Three Recent Royal Commissions: The Failure to Prevent Harms and Attributions of Organisational Liability

Abstract

There is increasing international recognition of the widespread harms caused by large organisations (including corporations) and the seeming absence of attributions of criminal liability to those organisations. Recent Australian Royal Commissions have shown long-term systemic harms and crimes inflicted within and by large organisations and yet the criminal law’s account of responsibility within and of organisations remains weak. Criminal legal doctrine has failed to develop a coherent, persuasive and pragmatic means of attributing culpability for harms caused by large organisations. This failure is due to a failure to conceive of organisations as responsible in and of themselves. To examine the weakness of the criminal legal response, this article focuses on recent reforms by the United Kingdom (‘UK’) and proposed reforms in Australia to develop a form of omissions liability by criminalising organisational failure to prevent. The UK model focuses on a specific predicate offence (such as bribery), but this article argues that the predicate offence can and should be extended more broadly to systemic failure to prevent breach of duty of care. To this end, this article considers the findings of three different Australian Royal Commissions to argue how and why the failure to prevent can be sufficiently blameworthy to justify and require the attribution of criminal liability and sanctions.