~ PART ONE ~
CORPORATE MANSLAUGHTER IN AUSTRALIA: A BACKGROUND

A: How Can a Corporation Be Guilty of Manslaughter?

B: Workplace Deaths and the Legal Response in Australia

~ PART TWO ~
CORPORATE MANSLAUGHTER PROSECUTIONS:
THE PRACTICAL PROBLEMS

A: Three Shields to Accountability: The Identity Doctrine, Corporate Action and The Corporation as Separate Legal Entity

B: Sanctions: The Shortcomings of Fines

C: The Scarcity of Corporate Manslaughter Prosecutions

~ PART THREE ~
CORPORATE MANSLAUGHTER PROSECUTIONS: A THEORETICAL CRITIQUE AND AN ALTERNATIVE THEORY AS THE BASIS FOR AN ALTERNATIVE APPROACH

A: Do Corporate Manslaughter Prosecutions Really Deliver Moral Retribution or Stigmatisation?

B: Do Corporate Manslaughter Prosecutions Provide `Equality Before the Law'?

C: Desert Theory: An Inadequate Guide For a Legal Response to Workplace Deaths Caused By Corporate Negligence

D: An Alternative Theory: A Republican Theory of Criminal Justice

1 A Republican Notion of Equality

A: The Accountability Model

B: The Accountability Model and Workplace Death

C: Overcoming the Barriers to Corporate and Individual Liability for Workplace Deaths Caused By Corporate Negligence

1 Securing Corporate Accountability

2 Securing Individual Accountability

E: Remedying the Problems With Sanctions

1 Transcending the Deterrence Trap

2 Providing Greater Satisfaction to Victims' Communities

~ APPENDIX A ~
FIGURE 1: AVERAGE NUMBER OF PROSECUTIONS AND CONVICTIONS OF CORPORATIONS FOR OHS OFFENCES, BY JURISDICTION

~ BIBLIOGRAPHY ~

~ INTRODUCTION ~

The Denbo case has engendered much analysis and debate amongst Australian legal commentators. Most of them welcome the precedent of manslaughter prosecutions against corporations. Yet at the same time they acknowledge that such prosecutions give rise to many practical and theoretical problems.5 This thesis argues that if those problems are to be resolved a different approach, shaped around a republican theory of criminology, must be adopted to prosecuting corporations which negligently cause the deaths of their employees.

This thesis is presented in four parts. The first part provides an overview of the legal phenomenon of corporate manslaughter prosecutions in Australia. The second part sets out the practical problems surrounding corporate manslaughter prosecutions. The third part is a theoretical critique which attacks the assumptions upon which corporate manslaughter prosecutions are based. It then establishes the need for, and offers, an alternative theoretical basis to guide the legal response to workplace deaths caused by corporate negligence. That alternative theory is the republican theory of criminology. With republican theory as a guide, the fourth part sets out an alternative legal response to such workplace deaths which addresses the main problems presently attending corporate manslaughter prosecutions.

~ PART ONE ~
CORPORATE MANSLAUGHTER IN AUSTRALIA: A BACKGROUND

In common law systems, the corporation is regarded as a separate legal entity from the individuals who comprise it. The corporation, as distinct from its members and employees, may sue and be sued, and it may also be convicted of a crime.6 Corporate criminal liability may be established by reference to either one of two conceptual models: the agency model or the identification model.7 The agency model regards all employees of a corporation as its agents. The corporation may be held legally responsible for any misdeeds committed by its employees in the course of their employment. This route to corporate liability is generally open only in strict liability offences.8 The identification model, on the other hand, is used to ascertain corporate liability for serious offences like manslaughter, and was set down by the House of Lords in Tesco Supermarkets Ltd v Nattrass.9 It requires proof that the actus reus of a criminal offence, whether it be constituted by an act or an omission, was committed by someone with authority to act as the company. Moreover the mens rea of an offence must be proved to have been held by the corporation's `directing mind and will'.10 Courts have traditionally equated the `directing mind and will' of the corporation with that of the company's managing director, board of directors or, in certain circumstances, individuals to whom such entities have divested areas of their power or responsibility.11

Corporate liability for manslaughter is most likely to be established by applying the identification model in such a way as to prove the offence of manslaughter by gross negligence.12 In order to establish manslaughter by gross negligence the prosecution must show:

that the act which caused the death was done by the accused consciously and voluntarily, without any intention of causing death or causing grievous bodily harm, but in circumstances which involved falling short of the standard of care which a reasonable person would have exercised and which involved such a high degree of risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment.13

B: Workplace Deaths and the Legal Response in Australia

In 1991 the Victorian Law Reform Commission noted that despite the fact that 500 to 600 work-related deaths occurred in Australia each year, there was at that time `no Australian instance of a manslaughter prosecution against a company for a work related death.'15 Only some of those deaths resulted from circumstances which could have given rise to manslaughter prosecutions. In an analysis of occupational health and safety (OHS) offences in Victoria, Santina Perrone noted that between January 1987 and December 1990, 353 work related deaths had occurred in Victoria alone. Of those fatalities, 203 occurred in a corporate context. Perrone identified 25 of those 203 `corporate fatalities' as exhibiting an `extreme level of company negligence', namely a degree of negligence `sufficient to establish criminal culpability, whether intentional or reckless, necessary to sustain a manslaughter conviction under the Crimes Act 1958 (Vic).'16 Even allowing for a margin for error in Perrone's analysis, it appears that there was a significant number of cases involving fatalities in which corporate negligence warranted a manslaughter prosecution. Yet no such prosecutions occurred. Instead these cases, if they were prosecuted at all, were prosecuted as breaches of provisions of the Occupational Health and Safety Act 1985 (Vic).17

In Australia, the first company ever to be charged with manslaughter was the construction giant Civil & Civic in Victoria in early 1992. Ultimately the charges were withdrawn on the undertaking that the company plead guilty to lesser offences under the Occupational Health and Safety Act 1985 (Vic).18 However the laying of manslaughter charges marked the beginning of a new approach to prosecutions for workplace deaths in Victoria. This new approach was the culmination of a number of factors. Firstly, well publicised cases in the United States and United Kingdom in the 1980s involving the prosecution of corporations for manslaughter increased awareness in Australia of the possibility of such prosecutions in common law systems.19 Moreover in the same period there was public outcry in Australia over a number of industrial accidents that involved some degree of corporate negligence leading to multiple fatalities. The corporations involved were prosecuted under OHS legislation and fined. The most well known of these cases was the 1989 prosecution of Simsmetal Ltd for breaches of OHS legislation arising out of an explosion at one of its aluminium smelting plants which led to the death of four employees. The company was ultimately fined $45,000.20
The Simsmetal case served to harden political attitudes towards corporate negligence.21 After the Simsmetal decision was handed down the Victorian Minister for Labour outlined the Victorian government's new policy:

the bringing of charges [for manslaughter] under the Crimes Act will be considered as a matter of course whenever there is a work related death.22

Since 1991 there have been two prosecutions of corporations for manslaughter in Victoria. The first was that of Denbo Pty Ltd discussed above. The second was the prosecution of AC Hatrick Chemicals Pty Ltd and two of its managers as a result of the explosion of a tank which killed one worker. In late 1995 the latter company was acquitted on the basis that the two managers did not constitute the `guiding mind' of the corporation and that their actions could not be deemed grossly negligent.25
The foregoing discussion reveals that there are significant legal and theoretical problems surrounding corporate manslaughter prosecutions. It is necessary to examine the nature of those problems in more detail. The next two parts address the practical and theoretical problems respectively.

~ PART TWO ~
CORPORATE MANSLAUGHTER PROSECUTIONS: 
THE PRACTICAL PROBLEMS

When trying to secure corporate accountability for corporate crime, enforcement authorities have two potential targets: the corporation itself as a separate legal entity and/or responsible individuals within the corporation. However there are several formidable barriers to both corporate and individual liability for corporate manslaughter. The following discussion shows how the identity doctrine can hinder the establishment of corporate liability; and further how the nature of corporate action and the corporation's status as a separate legal entity can prevent the sheeting home of individual accountability.

It is difficult to establish corporate liability for manslaughter using the identification model.26 In most cases it would be extremely difficult to establish that the actus reus of the offence was committed by an individual entitled to act as the corporation, and that the requisite mental element was held by the guiding mind and will of the company.27 Consequently corporate liability for manslaughter may be avoided simply because current legal principles are ill suited to the task of securing corporate accountability for crimes which are the result of the collective nature of corporate behavior.

