Criminal Liability of the Crown: Recommendations

 General

1. The Crimes (Workplace Deaths and Serious Injuries) Bill 2001 (hereafter, the Bill) should provide that for the avoidance of doubt the Crown is a body corporate.

2. It is intended that the Bill should bind the Crown in all its capacities as far as is constitutionally possible and it is intended to make the Crown criminally liable and subject to criminal sanctions.

3. The Bill should provide that the Director of Public Prosecutions may prosecute the Crown for an offence under the Public Sector Management and Employment Act 1998.

4. The Bill should provide that the Crown should be the defendant in cases involving negligent conduct occurring within agencies and section 16 offices.

5. The Bill should provide that, in determining whether the Crown is negligent, the conduct of the Crown as a while can be considered.

6. Proposed section 14B(5), which permits the aggregation of the conduct of any number of employees, agents or senior offices of a body corporate should apply to the conduct of employees, agents, or senior officers of the Crown, even if they are working in different agencies or offices.

Corporations Sole Representing the Crown

7.  Where an employee of the Crown is a corporation sole, the Crown, rather than the corporation sole, should be the defendant in prosecutions under the legislation.

8.  In determining whether the conduct of the Crown as a whole is negligent, the conduct of a corporation sole which represents the Crown should be capable of being aggregated with the conduct of any number of employees, agents or senior officers of the Crown.

9. In determining whether the conduct of the Crown as a whole is negligent, the provisions of the Bill allowing the conduct of an agent providing services to be aggregated with the conduct of employees or senior officers, should apply to agents providing services to a corporation sole representing the Crown. The conduct of such agents should be capable of being aggregated with the conduct of any number of employees, agents or senior offers of the Crown. The fact that a person works in or provides services to a unit headed by a corporation sole should not prevent the aggregation of his or her conduct with the conduct of employees, agents or senior officers working outside that unit.

Public Authorities

10.  For the avoidance of doubt, it should be made clear that a person acting in the capacity of a corporation sole representing the Crown is to be treated as an employee of the Crown, so that the Crown may be criminally liable if that person is killed or seriously injured as the result of negligence.

11.  The Crown, rather than a body corporate representing the Crown, should be the defendant in criminal proceedings involving the conduct of a body corporate. When the conduct of a body corporate representing the Crown is relied upon in a prosecution against the Crown, the body corporate should not be separately prosecuted.

12.  Employees, agents or senior officers of a body corporate representing the Crown should be treated as employees, agents, or senior officers of the Crown for the purposes of proposed section 14B(5) of the Bill.

13. The aggregation principle should permit the aggregation of the conduct of employees, agents or senior officers of a body corporate representing the Crown with the conduct of employees, agents or senior officers of the Crown working outside the incorporated body.

14.  The Bill should list specified bodies corporate to which Recommendation 11 does not apply. In such cases, the body corporate rather than the Crown would be the defendant in criminal proceedings.

15.  Where a body corporate is specified as the appropriate defendant, the conduct of employees, agents or senior officers of the Crown would not be capable of aggregation with the conduct of employees, agents or senior officers of the body corporate.

16. The definition of an ’employee of the Crown’ should include a member of an unincorporated body being a board, council, committee, sub-committee or other body which is:

17. established by or under an Act for the purposes of advising a Minister or under the control of a Minister; or

18.  performing functions connected with an agency or under the control of an agency or a person performing the function of an agency head.

17. Unincorporated private sector bodies which receive public funds or perform services under contract with government should not, solely by reason of this, be deemed to be part of the Crown.

18. The definition of ’employee of the Crown’ should include employees, agents or senior officers of unincorporated bodies falling within Recommendation 17 above.

19. The aggregation principle should permit aggregation of the conduct of a member, employee, agent or senior officer of such a body, with the conduct of other employees, agents or senior officers of the Crown.

20.  Recommendation 17 should not apply to the conduct of members of unincorporated bodies exercising quasi-judicial functions.

Particular Employment Relationships

21. Delegates, who are carrying out functions delegated to them by a Minister, agency head or of any public sector employee who has the statutory power of delegation should be deemed to be employees of the Crown.

22.  The behaviour of any delegate who is carrying out functions delegated to him or her by a Minister, agency head or any public sector employee should be capable of being aggregated with the behaviour of other Crown employees.

23.  Volunteers who are under the direction of an entity that is part of, or represents, the Crown should be deemed to be employees of the Crown for the purposes of the Bill.

24. Employees who are on secondment to an entity should be deemed to be employees of that entity.

25. Parliamentary officers should be deemed to be employees for the purposes of the Bill.

26. For the avoidance of doubt, Victoria Parliament is to be regarded as part of the Crown for the purposes of the Bill.

27. For the avoidance of doubt, the Supreme Court, County Court, Magistrates’ Court and Children's Court are to be regarded as part of the Crown for the purposes of the Bill.

28. For the avoidance of doubt, judicial members of the Supreme Court, County Court, Magistrates’ Court and Children's Court should be deemed to be ‘workers’ for the purposes of the Bill.

29. For the avoidance of doubt, judicial employees under Part 9 of the Public Sector Management and Employment Act 1998 should be deemed to be employees of the Crown for the purposes of the Bill.

30. The principle of aggregation does not apply to the conduct of judges or members in the exercise of their judicial functions.

Penalties

31.Administrative arrangements should be made to ensure that fines for corporate offences under the Bill are borne by the appropriate agency. These should be formal arrangements.

32. The ’name and shame’ provisions for penalties should be varied to require the public sector entity which is responsible to publicise the event and its consequences.

Senior Officer Offences

33. The Bill should be amended to include a definition of ’senior officer’ applicable to bodies which are part of the Crown, to bodies that represent the Crown and to other public sector entities.

34.  A senior officer of the Crown should be defined to include an agency head under section 4 of the Public Sector Management and Employment Act 1998, the head of an office under section 16 of the Act or the head of a department under the Parliamentary Officers Act 1975. The agency head may be a senior officer, even if the agency head is, in that capacity, a corporation sole.

35.  A senior officer of the Crown should be defined to include:

  • a person employed as an executive under Part 3 of the Public Sector Management and Employment Act 1998, who makes, or participates in making, decisions that affect the whole, or a substantial part of the functions or activities of an agency under section 4 of the Act or office under section 16;
  • a person employed as an executive under Part 3 of the Actwith responsibility for the management of a distinct activity or program within an agency or office; and
  • a person employed as an executive under Part 3 of the Actas a a senior officer even if the person is, in that capacity, a corporation sole.

36. A senior officer of an incorporated statutory authority should be defined to include:

  • a statutory office holder who has responsibility for managing the functions or activities of a body corporate under an Act, or who makes or participates in making decisions that affect the whole or a substantial part of the functions or activities of the body corporate;
  • an employee of the body corporate, who has responsibility for managing the functions or activities of a body corporate under an Act or who makes, or participates in making, decisions that affect the whole, or a substantial part of the functions or activities of the body corporate;
  • a person employed as an executive under Part 3 of the Public Sector Management and Employment Act 1998, who has responsibility for managing the functions or activities of a body corporate under an Act or who makes or participates in making decisions that affect the whole or a substantial part of the functions or activities of the body corporate.

37. A senior officer of an unincorporated statutory body should be defined to include a statutory appointee or an employee who makes or participates in making decisions that affect the whole or a substantial part of the activities or functions of the unincorporated statutory body.

38. For the avoidance of doubt, the Bill should make clear that ’senior officers’ cannot avoid, or limit, their responsibility under the Bill by delegating their powers and functions to other employees or persons.

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