• Probation orders
• Punitive injunctions

9.1 For the purposes of this Report, a correction order is an order that a corporate offender do, or refrain from doing, a specified activity or thing. Its usual aim is to modify or control a corporation’s behaviour in some way. Correction orders cover a wide range of possible orders and have been given a number of different names in the literature and relevant legislation. Orders may be as specific as requiring the corporation to undertake particular tasks, or as general as simply requiring that the corporation “be of good behaviour” or not offend further. The Commission is recommending that when sentencing a corporation, a court may, in addition to or instead of imposing a fine, make, on such terms and subject to such conditions as it sees fit, one or more correction orders that the court considers will best achieve the objects of sentencing. In this chapter correction orders are considered in two broad categories: probation orders and punitive injunctions.

PROBATION ORDERS

9.2 Probation usually involves the court suspending the imposition of a sanction, generally a serious one, on condition that the offender complies with certain requirements. The primary aim of probation is rehabilitation of the offender to prevent further offending.

9.3 In the case of individual offenders, probation generally involves the court setting the offender at liberty conditional upon good behaviour. The offender usually enters into a bond which imposes certain conditions upon their release, such as a condition placing the offender under the supervision of a probation officer. If an offender breaches a condition of probation they may be brought back before the court for re-sentencing.¹

9.4 Examples of probation in the current sentencing legislation include good behaviour bonds, conditional discharge of an offender and suspended sentences.² While good behaviour bonds cannot be imposed on corporate offenders (because they must be imposed as an alternative to imprisonment)³ it is possible that conditional discharges⁴ do apply to corporate offenders.⁵

9.5 In Issues Paper 20, the Commission asked whether corporate probation would be an effective sanction against a corporation and in what circumstances it should be imposed.⁶ One submission suggested that probation, along with other alternative sentencing options, has a strategic place, especially if one considers responsive regulation⁷ a compelling strategy.⁸

9.6 In principle, the Commission supports the adoption of corporate probation as one of a number of sentencing options available to the courts for dealing effectively with corporate offenders.

Specific types of corporate probation

9.7 There are a variety of models and types of probation available for dealing with corporate offenders. These are discussed in terms of proposals that have been mooted over the years as well as schemes that have actually been implemented. The proposals considered are internal discipline orders and organisational reform orders. Schemes that have already been implemented include those under the Trade Practices Act 1974 (Cth), the Protection of the Environment Operations Act 1997 (NSW) and the United States Sentencing Commission’s Guidelines.

Internal discipline orders

9.8 Internal discipline orders would essentially involve a corporation:

• investigating its own criminal activity;
• conducting appropriate disciplinary proceedings; and
• returning a detailed and satisfactory compliance report to the court that issued the order.⁹

9.9 Such an order is basically a form of self-regulation (Braithwaite calls it “enforced self-regulation”),¹⁰ as it places the burden of enforcement on the corporation itself.¹¹ It has been suggested that internal discipline orders encourage individual accountability because they can be aimed at persons involved in the misconduct.¹²

9.10 Other general benefits of internal discipline orders include:¹³

• the resulting regulations and actions would be tailored to the particular corporation;
• they would encourage regulatory innovation;
• corporations might be more willing to comply with requirements that they had a hand in determining;
• they will transfer some of the economic burden of enforcing probation orders from government to the corporation.

9.12 A further problem with applying internal discipline orders within a sentencing regime lies in their original conception in the literature. Braithwaite’s treatment of “enforced self-regulation” envisages a regime where such orders are predominately imposed by regulatory agencies in response to perceived problems (as an alternative to more prescriptive government regulation), rather than by courts in the exercise of a sentencing discretion – although he does briefly mention instances where courts have imposed “monitored internal enforcement” on individual companies.¹⁷ The South Australian Committee’s proposals also use the corporation as a delegate of the State in investigating and prosecuting criminal activity undertaken on its behalf. The focus of this Report, however, is the sentencing of corporations once liability has been determined.

9.13 Another concern is that corporations could implement probation regimes that assist technical compliance, while effectively allowing deviation from the “spirit” of the orders.¹⁸ A further drawback is the problem of ensuring that the corporation implements the recommendations of a duly appointed compliance officer.¹⁹ However, under a sentencing model the court that issued the internal discipline order will ultimately provide an enforcement mechanism,²⁰ for example, the court may have to ensure that adequate audits are carried out to ensure compliance.²¹ Such orders might also only be appropriate for corporations that have the resources to implement a compliance order.²²

Organisational reform orders

9.14 Organisational reform orders involve a limited period of judicial monitoring of the activities, policies and procedures of corporations, with a view to revision and organisational reform.²³ Proposals by the American Bar Association have suggested that such oversight:

is best implemented through the use of recognized reporting, record keeping, and auditing controls designed to increase internal accountability – for example, audit committees, improved staff systems for the board of directors, or the use of special counsel – but it should not extend to judicial review of legitimate ‘business judgment’ decisions of the organization’s management or its stockholders or delay such decisions.²⁴