The collective nature of much corporate behaviour also makes it extremely difficult to attribute the elements of manslaughter to a single individual within the corporation. Particularly in large corporations, securing individual liability for manslaughter may be almost impossible. This is because in large companies responsibility for crime is often borne in varying degrees by numerous actors within the organisation. Any given individual's responsibility is often `sub-criminal', falling short of the fault-based responsibility which is central to criminal liability.28

However corporate structures are not uniform. Occasionally it may be possible to identify an individual within the corporation whose negligent actions and concomitant state of mind could satisfy the elements of manslaughter. Yet even where identification of criminally responsible individuals is possible, prosecution of those individuals for manslaughter is unlikely. This is because the status of the corporation as a separate legal entity makes it easier for enforcement authorities to prosecute corporations rather than individuals within those corporations. Australian enforcement authorities pursue corporate liability for manslaughter as a `soft option' over the prosecution of responsible individuals within the corporation.29 The Denbo case provides a good example. In that case the company's liability seemed synonymous with that of its director. The director was one of only two shareholders in the company, he was the sole company representative on the site at the time of the accident and it was his acts alone which formed the basis of the criminal negligence attributed to the company.30 Ultimately both the company and the director were charged with manslaughter. However the manslaughter charge against the director was withdrawn in exchange for an undertaking that the company itself would plead guilty to manslaughter. The director pleaded guilty to charges under the Occupational Health and Safety Act 1985 (Vic) and ultimately received a $10,000 fine.31 Corporate liability was used as a negotiating tool by the director of Denbo Pty Ltd to avoid personal, individual liability for manslaughter.

The willingness to engage in such negotiation indicates that to a certain extent enforcement authorities equate individual liability with corporate liability. The latter is preferred merely because it is relatively easier to secure. However to equate the two forms of liability gives rise to a significant theoretical contradiction which was summed up by Simon Chesterman in an analysis of Denbo:

there is a disturbing contradiction in the adoption of the corporate entity as an individual disciplinary subject of criminal law if this is to result in the exculpation...of the directors who define its legal personality under existing legal doctrine.32

Ultimately, when viewed in the context of real world enforcement, the identity doctrine, the collective and multifaceted nature of corporate action and the status of the corporation as a separate legal entity, place significant barriers in the path of the prosecution of either the corporation or corporate personnel for manslaughter.

B: Sanctions: The Shortcomings of Fines

At present monetary fines are the only legal sanction available to be used against a corporation found guilty of manslaughter. Even proponents of corporate manslaughter prosecutions acknowledge that fines may have a limited deterrent effect when imposed on corporations.34 The ineffectiveness of fines is in large part due to the fact that the amount of any fine must be sufficient to influence future decisions made by a corporation yet cannot be so large as to do any real damage to the corporation.35 This uneasy balance has been distilled in a concept known as the `deterrence trap'.36 It embodies the idea that corporations will often not have the financial resources to a pay a fine set at the level which is necessary for deterrence to be effective. Therefore authorities have little option but to set fines below `deterrence level', with the result that corporations, especially large ones, are able to regard fines as merely a cost of doing business.37

Fines are also inadequate in the degree of satisfaction they provide to the family of a worker killed through corporate negligence. In the view of the relatives and friends of the victims of corporate manslaughter, fines are generally regarded as an inadequate legal response to the crime committed.38 These groups commonly regard the fine imposed on a corporation guilty of manslaughter as a judicial assessment of the value of the life which has been lost and the harm done by the corporation.39 Between 1990 and 1992, twenty cases involving workplace deaths in corporate contexts were heard in Victoria. The fines issued against the corporations involved ranged between $1000 and $16000. The relatively low fines often caused community outrage, and elicited a bitter response from victims families.40

Proponents of corporate manslaughter prosecutions argue that such low fines stem from the fact that prior to Denbo, prosecutions arising out of workplace deaths caused by corporate negligence were brought under state OHS legislation. Since such legislation contains no provisions making it an offence for a corporation negligently to cause the death of its employees, the often small fines were for breaches unrelated to the actual death.41 Corporate manslaughter proponents argue that the situation can be remedied by prosecuting corporations for manslaughter rather than OHS offences. They contend that manslaughter prosecutions offer the appropriate level of moral retribution and scope for the imposition of larger fines.42

However such a suggestion denies the existence of the `retribution trap', a related concept to the `deterrence trap'. In simple terms the concept of the `retribution trap' embodies the idea that a fine warranted by an offence may be much larger than the corporate defendant is able to pay.43 It seems certain that in relation to a corporation, the level of fine regarded by relatives and friends of the dead as constituting just punishment for corporate manslaughter - if indeed fines can ever create such a feeling - will almost always exceed the amount required to trigger the retribution trap. In any case, there is little reason to believe that the imposition of larger fines will lead to greater satisfaction with the punishment meted out or a more widespread feeling that justice has been done.

Even when large fines are imposed on corporations, their deterrent effect may be avoided. Small companies like Denbo may simply dissolve before sentence is passed and so avoid payment of any fine. Even the judge in Denbo acknowledged that the imposition of the fine was little more than an `academic exercise'.44 In larger companies with more shareholders the effect of a fine is necessarily cushioned because the cost is not borne by those who were identified at trial as constituting the `guiding mind and will' of the company but by the company as a whole. This means that ultimately part of the cost will be borne by shareholders. Furthermore if a fine exceeds the amount mandated by the deterrence and retribution traps and cripples the company then employees suffer when they lose their jobs.45

C: The Scarcity of Corporate Manslaughter Prosecutions

Another significant problem with corporate manslaughter prosecutions is that very few have taken place. Since the Denbo and AC Hatrick Chemicals cases in Victoria, there have been no further prosecutions of corporations for manslaughter in any Australian jurisdiction. This is despite predictions from legal commentators after Denbo that corporate manslaughter prosecutions would increase significantly in Australian jurisdictions.46 The scarcity of corporate manslaughter prosecutions must be viewed in two different contexts for its significance to be appreciated.

In the first place an absence of prosecutions seriously undermines the main arguments put forward by the supporters of corporate manslaughter prosecutions. They contend that punishing corporations for manslaughter enables society to exact the appropriate level of moral retribution for the taking of a human life, while also deterring other corporations and the individuals who control them from dealing carelessly with the safety of their employees.47 Prosecuting corporations for manslaughter is also said to eliminate what was previously a `double standard' manifested in differing legal responses to deaths caused by corporations and those caused by individuals, with corporations enjoying relative immunity from prosecutions while individuals who killed unlawfully bore the full brunt of the law.48 Consequently corporate manslaughter prosecutions are said to send the public message that crimes committed by corporations are `real' crimes.49

While these seem like powerful arguments, they depend for their cogency on the regular prosecution of corporations for manslaughter. At present corporate manslaughter prosecutions occur only rarely. Proponents of corporate manslaughter prosecutions may respond that the reason for the lack of prosecutions since Denbo and Hatrick is that no appropriate cases have arisen for consideration by enforcement authorities. However it is unlikely that this is the case. In the absence of precise statistics, Perrone's statistics for the period between 1987 and 1990 may once again be adopted as a guide.50 Perrone identified 25 cases in Victoria alone, which could have been prosecuted as corporate manslaughter during that period but were not. The number and character of workplace fatalities has not changed dramatically from the period of Perrone's sample and the period between 1990 and 1998.51 On this basis, even allowing for a decrease in fatalities caused by corporate negligence, it may be assumed that over a four year period, 1994 to 1998, there have been a number of accidental deaths warranting manslaughter prosecutions, yet no prosecutions have occurred.

