Joint criminal enterprise

The doctrine of joint criminal enterprise is in disarray. Despite repeated judicial scrutiny at the highest level, the doctrine's scope, proper doctrinal basis and function in relation to other modes of complicity remain uncertain. This article examines the doctrine's elements and underlying principles. It argues that while joint criminal enterprise is largely used to make individuals liable for offences committed by their associates in excess of the common criminal purpose, its proper function is to police the limits of associate liability and thus to exculpate rather than inculpate. The doctrine governs not only instances of accessorial liability; it also applies where the parties involved are joint principal offenders. As this puts into question the prevalent view that joint criminal enterprise is a form of secondary participation that results in accessorial liability, the article concludes that it is best seen as a doctrine sui generis.

The law of insider trading in Australia

This book provides a detailed and practical analysis of Australian insider trading laws. The work: examines all fundamental concepts relating to insider trading such as 'who is an insider', 'what is inside information' and 'when is information generally available', together with commentaries on proposed changes to the laws and an examination of the impact of the most recent decisions, including Hannes, and Rivkin; provides a very detailed examination of the defences and exceptions, with particular attention to the operation of Chinese Walls; analyses fully and systematically the provisions on insider trading in the Corporations Act and the Criminal Code (Cth) within the context of decided cases and relevant secondary materials; covers comprehensively the penalties and remedies for contravention of the insider trading regime (including the intricate civil compensation provisions, and an up-to-date analysis of the civil penalties regime in light of ASIC v Petsas); and discusses the operation and effectiveness of continuous disclosure as a means of preventing insider trading.

Privacy law in Australia

This book begins by examining the nature and scope of the right to privacy and the moral basis and status: What is privacy? What interests does it affect and protect? Is there a justification for the right?
It discusses the relevant legal regime in all Australian jurisdictions. It covers the extent to which privacy has been protected under common law and equity and then weaves these principles into the statutory discussion of privacy. It focusses specifically on the most important areas of privacy protection - medical records, communications, criminal investigations and DNA, employment, territory, etc. Finally, it examines how the law may develop in the future.

Criminal responsibility based on complicity among corporate officers

In a 2001 Issues Paper entitled 'Sentencing: Corporate Offenders', the New South Wales Law Reform Commission outlined a number of reasons for not ascribing liability to individuals within a corporation for unlawful acts arising from the operation of the corporation. One of the reasons raised in the Issues Paper, a reason traditionally used to avoid liability being imposed on individuals for corporate crimes, is that it is conceptually difficult to look behind the form to the substance of a corporate crime in order to establish liability for individual acts, when on the surface the unlawful conduct was caused by a corporation as a collective body. In this article, the authors challenge this position by suggesting that the doctrine of complicity can be used to [*2] pierce the corporate veil and direct criminal liability to those individuals who control the actions of the company. This proposition that company officers can be found liable pursuant to the principles regarding accessorial responsibility is not novel. However, what is unusual is the infrequency with which this wide ranging doctrine is applied in the corporate setting. The focus of this article is to underline the relevance of this doctrine to corporate offenders and, in the process, to assert that the problems of punishing corporate offenders are in principle no different to punishing other crimes which are committed by more than the one offender and can be addressed by the proper application of existing legal principles.

The disunity of employment law and sentencing

This article discusses the lack of integration between criminal sanctions and employment deprivations (in the form of being dismissed from employment or disqualified from working in certain industries). Offenders who are employed in certain industries, especially the professions, often suffer a far greater net punishment upon being found guilty of a criminal offence than other offenders, thereby violating the principle of proportionality and the (related) principle of equality in the impact of sanctions. The reason that such a situation has developed is because criminal sanctions and employment deprivations have evolved from different streams of jurisprudence. This article argues that sentencers should impose a ‘net’ sanction for a criminal offence, thereby merging these streams of jurisprudence. This would require courts to be vested with the power to suspend or disqualify people from being employed in certain occupations. The legal analysis in this article focuses on case and statutory law in Australia, however, the same broad principles apply in all common law jurisdictions, including the UK. Hence, the reform proposals suggested in this article are relevant throughout the common law world.

Criminal penalties for contraventions of Part IV of the Trade Practices Act

In 2003 the Dawson Committee, commissioned by the Government, recommended that criminal penalties should be introduced for cartel conduct. The Government accepted this recommendation in principle and set up a working party to consider the implementation difficulties that had been identified in the Dawson Report. Nothing further was heard from the Government until February 2005 when the Government announced that it would introduce criminal penalties for serious cartel conduct. This paper evaluates the Government proposals and makes suggestions for their implementation.