9.15 One criticism of such orders is that they may be seen as a soft sentencing option because their emphasis is on rehabilitation rather than deterrence or retribution.²⁸ However, there is no reason why they cannot be available as a sentencing option so long as other, more stringent, options are available, for example, punitive injunctions.²⁹

Reforms to the Trade Practices Act 1974 (Cth)

9.16 The Trade Practices Act 1974 (Cth) provides that when a person (including a corporation) has contravened certain provisions of the Act,³⁰ the court may make a probation order for a period of not longer than three years.³¹ A probation order is stated to be:

an order that is made by the Court for the purpose of ensuring that the person does not engage in the contravening conduct, similar conduct or related conduct during the period of the order, and includes:

(a) an order directing the person to establish a compliance program for employees or other persons involved in the person’s business, being a program designed to ensure their awareness of the responsibilities and obligations in relation to the contravening conduct, similar conduct or related conduct; and

(b) an order directing the person to establish an education and training program for employees or other persons involved in the person’s business, being a program designed to ensure their awareness of the responsibilities and obligations in relation to the contravening conduct, similar conduct or related conduct; and

(c) an order directing the person to revise the internal operations of the person’s business which lead to the person engaging in the contravening conduct.³²

Environmental penalties

9.17 The Protection of the Environment Operations Act 1997 (NSW) provides for additional orders that the courts may make at the sentencing of offenders (including corporations). Of particular relevance, the courts may:

(d) order the offender to carry out a specified environmental audit of activities carried on by the offender.³⁵

9.18 The policy behind the audits and the broader range of sentencing options was explained in the New South Wales Parliament in 1997:

The Government sees environmental audits as a useful tool that should be employed by industry in working for continuous improvement, and wants to promote this type of approach. It is only the poor performers who have anything to worry about from mandatory requirements. ...

... In addition to doubling the penalty regime for application by the courts, the bill ... gives the courts a wider range of sentencing options. We are working to broaden the options available to the courts. We want changed behaviour and improved environmental performance and are giving the courts an opportunity to teach a salutary lesson to those who have been found guilty. For example, the court can require a guilty party to publicise the facts of their offence in the media or require them to perform an environmental service, such as restoring a public place.³⁷

9.19 In addition to providing for fines for corporations, the United States Sentencing Commission’s Guidelines provide for corporate probation.

The Guidelines establish probation as a sentence in its own right and not conditional upon the suspension of another sentence.³⁸ They state that a court must impose a term of probation in a number of circumstances, including:

• where an organisation, having 50 or more employees, “does not have an effective program to prevent and detect violations of the law”;
• where it is necessary “to ensure that changes are made within the organization to reduce the likelihood of future criminal conduct”; and
• where it is necessary “to accomplish one or more of the purposes of sentencing”.³⁹

• that the organisation develop and submit to the court the program together with an implementation schedule;
• that the organisation notify (in a form prescribed by the court) its employees and shareholders about the organisation’s conviction and the program that has been developed;
• that the organisation report periodically to the court or a probation officer on its progress in implementing the program; and
• that the organisation submit to a reasonable number of regular or unannounced inspections of its books by the probation officer or experts appointed by the court and also to the interrogation of “knowledgeable individuals” within the organisation to ensure that the program is being followed.⁴⁰

9.22 It has been suggested that the enactment of the United States Sentencing Commission’s Guidelines, setting out a systematic means of determining a sentence for a corporate offence, has helped to deter future offending. One commentator has noted that the Guidelines have led to an increase in the number of “indicted corporations” and that corporations in the United States have therefore “devoted increased attention to “self-policing” programs”.⁴³ This has been confirmed, for example, by a survey of corporate ethics officers, 47% of whom reported that the sentencing Guidelines were an “influential determinant of their organization’s commitment to ethics as evidenced by adoption of a compliance program”.⁴⁴

Alternatives to probation orders

9.23 The Department of Fair Trading has observed that it can achieve the effect of internal discipline orders and organisational reform orders through enforceable undertakings or civil orders under the Fair Trading Act 1987 (NSW), or in the case of holders of licences, licence conditions under legislation which is administered by the Department.⁴⁵ These can also be compared with enforceable undertakings under s 87B of the Trade Practices Act 1974 (Cth).⁴⁶ A similar issue has been raised in the United States in relation to consent decrees obtained by regulatory agencies. However a total reliance on these civil options is not entirely desirable for a number of reasons. For example, the relevant regulatory agencies may not have a jurisdiction extensive enough to deal with all forms of corporate offending and they may also not have the resources that are available through the criminal justice system to bring corporations to account.⁴⁷