The second context in which the significance of the scarcity of corporate manslaughter prosecutions becomes readily apparent is that of the current enforcement strategy of Australian OHS enforcement authorities. In Australia the traditional approaches to the enforcement of OHS legislation have been centered on persuasion rather than deterrence.52 There is a school of criminologists who hold that persuasion is more effective than punishment in securing corporate compliance with the law, but also that `credible punishment is needed as well to back up persuasion when it fails.'53 And when resort to punishment is necessary, those theorists believe that `it is advantageous to be able to escalate the seriousness of offences and the severity of sanctions.'54 The idea of escalating offences and sanctions is embodied in the `enforcement pyramid'.55 Ideally the enforcement pyramid is structured so that most offences are at the base of the pyramid and receive relatively gentle sanctions. Progressively `fewer offences occupy the upper tiers of the pyramid and attract sanctions which also escalate in seriousness.'56 The pyramid must have a peak in order for pyramidal enforcement to function properly.57

In 1995, the Industry Commission reported that persuasion with a loose adherence to a type of enforcement pyramid remained the predominant strategy for the enforcement of OHS offences in Australian jurisdictions.58 It noted that:

Inspectorates generally use an escalated response to non-compliance. For the majority of offences persuasion...is a first response. Prosecution is typically used

as a first response in the case of a death or traumatic injury.59

The whole range of punitive responses must be used against both individual and corporate offenders. Because the costs of regulatory response increase as we ascend these hierarchies, most regulatory activity must be at the base of the pyramid. Nevertheless, it has been argued that no society uses the weapons at the apex of the pyramid, particularly criminal punishment, sufficiently.60

~ PART THREE ~
CORPORATE MANSLAUGHTER PROSECUTIONS: A THEORETICAL CRITIQUE AND AN ALTERNATIVE THEORY AS THE BASIS FOR AN ALTERNATIVE APPROACH

The first task in this part is to show that corporate manslaughter prosecutions do not deliver moral retribution and equality before the law. However to stop there would allow defenders of corporate manslaughter prosecutions to contend that despite these shortcomings, the theory underlying such prosecutions is fundamentally sound. They would further assert that, given the soundness of the theory, any changes to the present system should be aimed at achieving the dual goals of retribution and equality before the law. The second task in this part therefore, is to show that the sentencing theory from which the desiderata of retribution and equality before the law are derived, is fundamentally inadequate to deal with the reality of corporate crime. The final task in this part is to briefly set out a republican theory of criminal justice which will form the basis for reforms proposed in Part Four.

A: Do Corporate Manslaughter Prosecutions Really Deliver Moral Retribution or Stigmatisation?

Claims as to the stigmatising or morally retributive symbolism of corporate manslaughter prosecutions are rooted firmly in desert based theories of sentencing.64 Desert theories place great importance on `[c]ensure in the sense of moral disapproval' as part of the legal response to crime.65 It is the concept of censure to which defenders of corporate manslaughter allude when they speak of `stigmatisation' or `moral retribution'. Censure derives its moral force from the criminal sanction.66 As desert theorist Andrew Von Hirsch notes, it is:

punishment [that]...expresses blame; and the severity of the punishment conveys how much the conduct is disapproved of. It is because of this expressive feature that the quantum of sentence should be chosen so as to reflect the degree of blameworthiness of the criminal conduct.67

With this theoretical overview in mind, it becomes apparent that prosecuting corporations for manslaughter cannot deliver `moral retribution' in the sense required by desert theory. At present there is a fundamental inequality in the amount of blame directed, via the medium of criminal sanctions, at individuals found guilty of manslaughter and corporations guilty of the same crime. Unlike individuals, corporations cannot go to gaol. The best the legal system can do at present is impose a fine upon a guilty corporation. Does the imposition of a fine express blame or censure with the same moral force as does a gaol term for an individual? When one takes into account the limited deterrent effect fines have on corporations and the ways in which corporations can minimise the adverse effects of the fines they receive, the answer must be no. Corporate manslaughter prosecutions and accompanying punishments then fall foul of a cardinal principle of the desert theory of sentencing, namely that crimes of equal gravity should be stigmatised equally through the imposition of sanctions that are equivalent to each other.

B: Do Corporate Manslaughter Prosecutions Provide `Equality Before the Law'?

Corporate manslaughter prosecutions can be said to provide equality before the law, but only if an extremely narrow view of that concept is adopted. The practice of prosecuting corporations for manslaughter means that in a formal sense individuals and corporations suspected of the same crime are tried for the same offence. However any measure of equality ceases there. Desert theory dictates that what the law `should do is decide equitably on who to prosecute solely on the weight and seriousness of the evidence against each suspect and then punish the guilty in equitable proportion to the seriousness of their crimes.'69 The inequality in punishment as between corporations and individuals convicted of manslaughter has been noted above. Moreover, under the present system, there is a fundamental inequality manifested in the reality of who gets prosecuted for manslaughter and who does not. The key question here is, what are the comparative manslaughter prosecution rates, as between corporations and individuals? The dearth of corporate manslaughter prosecutions discussed in Part Two indicates that individual criminals guilty of manslaughter are far more likely to be brought to trial for that crime than are corporations guilty of the same offence. Prosecution and punishment of corporations for manslaughter reveals a fundamental inequality in the legal treatment of corporations and individuals, with individuals guilty of manslaughter being much more vigorously sought out by enforcement authorities. Ultimately, as Braithwaite contends, `the upshot of a policy narrowly focused on imposing just deserts...will be just deserts for the poor and immunity for the rich.'70

C: Desert Theory: An Inadequate Guide For a Legal Response to Workplace Deaths Caused By Corporate Negligence

By extending the analysis here, it becomes apparent that desert theory can provide no guide to an appropriate legal response to corporations responsible for negligently causing the death of an employee. Desert theory demands above all else, that criminals guilty of equal crimes must be subjected to equal levels of censure or denunciation effected through the medium of sanctions. However the same level of moral retribution can never be directed at a corporation as can be directed at an individual offender. Increased fines cannot achieve an equilibrium in stigmatisation levels. Indeed the only way in which such equilibrium could be achieved would be to abandon corporate liability altogether and rely solely on the individual criminal liability of corporate personnel to sheet home accountability for corporate crime. However such a suggestion is not feasible because it neglects the collective nature of corporate action and the fact that in a great many corporate crimes, the responsibility of any given individual within the corporation is sub-criminal.

Given that desert theory is a poor basis upon which to structure the legal response to corporations responsible for negligently causing the death of an employee, something needs to be found to replace it. Some theoretical guidance is needed to structure a solution to the problems surrounding corporate manslaughter prosecutions. Without a theoretical basis, any solution becomes an ad hoc exercise in linking together expedient stop gap measures. Such a piecemeal approach is ill-fated.

D: An Alternative Theory: A Republican Theory of Criminal Justice

The theoretical platform adopted here is the republican theory of criminal justice. It recommends itself as a useful theoretical framework because, as will be seen in Part Four, it guides a response to workplace death which overcomes the main problems surrounding corporate manslaughter prosecutions. In this respect it surpasses desert theory. Republican theory has been explored at length elsewhere, but a brief description of its applicability to corporate crime will be useful.71

The republican theory of criminal justice was formulated by academics John Braithwaite and Brent Fisse. The guiding principle at the core of the theory is the promotion of the goal of republican liberty, known as dominion.72 It requires non-interference by others and:

that the non-interference be enjoyed, not just as a matter of contingent luck, but in virtue of the protection, to the highest degree standard for anyone in the society, of the law and related institutions.73

According to republican theory, every act of crime constitutes an interference with dominion on two levels. The crime diminishes or destroys the dominion of the victim, and it `always does something to endanger the general dispensation of dominion enjoyed in society as a whole.'75 The question then becomes what republican theory requires by way of response to crime in order that the enjoyment of republican dominion is promoted overall.

While desert theorists seek moral retribution for the offence by seeking a penalty which is in proportion to the gravity of the crime, republican theorists are more interested to determine what is required to rectify the offence. They seek to remedy the damage caused by the crime.76 On an abstract level, Braithwaite has posited that in response to any given crime, rectification will require three components; recognition, recompense and, reassurance.77 Let us now look at what the fulfillment of those three elements may require in the aftermath of a workplace death caused by corporate negligence.

Since the victim in such a case is dead, his dominion has been completely destroyed. Yet the fact of that destruction does not rule out rectification, albeit not perfect rectification.78 In all cases `recognition of the dominion of the victim by the offender would... require...a mix of symbolic and substantial measures.'79 When the victim is dead, recognition must occur through interaction between the offender and those most affected by the crime, namely the family of the victim. That could require for example, an apology by the offender and reconciliation with the victim's family. And those symbolic measures should be buttressed by material measures which provide credibility to the symbolic acts.80 There is the potential for overlap between the requirements of recognition and recompense because the material measures required as part of the recognition process may in fact constitute what is required by way of recompense.

