An evaluation of the appropriateness of applying criminal law sentencing principles to the proscription and regulation of corporate governance management practices within the civil penalties regime

Topic: An evaluation of the appropriateness of applying criminal law sentencing principles to the proscription and regulation of corporate governance management practices within the civil penalties regime

Presenter: Marie Nicolae - PhD Candidate, TC Beirne School of Law

Abstract: The aim of regulation is to modify behaviour through formal sanctions. Its focus is the offender in their capacity as the ‘actor’ behind the ‘act’. This thesis seeks to evaluate the appropriateness of the application of sentencing principles developed within the jurisdiction of the criminal law to the sanctions imposed on delinquent corporate directors under Part 9.4B of the Corporations Act 2001 (Cth) (‘the Act’). The author posits that such an application would only be appropriate if corporate offenders could be seen simply as ‘criminals’. But that is not the case. To be effective sanctions must be tailored to the offender, and must take account of their internal motivators (ie. psychological characteristics) and external motivators (ie. socio-economic characteristics). On the strength of corollaries following an examination of the similarities/differences between corporate offenders and general criminals, this thesis will make recommendations as regards a range of more offender-specific sanctions for the corporate sector.

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