Evaluation of corporate probation

The goals of sentencing

9.24 The general appropriateness of probation orders for corporations is dependent on their ability to achieve the goals of sentencing satisfactorily. The sentencing of corporations often occurs in the context of regulatory regimes that relate to how corporations conduct business. This is reflected in the approach of various authorities that regulate aspects of corporate behaviour. For example, the New South Wales Department of Fair Trading sees itself as having a broad regulatory role in the marketplace and aims to achieve compliance with the regulatory legislation that it administers.⁴⁸

9.25 In general, corporate probation orders, if properly targeted at corporations, can be seen as achieving the following goals:

• prevention, or stopping the offending conduct,⁴⁹ for example, by ordering that companies establish compliance programs or education and training programs, or revise the internal operations of their business;⁵⁰
• rehabilitation, or the promotion of future compliance with the relevant regulatory regime,⁵¹ especially with respect to small firms upon which fines may impact harshly and whose offences can often be attributed to ignorance of the law or poor financial management;⁵² and
• deterring or punishing offenders,⁵³ where a fine would prove useless in relation to a corporation with few liquid assets,⁵⁴ or where dissolution would be inappropriate.⁵⁵

9.26 Corporate probation orders may also be particularly suited to achieving rehabilitation. It has been suggested that corporations may have a greater capacity to be rehabilitated than individual offenders because they are more amenable to analysis and reform:⁵⁷

The organisational defects of a company – its “psyche” – can be meddled with in ways which would be inappropriate in the case of an individual.⁵⁸

9.27 Some advantages of corporate probation orders include:

• their focus on organisational and management reform may reduce the problem of “spillover” (that is, the effect of the sanction on third parties such as shareholders, consumers, employees and trading partners);⁵⁹
• their flexibility (as to possible conditions) enables them to be tailored to the individual circumstances of each case;
• they can affect “nonfinancial values of corporate decisionmaking” such as corporate and managerial power and prestige;⁶⁰
• certain conditions of probation may have the effect of lowering the company’s reputation in the eyes of the public and thereby may act as a greater punishment and deterrent than fines;⁶¹
• they may achieve organisational reform more effectively than fines, which have been characterised as an indirect and ineffective means of achieving corporate compliance⁶² (this is particularly so in the case of subsidiary companies which may have few liquid assets to pay a fine);⁶³
• properly tailored, they may be used to rehabilitate corporate offenders who continue to incur monetary penalties without apparent effect on their behaviour;⁶⁴
• in appropriate cases they may be targeted at relevant staff, thereby promoting individual accountability for some corporate offending;⁶⁵
• by dealing with specific instances of corporate offending, they may forestall the need for more elaborate and costly regulatory regimes that will apply to all corporations.⁶⁶

9.28 There are a number of potential disadvantages, including that:

• the community and government may not be prepared to bear the costs associated with corporate probation (for example, the costs of monitoring compliance);⁶⁷
• probation may punish “innocent” shareholders as well as the corporation itself⁶⁸ (a similar but less severe problem than that of “spillover” in relation to fines);⁶⁹ and
• such sanctions might subject corporations to inefficient and excessively intrusive government intervention, which might “stifle innovation and reduce competitiveness”;⁷⁰ and
• some probation orders may expend social resources that fines do not.⁷¹

9.29 Economic analyses, however, tend to focus more on the question of general deterrence arising from the severity of a punishment rather than the consideration of such factors as the value of rehabilitation and the specific deterrence arising from it in appropriate circumstances.⁷⁵ In any case, such law and economics analyses acknowledge that probation may be an appropriate sanction where corporations are “judgment-proof” with respect to fines (for example, because of near-bankruptcy or the distribution of assets within a corporate structure).⁷⁶

9.30 Other more practical problems include whether judges are equipped to determine appropriate forms of corporate probation,⁷⁷ and also whether it would be possible to recruit the professionals that would be needed to act as corporate probation officers.⁷⁸ Federal sentencing provisions in the United States allow a court, in circumstances where it requires further information on an offender, to order a study of the offender “by qualified consultants”.⁷⁹ It has been suggested that such qualified consultants might be executives, management consultants or “academics from graduate business schools”.⁸⁰

Adopting forms of corporate probation

9.31 While a specific list of orders (or conditions to a bond) is not desirable as it may limit the court’s ability to impose an order that achieves the purposes of sentencing in a particular case, a non-exclusive list of options may provide useful guidance to the courts in determining appropriate orders in a particular case. For example, the Australian Law Reform Commission recommended that the courts should retain the discretion to impose orders according to the circumstances of the case, but also recommended that specific forms of orders could be provided for expressly.⁸¹

9.32 Minimum conditions to be imposed as part of a probation order could include that the corporation not commit another crime during the term of probation.⁸²

Internal discipline orders

9.33 The court should be able to require that specified officers or employees of the corporation:

• investigate the corporation’s activities;
• undertake appropriate disciplinary action; and
• return a detailed and satisfactory compliance report to the court or an officer appointed by the court.⁸³

