Corporate Manslaughter Laws in Australia
What is corporate manslaughter?
Manslaughter is ultimately the crime of killing a person in circumstances that do not amount to murder. Put simply, it is the unlawful killing of a person without malice aforethought, or the desire to harm them.
It follows, then, that corporate manslaughter is a crime that enables a corporation to be held liable for the death of a person or people in the same way that an individual may be held liable.
Federal Legislation – Corporate Criminal Responsibility
Division 12 of the federal Criminal Code Act 1995 details the law surrounding corporate criminal responsibility. Usually when we talk about somebody committing a crime we are referring to a person. How is it then, that a corporation can be liable for a crime if they are not a person? To clear up this ambiguity, section 12.1 of the Criminal Code Act states that “This Code applies to bodies corporate in the same way as it applies to individuals” and that a “body corporate may be found guilty of any offence, including one punishable by imprisonment”.
Once it has been established that a corporation can be deemed to be a person in relation to the committing of a crime, the next thing to consider is whether the act or omission in question, (known as the physical elements of the crime) should be attributed to the employee, their manager or the corporation itself. Section 12.2 states that if an employee, agent or officer of a corporation commits the physical elements of a crime, the act or omission must be attributed to the corporation, so long as the employee was acting within the scope of their employment.
Crimes involve not only physical elements, the actus reus (guilty act), but also fault elements, or mens rea (guilty mind). This means that for a person to be found guilty of a crime the prosecution must prove the fault elements that are attributed to that particular crime. Section 12.3 says that if “intention, knowledge or recklessness” are fault elements of an offence, “that fault element must be attributed to a body corporate” if they have “expressly, tacitly or impliedly authorised or permitted” the offence.
At the end of the day, the legislation is saying that a corporation can be held responsible for the physical and fault elements of their employees.
It is important to note that if a person commits a crime whilst at work, the corporation may be held liable but the employee can also be individually responsible. This means that it is not a defense to a crime to say that you were simply acting in the scope of your employment.
Federal Legislation – Corporate Manslaughter
After reading section 12 of the Criminal Code Act 1995, it would appear that corporate manslaughter is an offence that is punishable in Australia. But in reality, it’s not that simple. The Act allows for corporations to be held liable for criminal acts or omissions undertaken by their employees, agents or officers, however there is one small problem – when section 12.1 says that a corporation may be found guilty of any offence, ‘any offence’ refers only to offences covered by federal legislation, and manslaughter is a state provision, not a federal one. Therefore, a corporation is only likely to be found guilty of corporate manslaughter if the relevant state has provisions similar to the federal ones about corporate criminal responsibly. Currently the ACT is only territory that has enacted the federal provisions into their legislation. No state has enacted the provisions into their legislation.
What does this mean?
It gets a little complicated at this point, so let’s break it down.
Federal legislation has provisions (as explained above) that hold corporations responsible for the physical and fault elements of their employees, but only for crimes covered by the federal legislation. Manslaughter is not covered by federal legislation.
State legislation does cover manslaughter. It does not, however, have provisions allowing vicarious liability. In other words, state or territory legislation does not say anything about corporations being responsible for their employees’ acts or omissions, (except that of the ACT).
Corporate manslaughter is a crime that enables corporations to be held responsible for the death of a person or people that occurred due to actions or omissions performed by its employees within the scope of their employment.
Australian federal legislation includes provisions that allow for corporations to be held liable for their employees’ acts or omissions in relation to any offence covered by the federal legislation, however manslaughter is not a federal provision.
The ACT is the only territory or state that has provisions in its legislation that allow for corporations to be held liable for their employees’ acts or omissions, and therefore although the other states provide for manslaughter being a crime, they do not allow for corporations to be held responsible for it.
If you have any questions or concerns regarding corporate manslaughter in your workplace, please do not hesitate to contact Lynn & Brown Lawyers for expert legal advice.
About the authors:
This article has been co-authored by Chelsea McNeill and Steven Brown at Lynn & Brown Lawyers. Chelsea is in her third year of studying Law at Murdoch University. Steven is a Perth lawyer and director, and has over 20 years’ experience in legal practice and practices in commercial law, dispute resolution and estate planning.