Corporate accountability

The basic idea behind the model of Systems Intentionality may be simply described, and applies equally to corporate and natural defendants. Diamantis has explained how natural persons commonly make use of “extended mind” supports, which are external systems or cognitive aids (such as recipes, maps and notes or records) to facilitate recall and decision-making. So too, I say, corporations adopt systems of conduct that enable them to make and implement decisions consistently and repeatedly, and respond purposefully to events. Indeed, having (unlike humans) no natural memory or cognitive capacity, corporations necessarily employ systems of conduct to direct, coordinate and manage the changing and fallible human (and other corporate) personnel that carry out corporate purposes, over time. The same holds true where human elements within the system are entirely replaced by self-executing (automated) processes.

The critical point is that, on my model, such systems exist in order to achieve some outcome (whether it be coordinated conduct, or consistent output). Thus, Australian courts have described the concept of a system as “an internal method of working”; “something designed or intended in its structure”.35 On this approach, a “system of conduct” is inherently purposive in nature: a “co-ordinated body of methods, or a complex scheme
or plan of procedure”. It is an organised connection of elements operating in order to produce the conduct or outcome.

Following this line of thought, once an adopted system of conduct is identified, it becomes possible objectively to assess the system to characterise the associated intention and other mental states. Here, the heart of the model is the proposition that corporations manifest their intentions through the systems of conduct that they adopt and operate, both in the sense that any system reveals the corporate intention and in the sense that it embodies or instantiates that intention. Another way of putting this is to say that corporations think through their systems—and so assessment and characterisation of the system enables us to know the corporate state of mind. No process of “inference” is required. The same is true of policies and practices, which may be understood as systems operating at higher levels of generality (in the case of policies) and as arising organically (in the case of practices). It becomes possible, from these humble beginnings, to determine from the nature of systems adopted by a corporate actor the spectrum of mental states commonly demanded by the law (such as general and specific intention, knowledge, mistake, recklessness, dishonesty and unconscionability).