The recent blocking of the Victorian Government's controversial corporate manslaughter legislation by the state Opposition does not close the debate over liability for workplace deaths. The Bill remains a government objective and similar proposals are under consideration in Queensland and Western Australia with NSW unions calling for action.
Every executive needs to monitor this debate because it is they who are under personal and direct threat from the proposals. The central concern is the way this corporate manslaughter model changes key principles of criminal justice threatening basic liberties.
A lay person's understanding of criminal law is that a person is held responsible for the actions over which they have direct control. The doctrine of criminal intent is central to the law, and only natural persons can have criminal intent.
Natural persons can steal, beat up, rape, blackmail, murder and so on, and they can do so in the context of seeking to further the interests of a collective, say a church or trade union or on orders from someone else in an institution. But in every criminal case, individuals have to be the instruments of the criminal act and individuals are held responsible for their individual criminal actions.
The Victorian manslaughter model operates in reverse. The Bill holds that a collective of persons is capable of criminal activity but chooses one legal form of a collective -- the corporation -- and declares that only it can act criminally. The Bill excludes other collectives such as trusts, the public service, not-for-profit bodies and unions, and focuses on the corporate system as the instrument of criminal behavior. It asserts that corporate culture and organisation commit criminal acts. The first step in prosecution is to demonstrate this new criminality. The second step is to find who within the corporation who will be punished (by way of fine or imprisonment) for the corporation's crimes. The Bill declares senior officers as the "fall guys" to go to jail on the corporation's behalf.
The Bill raises questions of justice ignored by it's promoters. How is it possible for a collective to have criminal intent? What is so demonic about a corporation that it alone amongst collectives can have criminal intent? What is so noble about government that it cannot, like a corporation commit a criminal act? Could collective criminality be applied to religious, social, political or sporting organisations? More specifically for corporate senior officers, could anyone know which of their actions would be criminal under this new and untested form of criminality? What would be the new rules?
Many examples exist under current criminal laws where executives and directors of corporations have been found criminally liable for deaths where they had a direct hand.
The need for inventing new criminal law has not been proven. For a society to function people need and deserve reliable application of consistent law. The rewriting of criminal principles under the Victorian corporate manslaughter model fails this test. The risk is corruption of justice, damage to commerce and diminishing of workplace safety.
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