International sentencing law: in search of a justification and coherent framework

An international sentencing jurisprudence is emerging from the decisions by the International Criminal Tribunal for the Former Yugoslavia (ICTY or the Yugoslav tribunal) and the International Criminal Tribunal for Rwanda (ICTR or the Rwanda tribunal) (collectively, 'the tribunals'). This article examines international sentencing law and practice and discusses the justification for the practice. International sentencing law has several objectives. The main goals are reconciliation, deterrence, retribution and rehabilitation. The sentencing inquiry is marked by a high degree of discretion and has resulted in sentencers developing a large amount of aggravating and mitigating considerations, such as being in a position of authority, remorse and good character. It is argued that the current international sentencing approach is flawed - fundamentally so. Most of the stated goals of international sentencing in the form of reconciliation, retribution and rehabilitation are either highly speculative or misguided. The only justification for the practice is general deterrence. This is, however, significantly undermined by the selective and infrequent enforcement of crimes within the jurisdiction of such tribunals. The stated aggravated and mitigating considerations are not valid given that they are not justified by reference to the stated aims of sentencing and only serve to undermine the search for a penalty which is commensurate the serious of the offence. This article suggests a coherent framework for international sentencing policy and practice.

Preventative detention in Australian law : issues of interpretation

This article examines the statutory interpretation of terms in Div 105 of the Criminal Code Act 1995 (Cth) . This division is the regime for preventative detention orders (PDOs), an Executive order permitting a person to be taken into custody and deprived of his/her personal liberty for the purpose of either preventing an imminent terrorist act or preserving evidence of a past terrorist act. The organisation of this article corresponds with three key features of a PDO from this description: "detention"; "Executive"; and "preventative purpose". To consider the interpretation of Div 105 , this article relies on statutory principles of interpretation, and most notably, the recent authority of Thomas v Mowbray (2007) 81 ALJR 1414 [PDF] ; [2007] HCA 33.

The age of criminal responsibility

In recent times there have been claims that the sentencing of serious juvenile offenders does not reflect community sentiment and legal policies are based on outdated ideas about adolescent development. The findings of this thesis call into question the suggestions that the law's assumptions about the development of competence is out of step with community attitudes and developmental research. The professional portfolio examines several hypotheses that have been generated to explain why disabled individuals engage in sexually inappropriate behaviour. It also highlights the importance of exploring the aetiology of this behaviour. Four case reports are presented.

Law-and-order politics, public-opinion polls, and the media

Over the past two decades, considerable political rhetoric has focused on the need to get tough on crime. Justification for this hard-line approach has been the public's apparent concem about rising crime rates and its increasing dissatisfaction with criminal sentencing. In this paper, we consider characteristics both of the measurement of public opinion and of the influences upon public opinion that may contribute to the depiction of a fearful, punitive community. In particular, we identify sources of bias in the methods and contexts of opinion-polling that promote a distorted representation of the discrepancy between community expectations of sentencing and the practices of the judiciary. We argue that the practices of pollsters, politicians, and media combine to create a self-sustaining obstacle to considered community discussion of crime and criminal sentencing.

The aftermath of provocation : homicide law reform in Victoria, New South Wales and England.

Over the past decade, homicide law reform surrounding the partial defences to murder has animated debate among criminological scholars and legal stakeholders in Australia and the United Kingdom. In response to these debates, criminal jurisdictions have conducted reviews of the partial defences to murder and implemented reforms targeted at reducing gender bias in the law which has played out through the operation of the partial defence of provocation. This research examines the different approaches taken to addressing the problem posed by provocation in Victoria, New South Wales and England. In doing so, it explores questions around the need for reform to the law of homicide, the effects of these reforms in practice, and the influential role of sentencing in questions surrounding homicide law reform. Throughout the analysis key frameworks of criminological thought in relation to feminist engagements with the law, the conceptualisation of denial and the influence of law and order politics upon the development of criminal justice policy are applied. By drawing on 81 in-depth interviews conducted with legal stakeholders across the three jurisdictions under study, and an analysis of relevant case law, this research concludes that reforms implemented to counter gender bias in the operation of homicide law have produced mixed results in practice, particularly in connection to the law’s response to three key categories of person in the courtroom: the jealous man, the female victim of homicide, and the battered woman.

The capacity of criminal sanctions to shape the behaviour of offenders : specific deterrence doesn’t work, rehabilitation might and the implications for sentencing

There is a considerable gap between the law and knowledge regarding the efficacy of state-imposed sanctions to achieve several key sentencing objectives. Two sentencing objectives which often carry considerable weight in the sentencing calculus are rehabilitation and specific deterrence, despite the fact that neither has been proven to be attainable. This article examines the empirical data on whether specific deterrence and rehabilitation are attainable, and consequently whether they should be retained or abolished as sentencing objectives.