Position 4: The Peters test should apply to all dishonesty offences under the Corporations Act. the Peters test has been approved by the High Court as the preferred test for dishonesty, the Taskforce considers that this would be the appropriate test to apply across all offences in the Corporations Act. While this would not resolve the inconsistency between the Criminal Code and Corporations Act, it would provide consistency within the Corporations Act. Question Is the Peters Test appropriate to apply to dishonesty offences across the Corporations Act? A central protection underpinning criminal penalties is the of a fault or mental element of the offence. This is because the law recognises that individuals and corporations should generally not be subject to pecuniary penalties and/or imprisonment for unintended or unforeseen consequences of their conduct. However a number of offences under the corporate law may be prosecuted absent a mental element or mens rea. These are commonly referred to as strict liability offences. Strict liability offences remove the fault element that would otherwise attach to a physical element of an offence. For such an offence to be made out, the regulator must prove the individual or corporation engaged in the physical elements of the offence. For these offences, the Proudman v Dayman defence of honest and reasonable mistake of fact is available to the accused. There are also a small number of absolute liability offences in the Corporations Act, where not only is proof of fault not required, but the Proudman defence is also not available. As the ALRC recognised in its report on traditional rights and freedoms, liability offences ‘strict are a common feature of regulatory frameworks underpinning corporate and prudential regulation, and may be appropriate to ensure the integrity of a financial or corporate regulatory regime.’ These offences are found in the corporate law context to recognise that requiring proof of fault for certain offences would undermine deterrence and reduce the regulator’s ability to successfully prosecute alleged contraventions of those offences. In 2012, the Senate Standing Committee for the Scrutiny of Bills published a report on the application of strict and absolute liability and concluded that the imposition of strict liability may be justified to the integrity of a regulatory regime (for example, public health, the ‘ensure environment, financial or corporate regulation). The AGD guide provides that application of strict and absolute liability to all fault elements of an offence should only be considered appropriate where:
Position 4: The Peters test should apply to all dishonesty offences under the Corporations Act. the Peters test has been approved by the High Court as the preferred test for dishonesty, the Taskforce considers that this would be the appropriate test to apply across all offences in the Corporations Act. While this would not resolve the inconsistency between the Criminal Code and Corporations Act, it would provide consistency within the Corporations Act. Question Is the Peters Test appropriate to apply to dishonesty offences across the Corporations Act? A central protection underpinning criminal penalties is the of a fault or mental element of the offence. This is because the law recognises that individuals and corporations should generally not be subject to pecuniary penalties and/or imprisonment for unintended or unforeseen consequences of their conduct. However a number of offences under the corporate law may be prosecuted absent a mental element or mens rea. These are commonly referred to as strict liability offences. Strict liability offences remove the fault element that would otherwise attach to a physical element of an offence. For such an offence to be made out, the regulator must prove the individual or corporation engaged in the physical elements of the offence. For these offences, the Proudman v Dayman defence of honest and reasonable mistake of fact is available to the accused. There are also a small number of absolute liability offences in the Corporations Act, where not only is proof of fault not required, but the Proudman defence is also not available. As the ALRC recognised in its report on traditional rights and freedoms, ‘strict liability offences are a common feature of regulatory frameworks underpinning corporate and prudential regulation, and may be appropriate to ensure the integrity of a financial or corporate regulatory regime.’ These offences are found in the corporate law context to recognise that requiring proof of fault for certain offences would undermine deterrence and reduce the regulator’s ability to successfully prosecute alleged contraventions of those offences. In 2012, the Senate Standing Committee for the Scrutiny of Bills published a report on the application of strict and absolute liability and concluded that the imposition of strict liability may be justified to ‘ensure the integrity of a regulatory regime (for example, public health, the environment, financial or corporate regulation). The AGD guide provides that application of strict and absolute liability to all fault elements of an offence should only be considered appropriate where:
c2017-t229819.docx