Criminology Research Council grant ; (2/91)
The outputs from this project were: Corporate Crime and Corporations Law Enforcement Strategies in Australia, Discussion Paper 1/1993 by Professor Roman Tomasic, Centre for National Corporate Law Research, School of Law, University of Canberra (346.0660994 p TOM);. The following three papers have been bound in one volume: Sanctioning Corporate Crime and Misconduct: Beyond Draconian and Decriminalization Solutions by Roman Tomasic, 1992 National Corporate Law Teachers' Workshop, Centre for National Corporate Law Research, University of Canberra, also published in Australian Journal of Corporate Law, vol. 2, no. 1, 1992, pp. 82-114. Corporate Crime in a Civil Law Culture by R. Tomasic, Current Issues in Criminal Justice, vol. 5, 1994, pp. 244-55. Complex Corporate Trials and Corporate Social Control in Australia by R. Tomasic, unpublished paper for the Panel on Long-term Trends in Litigation, Research Committee on the Sociology of Law, ISA World Congress, Bielefeld, Germany, 1994 (364.0660994 fp TOM). Corporations Law Enforcement Strategies in Australia: The Influence of Professional, Corporate and Bureaucratic Cultures by R. Tomasic, Australian Journal of Corporate Law, vol. 3, 1993, pp. 192-229. Corporate Crime by R. Tomasic, in The Australian Criminal Justice System: The Mid 1990s, eds D. Chappell and P. Wilson, Butterworths, Sydney, 1994, pp. 253-69. Corporate Crime, Governance and Corporate Social Control by R. Tomasic, unpublished paper delivered at the AIC Crimes Against Business Conference, Melbourne 1994.
There have been major official and academic debates in Australia concerning appropriate methods to be adopted in sanctioning corporate and white collar crime. This project sought to address this debate by focusing upon the attitudes of key corporate law observers and actors to determine what kinds of strategies would be likely to be effective here. Field work for this project was conducted by the author in 1992 and involved interviews with key observers in five Australian capital cities. These interviewees comprised leading members of the judiciary, prosecutors, senior corporate regulators, corporate lawyers, liquidators and leading barristers.
The project found that although there are strong policy reasons for seeking to treat corporate and white collar crime in similar ways to other types of criminality, often there may be far more effective means of achieving corporate accountability and control than the resort to major criminal law trials involving such offenders. The dominance of what has been described as a civil law culture in regard to corporate conduct, makes the acceptance of criminalising corporate misconduct somewhat problematic. The project does not suggest that criminal prosecutions are inappropriate, but rather, that they should be strictly limited and that greater use should instead be made of civil recovery proceedings, administrative procedures like the disqualification of directors and corporate internal reform orders.
The definition and prevalence of corporate and white collar crime are very much affected by prevailing business attitudes in regard to various practices. All too often when corporate crime has been discussed in Australia, generalisations are made from narrow fact situations or from particular types of corporate crime. This is unfortunate as it does not serve to refine a debate which is of much public policy significance and in need of broader perspectives of the nature of the problem. It also means that from time to time the debate has been allowed to descend into overly emotional responses. In one paper from this project it was argued that in view of the considerable difficulties of definition surrounding the problem of corporate crime, it might be useful to rethink our attitude to corporate crime and start with a broader four-fold typology of corporate criminality. In the typology of corporate crime it was suggested that it was possible to identify at least four types of corporate criminality, as follows: corporate crime committed by a corporation itself for the benefit of that corporation; corporate crime committed by the agents or controllers of a corporation for the benefit of that corporation; corporate crime committed by a corporation itself against the interests of another corporation; and corporate crime committed by the agents or controllers of a corporation against the interests of the corporation.
Different responses to corporate criminality are desirable depending upon the nature of the crime which has occurred. As the research project has shown, the recent legal debate on corporate crime has tended to polarise around the virtues of criminal or of a civil approach to such conduct. It is clear that it is necessary to be far more innovative in dealing with the problems of compliance and social control in respect to the actions of corporations and their agents and officers because traditional criminal law sanctions are often too late or too difficult to use to have any useful effect. They are often too late in that by the time that a case comes to court it is often the case that assets or funds have been dissipated or removed from the easy reach of the courts or those who have been harmed, such as creditors.
Whilst a custodial sentence may well be appropriate for a corporate criminal, it is also necessary to adopt an approach which takes into account the practical realities of corporate crime prosecutions, especially where they involve respected and powerful members of the community, often with no prior criminal record and able to draw out complex cases over a long period of time. Dealing with corporate criminality becomes far more difficult if the principal response is a protracted major trial or prosecution. With some corporate crimes, it is often too late to salvage a situation by the time that such a trial takes place. It may therefore be necessary to adopt other strategies as the principal response to corporate crime. Whilst this is not to suggest that corporate criminal prosecutions should be abandoned, it should be recognised that there are more cost effective and timely means of dealing with corporate crime. One of these is a greater reliance upon a regulatory response to minor matters, such as the use of fines and administrative mechanisms. Probably the most effective mechanism for dealing with corporate crime is to attach the roots of such conduct within the corporation itself. In this regard, more effective governance structures, greater disclosure to shareholders and investors and improved mechanisms of accountability within the corporation are crucial.