Organisational reform orders

9.34 There are numerous types of orders that a court can make to encourage or ensure organisational reform. The orders can range from those requiring quite intrusive external inspection regimes to those requiring that corporations undergo educational programs. Orders that a court can make to promote organisational reform should include those which:

• appoint a person with relevant experience (where appropriate at the expense of the corporation⁸⁴ ) to subject a corporation to recognised reporting, record keeping and auditing controls aimed at organisational reform to prevent future offending behaviour;
• order a corporation to establish compliance programs or education and training programs for officers and employees designed to ensure awareness of the responsibilities and obligations in relation to the offending or similar conduct;⁸⁵
• order a corporation to revise its internal operations or activities which led to the offending conduct.⁸⁶

PUNITIVE INJUNCTIONS

9.35 Punitive injunctions are similar in many respects to probation orders. However, they are at the harsher (or more directly-focussed) end of the scale of possible correction orders. In its Discussion Paper on sentencing, the Australian Law Reform Commission referred to “punitive injunctions”, in addition to internal discipline orders and organisational reform orders, as a “more severe form of intervention into the affairs of a corporate offender”. A punitive injunction was stated to be:

an order which requires the convicted corporate offender to introduce specific court-ordered internal controls, at the risk of a further punishment for failure to do so.⁸⁸

Forms of punitive injunction

South Australian proposals

9.37 Some specific proposals were set out by the Criminal Law and Penal Methods Reform Committee of South Australia which suggested that “preventive orders” could be used where a corporation has engaged in a course of conduct, or is about to engage in a course of conduct, that is criminal. A preventive order would involve the court in:

• setting out in detail the conduct that the corporation must not engage in; or
• specifying particular actions that the corporation must undertake; or
• identifying particular personnel who will be responsible for failure to comply with the order.⁹²

Environmental penalties

9.38 The Protection of the Environment Operations Act 1997 (NSW) allows courts to make “orders for restoration and prevention” and specifies the steps that an offender must take:

(a) to prevent, control, abate or mitigate any harm to the environment caused by the commission of the offence; or

(b) to make good any resulting environmental damage; or

(c) to prevent the continuance or recurrence of the offence.⁹⁴

Occupational health and safety

9.39 New South Wales. The Occupational Health and Safety Act 2000 (NSW) provides that a court may order an offender to take steps “to remedy any matter caused by the commission of the offence that appears to the court to be within the offender’s power to remedy”.⁹⁶ The Act also provides that a court may order an offender “to carry out a specified project for the general improvement of occupational health, safety and welfare”.⁹⁷ However, because of the potentially harsh application of such orders, Local Courts are limited to imposing them in cases where “the cost of complying with the order does not exceed the maximum amount for which the General Division of a Local Court has jurisdiction”.⁹⁸

9.40 United Kingdom. The United Kingdom’s legislation relating to health and safety in the workplace includes a provision which gives a court additional powers when a person (including a corporation) is convicted of a relevant offence. This provision allows the court, where it appears that the offender can take steps to remedy the matters that gave rise to the offence, to order the offender to take certain specified steps for remedying the matters. The offender must act within such time as is specified in the order. Such an order can be issued either in addition to, or instead of any other punishment.⁹⁹ As of early 1999, it appeared that no court had ever exercised the powers available to it in this regard.¹⁰⁰

Trade practices legislation

9.41 The Trade Practices Act 1974 (Cth) does not contain an express provision for punitive injunctions in the sentencing context. However, injunctions under s 80 of the Act could, conceivably, be employed to achieve the same effect. Section 80 relevantly provides that the ACCC or “any other person” may apply to the court for an injunction and the court may grant such an injunction if it is satisfied that a person has engaged ... in conduct that constitutes, amongst other things, a contravention of a number of provisions of the Act.¹⁰¹ The Court may, in granting the injunction, impose “such terms as the Court determines to be appropriate”. While such injunctions would normally be used as a civil remedy, there would appear to be nothing to prevent an application being made for an injunction during sentencing proceedings for breaches of the Trade Practices Act especially since an injunction may be issued if the court is satisfied that a person has engaged in conduct that constitutes a contravention of the Part that details offences under the Act.¹⁰² There would also appear to be nothing to stop the court from framing the injunction as a punitive injunction so long as it can be expressed with sufficient particularity. Justice French has observed in relation to s 80 injunctions:

There is room within the statutory framework and the policy that underlies it for an injunction which is intended not to restrain an apprehended repetition of contravening conduct but to deter an offender from repeating the offence. That deterrence is effected by attaching to the repetition of the contravention the range of sanctions available for contempt of court. ...

