Fisse, Brent (1942–)

AUSTRALIAN ATTORNEY and author Brent Fisse is a specialist in trade practices law, intellectual property, e-commerce, and online services and liability control systems for corporations. He developed the theory of “organizational blameworthiness” for corporate crime and has argued that the common practice of imposing monetary penalties as sanctions against corporations does little to deter future bad behavior.

Fisse held a position as a professor of law at the University of Sydney from 1985 to 1996. Between 1993 and 1994, he acted as a part-time commissioner of the Australian Law Reform Commission specializing in trade practices compliance reference. He also served as a part-time commissioner of the New South Wales (Australia) Law Reform Commission from 1987 to 1999. Fisse joined the prominent Sydney law firm of Gilbert + Tobin as a partner on[Page 324] February 1, 1995 after acting as a consultant to the company for several years.

Additionally, he is the author and editor of numerous books and journal articles on a range of subjects. His publications, including Howard's Criminal Law (1990) and Corporations, Crime, and Accountability (with John Braithwaite, 1993), address Australian communications law, accountability issues in corporate regulation, and securities regulation in Australasia.

Fisse is perhaps best known for the idea of “organizational blameworthiness” to overcome the approach adopted by courts following the Tesco Supermarkets case. In his view, the Tesco case unduly limited the scope of corporate criminal responsibility by focusing on the conduct of high-level managers.

This so-called directing mind and will approach made it difficult to establish liability against large corporations. Organizational blameworthiness attributes acts and omissions of employees, agents or officers of a corporation to the corporation itself, as long as the relevant person was acting within the actual or apparent scope of their employment or authority.

Fisse has also addressed the issue of penalties for corporate crime. Australian securities regulation is based upon pyramidal enforcement partly because of the influence of Fisse. The features of this system acknowledge the dynamics of negotiation and interaction, the diverse motivations of the regulators, and the need for an explicit pyramid of sanctions and remedies. While fines or monetary penalties are now used extensively as a sanction against corporations, Fisse has suggested that other sanctions would have more of an impact. Stock dilution (equity fines), probation, publicity orders, and community service also merit consideration as additional sentencing options, especially in regard to small companies. By increasing the variety of deterrents, these sanctions offer ways of angling around the major limitations of monetary sanctions.