In the seminal case of Saloman v A Saloman & Co Ltd, Lord Macnaghten held that once it has been incorporated, a company “is at law a different person altogether” from its shareholders. That case firmly established the cardinal principle of corporate law that a company is a separate legal individual. Modern legislation such as the Corporations Act 2001 (Cth) affirms that a corporation has all the legal powers and responsibilities of a natural person. While there are clear commercial and economic benefits as a result of the creation of the corporation, the construction of a legal artifice of ‘the legal person’ raises fundamental questions about the applicability of the criminal law to that artifice. A corporation cannot be sent to jail. It has no soul that may be damned.
Having created the legal person, when it comes to crimes, the law has focused on two key technical questions:
• When or in what circumstances will the actions of a human be attributable to the corporation? and
• How will those individuals’ actions be attributable? What is the legal test?
Lord Reid in Tesco Supermarkets Ltd v Nattrass spoke of how a corporation could act only through its agents, and so the question was to identify who was the “directing mind and will” of the corporation. But if a corporation is treated in law as a separate individual, is this the most appropriate approach to ascribing corporate criminal liability? To draw an analogy having decided that a bus is a legal person in its own right, when it comes to criminal law, the law focuses on the bus driver’s actions and thoughts to determine the bus’ culpability.
Chief Justice Bathurst, in a lecture to the Forbes Society, has traced how the modern corporation evolved out of medieval corporations, merchant guilds, and societies, into the trading companies of the seventeenth century and then into the joint stock company. Rather than looking at the history of the corporate form itself, today I will consider some medieval antecedents of corporate liability. These are the principles of deodand and frankpledge. I will suggest that these concepts give us some insights into how we conceptualise the utility or otherwise of attaching criminal liability of corporations
Today the Attorney-General released an exposure draft Religious Discrimination Bill and amended the terms of reference for the ALRC’s inquiry into religious exemptions. The ALRC media release in response to the amended terms of reference is available here.
In May and June 2019, the ALRC held four seminars on the future of law reform in conjunction with the Law Schools at UNSW, ANU and Melbourne University. To find out more about each seminar you can read a short summary:
As part of the Family Law Inquiry, the ALRC established the Tell Us Your Story project — an online submission portal where individuals were encouraged to anonymously share personal stories of their experiences with the family law system. The attached note provides aggregated data regarding the number and nature of individual stories that included complaints against actors in the family law system and about the system in general. This note is intended to supplement the ALRC’s final report, which provides, at Chapter 3, a high level summary of the data collected from the Tell Us Your Story project.
On 29 May 2019, the Australian Law Reform Commission and the University of NSW hosted a conversation on the future of law and constitutional reform in Australia. To find out more about the discussion a short summary is available here.
The future of law reform: Constitutional and Immigration Issues
Tuesday 18th June 2019
5.00pm until 6.00pm
Room 920, Level 9, Melbourne Law School
The Australian Law Reform Commission and the University of Melbourne Law School are pleased to present a panel discussion on the future of legal and constitutional reform in Australia. The discussion progresses the ALRC’s new project seeking public input to assist in identifying areas of Australian law which may benefit from reform. The project generally will be broad‐ranging and will consider suggestions relating to any area of law. However, this panel event will focus on issues relating to the Australian Constitution, and also Immigration.
The ALRC has identified a common theme in previous ALRC inquiries that the Australian Constitution has frequently presented challenges for the effective functioning of the legal system, or has constrained options for law reform. There is also significant concern with the unwieldy nature of the immigration legal framework – the Migration Act is one of the largest pieces of Commonwealth legislation, and has been amended frequently.
Expert speakers at this event will explore aspects of each of constitutional law and immigration law that may be ripe for future reform. Panel members include Professor Cheryl Saunders, Professor Adrienne Stone, Professor Susan Kneebone, and Human Rights Law Centre Legal Director Katie Robertson. Discussions and suggestions made at the event will be considered by the ALRC in developing a proposed multi‐year programme of law reform inquiries for the consideration of the Commonwealth Attorney‐General.
Join Professor Matthew Harding, Deputy Dean of Melbourne Law School, and Justice John Middleton, Commissioner with the ALRC, for an interactive evening discussing law reform priorities with the potential to shape the future of Australian law.
Places are limited. Registration is free.
To find out more, visit www.alrc.gov.au/inquiries/where‐next‐law‐reform.
Note: The event will be live streamed, and the link will be available on the event page.
The future of law reform: Technology and the Law
Wednesday 12th June 2019
Time 1.30pm – 3.00pm
The Moot Theatre, College of Law, Australian National University
The Australian Law Reform Commission and the Australian National University are pleased to present a panel discussion on the future of law reform in Australia. The discussion progresses the ALRC’s new project seeking public input to assist in identifying areas of Australian law which may benefit from reform. The project generally will be broad-ranging and will consider suggestions relating to any area of law. However, this panel event, to be hosted by ANU’s Law Reform and Social Justice program, will focus on issues relating to technology and the law. The influence of technology is ever-increasing in our society, including the development of artificial intelligence and regulation of cyber-activity. Consequently, a number of areas of law are likely to require review and reform to maintain relevance and effectiveness. Discussions and suggestions made at the event will be considered by the ALRC in developing a proposed multi-year programme of law reform inquiries for the consideration of the Commonwealth Attorney-General.
Join Professor Sally Wheeler, Dean of ANU College of Law, Justice Sarah Derrington, President of the ALRC, Associate Professor Matthew Zagor, Dr Lesley Seebeck, Peter Leonard, and Dr Imogen Saunders for an interactive evening discussing law reform priorities with the potential to shape the future of Australian law.
Places are limited. Registration is free.
We hosted an online survey in May and June 2019 to find out what Australians think should be the priorities for law reform. The survey is now closed. To contact us regarding this project, please email email@example.com
As part of the ALRC’s Where next for law reform? project the ALRC is encouraging Australians to think big. Arguably the most significant law reform initiative would be to revise the constitution. We have prepared a short paper to start the conversation.