Catching corporate fraud: a Systems Intentionality approach
Understanding a person’s ‘state of mind’ is important for legal responsibility. Whether it is a matter of wrongful intent, knowing misconduct or mistake, state of mind questions tend to underpin the law’s regulation of and responses to unethical behaviour and misconduct. This inquiry becomes more complex when looking at a corporation. Historically, a corporation is treated as an artificial legal person under the law and its ‘state of mind’, such as its intentions, knowledge, or recklessness has been linked to those held by its board of directors, or to individuals.
Professor Elise Bant is an expert in Private Law and Commercial Regulation at The University of Western Australia Law School. She has developed ‘Systems Intentionality’, a toolkit which has recently been adopted in the High Court of Australia, to determine how the corporate mind thinks and its intentions. The model draws on Australia’s distinctive corporate culture reforms to provide a principled and practical way of characterising the corporate ‘state of mind’, which can be used to hold organisations responsible as entities on their own accounts. This game-changing, world-leading Australian innovation in corporate responsibility encourages fairer practices and offers protection to investors, employees, vulnerable groups and the broader community against corporate fraud and predatory business models. It reinstates trust in our markets and legal systems; and it benefits the families and friends of victims who are otherwise left to ‘pick up the pieces’ of their lives, in the aftermath of corporate fraud.
Professor Elise Bant, UWA Law School
Systems Intentionality
The law has long needed a completely new approach to corporate responsibility but despite the efforts of law reformers world-wide, courts and parliaments, there has not been a viable legal alternative.
With a background in commercial litigation, and service to the Australian Law Reform Commission’s Advisory Committee (2020 Corporations and Financial Services Regulations review) Professor Bant’s expertise and research contributes to practical law reform. In 2019, she was awarded an Australian Research Council (ARC) Future Fellowship to examine corporate liability for serious civil misconduct. The project developed a new work-ready model of corporate liability entitled ‘Systems Intentionality‘, which has been designed to unravel corporate fraud and overcome ‘state of mind’ and ‘attribution’ hurdles to holding corporations liable for fraudulent conduct.
Systems intentionality is a concept that examines a corporation’s “state of mind” ( such as its intentions, knowledge, or recklessness) by looking at its systems of conduct, policies, and practices—rather than just the actions or decisions of individual employees. The idea is that companies ‘think’ through their systems, so rather than focus on isolated actions, the model focuses on broader systems, rules, culture and structures that drive corporate behaviour. When systems consistently lead to bad behaviour, this unmasks that the company is acting intentionally or recklessly.
The five years of research developed by Professor Bant is packaged on an online platform ‘Unravelling Corporate Fraud’. Bringing together practitioner user guides, case studies, publications and resources, this body of work gives courts and regulators for the first time the toolkit they need to hold corporations properly to account, at every stage of the enforcement process: from audit and investigation, through litigation, to point of penalty, compensation and rehabilitation orders under civil and criminal law.
“Systems Intentionality offers significant legal, economic and social benefits by supporting more just, effective and efficient regulation of corporate fraud.”
Systems Intentionality examines the corporate mind by looking at its systems of conduct, and practices.
Where’s Wally?
Large or complex corporations often have automated systems embedded into their business practices. Whilst this can increase economic and process efficiencies, unchecked it can also lead to fraud and unethical practices.
The 2019 Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry exposed the huge legal, economic and social costs of unchecked corporate fraud and predatory practices by banks and financial institutions. It uncovered systemic misconduct in the form of ‘fees for no service’ where banks were caught deducting automated fees for customers’ life insurance, long after the customers had died, the bank had been notified of the customers’ death, and grieving family members had complained. And whilst banks ‘investigated’ the problem, they continued to take the money. CEOs claimed that they were ‘ignorant’ of this systemic misconduct on their watch.
It also highlighted the limitations of the courts and regulators to bring corporations to account. This is because the law traditionally requires them to find a single, responsible person within the broader corporation, whose fault counts for the corporation itself.
Corporate fraud in the digital age can mean that Wally (or WALL-E) is nowhere to be found, allowing corporations to hide behind excuses of ‘system errors’ and ‘miscommunications’.
“This game of ‘Where’s Wally?’ is easily played by large and complex corporations, especially ones using automation or AI.”
Corporations hiding behind excuses of digital system errors can become a game of ‘Where’s WALL-E’.
Transnational reach
Professor Bant has tested the model extensively against complex, real-life fraud cases, in consultation with legal and regulatory experts. She has also collaborated with experts from around the world to examine Systems Intentionality through criminal, civil, social, psychological and comparative perspectives. She has made law reform submissions in Australia and England, given evidence before Commonwealth Parliament, and given innumerable public and professional lectures and workshops, including with regulators at the front-line of enforcement.
