Criminal and civil liability

The complex landscape of criminal and civil liability for companies requires nuanced understanding. This guidance note explores how companies, as separate legal entities, may incur liability under various legal regimes, including the Corporations Act 2001 (Cth) and Criminal Code Act 1995 (Cth). Practitioners must understand the distinctions between primary and vicarious liability as well as the application of strict and absolute liability offences.

Topics Covered

• Primary and vicarious liability
• Criminal liability of companies
• Primary criminal liability of companies
• Strict and absolute liability offences under Corporations Act
• Vicarious criminal liability of companies
• Primary civil liability of companies
• Vicarious civil liability of companies
• Criminal and civil liability under the Corporations Act

Essential Insights

• Assess how companies incur liability through both direct actions and those of employees or agents.
• Consider the expanded scope of criminal liability beyond the company’s directing mind under the Criminal Code.
• Understand strict and absolute liability offences that remove fault elements, impacting company compliance strategies.
• Recognise statutory interpretation factors critical to establishing vicarious criminal liability for corporate entities.
• Explore how civil liability arises in tort and contract, including imputed mental states of company officers.
• Evaluate civil penalty regimes under the Corporations Act, including significant pecuniary penalties and disqualification risks.