Australian Criminal Justice System Respond Essay
- Length: 7 pages
- Sources: 9
- Subject: Criminal Justice
- Type: Essay
- Paper: #81904640
Excerpt from Essay :
Industries that face stiff competition may favor and encourage an aggressive approach from employees that produces rapid results, rather than thoughtful, strategic action. When the gains cannot be realized in the desired time frame, there is a temptation to implement short cuts; resulting in fraud." (Price; Norris, 2009) That however is not a justification, although it prompts some regulations on the way industries operate.
The Law Catches Up
Today the criminal justice system responds to corporate crime much better than before. This is because earlier the scams were an unknown commodity in Australia and it was a U.S. phenomenon. Globalization changed that and now, according to the National Crime Prevention office in Australia the fraudster type of activities in firms were classified as fake billing and invoicing, investments and money chain scams, advance fee frauds, borrowing from the public as in ponzi type scams, the pyramid and money chain, insolvency trading, insurance scams, and lotteries form a coterie of such activities that are meant to defraud the public. (Hayes; Prenzier, 2007)
These scams became very serious and the state had to take notice with the collapse of Enron and other U.S. based companies from where the scam originates. The 1980s was the peak period of such scams. In Australia, the government took steps to curb this by setting up regulatory agencies and the publications at the time pointed out that the enforcement by these agencies are bound to be weak. To counter this some of the legal powers created made it mandatory for serious offence prosecutions and these are to result in heavy fines and imprisonment, publishing the offender in media to prevent recidivism, issuing warnings suo motto, and the power to even shut down the company. It also vested these agencies the power to enter premises and seize documents. It also made it easy for the public to make complaints. (Hayes; Prenzier, 2007)
There is evidence that punishments do deter crime of this sort. It is argued by Rebovich and Kane (2002) that although there is a perception on the need for corporate prosecution and punishments, the fact is that this crime is new to the era and hence the punishment severity for white collar criminals are not based on demographic variables, and the growing high technology crimes have actually determined the methods of punishment because the malicious, computer attacks against corporations, consumer fraud, has made people from all the strata of society become the victim to white collar crime. Secondly the corporate misconduct affects the public at large as investors, and consumers. Thus scams like Enron, Worldcom, Adelphia and Imclone Systems has aroused the public sentiment against white collar crimes of large corporations and in turn the justice system has been compelled to do some soul searching and come up with working procedures for prosecution. (Rebovich; Kane, 2002)
Thus today the internet and the computing systems have not only made the public vulnerable but ahs put the entire state in a state of security threat. Because most corporate and government transact in the network, it is a field for manipulation. Law enforcement agencies have not given thought to this aspect and no serious effort is seen to be made in the direction of security for the network, because all the government policy depends upon information technology; and while organizations brought about changes in the way information was being used, the information technology also changed the way many organizations work. The existing tasks have been remade to suit it and new tasks come into existence by new policy opportunities that were not previously possible. (White; Fisch; Pooch, 1996)
Any nation must now confront the global organizational networks, which necessitate change in the commercial and military technologies, and the government is now giving way to flexible network systems as against the traditional hierarchical structures of administration. Neglecting this aspect actually caused the collapse of the Soviet Union. The fact that persistent intruders could access at any time the systems and play havoc prompted the trial of many security systems within the it system of the organizations. This opens up a possibility of unauthorized entry, or where there is sensitive data that is not to be disclosed and the vulnerability of the system persists. There are many criteria with which individual institutions may define security. It may be the integrity factor, where the primary concern is protecting the interest defined either in terms of integrity, privacy or the safety of transactions. In modern times all three are relevant and are probably basic requirements. (White; Fisch; Pooch, 1996)
The enforcers have failed in controlling cyber crime and online fraud and this also is done with the corporate players. While the laws like legislating for hacking and corporate crime is necessary, it is also necessary to make agencies like ICAC and AFP more powerful removing procedural fetters that now shield the corporate criminals, there is also a safety aspect involved. These crimes often make the city and state inhospitable by not only defrauding but encouraging street crimes.
In Australia, legislations have not made a great dent in controlling these crimes. As Braithwaite (1992) argued, some crimes like insider trading for example the chance of getting caught is very slim and penalty for insider trading would have to be set at over $100 million to make it rational to desist from the practice. Australia is still in the deterrence trap by fining the firm. Thus "there are other reform options beyond becoming just another country which increases the level of cash fines or prison sentences for corporate criminals." (Braithwaite, 1992)
Some of the examples are the orders of the type that makes a mockery of punishments like probation, adverse publicity orders and community service orders. The South Australian Criminal Law and Penal Methods Reform Committee of 1978 also called the Mitchell Committee recommended stringent punishments that were ignored by Australian governments. Thus it has made the nation known for business shysters, and the Australian politicians refuse to get tough on corporate crooks. (Braithwaite, 1992)
The legislature has from time to time changed penal provisions for cases under the corporations law wherein a civil penalty of up to $200,000 may be imposed under 1317EA for a breach. Some punishments like "the application of the disqualification provisions of the corporations law applying to directors, liquidators, securities dealers and investment advisers may prevent such persons from being employed in such a position again" (Tomasic, 1993)
However the law is treated by the enforcers with little consideration. One case that is pointed out is that of the Qintex group of companies in the 1990 case of Qintex Australia Finance Ltd. v Schroders Australia Ltd. It was a complictio that made Rogers CJ say that the subsidiary companies and called for legislative intervention to prevent fraud. (Tomasic, 1993) the second aspect that has gone unchecked is insider trading which is another form of corporate criminal conduct and this was the issue with the Committee on Securities and Exchange in 1974 or known as the Rae Committee. Though the decade long issues have been dealt with by enactments over the periods, there is no substantial improvement in the enforcement of law against the white collar criminal. This is the case for Australia but it can be emphasized that the U.S. also is struggling with the issue. (Tomasic, 1993)
The U.S. experience has shown that the safety of the city and less crime is a factor of the type of the population demographics, methods of housing and the chances of vice and formation of gangs, the most effective thing that affects the rates of crime perhaps is the efficient policing in the county. Thus the third aspect of the county safety relates to the policing aspects and crime prevention goes hand in hand both for street crimes and for white collar crimes. Throughout the nation the police has identical from and style. It is same in procedures, methods and enforcement. It appears to be immutable although in the beginning of the century there was a major crisis and after the advent of the terrorists the changes in the police force have made it more responsible, self-conscious and therefore is more support for policing and therefore there is also a change in the way the county is policed. (Sparrow; Moore; Kennedy, 1990) the agencies have just begun to realize the threat the type of crime can pose to the state and its security. It is hoped that the agencies will use the power vested in them in a better manner to produce results.
The crime that can be strictly defined as 'white collar' is controversial. The economic crime, violation of statutes other than criminal law must be seen as white collar crime. This is because after the globe has been networked a new type of criminal the terrorist is operating on a global basis and most of them hide under a corporate banner. This involves state security and therefore the state must pay…