Crime, Health and Safety and Corporations: Meanings of the Failed Crimes (Workplace Deaths and Serious Injuries) Bill

Abstract

On 22 November, 2001, the Attorney-General of Victoria made a strong speech in the Legislative Assembly in support of his motion that the Crimes (Workplace Deaths and Serious Injuries) Bill be read a second time. On 14 May, 2002, the Bill, with some amendments, was passed by the Legislative Assembly. On 29 May, 2002, it was rejected by the Upper House, the Legislative Council. The Bill had been portrayed by the government as a worker-friendly enactment and its rejection by the Legislative Council was characterized by the government as a gift to the employing classes at the expense of ordinary workers' welfare. The Bill set out to create new criminal responsibilities for corporations. Specifically, corporations were to be made responsible without reference to the state of mind of the people who, under the prevailing doctrine, were deemed to be the very ego of the corporation. Corporations now were to be criminally responsible as such. The Victorian Bill was just the latest manifestation of a discernible trend in Anglo-American jurisdictions to criminalize corporate behaviour in this novel way. In 1990, Carson and Johnstone had compiled a string of political and policy statements made in Victoria during the 1980s about the need to develop more stringent criminal sanctions against corporations. These political pushes for change were not acted upon immediately but are now increasingly being given statutory life. Prior to the defeat of the Victorian effort, the Queensland government had announced that it would pass legislation to make corporations responsible as such; the Australian Capital Territory offered a similar Bill in 2002; the federal government already had created these kind of novel corporate criminal liabilities by its December 2001 implementation of the Criminal Code Act 1995 (Cth.); the English government has advanced proposals for the prosecution of health and safety violations and, in 2003, what had originally been a private member's bill to a similar effect, was enacted by the Canadian Parliament. All of these pronouncements and legislative activities indicate that there is a fairly widespread belief that the existing weaponry available to law enforcers is not up to the task of sanctioning corporate wrongdoing appropriately. This paper sets out to consider why there is such a perception. It then will ask: - what do the responses to this perception signify? - why do these attempted remedies focus on making the corporation responsible as a criminal in its own right, rather than via a doctrine that attributes other people's guilt to it? - what, if anything, does making the corporation a blameworthy entity in its own right suggest about occupational health and safety regulation, in particular, and about regulation in general?