The remedy is flexible and may be applied in service of a variety of functions to support the policy of the Act.¹⁰³

Law Commission proposals

9.43 The Law Commission of England and Wales has recommended a form of punitive injunction as a sentencing option in relation to a proposed new offence of “corporate killing”. The Commission proposed that a court should have the power upon conviction for “corporate killing”:

to order the corporation to take such steps, within such time, as the order specifies for remedying the failure in question and any matter which appears to the court to have resulted from the failure and been the cause or one of the causes of the death.¹⁰⁵

Appropriateness of punitive injunctions

9.44 Punitive injunctions can be seen as more effective than fines because they “clearly signal the unacceptable nature of corporate crime” by stating that corporate offences may “not be dismissed as mere business expenses but constitute deprivations of important personal and social values that society will prevent by forcible restraint upon corporate decisionmaking”.¹⁰⁶

9.45 Punitive injunctions will, like corporate probation, achieve in different degrees, the sentencing objects of prevention, rehabilitation and deterrence. They will additionally achieve the aim of restitution, or obtaining redress for those affected by the offending conduct,¹⁰⁷ for example, by requiring environmental offenders to restore an affected public area.¹⁰⁸

9.46 Another advantage of such orders is that their specific focus enhances the prospect of preventing corporations from engaging in further criminal behaviour. They are, therefore, more effective than monetary sanctions in some instances, for example, where the penalty is being imposed on a subsidiary company with few assets.¹⁰⁹ However, the order’s focus on preventing future activity may be problematic since the South Australian Committee’s proposal appears to allow that orders could be made even when no offence has yet been committed.¹¹⁰ The focus of this Report, however, is on the sentencing of corporate offenders once a finding of guilt has been made.

9.47 Punitive injunctions could also offer a means of reducing the spillover¹¹¹ effect of fines so that, for example, a court could prohibit a corporation from passing on the cost of a fine to consumers.¹¹²

9.48 Criticisms of punitive injunctions (in addition to the criticisms that also relate to corporate probation) include that they:

• force the courts into a supervisory role;
• are inefficient; and
• “interfere with legitimate managerial authority”.¹¹³

9.49 The Commission supports the availability of punitive injunctions as one of a number of correction orders available to the courts in sentencing corporate offenders. Punitive injunctions are more tightly focussed than, for example, probation orders, in that they are directed at enforcing or preventing particular actions on the part of a corporation, its officers and employees.

9.50 Accordingly, the Commission is of the view that a court should be able to issue a punitive injunction:

• setting out in detail the conduct that the corporation must not engage in;¹¹⁴
• specifying particular actions that the corporation must undertake, or internal controls that the corporation must be subject to;¹¹⁵ and
• identifying individuals who will be responsible for failure to comply with the order.¹¹⁶

RECOMMENDATION 9
A court should have the power to make a correction order on such terms and subject to such conditions as it sees fit, including, but not limited to:

(a) internal discipline orders;

(b) organisational reform orders; and

(c) punitive injunctions.

1. NSWLRC Report 79 at para 4.1.

2. Crimes (Sentencing Procedure) Act 1999 (NSW) s 9, s 10, s 12, s 13. See para 5.9.

3. Crimes (Sentencing Procedure) Act 1999 (NSW) s 9. See para 5.9-5.10.

4. Under Crimes (Sentencing Procedure) Act 1999 (NSW) s 10(1)(a).

5. WorkCover Authority of NSW (Inspector Dubois) v Galicia Constructions Pty Ltd [2000] NSWIRComm 195 at para 24 (Maidment J). However, such an order has only rarely been made in relation to breaches of the Occupational Health and Safety Act 1983 (NSW): WorkCover Authority of NSW v Genner Constructions Pty Ltd [2000] NSWIRComm 87 at para 12-15. See also para 5.111-5.12 and Environment Protection Authority v Virotec International Ltd [2002] NSWLEC 110 at para 36.

6. NSWLRC IP 20 Issue 3.

7. See para 2.48.

8. J Braithwaite, Submission at 1.

9. Criminal Law and Penal Methods Reform Committee of South Australia, The substantive criminal law (4th Report, 1977) at para 5.6. See also B Fisse and J Braithwaite, Corporations, crime and accountability (Cambridge University Press, 1993) at 43.

10. J Braithwaite, “Enforced self-regulation: a new strategy for corporate crime control” (1982) 80 Michigan Law Review 1466.

11. Criminal Law and Penal Methods Reform Committee of South Australia, The substantive criminal law (4th Report, 1977) at para 5.6.

12. B Fisse, “Sentencing options against corporations” (1990) 1 Criminal Law Forum 211 at 238.

13. See J Braithwaite, “Enforced self-regulation: a new strategy for corporate crime control” (1982) 80 Michigan Law Review 1466 at 1474-1479; and R Gruner, “To let the punishment fit the organization: sanctioning corporate offenders through corporate probation” (1988) 16 American Journal of Criminal Law 1 at 84

14. See, for example, Braithwaite at 1469.

15. B Fisse, “Sentencing options against corporations” (1990) 1 Criminal Law Forum 211 at 234-235.

16. B Fisse, Sanctions against corporations: economic efficiency or legal efficacy? (Sydney University, Transnational Corporations Research Project Occasional Paper No 13, 1986) at 20.