The final requirement of rectification posited by republican theory is that of reassurance. Braithwaite contends that the legal response to crime must provide `reassurance to the community of a kind that may undo the negative impact of the crime on their enjoyment of dominion.'81 The best way for the legal system to provide reassurance is to adopt a minimalist response to sentencing while retaining the capacity to escalate responses to crime. It is this `capacity to escalate responses..., rather than the level of response implemented in any given case, that is crucial to the promotion of community reassurance.'82

1 A Republican Notion of Equality

The republican pursuit of rectification in the aftermath of a crime does not come at the expense of the notion of equality before the law. One of the aims of republicanism in the criminal justice context is to ensure that `those who are equally culpable for equal wrongs (are equal in desert) should be equally punished'.83 Republican theorists have termed this goal `justice as equality.' The pursuit of justice as equality does not seem very different from the retributivist notion of equality before the law. The difference lies in the interpretation of equality. In the context of corporate crime, desert theorists seek equal punishment for equal wrongs, while republican theorists regard `justice as equality' as comprising equality of treatment of those who are equally responsible for corporate crime.84 These are very different goals. Desert theorists miss the point when they demand more severe penalties for corporations found guilty of manslaughter in order to reduce as far as possible any disparity in treatment as between corporate and individual killers. The reality is that the vast majority of corporations responsible for causing death will never be brought to trial. For republican theorists, the fact that the majority of individuals who negligently cause the death of other human beings will be held accountable, while most corporations and corporate personnel guilty of the same act will not, is the most fundamental legal inequality which must be redressed. Essentially the goal of `justice as equality' is aimed at securing a greater measure of accountability amongst those responsible for corporate crime rather than merely equal punishment for those who few who are currently held accountable.

Having set out the goals of republican theory insofar as it relates to a response to corporate crime, the task now is to apply those tenets of republican theory in the aftermath of a criminally negligent workplace death caused by a corporation. The following part shows that if the legal response to workplace death is geared towards achieving republican goals, the current problems surrounding corporate manslaughter prosecutions can be overcome.

~ PART FOUR ~
A `REPUBLICAN' APPROACH: SOLVING THE PROBLEMS OF CORPORATE MANSLAUGHTER PROSECUTIONS

The problem here is how actually to go about structuring a republican legal response to a corporation which negligently kills one of its employees. Republican theory offers broad principles to strive for, but what is the best course to achieve them? Here attention turns to the `Accountability Model' as the practical means to secure the goals of republican theory. The `Accountability Model' provides the means to the republican end in the context of corporate crime because it is geared towards achieving republican goals and has as its prime motivation the republican notion of `justice as equality'. The `Accountability Model':

seek[s] to publicly identify all who are responsible and hold them responsible, whether the responsible actors are individuals, corporations, corporate subunits, gatekeepers, industry associations or regulatory agencies.85

A: The Accountability Model

The Accountability Model was formulated by criminologists Brent Fisse and John Braithwaite in response to what they considered the two fundamental problems raised by corporate criminal liability. The first was the `undermining of individual accountability at the level of public enforcement...with corporations rather than individual personnel typically being the prime target of prosecution.'86 This is one of the attendant problems of manslaughter prosecutions outlined in Part Two. The second problem sought to be addressed by Fisse and Braithwaite was the fact that:

where corporations are sanctioned for offences, in theory they are supposed to react by using their internal disciplinary systems to sheet home individual accountability, but the law makes no attempt to ensure that such a reaction occurs.87

The regulatory framework at the core of the Accountability Model is pyramidal enforcement. Informal methods of control sit at the base of the pyramid with methods of control becoming progressively more coercive and punitive at each higher tier, culminating in the threat of severe forms of criminal punitive action at the apex. The enforcement pyramid facilitates the progressive escalation, where necessary, of the legal response to corporate non-compliance with the law.89 Thus enforcement authorities are more likely to be able to obtain `voluntary' corporate compliance with the law because `enforcement is ultimately backed by sanctions which can be escalated in response to any given level of non-compliance.'90

An important aspect of obtaining corporate commitment to comply with the law is to foster a sense of corporate and individual responsibility within the organisation. The enforcement pyramid promotes that goal by providing enforcement authorities with the means to persuade corporations to utilise their internal disciplinary mechanisms to impose individual responsibility.91 The main way of doing this is through accountability agreements whereby designated personnel within the corporation agree to undertake an internal disciplinary inquiry and to later provide an assurance, to be approved by a court, that certain disciplinary action had been taken.92 As will be discussed later, accountability agreements can also contain a voluntary compensation plan for the victim's family.

B: The Accountability Model and Workplace Death

Discussion of the enforcement pyramid in the context of the Accountability Model echoes the discussion in Part Two which noted that Australian OHS enforcement authorities already adhere to a type of enforcement pyramid. As has already been discussed, corporate manslaughter prosecutions and accompanying sanctions sit at the apex of that pyramid as it currently exists in practice. Yet such prosecutions have been shown to be extremely problematic. The Accountability Model is used here to formulate a more appropriate legal response at the apex of the enforcement pyramid in order to solve the problems surrounding corporate manslaughter prosecutions.

One may ask why the analytical focus here is centered only on the apex of the enforcement pyramid. Braithwaite and Fisse provide the answer stating that, `under the accountability model those who commit serious offences are subject to prosecution.'93 More precisely they suggested that:

Criminal prosecution of the corporation is usually warranted in cases where the reactions of the corporation in mobilising its private justice system, diagnosing the causes of the offence, acting to remedy those causes, disciplining those responsible and making compensation for the harm done, are insufficient to identify publicly the fact that the corporation has...discharged its liability for the actus reus of an offence.94

It remains now to set out what those responses should be when the Accountability Model is adopted as a modus operandi. The following discussion is grouped under three separate headings which correspond to the problems associated with corporate manslaughter prosecutions identified in Part Two. By structuring the discussion in this way it may more easily be seen how the proposals presented below directly address those problems.

C: Overcoming the Barriers to Corporate and Individual Liability for Workplace Deaths Caused By Corporate Negligence

The discussion in Part Two identified three factors, the identity doctrine, the collective nature of corporate behaviour and the status of the corporation as a separate legal entity, as constituting significant barriers to the attribution of both corporate and individual accountability for negligently caused death in the workplace. Using the Accountability Model as a guide, these barriers to accountability can be overcome.

1 Securing Corporate Accountability

It is proposed here that in order to avoid the restrictive nature of the identity doctrine, a special offence called `industrial homicide' should be created in state and territory OHS legislation. In essence the offence would be one of negligently or deliberately causing death. Corporations responsible for negligently causing the death of an employee would be prosecuted for this offence rather than manslaughter. In order to bypass the restriction of the identity doctrine, the offence of industrial homicide would need to incorporate a concept of organisational blameworthiness.96

The concept of organisational blameworthiness embodies the idea that if accountability is to be effectively attributed to corporate criminal offenders, allowance must be made for the collective nature of corporate action. The Tesco principles are far too restrictive in that respect. They establish that it is only when the actus reus of an offence was committed by, and the mens rea held by persons with authority to act as the corporation, that the corporation can be convicted of a crime.97 In recent years there has been strong impetus towards the incorporation of a concept of organisational blameworthiness in the criminal law.98 It is suggested here that a good starting point for the adoption of such a concept in the context of an industrial homicide offence are the proposals put forward in 1992 by the Criminal Law Officers Committee of the Standing Committee of Attorneys-General in the Model Criminal Code.

Under the Model Criminal Code, a corporation would be guilty of an offence in the following circumstances:

a) [The] physical element of an offence [is] committed by a servant, agent, employee or officer of a body corporate acting within the scope of his or her employment or within his or her actual or apparent authority
b) If intention or knowledge is a required fault element of an offence, that fault element exists on the part of a body corporate that expressly, tacitly or impliedly authorised or permitted the commission of the offence.99

c) The board of directors or a high managerial agent...engaged in that conduct or authorised or permitted it; [or],
d) A corporate culture existed within the body the body corporate that directed, encouraged tolerated or led to non compliance with the relevant provision.100

However the creation of an offence of industrial homicide needs some further justification. A critic of such legislative change may argue that the need for the creation of a special offence can be avoided by accepting the proposals put forward in the Model Criminal Code and incorporating the notion of corporate blameworthiness into the criminal legislation. That way, when a corporation is prosecuted for manslaughter, its liability is assessed by reference to those broader principles rather than the identity doctrine. However there are further compelling arguments for the creation of an offence of industrial homicide under OHS legislation. The common element in these arguments is that the creation of the separate offence of industrial homicide within OHS legislation would ultimately increase the number of prosecutions of corporations responsible for the death of an employee. These arguments will be discussed more fully below as part of the solution to the problem of the scarcity of corporate manslaughter prosecutions.

2 Securing Individual Accountability

The proposed offence of `industrial homicide' promises to secure a greater measure of corporate accountability, but what of the responsible individuals within those corporations? How can the individuals whose actions have combined ultimately to result in the death of an employee be held accountable? The Accountability Model provides a number of paths for securing individual accountability for negligently caused workplace death.

