How do we determine what a corporation knows, intends, or is responsible for when no single individual appears to be at fault?
In this episode, Marcus Pullen is joined by Professor Elise Bant, Professor of Private Law and Commercial Regulation at The University of Western Australia, Director of the UWALS Private and Commercial Law Research Cluster, and one ofAustralia's leading private law scholars, to discuss systems intentionality and its growing influence on corporate responsibility and accountability.
Together, they discuss how corporate responsibility can be understood through the systems, policies and practices that organisations design and deploy, rather than through the actions of a single decision-maker.
Drawing on examples from the Banking Royal Commission, Crown Casino, Robodebt and recent High Court decisions, Professor Bant explains why a corporation's choices are often revealed through the way its systems operate in practice, and what this means for directors, in-house counsel and regulators.
A thought-provoking discussion on the future of corporate accountability and the role of legal teams in fostering lawful and responsible corporate conduct.
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Website: www.jacmac.com.au
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Chapters:
(0:00) Introduction to Professor Elise Bant
(0:52) What is systems intentionality?
(3:18) The Banking Royal Commission's fees-for-no-service scandal
(7:15) Why the traditional "find Wally" approach to corporate attribution fails modern corporations
(8:42) Standard operating procedures, information silos, and how existing rules break down
(16:00) The Productivity Partners case
(21:47) How the model builds on Australia's Commonwealth Criminal Code corporate culture provisions
(22:48) The pancake analogy
(28:36) Why "set and forget" automated systems carry inherent culpability
(31:28) Does systems intentionality change what directors and in-house counsel must know?
(35:00) Corporate culture as a governance tool vs. a liability tool
(38:38) Directors' responsibilities under Star Entertainment
(41:48) ESG and greenwashing
(45:43) Evidence of corporate mindset
(51:15) Where is systems intentionality headed? Legislation, broader doctrine, or High Court evolution?
(53:28) Extending the model to public entities
(59:00) Closing advice for in-house counsel
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