17. Braithwaite, in particular at 1489 (court imposed orders).

18. R Gruner, “To let the punishment fit the organization: sanctioning corporate offenders through corporate probation” (1988) 16 American Journal of Criminal Law 1 at 85.

19. Australian Law Reform Commission, Principled regulation: federal civil and administrative penalties in Australia (Report 95, 2002) at para 28.29; Australian Law Reform Commission, Securing compliance: civil and administrative penalties in federal regulation (Discussion Paper 65, 2002) at para 18.98.

20. See J Braithwaite, “Enforced self-regulation: a new strategy for corporate crime control” (1982) 80 Michigan Law Review 1466 at 1496-1497. Problems relating to court supervision are discussed further at para 13.11-13.14.

21. See Braithwaite at 1499; Gruner at 104-105.

22. See Braithwaite at 1471.

23. See B Fisse, “Sentencing options against corporations” (1990) 1 Criminal Law Forum 211 at 235-236.

24. American Bar Association, 3 Standards for Criminal Justice, 18.2.8(a)(v).

25. J Coffee, “‘No soul to damn: no body to kick’: an unscandalized inquiry into the problem of corporate punishment” (1981) 79 Michigan Law Review 386 at 455.

26. Australian Law Reform Commission, Sentencing: penalties (Discussion Paper 30, 1987) at para 297. See also B Fisse, Sanctions against corporations: economic efficiency or legal efficacy? (Sydney University, Transnational Corporations Research Project Occasional Paper No 13, 1986) at 21.

27. J Coffee, “‘No soul to damn: no body to kick’: an unscandalized inquiry into the problem of corporate punishment” (1981) 79 Michigan Law Review 386 at 455.

28. B Fisse, “Sentencing options against corporations” (1990) 1 Criminal Law Forum 211 at 236-237.

29. Punitive injunctions are dealt with in para 9.35-9.50.

30. Trade Practices Act 1974 (Cth) Pt 4 (restrictive trade practices), Pt 4A (unconscionable conduct), Pt 4B (industry codes), Pt 5 (consumer protection) or s 75AU (price exploitation in relation to New Tax System changes), s 75AYA (misrepresentation of the effect of New Tax System changes).

31. Trade Practices Act 1974 (Cth) s 86C(2)(b).

32. Trade Practices Act 1974 (Cth) s 86C(4).

33. Trade Practices Amendment Act (No 1) 2001 (Cth).

34. Australian Law Reform Commission, Compliance with the Trade Practices Act 1974 (Report 68, 1994) at para 10.4. The ALRC, in addition to recommending that the courts retain a discretion to impose probation orders according to the circumstances of the case, also recommended that specific forms of order could be provided for expressly, using as its model the conditions set out in the United States Sentencing Commission’s Guidelines: ALRC, Report 68 at para 10.9.

35. Protection of the Environment Operations Act 1997 (NSW) s 250(1).

36. Protection of the Environment Operations Act 1997 (NSW) s 250(2).

37. NSW, Parliamentary Debates (Hansard) Legislative Assembly, 13 November 1997, the Hon P Allan, 2nd reading at 1836-1837.

38. See also R Gruner, “To let the punishment fit the organization: sanctioning corporate offenders through corporate probation” (1988) 16 American Journal of Criminal Law 1 at 31 for the introduction of corporate probation as a sentence in its own right in the US.

39. United States Sentencing Commission, Guidelines manual (2002) §8D1.1(a)(3), (6), (8).

40. United States Sentencing Commission, Guidelines manual (2002) §8D1.4(c).

41. United States Sentencing Commission, Guidelines manual (2002) §8D1.2(a).

42. United States Sentencing Commission, Guidelines manual (2002) §8D1.3(a).

43. J C Poling and K M White, “Corporate criminal liability” (2001) 38 American Criminal Law Review 525 at 539.

44. J R Steer, “Changing organizational behaviour - the Federal Sentencing Guidelines experiment begins to bear fruit”, paper presented at the 29th Annual Conference on Value Inquiry, Tulsa, Oklahoma (26 April 2001) at 10.

45. NSW Department of Fair Trading, Submission at 8.

46. See N Andrews, “If the dog catches the mice: the civil settlement of criminal conduct under the Corporations Act and the Australian Securities and Investments Act” (2003) 15 Australian Journal of Corporate Law 137.

47. J Coffee, “‘No soul to damn: no body to kick’: an unscandalized inquiry into the problem of corporate punishment” (1981) 79 Michigan Law Review 386 at 452-453.