One way to secure individual accountability is by employing nominated accountability. A key characteristic of environmental protection legislation in some Australian jurisdictions is the manner in which it nominates senior company officials, like directors, as being personally liable for any breaches of the legislation by the company.101 Evidence suggests that the personal liability provisions, and in particular the possibility of gaol terms, has caused directors of large companies to regard their organisation's environmental responsibilities with the utmost seriousness.102 In New South Wales and Tasmania, OHS legislation contains the same kind of provisions. For example the Occupational Health and Safety Act 1983 (NSW) specifies that:

s.50(1) Where a corporation contravenes...any provision of this Act... each director of the corporation, and each person concerned in the management of the corporation, shall be deemed to have contravened the same provision unless he or she satisfies the court that either...
e) he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or
f) he or she, being in such a position, used all due diligence to prevent the contravention by the corporation.103

Nominated personal liability directly addresses one of the main problems the Accountability Model was designed to solve, namely the `undermining of individual accountability at the level of public enforcement'.104 As Braithwaite has observed, one of the advantages of nominated personal liability is that it avoids:

the perennial problem in dealing with corporate crime that a complex corporate activity gives a picture of confused accountability for any wrong doing. Everyone can blame someone else.105

Unfortunately not all state OHS legislation contains the same kind of personal liability provisions as those found in the New South Wales legislation. For example, OHS legislation in Victoria, Western Australia and the Northern Territory places the onus on the state to prove that an offence committed by the company occurred with:

the consent or connivance of, or [was] attributable to any willful neglect on the part of, an officer of the body corporate or person purporting to act as such an officer, 107

While nominated personal liability for industrial homicide goes some way to securing a greater measure of individual accountability for that corporate crime, it cannot be said to completely satisfy the Accountability Model desideratum that all who are responsible for a crime should be held responsible. Apart from those nominated in the legislation, there will remain any number of individuals within the corporation whose acts or omissions actually combined to cause the death. Therefore further measures are required to ensure that those individuals are held accountable.

A good way to achieve that goal is through the use of the `accountability order' as part of the judicial response to industrial homicide convictions.108 The accountability order is aimed at attributing accountability to all actors within the organisation of the corporate defendant who bear some responsibility for the crime.109 It would entail a thorough investigation into the individuals involved in the offence and a report documenting the `roles played by the various individuals or units and the exact nature of the disciplinary action taken or proposed against them.'110 The possible range of internal disciplinary sanctions is wide and includes punitive and non-punitive responses.111 The accountability order should also seek to secure other objectives, including the rectification of deficient operating procedures that have contributed to the death, and the provision of compensation to victims and/or their families.112 The investigative, reporting and disciplinary aspects of the accountability order are carried out by individuals among the management and staff of the defendant corporation who are nominated in the order. Those nominated individuals are placed under a duty to exercise reasonable care and due diligence to comply with the terms of the order.113 At the expiration of a period set by the court the nominated personnel would make a report to the court which then has jurisdiction to enforce the order.114 By using accountability orders in this way, the law could ensure that all who are responsible for a corporate offence are held responsible.115

The final path to individual accountability is through the retention of traditional individual liability for manslaughter. In some situations prosecution of the corporation for industrial homicide will not be appropriate. For example there will be cases in which:

no level of disciplinary action by the corporation can be sufficient to remit/redeem the responsibility of an individual (that is, the reprobation of a criminal conviction is required to reflect the gravity of the offence or the blameworthiness of the offender.)116

The attribution of such a high degree of individual responsibility is likely to be possible only in the context of small, closely held companies. This is because, as has been discussed, in large companies responsibility for crime is usually borne in varying degrees by numerous actors within the organisation. It will mostly be only in small companies that an individual may be singled out as having independently committed manslaughter as defined by legislation. It has already been noted however, that even in relation to small companies, enforcement authorities prefer to pursue the easier option of corporate rather than individual liability. It is suggested here that prosecutorial authorities have a responsibility to pursue individual criminal accountability for manslaughter in cases such as Denbo where an individual can be identified as potentially satisfying all the elements of manslaughter under state criminal legislation.118

D: Remedying the Scarcity in Prosecutions of Corporations for Workplace Deaths Caused By Corporate Negligence

There is a fundamental deficiency in the structure of the enforcement pyramid currently employed by Australian OHS enforcement authorities which must be remedied if prosecutions of corporations for negligently caused workplace deaths are to increase. The Accountability Model requires that enforcement agency officials `should always have power over the decision to launch proceedings, either administrative or criminal.'119 Because:

we cannot expect regulatory agencies to make their enforcement pyramid effective if the decision to prosecute at the apex of the pyramid is out of their hands and at the mercy of attorneys who perceive these regulatory offenses [sic] not as the apex of an enforcement pyramid, but as the bottom of the prosecutorial barrel.120

At present in most jurisdictions the prosecution of OHS offences is not handled by the OHS agency but by the Director of Public Prosecutions or the Crown Law Offices.121

Two major changes are necessary. Firstly, as already discussed, the offence of industrial homicide must be created in state OHS legislation. Braithwaite predicts that:

if we hold that there are too few criminal prosecutions, then eliminating layers of approval is an important part of removing disincentives to criminal punishment.122

However to maximise the impact the creation of the offence of industrial homicide would have on prosecution rates, a second change to the present system is necessary. Specialist internal investigation bodies should be created within OHS enforcement authorities in all jurisdictions, and given responsibility for the prosecution of industrial homicide. The necessity for this measure is borne out by empirical evidence. New South Wales is unique amongst Australian jurisdictions in that prosecutions for breaches of the OHSA are conducted by a specially created prosecution unit within the New South Wales WorkCover Authority. Unlike external prosecutors, this internal prosecution unit is solely focused on prosecuting breaches of OHS law.125 Substantially more prosecutions and convictions for OHS law breaches have occurred in New South Wales since the creation of this body than in jurisdictions which retain a more fragmented approach to investigation.126 The empirical evidence suggests that the formation in other jurisdictions of similar internal investigation bodies with responsibility for the prosecution of `industrial homicide' would significantly increase the rate of prosecution of corporations which have caused the death of an employee through extreme negligence.

E: Remedying the Problems With Sanctions

The two major shortcomings of fines were identified in Part Two as being their inability to transcend the deterrence trap and the fact that relatives and friends of the dead were left feeling that a mere fine was an inadequate legal response to the harm which had been done. A response structured by reference to the Accountability Model offers a way around these problems.

1 Transcending the Deterrence Trap

A legal response to negligently caused workplace deaths informed by the Accountability Model transcends the deterrence trap on a number of levels. In the first place one of the key aims of the Accountability Model is to sheet home accountability to individuals within the corporate organisation. The Accountability Model aims to deter individuals and sub-units within the corporation. Thus the model avoids the assumption which gives rise to the deterrence trap, namely that an offending corporation is a single unitary actor and must be deterred as such.127

However the Accountability Model allows that sometimes the corporation must be sanctioned as a unitary actor. Fisse and Braithwaite contend that:

Corporate criminal sanctions should be imposed when the publicising of the self investigation report, and the disciplinary, diagnostic, reformative and compensatory measures taken pursuant to it are insufficient to signify and expiate the level of responsibility that the corporation has as a corporation for the offence.128

When such corporate sanctioning is required, the Accountability Model offers a number of alternative sanctions to fines, all of which avoid the deterrence trap by appealing to the motivational complexity of corporations as corporate actors. These sanctions and their deterrent potential have been discussed at length elsewhere.130 It is only proposed here to provide a list of the sanctions appropriate in a corporate `industrial homicide' case along with an explanation of how they would function. The three most appropriate corporate sanctions would be adverse publicity orders, punitive injunctions and corporate capital punishment where the court orders the liquidation of the corporation. Which of these would be used would depend on factors such as whether the corporation was a recidivist with a history of unsafe work practices, and whether it had complied satisfactorily with the accountability order. Final sentencing could be withheld until the court was able to determine to what extent the company had cooperated with the order.131

The adverse publicity order involves court ordered advertising in the mass media drawing public attention to the corporation's offence. Research has shown that most corporations desire to cultivate and maintain a public image as a responsible corporate citizen.132 The adverse publicity order exploits that corporate desire.133 The punitive injunction could be used to require a corporation to restructure and improve its internal practices and procedures so as to avoid a repeat of the offence. Moreover such internal reform would have to be done in some `punitively demanding way.'134 For example it may require the company to invest in state of the art safety technology or mandate the appointment of a new director responsible for safety.135 The strength of the punitive injunction is that it impinges on managerial power and control. It secures compliance with its own terms because it appeals to the managerial desire to regain freedom of action as soon as possible. The path of least resistance to that goal is to comply with the terms of the order. 136 The most severe form of punishment provided for in the Accountability Model is corporate capital punishment. This sanction would only be used against recidivist corporations with a long history of unsafe work practices and dangerous non-compliance with the law, and/or which refuse to comply with the terms of accountability orders.

