CO5121 Law Of Business Organisations

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CO5121 Law Of Business Organisations

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CO5121 Law Of Business Organisations

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Course Code: CO5121
University: James Cook University

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Country: Australia


The recent Grenfell Tower tragedy in the UK has been described by some British MPs as “corporate manslaughter”.  The Guardian Newspaper has printed a diagram of the web of companies that was involved in the construction/refurbishment of the building and how difficult it is to attribute responsibility.  
Obviously the investigation into the matter is ongoing and you must not comment on that investigation nor attribute blame. Without doing that, critically analyse the following:
Is there a concept of corporate manslaughter in Australia?  If not, why not?  (Has there been legal/scholarly criticism/debate about the concept?  Could laws in other jurisdictions be influential in Australia?)  If so, then critically analyse the legal concept and how it is applied.  In the course of your answer, discuss whether webs of contracting companies are common in the construction industry and the impact that has on attributing liability.  (Include in that discussion scholarly/legal analysis).

The term corporate manslaughter relates to the crime in the corporate sector (Sebok, 2015). The term was first time coined in England. It is a special provision that provides certain penal sections relating to corporate crime. In Australia, there is Criminal Code Act 1995 that regulates the criminal activities as a whole (Burchell, 2013). However, there is no separate Act that can impose on the corporate wrong-doer. In Australia, there is a provision named Corporate Criminal Responsibility that encoded certain sections on corporate crime or the white collar crime (Podgor, 2016). The laws of England and United States of America have created special impact on the legal jurisdiction of Australia regarding the provision of corporate manslaughter. Due to the various corporate sectors, Australia becomes populated day today. The construction business of Australia is developing in nature. Australian Building and Construction Commission has been established to secure the framework of the building so that they can be concocted in well manner. It investigates all matters related to the building plans.
Corporate manslaughter:
Due to the revolutionary changes in the technology, corporate industries are on a hike. Many people got engaged in such sectors. There is a rapid growth observed in those sectors. The real worry regarding the same is crime relating to these sectors is become common in those days. Terms like white collar crime, corporate manslaughter are coined to denote such crimes. The term corporate manslaughter has been coined for the first time in England (Field & Jones, 2014). Manslaughter means to kill someone. Corporate manslaughter indicates those acts that are responsible for the death of a person. It is a special provision regarding the corporate sector that penalizes the wrong-doer and the provision exclude the civil or criminal liability. The rate of corporate-based crimes were so much incremented that there was a necessity to implement certain rules regarding the same and for this, United Kingdom has, for the first time taken an initiative to encoded certain rules regarding the same. In 2007, Corporate Manslaughter and Corporate Homicide Act were passed for that purpose that intends to protect the victim from being suffered by unethical acts of the corporate heads (Allan, 2016).
In corporate manslaughter, there are some theories present that are denoted the different scope of this crime (Goel, 2015). There are sum total six theories are present of whom the first one is the identification theory. As per this theory, the person who can manage the whole corporation is liable to be guilty for his own act (Lederman, 2016). The second one is the aggregation concept that is relied on the mind controlling approach. The third one is the reactive corporate fault, which is for the first time coined by Fisse and Breathwaite that emphasized on the action of the wrong-doer. Vicarious liability is another principle regarding the same (Goudkamp & Plunkett, 2017). According to the management failure model, corporate manslaughter cropped up where a person is being killed by the wrongful act of the company. The last theory is the corporate mens rea that is widely used in the State of America and Australia (Davis, 2017).
Application of the concept in Australia:
Australia is also witnessed certain cases regarding the corporate crime that harm the economy of the country and creates a negative impact on the worldly image of the country. However, there is no special provision regarding the corporate crimes has been enacted in Australia. Australia is a commonwealth country (Gans, 2016). All criminal activities are regulated by the Criminal Code Act that are encoded certain legislation on the criminal activities. The code is enforced on the corporate personalities as same as it applies on the individuals. It provides rules regarding the negligent act of the body corporate and the reckless act of the company are needed to be proved in this respect. It regulates rules regarding the employment fault that are become common in Australia. In Australia, there is a division of power in respect of central and state division of law. The commonwealth criminal Act does not applies to the state law in Australia. There are many reasons as well as debates made to analyze the reason why there is no particular Act regarding the corporate manslaughter in Australia.
The common law of Australia does not include provision like health, safety and manslaughter in the Criminal Code. It provides certain sections regarding the corporate culture, but that includes only the provision regarding the negligent acts of the company or the wrong intention of the companies. There are certain debates have been conducted to trace out the reason that why there is no substantive legislation on the corporate manslaughter or why the manslaughter chapter is completely excluded from the Criminal Code Act 1995 (Tombs, 2014).
The criminals in Australia are not categorized on different base. They are treated same. If a person commits any crime during the employment terms, they held liable for the same under the Criminal Code Act. There is no necessity to enacted different Acts regarding the same. Being a commonwealth country, the legislation of Australia depends on the United Kingdom. Even law of America is also applied on Australia. However, in case of manslaughter, Australia shows laxity to enlist it in the Criminal Code.