48. NSW Department of Fair Trading, Submission at 1.

49. NSW Department of Fair Trading, Submission at 1.

50. See, for example, Trade Practices Act 1974 (Cth) s 86C(4).

51. ALRC DP 30 at para 295; ALRC DP 65 at para 18.96; ALRC Report 95 at para 28.27; NSW Department of Fair Trading, Submission at 1. See also United States v William Anderson Co Inc (1982) 698 F 2d 911 at 914.

52. See M Jefferson, “Corporate criminal liability: the problem of sanctions” (2001) 65 Journal of Criminal Law 235 at 249; H Croall, White collar crime (1992) at 159.

53. Jefferson at 249; NSW Department of Fair Trading, Submission at 1.

54. See, for example, ALRC Report 68 para 10.9.

55. See ASX, Submission at 4.

56. See B Fisse, “Reconstructing corporate criminal law: deterrence, retribution, fault and sanctions” (1983) 56 Southern California Law Review 1141 at 1224.

57. See para 3.20-3.22.

58. D Bergman, “Corporate sanctions and corporate probation” (1992) 142 New Law Journal 1312 at 1313. See also D Bergman, “Crime and punishment” (1999) Health and Safety Bulletin (No 275, January/February) 13 at 13; and the views of the organisation Disaster Action reported in England and Wales, Law Commission, Legislating the Criminal Code: involuntary manslaughter (Report 237, 1996) at para 7.15.

59. See M Jefferson, “Corporate criminal liability: the problem of sanctions” (2001) 65 Journal of Criminal Law 235 at 251. See also para 6.8-6.11.

60. B Fisse, “Sentencing options against corporations” (1990) 1 Criminal Law Forum 211 at 237. See also R Gruner, “To let the punishment fit the organization: sanctioning corporate offenders through corporate probation” (1988) 16 American Journal of Criminal Law 1 at 73; J C Coffee, “‘No soul to damn: no body to kick’: an unscandalized inquiry into the problem of corporate punishment” (1981) 79 Michigan Law Review 386 at 412; B Fisse and J Braithwaite, Corporations, crime and accountability (Cambridge University Press, 1993) at 43.

61. D Bergman, “Corporate sanctions and corporate probation” (1992) 142 New Law Journal 1312 at 1313. But see G Slapper, “Corporate punishment” (1994) 144 New Law Journal 29 at 30.

62. For example, the management of a corporation may not find it so easy to transfer the burden of probation orders as they may in the case of the economic impact of fines: Bergman at 1313. But see Slapper at 30. See also B Fisse, “Sentencing options against corporations” (1990) 1 Criminal Law Forum 211 at 226; ALRC Report 68 para 10.9; ALRC DP 30 at para 299.

63. ALRC Report 68 para 10.9. See also ALRC DP 30 at para 299.

64. C A Wray, “Corporate probation under the new organizational sentencing guidelines” (1992) 101 Yale Law Journal 2017 at 2041.

65. ALRC Report 68 para 10.9. See also ALRC DP 30 at para 299.

66. R Gruner, “To let the punishment fit the organization: sanctioning corporate offenders through corporate probation” (1988) 16 American Journal of Criminal Law 1 at 6.

67. ALRC DP 30 para 300; M Jefferson, “Corporate criminal liability: the problem of sanctions” (2001) 65 Journal of Criminal Law 235 at 252; Gruner at 80.

68. See ASX, Submission at 4.

69. See B Fisse, “Sentencing options against corporations” (1990) 1 Criminal Law Forum 211 at 228.

70. Jefferson at 252. See also B Fisse and J Braithwaite, Corporations, crime and accountability (Cambridge University Press, 1993) at 43-44; and ALRC DP 30 para 300.

71. This concern arises in the law and economics discussion of “optimal penalty theory”: See S Kennedy, “Probation and the failure to optimally deter corporate misconduct” (1998) 71 Southern California Law Review 1075 at 1085; G S Becker, “Crime and punishment: an economic approach” (1968) 76 Journal of Political Economy 169 at 207-208. See also para 6.31-6.39.

72. Fisse and Braithwaite at 43-44; B Fisse, Sanctions against corporations: economic efficiency or legal efficiency? (Sydney University, Transnational Corporations Research Project Occasional Paper No 13, 1986) at 24; Jefferson at 252.

73. Fisse and Braithwaite at 44; Fisse (1986) at 24-25; Jefferson at 252.

74. S Box, Power, crime, and mystification (Tavistock Publications, London, 1983) at 72.

75. See G S Becker, “Crime and punishment: an economic approach” (1968) 76 Journal of Political Economy 169 at 208.

76. See S Kennedy, “Probation and the failure to optimally deter corporate misconduct” (1998) 71 Southern California Law Review 1075 at 1091-1092.

77. R Gruner, “To let the punishment fit the organization: sanctioning corporate offenders through corporate probation” (1988) 16 American Journal of Criminal Law 1 at 50.