2 Providing Greater Satisfaction to Victims' Communities

There is no reason to think that the imposition of sanctions other than fines will provide relatives and friends of the dead with a greater feeling of satisfaction that justice has been done or that the magnitude of the wrong committed by the corporation has been recognised. The question remains: what can be done to provide greater levels of satisfaction in these respects? It is argued here that the key to increasing the satisfaction of both victims and offenders with the judicial process in the aftermath of an industrial homicide conviction, lies in the employment of restorative justice practices in the legal response to the crime.

Braithwaite accepts the following definition as a good working definition of restorative justice:

Restorative justice is a process whereby all the parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future.137

Braithwaite's claim is that restorative justice practices can `restore and satisfy' all those parties `better than existing criminal justice practices.'138 For the purposes of the present argument, it is the possibility of providing satisfaction to the families of victims which is most relevant. Studies have consistently shown that where victim's families participate in conferencing with offenders, the former come away with high levels of satisfaction, feeling they have been able to communicate their feelings and satisfied with the outcome.139

Readers who are unfamiliar with restorative justice practices may associate victim/offender conferencing with individual crime and ask how such conferencing could work in the context of corporate crime. In fact conferencing would tie in extremely well with the operation of the Accountability Model in the context of `industrial homicide' convictions. An accountability order could include the requirement that key responsible actors identified by the internal investigation participate in conferencing if the victim's family request it. The conference would offer the opportunity for victims' families to set out how the tragedy has affected them and let the corporation propose a plan to assist in the care of those families. The corporation's performance in this regard would be just one of the factors bearing on which of the sanctions, discussed above, the court chooses to impose on it.

~ CONCLUSION ~
A `REPUBLICAN' APPROACH TO WORKPLACE DEATHS CAUSED BY CORPORATE NEGLIGENCE

The republican ideal of `rectification' required three things: recognition, recompense and reassurance. When the victim of a crime is dead, the overlapping requirements of recognition and recompense must involve interaction between the offender and the victim's family along with gestures of symbolic and material reparation.140 The proposals put forward in Part Four were aimed at achieving both recognition and recompense. Both of these requirements may be satisfied through the process of restorative justice conferencing between corporate offenders and the families of industrial homicide victims. Such conferences provide a high degree of satisfaction for both victims and offenders. Moreover they provide a non-adversarial forum in which corporate offenders, confronted with the effects of the death they have caused, may offer a plan of compensation and financial assistance for the family of the deceased. Ultimately, voluntary offerings of recompense are backed by the coercive force of the law which allows the court to escalate the severity of sanctions imposed on corporate offenders if voluntary offerings are absent or inadequate.

The third requirement of rectification was reassurance, or more precisely, community reassurance. Braithwaite proposed that this could best be achieved by adopting a minimalist approach to sentencing while retaining the capacity to escalate the response to crime.141 The proposals put forward in part four do exactly that. A corporation found guilty of industrial homicide may at first be laden with a punitive injunction. Court ordered adverse publicity may be added in the case of corporate intransigence, for example where a corporation refuses to cooperate credibly with the terms of an accountability order. In extreme cases corporate capital punishment remains an option for courts.

The proposals in Part Four also secure the republican goal of `justice as equality'. In the context of corporate crime, the essence of that goal is to ensure equality of treatment of those who are equally responsible for corporate crime.142 In real terms it requires that those who are accountable for corporate crime are held accountable. The main impediment to the achievement of that goal in the aftermath of a corporate crime are the obstacles to both corporate and individual accountability identified in Part Two namely, the identity doctrine, the notion of the corporation as a separate legal entity, and the collective nature of corporate action. The proposals in Part Four offered a way around those obstacles. Through the creation of an offence of `industrial homicide' under OHS legislation, the broadening of legal notions of corporate responsibility, the employment of nominated accountability, the utilisation of corporate internal disciplinary systems, and the retention of individual manslaughter prosecutions in appropriate cases, a method for achieving a greater measure of corporate and individual accountability for negligently caused workplace death was set out.

What has been put forward in this thesis is an alternative legal response to deaths in the workplace caused by corporate negligence. That alternative response is structured around republican theory via the Accountability Model. It overcomes both the theoretical and practical problems which characterise the present system of prosecuting corporations for manslaughter.

ENDNOTES

2 Santina Perrone `Workplace Fatalities and the Adequacy of Prosecutions', Law in Context, Vol.13, No.1, 1995, p.94.

3 The Age, 15 June 1994, 7.

4 Perrone `Workplace Fatalities', p.94.

5 Perrone `Workplace Fatalities', pp.81-105; David Neal, `Corporate Manslaughter', The Law Institute Journal, October 1996, Vol. 70, No.10., pp.39-41.

6 Roman Tomasic and Stephen Bottomley, Corporations Law in Australia, The Federation Press, Sydney, 1995, pp.33, 267.

7 Tomasic and Bottomley, Corporations Law in Australia, pp.270-277.

8 Celia Wells, ` The Corporate Manslaughter Proposals: Pragmatism, Paradox and Peninsularity', The Criminal Law Review, August 1996, p.547.

9 Tesco Supermarkets Ltd v Nattrass [1972] AC 153 at 170-71.

10 Id at 171.

11 Tomasic and Bottomley, Corporations Law in Australia, pp.274-275.

12 Neal, `Corporate Manslaughter', p.39.

13 Nydam v R [1977] VR 430 at 445.

14 Andrew Hopkins, Making Safety Work: Getting Management Commitment to Occupational Health and Safety, Allen & Unwin, St. Leonards, 1995, p.112.

15 Law Reform Commission of Victoria, Homicide, Report, No.40, 1991, p.8.

16 Perrone `Workplace Fatalities', p.87.

17 Most state OHS legislation imposes a general duty of care on employers. The majority of prosecutions are for a breach of this general duty. Hopkins, Making Safety Work, p.95. See for example, Occupational Health and Safety Act 1983 (NSW) s.15; Occupational Health and Safety Act 1985 (Vic), s 21.

18 Colin McLean, `Corporate Negligence and the Use of Manslaughter in Victoria', Victorian Institute of Occupational Safety & Health Working Paper, No.5, March 1993, p.1; Perrone `Workplace Fatalities', p.93.

19 Law Reform Commission of Victoria, Homicide, Report, No.40, 1991, pp.7-14; Neale, `Corporate Manslaughter', p.39.

20 McLean, `Corporate Negligence', p.19; Occupational Health and Safety Act 1985 (Vic), s.21(1).

21 Perrone `Workplace Fatalities', p.92.

22 Quoted in Perrone `Workplace Fatalities', p.93.

23 Neale, `Corporate Manslaughter', p.39.

24 Joe Catanzariti, `Corporate Liability for Manslaughter Firmly Established' Law Society Journal, Vol.35, No.2, March 1997, p.26.

25 Re Director of Public Prosecutions (Vic), Reference No.1 of 1996, (Supreme Court of Victoria, unreported, 26 September 1997)

26 McLean, `Corporate Negligence', p.30.

27 Ibid.

28 Brent Fisse and John Braithwaite, Corporations, Crime and Accountability, Cambridge University Press, Melbourne, 1993, p.181; Brent Fisse `Corporations, Crime and Accountability', Current Issues in Criminal Justice, Vol.6, No.3, March 1995, p.381

29 Chesterman, `The Corporate Veil', p.1064; Brent Fisse `Rethinking Criminal Responsibility in a Corporate Society: An Accountability Model' in Grabosky and Braithwaite (eds) Business Regulation and Australia's Future, Australian Institute of Criminology, Canberra, 1992, p.255.

30 Chesterman, `The Corporate Veil', pp.1069-70.

31 Ibid.

32 Id at p.1070.

33 Ibid.

34 Perrone `Workplace Fatalities', p.101.

35 Chesterman, `The Corporate Veil', p.1073.

36 Brent Fisse, `Sentencing Options Against Corporations', Criminal Law Forum, Vol.1, No.2, 1990, p.216-218.

37 Id at p.213.

38 John Braithwaite, To Punish or Persuade: Enforcement of Coal Mine Safety, State University of New York Press, Albany, 1985, p.3; Tribune, 15 February 1983, 4; Daily Mirror, 7 February 1983, 2.