In the states like Victoria or the northern portion of Australia, the corporate officers are not made personally liable as the doctrine of corporate veil is applicable there and the concept of the separate legal entity of the company is quite omitted there. In Queensland, however, the corporate officers are get penalized for their own wrongful acts. If there is any breach of employment duties, the officers can be incarcerated. This helps to maintain the healthy workplace atmosphere.
According to some scholar, there is a need to reform the Criminal Code of Australia regarding the manslaughter chapter. The need for amend the code realized for the first time in 1986, when four workers were being killed by the Simmetal Limited that was established at Victoria. The company got punished as a result of gross negligence and the decision was criticized as the employers were personally liable for the negligence. In R v. O’connor (1990), director of the company was for the first time sentenced for his own wrongful acts (13).
The corporate manslaughter is not included within the sphere of Criminal Code as the liability regarding the manslaughter provision is of direct in nature. In Australia, it is to be proved that the wrong is made by the person has the power to act as a corporation. Australia follows the rules that enumerated in the case law of Tesco supermarket limited v. Natrass [1972], that where the mens rea of the individual is responsible for the commission of crime, they should be held guilty individually. The same principle is applied in R v. A C Hatrick Chemicals pty ltd [1995]that has regarded the first case of corporate manslaughter in Australia (14).
On the other hand, some scholars are criticized the doctrine on the basis that it minimize the blameworthiness regarding the guilt and the imprisonment terms of corporate manslaughter is not proper. Rather the civil or criminal provision regarding the same is more effective than this.
Influence of other jurisdiction:
The legislation of Australia is highly depends on the laws of England and America. Corporate manslaughter is not included in the provision of Criminal Code Act of Australia. The offence relating to the corporate sector is getting increased day today. There is no separate enactment on the same. The Criminal Code of Australia has made certain provision regarding the corporate criminal liability of Australia. There are certain other jurisdictions that create impact on the provision of corporate manslaughter. Section 4B of the Crimes Act 1914 provided rules regarding the body corporate. There are certain provisions encoded under the Criminal Code Act 1995 regarding the negligence act of the corporate officials. In Australia, the corporate provision enlightened the attributive legislation.
Construction industry:
For the improvement of the industry related to construction, Australia has encoded several rules that are helpful to maintain the safe policy regarding the same. An association has been established for the application of the rules and investigates into the matter relating to the construction industry. The board of the association is headed by Director. The safety provision plays an important role regarding the construction industry as it may cause serious loss if there was a breakdown regarding the same. The rules regarding the building construction is needed to be sustainable enough to make a balance between the environment and economic policies. In Australia, the work is completed on contractual base. It is important to create an agreement regarding the same. The contractual terms of contract help to encourage the project and it is important to sheer development of Australia.
The safety provision of Australia is not included in any Acts, which is a serious matter regarding the public policy in general. The example of detrimental effect of the safety violation is the recent fall of Greenfell Tower in England. There was a serious laxity regarding the safety procedure was noticed. The fire system got damaged and the other rules of Safety policies are not maintained by the authority that tolled more than 75 persons’ life. Allegation regarding the exterior design and gas pipes is also made after the fall.
In Australia, Work Health and Safety Act regulates certain models that are helpful regarding the safety matter of construction work (Talbot, 2016). It also enumerates certain duties that can help the contractor to maintain the safety policies regarding the apartments or building. The Act also points out certain risk matter that should be maintained during construction.
Therefore, from the above discussion, it can be concluded that there are many loopholes in the Criminal Act if Australia as there are certain debate on the non-inclusion of provisions like corporate manslaughter. The theories of vicarious liability, corporate mens rea and identification theories are applicable in Australia. According to Australian legislature, the individual that are alleged to commit crime should not be heard individually. If a person held liable for his criminal activities during the employment base, the company as a whole should be held liable and the doctrine of vicarious liability is applicable in that aspect. There is certain debate made regarding the same. Australia’s concentration over the issue of construction is based on the proclamation of safety procedure. Even, an Act was passed in this respect (Work Health and Safety Act) that enumerated certain provision regarding this.         
Burchell, J. M. (2013). Principles of criminal law. Juta and Company Ltd.
Podgor, E. S. (2016). Corporate Criminal Liability 2.0. Stetson L. Rev., 46, 1.
Field, S., & Jones, L. (2014). Are directors getting away with manslaughter? Emerging trends in prosecutions for corporate manslaughter. Business Law Review, 35(5), 158-163.
Allan, S. (2016). The Corporate Manslaughter and Corporate Homicide Act 2007 or the Health and Safety (Offences) Act 2008: corporate killing and the law (Doctoral dissertation, University of Glasgow).
Goel, S. (2015). Corporate Manslaughter and Corporate Homicide: Scope for a New Legislation in India. Partridge Publishing.
Lederman, E. (2016). Corporate Criminal Liability: The Second Generation. Stetson L. Rev., 46, 71.
Goudkamp, J., & Plunkett, J. (2017). Vicarious liability in Australia: on the move?. Oxford University Commonwealth Law Journal, 1-9.
Davis, C. (2017). Corporate Criminal Liability: Developing a Legislative Model of Attribution. Trinity CL Rev., 20, 122.
Gans, J. (2016). Modern criminal law of Australia. Cambridge University Press.
Tombs, S. (2014). Almond, Paul: Corporate manslaughter and regulatory reform. Crime, Law and Social Change, 61(5), 585-593.
Talbot, A. (2016). Work Health and Safety Act v Australian Border Force Act: Immigration detention workers caught in the crossfire. Precedent (Sydney, NSW), (135), 22.
Hazelwood, R. R., & Burgess, A. W. (Eds.). (2016). Practical aspects of rape investigation: A multidisciplinary approach. CRC Press.
Solaiman, S. M. (2016). Corporate Manslaughter by Industrial Robots at Work: Who Should Go on Trial under the Principle of Common Law in Australia. JL & Com., 35, 21.

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