty Ltd,
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2001. See Woolf, T. (1997), 'The
Criminal Code Act 1995 (Cth)-
Towards a RealistVision of
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Criminal LawJournal257.
8. The idea of 'culture' is
becoming commonplace in
corporate cases. As an example,
see Heerey J in ACCC v Simsmetal
Ltd, Federal Court, 20 June, 2000,
(No. AG 14 of 1998). 'The corporate
culture of TPA compliance by
28 AUSTRALIAN CONSTRUCTION LAW NEWSLETTER #89 MARCH/APRIL 2003
Simsmetal was, not to put too fine a 17. Home Office (2000),
point on it, appalling' (para 16l. Reforming the Law in Involuntary
Manslaughter: The Government's
9. Refer Criminal Code Act,
Proposals, UK, May, 2000. Part3:
s.12(3)(2); Refer generally Goffee,
'Scope of the Proposals-A new
R.and Jones, G. (1998), The
offence of corporate killing'.
Characterofa Corporation: How
www.homeoffice. gov. uk/ConsuIt/
your Company's Culture can Make
invmans.htm.
or Break your Business, London:
Ha rper Colli ns. 18. At 19, para 3.4.9.
10. Criminal Code Act, s.12 (3) (2) 19. In the United Kingdom, a
(d); See generally Sarre, R (2001), corporate manslaughter
'Risk Management and Regulatory prosecution must show that
Weakness' in Collapse someone who represents the
Incorporated: Tales, Safeguards 'controlling mind' of the company is
also guilty of the offence: Tesco
and Responsibilities of Corporate
Supermarkets Ltd v Nattrass
Australia, Sydney: CCH, Chapter 10,
[1972] AC 153. Given that
291-323.
'controlling mind' is such an
11. ACT Criminal Code 2002, not
amorphous term in common
yet commenced.
parlance, the chance of a corporate
12. According to a report in The conviction is always going to be
Australian 30/4/02 p.9, the Beattie slight.
government in Queensland is
20. Cahill, S. and Cahill, P. (1998),
drafting legislation to introduce a
'A Killer Abroad', Chartered
new crime of 'dangerous industrial
Secretary, November, 22-23.
conduct', with penalties of up to
seven years jail and fines of 21. Wells, 2001 op. cit, at 64.
$500,000 for criminally negligent 22. One dealing with
managers. WA has just published environmental crime and the other
(14 November2002) its with corruption (Wells, 2001 op. cit,
commissioned report by Former IR at 65).
Commissioner Robert Laing
(referred to below). NSW in July 23. PerCumminsJ, LIPPvEsso
Australia PtyLtd, Ruling Number
2002 held a workplace safety
summit that recommended the 14, Supreme Court of Victoria No.
criminal prosecution of companies. 1484 of 2000, [2001] VSC 296 30
May 2001, para 4.
SA has completed a review of its
laws and may plan new penalty
An earLierversion of this article
provisions in 2003.
appeared in the Murdoch University
13. The idea is that damage to a Electronic Journal of Law, 9(3),
company's reputation can often be a 2002. This version is reprinted, by
more effective deterrent to large
permission, from the LawSociety
companies than any financial Journal (March 2003).
penalty.
Acknowledgements: Trevor Nyman,
14. 3 December 2002, at 1, and 4. Sherida Currie, Julie Taylor, Ken
15. Report, s.4.4.3, paragraphs Wood and Winifred Sarre.
533 ff.
16. Wells, C. (2001) 'Corporate
Criminal Liability: Developments in
Europeand beyond', LawSociety
Journal, 39(7), 62-65 at 64. Refer
Attorney General's Reference
No. 2/1999 [2000] 3 All ER 182
(Court of Appeal).