78. M Jefferson, “Corporate criminal liability: the problem of sanctions” (2001) 65 Journal of Criminal Law 235 at 252; J C Coffee, “‘No soul to damn: no body to kick’: an unscandalized inquiry into the problem of corporate punishment” (1981) 79 Michigan Law Review 386 at 453.

79. 18 USC §3552(b).

80. Gruner at 75. See also Coffee at 451-452; and F L Rush, “Corporate probation: invasive techniques for restructuring institutional behavior” (1986) 21 Suffolk University Law Review 33 at 77 for a proposal for an “independent board comprised of exonerated corporate personnel, disinterested businessmen, probation officers, or a mix of all three”.

81. ALRC Report 68 at para 10.9.

82. See United States Sentencing Commission, Guidelines manual (2002) §8C1.3(a).

83. See United States Sentencing Commission, Guidelines manual (2002) §8D1.4(c); and Criminal Law and Penal Methods Reform Committee of South Australia, The substantive criminal law (4th Report, 1977) at para 5.6

84. See para 13.11-13.14, Recommendation 17.

85. See Trade Practices Act 1974 (Cth) s 86C(4)(b).

86. See Trade Practices Act 1974 (Cth) s 86C(4)(c); Protection of the Environment Operations Act 1997 (NSW) s 250(1)(d).

87. On the appointment of consultants to act as parole officers see 13.11-13.14.

88. ALRC DP 30 at para 298.

89. B Fisse, “Sentencing options against corporations” (1990) 1 Criminal Law Forum 211 at 237.

90. B Fisse, “Reconstructing corporate criminal law: deterrence, retribution, fault and sanctions” (1983) 56 Southern California Law Review 1141 at 1221.

91. See para 8.2-8.18.

92. Criminal Law and Penal Methods Reform Committee of South Australia, The substantive criminal law (4th Report, 1977) at para 5.5.1.

93. Criminal Law and Penal Methods Reform Committee of South Australia, The substantive criminal law (4th Report, 1977) at para 5.6.

94. Protection of the Environment Operations Act 1997 (NSW) s 245.

95. Protection of the Environment Operations Act 1997 (NSW) s 251.

96. Occupational Health and Safety Act 2000 (NSW) s 113(1).

97. Occupational Health and Safety Act 2000 (NSW) s 116(1).

98. Occupational Health and Safety Act 2000 (NSW) s 116(3). See Local Courts (Civil Claims) Act 1970 (NSW).

99. Health and Safety at Work etc Act 1974 (UK) s 42(1).

100. D Bergman, “Crime and punishment” (1999) Health and Safety Bulletin (No 275, January/February) 13 at 15.

101. Trade Practices Act 1974 (Cth) Pt 4 (restrictive trade practices), Pt 4A (unconscionable conduct), Pt 4B (industry codes), Pt 5 (consumer protection), Pt 5C (offences) or s 75AU (price exploitation in relation to New Tax System changes), s 75AYA (misrepresentation of the effect of New Tax System changes).

102. Trade Practices Act 1974 (Cth) Pt 5C and s 80.

103. ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 268.

104. See ALRC Report 68 at para 10.23-10.24.

105. England and Wales, Law Commission, Legislating the Criminal Code: involuntary manslaughter (Report 237, 1996) at para 8.76.

106. B Fisse, “Sentencing options against corporations” (1990) 1 Criminal Law Forum 211 at 237-238.

107. NSW Department of Fair Trading, Submission at 1.

108. See NSW, Parliamentary Debates (Hansard) Legislative Assembly, 13 November 1997, the Hon P Allan, 2nd reading at 1837. See also United States Sentencing Commission, Guidelines manual (2001) Chapter 8 Part B.

109. Fisse at 238.

110. Criminal Law and Penal Methods Reform Committee of South Australia, The substantive criminal law (4th Report, 1977) at para 5.5.2. This could be seen as too much like preventive detention: See NSWLRC Report 79 at para 10.21-10.28.

111. See para 6.8-6.11.

112. M Jefferson, “Corporate criminal liability: the problem of sanctions” (2001) 65 Journal of Criminal Law 235 at 256.

113. D J Miester, “Criminal liability for corporations that kill” (1990) 64 Tulane Law Review 919 at 940. But see R Gruner, “To let the punishment fit the organizations: sanctioning corporate offenders through corporate probation” (1988) 16 American Journal of Criminal Law 1 at 73.

114. See Criminal Law and Penal Methods Reform Committee of South Australia, The substantive criminal law (4th Report, 1977) at para 5.5.1.

115. See ALRC DP 30 at para 298; Criminal Law and Penal Methods Reform Committee of South Australia, The substantive criminal law (4th Report, 1977) at para 5.5.1.

116. See Criminal Law and Penal Methods Reform Committee of South Australia, The substantive criminal law (4th Report, 1977) at para 5.5.1.

117. See, for example, Protection of the Environment Operations Act 1997 (NSW) s 250(1)(c).