Mr Mark Hamilton1
1University of New South Wales, Sydney, Australia
The majority of environmental crime is committed by corporations in breach of an approval (either a license or development consent) to interact with the environment. Traditionally, the courts have dealt with such offending by the imposition of a fine or an order to repair the damage they have done to the environment. It is questionable whether prosecuting corporations makes them truly accountable, especially considering there is limited or no interaction with the victims of such offending. Some environmental offending in New Zealand is processed through a restorative justice conference, which is a dialogue-based approach involving all of the relevant stakeholders to an offence (offender, victim and the community). One of the underlying premises of using restorative justice conferencing to deal with non-environmental crime in New South Wales (Australia) (and indeed elsewhere) is Braithwaite’s theory of “reintegrative shaming”. According to Braithwaite, there are two types of shame – stigmatising shame and reintegrative shame. The former brings about feelings of deviance in the shamed person and is linked to increased crime rates and more reoffending. It is the shame associated with traditional prosecution which can be viewed as a degrading ceremony. Reintegrative shame, on the other hand, is shame directed at the act rather than the offender per se and reinforces social bonds through reintegrative processes and gestures. It is linked with lower crime rates and less reoffending and is associated with restorative justice processes. My PhD investigates whether such conferencing results in better outcomes for victims and makes offenders more accountable than traditional prosecution in the courts. The purpose of this paper, which is based on my current research, is to explore the applicability of reintegrative shaming to a corporation. It queries whether a corporation can be shamed and, if so, what would such shame look like.
BSC LLB (UoW), MEL LLM (USyd), MPP (Macq). The author is currently undertaking his PhD in Law at the University of New South Wales under the joint supervision of Associate Professor Cameron Holley (Faculty of Law) and Dr Jane Bolitho (Faculty of Arts & Social Sciences), exploring the applicability of restorative justice intervention to environmental offending. The author currently teaches in the Bachelor of Criminology program at the University of New South Wales. The author was formerly a solicitor in an environmental and planning law practice in Sydney, and a former tipstaff to a Land and Environment Court of New South Wales judge.