As a result, there are two parallel systems of criminal law:

Under this arrangement, each State has responsibility for enacting and enforcing offences in relation to general and serious crime including the offence of homicide.

Federal laws and offences are generally regulatory or economic in nature. However, the offences at the Federal Government level do apply to deaths of a Federal Government employee.

Federal Criminal Code Act 1995
In 1992, the Criminal Law Officers Committee of the Standing Committee of Attorneys General suggested, as a part of the proposals for an Australian-wide Criminal Code, a refomed method for attributing criminal responsiblity to the 'corporate' entity.

This resulted in the Federal Government adopt enacting the Criminal Code Act 1995 (Cth) which came into effect in the Commonwealth jurisdiction in March 2000.

It stated that existing state law principles were inadequate in attributing criminal liability for federal offences in large corporations. It observed.

"Given the 'flatter structures' and greater delegation to junior employees in modern corporations ... the Tesco test - which among other things, requires the prosecution to prove, beyond reasonable doubt, that the officer was at a sufficiently high level to be regarded as the directing mind and will of the corporation - is no longer appropriate."

One related to offences which required proof of 'negligence' and the other where the offence required proof of "intention, knowledge or recklessness".

The "physical' and 'mental' element of the offence
In relation to both principles, the Code separates out the tests for assessing whether the physical element of the offence has been proved from whether or not the mental element has been proved. Almost every offence has both; so, for example, the offence of theft may require the "taking of an object" (which is the physical element) but will also require that it is taken "intentionally" (which is the mental element).

One of the limits of the identification doctrine is that there must be evidence to provide that a single person committed the physical element of the offence and that same person had the relevant mental state. The Australian principle separates out these two parts of the offence - and allows a company to be convicted when one person has committed the physical element of the offence and another person has the requisite mental state.

Offences of Negligence
Section 5 of the Act states that negligence takes place where there has been

"such a great falling short of the standard of care that a reasonable person would exercise in the circumstances, and such a high risk that the physical element exists or will exist, that the conduct merits criminal punishment for the offence”-

The Criminal Law Officers Committee has recommended that, in relation to proving whether a company was negligent, there should be no need to show that any one person acting within the corporation was negligent; the negligence should be found in the conduct of the corporation viewed as a whole.

This is reflected in Section 2 of Section 12.4 of the Act which states that if:

	"(a)	negligence is a fault element in relation to a physical element of an offence; and
	(b)	no individual employee, agent or officer of the body corporate has that fault element;
	that fault element may exist on the part of the body corporate if the body corporate’s conduct is negligent when viewed as a whole (that is, by aggregating the conduct of any number of its employees, agents or officers)."
It goes onto state that:
	"Negligence may be evidenced by the fact that the prohibited conduct was substantially attributable to:
	(a)	inadequate corporate management, control or supervision of the conduct of one or more of its employees, agents or officers; or
	(b)	failure to provide adequate systems for conveying relevant information to relevant persons in the body corporate.”

In effect, these provisions introduce a ‘management failure’ test akin
to that recommended by the Law Commission of England and Wales,
- though this one is more sophisticated. One notable difference is the endorsement of the ‘aggregation’ principle of attribution which was rejected by the English Law Commission.

Criminal Code Act: Offences of Intention and recklessness
In order to prove an offence against a company where the requisite fault element requires "intention, knowledge or recklessness", the Act states that it is necessary that the fault element should be found in a body corporate which "expressly, tacitly or impliedly authorised or permitted the commission of the offence."

The means by which such an authorisation or permission may be established include:

Paragraphs (a )and (b) echo the identification doctrine. It should be noted that (a) requires the whole Board of Directors whilst (b) requires only a "high managerial agent" - defined in the act as "an employee, agent, or officer of the body corporate with duties of such responsibility that his or her conduct may fairly be assumed to represent the body corporate's policy." The Act however says that para (b) does not apply "if the body corporate proves that it exercised due diligence to prevent the conduct or the authorisation or permission."

Subparagraphs (c) and (d) are entirely novel and "represent a clear endorsement of an organisational or systems model of enterprise liability" . They are based on the concept of ‘corporate culture’, which is defined as:

“an attitude, policy, rule, course of conduct or practice existing within the body corporate generally or in the part of the body corporate in which the relevant activities takes place.”

The section goes on to provide, in paragraph (4), that the following two factors will be relevant in assessing corporate culture:

To see the whole of section 12 of the Criminal Code Act 1995 - which deals with corporate criminal responsibility, click here

Commonwealth Occupational Health and Safety (Commonwealth Employment) Amendment (Employee Involvement and Compliance) Bill 2002

This Act creates a number of new offences. The first category are those that result in death or serious bodily harm. A person commits a criminal offence when:

The maximum penalty available to a court in such a case is found in the table in new clause 21. For example, if an employer breaches his or her statutory duty to an employee under subsection 16(1) and death or serious bodily harm results then the maximum penalty is 4,500 penalty units ($495,000). In some cases, penalties differ depending on whether the offender is a body corporate or a natural person. For instance, if death results from the statutory breach of a person’s duties erecting or installing plant in a workplace, the maximum penalty for a natural person is 900 penalty units ($99,000) and for a corporation it is 4,500 penalty units.

The second category of offences involve exposing employees to a "substantial risk of death or serious bodily harm" New clause 19 creates a category of criminal offence — breach of an employer’s duty to his or her employees that exposes them to a substantial risk of death or serious bodily harm. To be guilty of this offence the employer must be either negligent or reckless that that breach would expose the employee to a substantial risk of death or serious bodily harm. Unlike new clause 18, which creates offences in relation to breaches of 13 statutory provisions, new clause 19 only operates with respect to breaches of one statutory provision—subsection 16(1).

To read a detailed summary of this new legislation, click here

Application of Criminal Code Act 1995 (Cth)
It had been envisaged that this Code would be adopted by all Australian States and Territories and would therefore in due course form the basis of all Australian criminal law. However, identical provisions to those in the Commonwealth Code have been incorporated only in the smallest Australian jurisdiction, the Austrialian Capital Territory, through the Criminal Code 2002 (ACT).

Therefore, as a result - apart from the Australian Capital Territory - each state or territory continues to apply its own principles of criminal responsibility - when interpreting offences against federal law. In relation to corporate criminal responsibility, most states followed the English Common law principles of "identification" (i.e. the company's guilt is dependent upon the guilt of a 'directing mind' of the company)

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