39 Perrone `Workplace Fatalities', p.100.

40 Daily Mirror, 7 February 1983, 2; Tribune, 15 February 1983, 4, Andrew Hopkins, `Death at Kellogg's', in Peter Grabosky and Adam Sutton, (eds), Stains On a White Collar: Fourteen Studies In Corporate Crime or Corporate Harm, The Federation Press, Sydney, 1989, p.182.

41 Hopkins, Making Safety Work, p.95.

42 McLean, `Corporate Negligence', p.26.

43 Fisse, `Sentencing Options Against Corporations', p.218.

44 Perrone `Workplace Fatalities', p.94.

45 Chesterman, `The Corporate Veil', p.1069.

46 Neale, `Corporate Manslaughter', p.41; Catanzariti, `Corporate Liability', p.26.

47 Colin McLean, `Corporate Negligence and the Use of Manslaughter in Victoria', Victorian Institute of Occupational Safety & Health Working Paper, No.5, March 1993, pp.32, 35; Perrone `Workplace Fatalities', pp.94-95.

48 McLean, `Corporate Negligence', pp.25,34; Perrone `Workplace Fatalities', p.102.

49 McLean, `Corporate Negligence', p.31.

50 Law Reform Commission of Victoria, Homicide, Report, No.40, 1991, p.7.

51 Statistics Unit, Worksafe Australia , Estimates of National Occupational Health and Safety Statistics, Australia, 1993-94, Australian Government Printing Service, Canberra, 1995, p.37.

52 Industry Commission, Work Health and Safety: An Inquiry Into Occupational Health and Safety, Draft Report,Vol.2, 1995, pp.657-658.

53 Braithwaite, John, `Restorative Justice: Assessing an Immodest Theory and a Pessimistic Theory', Draft to be Submitted to, Crime and Justice: A Review of Research, University of Chicago Press, p.12; John Braithwaite, To Punish or Persuade: Enforcement of Coal Mine Safety, State University of new York Press, Albany, 1985, pp.181-183; Brent Fisse and John Braithwaite, Corporations, Crime and Accountability, Cambridge University Press, Melbourne, 1993, p.16.

54 Braithwaite, To Punish or Persuade,p.142.

55 Ibid.

56 Ibid.

57 Perrone `Workplace Fatalities', p.102.

58 Industry Commission, Work Health and Safety, Vol.2, p.658.

59 Ibid.

60 Braithwaite, To Punish or Persuade,p.182.

61 Neale, `Corporate Manslaughter', p.41; McLean, `Corporate Negligence', p35.

62 McLean, `Corporate Negligence', pp.31, 94-94, 102.

63 Perrone `Workplace Fatalities', p.102.

64 Andrew von Hirsch and Andrew Ashworth, `Not Not Just Deserts: A Response to Braithwaite and Pettit', Oxford Journal of Legal Studies, Vol.12, No.1, p.83.

65 Id at p.93.

66 Ibid.

67 Id at p.92.

68 Id at p.93.

69 Fisse and Braithwaite, Corporations, Crime and Accountability, p.178,

70 Fisse and Braithwaite, Corporations, Crime and Accountability, p.179; John Braithwaite and Phillip Pettit, Not Just Deserts: A Republican Theory of Criminal Justice, Clarendon Press, Oxford, 1990, pp. 182-201.

71 Braithwaite and Pettit, Not Just Deserts: A Republican Theory of Criminal Justice.

72 Philip Pettit and John Braithwaite, `Not Just Deserts, Even in Sentencing', Current Issues in Criminal Justice, Vol.4, no.3, p.225.

73 Id at p.227.

74 Ibid..

75 Id at p.230.

76 Id at p.231.

77 Id at p.232.

78 Id at p.233.

79 Id at p.234.

80 Ibid.

81 Id at p.232.

82 Id at p.235.

83 Braithwaite and Pettit, Not Just Deserts: A Republican Theory of Criminal Justice, p.196.

84 Brent Fisse and John Braithwaite, Corporations, Crime and Accountability, Cambridge University Press, Melbourne, 1993, p.178.

85 Id at p.383.

86 Fisse `Rethinking Criminal Responsibility in a Corporate Society', p.255.

87 Id at p.256.

88 Fisse and Braithwaite, Corporations, Crime and Accountability, p.383.

89 Id at p.140.

90 Id at p.143.

91 Ibid.

92 Id at pp.147-152.

93 Id at p.385.

94 Id at p.180.

95 McLean, `Corporate Negligence', p.32.

96 Andrew Hopkins, Making Safety Work, p.113; Brent Fisse, `The Attribution of Criminal Liability to Corporations: A Statutory Model', The Sydney Law Review, Vol.13., 1991, pp.277-278.

97 Tesco Supermarkets Ltd v Nattrass [1972] AC 153 at 170-71; Tomasic and Bottomley, Corporations Law in Australia, pp.274-275.

98 See for example, Criminal Law Officers Committee of the Standing Committee of Attorneys-General, Model Criminal Code: Chapter Two: General Principles of Criminal Responsibility, Canberra, 1992, pp.94-101; Brent Fisse, `The Attribution of Criminal Liability to Corporations: A Statutory Model, The Sydney Law Review, Vol.13., 1991, pp.279-80.

99 Criminal Law Officers Committee of the Standing Committee of Attorneys-General, Model Criminal Code, p.94.

100 Ibid.

101 See for example, Environment Protection Act 1993 (S.A.), s.129; Environmental Offences and Penalties Act 1989 (NSW), s.10;

102 Andrew Hopkins, Making Safety Work, pp.105-107.

103 See also Workplace Health and Safety Act (Tas) 1995, s.53.

104 Brent Fisse `Rethinking Criminal Responsibility in a Corporate Society: An Accountability Model' in Grabosky and Braithwaite (eds), Business Regulation and Australia's Future, Australian Institute of Criminology, Canberra, 1992, p.255.

105 Braithwaite, To Punish or Persuade, p.159.

106 Ibid.

107 Occupational Health and Safety Act 1985 (Vic), s.52; Occupational Safety and Health Act 1984 (WA), s.55; Work Health Act 1996 (NT), s.80(1). The wording in the legislative instruments is slightly different but they all have essentially the same effect.

108 Fisse and Braithwaite, Corporations, Crime and Accountability, p.149

109 Id at p.147.

110 Ibid.

111 David. N. Campbell, R.L. Fleming and Richard C. Grote, `Discipline Without Punishment: At Last', Harvard Business Review, No.4, July-August 1985, pp.168.

112 Fisse and Braithwaite, Corporations, Crime and Accountability, p.147.

113 Ibid.

114 Ibid.

115 Id at p.149.

116 Id at p.181.

117 Id at p.181.

118 Fisse, `Corporations, Crime and Accountability', p.383.

119 Braithwaite, To Punish or Persuade, p.152.

120 Id at p.153.

121 Industry Commission, Work, Health and Safety: An Inquiry Into Occupational Health and Safety, Draft Report, Vol.1, 1995, p.131.

122 Braithwaite, To Punish or Persuade, p.153.

123 Occupational Health and Safety Act 1983 (NSW) s.48.

124 Occupational Health and Safety Act 1983 (NSW) s.31.

125 Industry Commission, Work, Health and Safety, Vol.1, p.131.

126 See Appendix A.

127 Fisse and Braithwaite, Corporations, Crime and Accountability, pp.189-190.

128 Id at p.163.

129 McLean, `Corporate Negligence', p.32.

130 Brent Fisse, `Sentencing Options Against Corporations', Criminal Law Forum, Vol.1, No.2, Winter 1990, pp.211-258; John Braithwaite and Brent Fisse, The Impact of Publicity on Corporate Offenders, State University of New York Press, Albany, 1983

131 Braithwaite, To Punish or Persuade, p.93.

132 Roman Tomasic and Stephen Bottomley, Corporations Law in Australia, p.279; see also Roman Tomasic and Stephen Bottomley, Directing the Top 500: Corporate Accountability and Governance and Accountability in Australian Companies, Allen & Unwin, Sydney, 1993, Chapter 4.

133 Fisse and Braithwaite, Corporations, Crime and Accountability, p.192.

134 Id at p.43.

135 Braithwaite, To Punish or Persuade, p.93.

136 Fisse and Braithwaite, Corporations, Crime and Accountability, p.192.

137 Braithwaite, `Restorative Justice', p.5.

138 Id at p.1.

139 Id at pp.15,20.

140 Pettit and Braithwaite, `Not Just Deserts, Even in Sentencing', p.234.

141 Id at p.235.

142 Fisse and Braithwaite, Corporations, Crime and Accountability, p.178.

~ APPENDIX A ~
FIGURE 1: AVERAGE NUMBER OF PROSECUTIONS AND CONVICTIONS OF CORPORATIONS FOR OHS OFFENCES, BY JURISDICTION

Note: Proportions are averages from 1990-91 to 1992-93.

