Chapter heading 1

Corporate Complexities

35. 
    The complexities of corporate structures can give rise to difficulties in identifying the relevant officers, or in identifying the roles and what may properly be expected of the officers. This has been considered as presenting a difficulty in successfully prosecuting officers and may explain the limited number of officer prosecutions undertaken in Australian jurisdictions.
    
36. 
    It has been said:
    

‘There is an undermining of individual accountability at the level of public enforcement measures, with corporations rather than individual personnel typically being the prime target of prosecution. Prosecutors are able to take the short cut of proceeding against corporations rather than against their more elusive personnel and so individual accountability is frequently displaced by corporate liability, which now serves as a rough-and-ready catch-all device.’²⁴³

37. 
    Issues that have been identified with current definitions of ‘officer’ and provisions for officer liability have included:²⁴⁴
    

1 What is the meaning of being in a ‘position of influence’?

2 What is the meaning of ‘each person concerned in the management of the corporation’?

3 What is the meaning of the phrase ‘used all due diligence to prevent a contravention by the corporation’?’

38. 
    The officer liability provision of the model Act and the associated definitions, should address these issues. To the extent necessary, we will consider them further in out second report.