Fighting the System: New Approaches to Addressing Systematic Corporate Misconduct

Abstract

Traditional criminal law evolved to address morally unacceptable conduct by individuals, before expanding into regulatory contexts. Classical models of corporate criminal responsibility sought to apply the individual-focused criminal law to corporate defendants. At the same time, contemporary corporations act increasingly in ways distinct from natural persons: through systems, patterns of behaviour, policies, procedure, and culture. This has led to increasing interest in the framing of offences that are better tailored to the way in which corporations act in reality. Building on the recommendations of the Australian Law Reform Commission in its Corporate Criminal Responsibility Report, this article considers a novel type of offence — one that criminalises systems of conduct or patterns of behaviour by corporations. We argue that system of conduct offences have the potential to enhance corporate criminal law’s effectiveness, and to serve as an alternative to traditional approaches to corporate criminal liability in appropriate contexts.