Source: Industry Commission, Work Health and Safety: An Inquiry Into Occupational Health and Safety, Draft Report,Vol.2, 1995, p.670.

~ BIBLIOGRAPHY ~

Ayres, I, and Braithwaite, J, Responsive Regulation: Transcending the Deregulation Debate, Oxford University Press, New York, 1992.

Braithwaite, John, Crime, Shame and Reintegration, Cambridge University Press, Cambridge, 1989.

Braithwaite, John, To Punish or Persuade: Enforcement of Coal Mine Safety, State University of New York Press, Albany, 1985.

Braithwaite, John, and Fisse, Brent, The Impact of Publicity on Corporate Offenders, State University of New York Press, Albany, 1983.

Braithwaite, John, and Pettit, Phillip, Not Just Deserts: A Republican Theory of Criminal Justice, Clarendon Press, Oxford, 1990.

Fisse, Brent, Howard's Criminal Law, 5^th edition, The Law Book Company, Sydney, 1990.

Fisse, Brent, and Braithwaite, John, Corporations, Crime and Accountability, Cambridge University Press, Melbourne, 1993.

Grabosky, Peter, and Braithwaite, John, Of Manners Gentle: Enforcement Strategies of Australian Business Regulatory Agencies, Oxford University Press, Melbourne, 1986.

Hopkins, Andrew, Making Safety Work: Getting Management Commitment to Occupational Health and Safety, Allen & Unwin, St. Leonards, 1995.

Laufer, William. S, and Adler, Freda, (eds.), Advances in Criminological Theory, Volume Two, Transaction Publishers, New Jersey, 1990.

Tomasic, Roman, and Bottomley, Stephen, Corporations Law in Australia, The Federation Press, Sydney, 1995.

Tomasic, Roman, and Bottomley, Stephen, Directing the Top 500: Corporate Governance and Accountability in Australian Companies, Allen & Unwin, Sydney, 1993, Chapter 4.

Articles

Baysinger, B.D, `Organizational Theory and the Criminal Liability of Organizations, Boston University Law Review, Vol.71, 1991, pp.341-76.

Campbell, David, N, Fleming, R.L, and Grote, Richard C, `Discipline Without Punishment: At Last', Harvard Business Review, No.4, July-August 1985, pp.162-176.

Carson, Kit, and Johnstone, Richard, `The Dupes of Hazard: Occupational Health and Safety and the Victorian Sanctions Debate' Australia and New Zealand Journal of Sociology, Vol. 26, No.1, March 1990, pp. 126-141

Catanzariti, Joe, `Corporate Liability for Manslaughter Firmly Established', Law Society Journal, Vol.35, No.2, March 1997, p.26-28.

Chesterman, Simon, `The Corporate Veil, Crime and Punishment: The Queen v Denbo Pty Ltd and Timothy Ian Nadenbousch', Melbourne University Law Review, Vol.19, No.4, December 1994, pp.1064-1074.

Corns, Chris, `The Liability of Corporations for Homicide in Victoria', Criminal Law Journal, Vol.15, no.5, October 1991, pp.351-366.

Cressey, D, `The Poverty of Theory in Corporate Crime Research', Advances in Criminological Theory, Vol.1., 1988, pp.31-56.

Cuneen, Chris, `Trends in Prosecutions Under Occupational Health and Safety Legislation in NSW: An Overview', Current Issues in Criminal Justice, Vol.2, No.1, July 1990, pp.67-73.

Duane, Cath, `Health and Safety Law Enforcement', Law Institute Journal, Vol.70, No.10, October 1996, pp.42-43.

Fisse, Brent, `Corporations, Crime and Accountability', Current Issues in Criminal Justice, Vol.6 No 3 March 1995, pp.378-386.

Fisse, Brent, `Recent Developments in Corporate Criminal Law and Corporate Liability to Monetary Penalties', University of New South Wales Law Journal, Vol.13., 1990, pp.1-41.

Fisse, Brent, `Reconstructing Corporate Criminal Law', Southern California Law Review, Vol.56, No.6, September 1983, pp.1141-1246

Fisse, Brent, `Rethinking Criminal Responsibility in a Corporate Society: an Accountability Model' in Grabosky, P, and Braithwaite, J, (eds), Business Regulation and Australia's Future, Australian Institute of Criminology, Canberra, 1992, pp.255-68.

Fisse, Brent, `Sentencing Options Against Corporations', Criminal Law Forum, Vol.1, No.2, Winter 1990, pp.211-258

Fisse, Brent, `The Attribution of Criminal Liability to Corporations: A Statutory Model', Sydney Law Review, Vol.13., 1991, pp.277-97.

Hopkins, Andrew, `Death at Kellogg's', in Grabosky, Peter and Sutton, Adam, (eds), Stains On a White Collar: Fourteen Studies In Corporate Crime or Corporate Harm, The Federation Press, Sydney, 1989, pp.175-190.

Neal, David, `Corporate Manslaughter', The Law Institute Journal, Vol.70, No.10, October 1996, pp.39-41.

Perrone, Santina, `Workplace Fatalities and the Adequacy of Prosecutions', Law in Context, Vol.13, No.1, 1995, pp.81-105.

Pettit, Philip, and Braithwaite, John, `Not Just Deserts, Even in Sentencing', Current Issues in Criminal Justice, Vol.4, No.3, pp.225-239.

Slapper, Gary, `Corporate Manslaughter: An Examination of the Determinants of Prosecutorial Policy', in Sanders, Andrew (ed.), Prosecution in Common Law Jurisdictions, Dartmouth, Brookfield Vermont, 1996, pp.269-289.

von Hirsch, Andrew, `Proportionality in the Philosophy of Punishment: form "Why Punish?" to "How Much?"', Criminal Law Forum, Vol. 1, No.2, Winter 1990, pp.259-290.

von Hirsch, Andrew, and Ashworth, Andrew, `Not Not Just Deserts: A Response to Braithwaite and Pettit', Oxford Journal of Legal Studies, Vol.12, no.1, pp.83-98.

Walker, John, Collins, Mark and Wilson, Paul, `How the Public Sees Sentencing: an Australian Survey', in Walker, Nigel and Hough, Mike (eds.) Public Attitudes to Sentencing: Surveys From Five Countries, Gower, Sydney, 1988, pp.149-159.

Walt, S, and Laufer, W.S, `Corporate Criminal Liability and the Comparative Mix of Sanctions' in Schegel, K, and Weisburd, D, (eds), White Collar Crime Reconsidered, Northeastern University Press, Boston, 1992.

Wells, Celia, `The Corporate Manslaughter Proposals: Pragmatism, Paradox and Peninsularity ' The Criminal Law Review, August 1996, pp.545-553.

Reports

Braithwaite, John, Grabosky., Peter, Occupational Health and Safety Enforcement in Australia: A Report to the National Occupational Health and Safety Commission, Australian Institute of Criminology, Canberra,1985.

Braithwaite, John, Grabosky, Peter, and Fisse, Brent, Occupational Health and Safety Enforcement Guidelines: A Report to the Victorian Department of Labour, Department of Labour, Melbourne, 1986.

Industry Commission, Work Health and Safety: An Inquiry Into Occupational Health and Safety, Draft Report,Vol.1, 1995

Industry Commission, Work Health and Safety: An Inquiry Into Occupational Health and Safety, Draft Report,Vol.2, 1995

Law Reform Commission of Victoria, Homicide, Report No. 40, 1991.

Statistics Unit, Worksafe Australia, Estimates of National Occupational Health and Safety Statistics, Australia, 1993-94, Australian Government Printing Service, Canberra, 1995.

Working Papers

McLean, Colin, `Corporate Negligence and the Use of Manslaughter in Victoria', Victorian Institute of Occupational Safety & Health, Working Paper, No.5, March 1993.

Unpublished Papers

Braithwaite, John, `Restorative Justice: Assessing an Immodest Theory and a Pessimistic Theory', Draft to be Submitted to, Crime and Justice: A Review of Research, University of Chicago Press.

Discussion Draft

Criminal Law Officers Committee of the Standing Committee of Attorneys-General, Model Criminal Code: Chapter Two: General Principles of Criminal Responsibility, Canberra, 1992.