Her work has been cited and endorsed in the High Court of Australia, and by bodies such as the Victorian and Perth Royal Commissions into the Crown Casino group. It is now being adopted in cutting-edge litigation, to hold corporation to account for systemic misconduct.
In 2023, Professor Bant published The Culpable Corporate Mind, an academic legal anthology that critically, and with an eye to reform, examines conceptions and conditions of corporate responsibility in law. It draws on legal, moral, regulatory and psychological theory, as well as historical and comparative perspectives. These insights are applied across the spheres of civil, criminal, and international law.
Her 2024 research explored two models considered by the Law Commission of England and Wales as part of a review of corporate criminal liability and deficiencies in the law of corporate attribution. The analysis shed light on the nature of Failure to Prevent offences and demonstrated that Corporate Culture and Systems Intentionality are essential parts of the regulatory toolkit that deserve further consideration, given the complex reality of modern corporate defendants.
Her work is now pivoting to apply Systems Intentionality to government and corporate group misconduct where powerful and complex organisations, and the leaders behind them, have evaded responsibility for harms inflicted on everyday people, usually in the pursuit of increased revenue or ‘efficiencies’. Examples are Australia’s Robodebt and the UK’s Post Office Horizon scandals. The Post Office Horizon scandal now takes Professor Bant to All Souls College, University of Oxford, where she has been awarded a Visiting Fellowship. There she will endeavour to shed light on the broader issues of blame and responsibility. Her aim is to assess the case using Systems Intentionality by focusing on the Post Office and government, and the agencies and corporations through which they act. In February 2026, Professor Bant presents her research on the corporate state at a conference on transformations and trends in corporate law, organised by the Society of Corporate Law Academics.
Professor Bant has published The Culpable Corporate Mind, examining corporate responsibility in law.
Setting high standards for corporate responsibility
In August 2024, members of the High Court of Australia endorsed the concept of Systems Intentionality in the landmark case Productivity Partners Pty Ltd v Australian Competition and Consumer Commission [2024] HCA 27. Justice Gordon (Justices Steward and Beech-Jones separately agreeing) and Justice Edelman applied a systems-based approach to support their finding that Productivity Partners Pty Ltd (then trading as Captain Cook College) had engaged knowingly and intentionally in ‘unconscionable’ conduct in breach of the Australian Consumer Law.
Justice Gordon cited the research, stating that “as Professor Bant has explained, a corporate system can be understood as a manifestation of corporate intentionality” and 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”. Justice Edelman explained that “The novelty of corporate systems liability is that a corporation can be treated as having acted, and as having intentions, without those actions having been taken, or those intentions held, by any individual natural person.”
In this case, a senior officer of the corporation was additionally held to be a knowing accessory to the corporation’s unconscionable behaviour, and so also open to serious penalty. This shows that, using the model of Systems Intentionality, corporate and individual responsibility can operate alongside one another, in a mutually supportive way. The decision sends a strong, deterrent message to corporations and their officers that information silos, Board incompetence and inattention, and overall strategies of denial no longer work to shield predatory corporations from the law.
Consequently, vulnerable consumers and members of the public may now access legal protections and remedies previously missing or denied. And the law properly reflects and reinforces the Australian ethos of fair play, including in trade and commerce.
“Proven against predatory business practices, it is a powerful new means to protect and support everyday Australians, and to re-set organisational cultures, towards a fairer Australia.”
Australia’s High Court endorsed the concept of Systems Intentionality.
Crown Casino Royal Commissions
Corporate Culture sat at the heart of two Royal Commissions into Crown casino where Systems Intentionality was adopted.
An inquiry in 2021 into the suitability of Crown Melbourne Limited to hold a casino licence found the Casino had engaged in illegal, dishonest, unethical, and exploitative conduct. The Commission used Systems Intentionality to identify the true nature of Crown’s culpability in facilitating money laundering over extended periods, and notwithstanding Crown’s claims of error and good faith. The Hon. Ray Finkelstein, Commissioner and Chairperson of the Royal Commission into the Casino Operator and Licence considered that through this lens that there was a ‘powerful’ argument that the conduct of Crown Casino was deliberate and dishonest. He said, “The system’s intentionality approach was one of the key planks that led to the conclusion in deciding whether Crown was suitable to hold a licence”.
The Perth Casino Royal Commission (2021-2022) also found Crown Perth unsuitable to hold its licence, leading to ongoing reforms. The Commission examined the effectiveness of the state’s regulatory framework and whether reforms were needed to prevent future misconduct. In their 2025 paper, Professor Bant and colleague Rebecca Faugno note that in line with Systems Intentionality, the Commission focused on an holistic view of the corporation’s ‘state of mind’ through its internal systems, culture and governance, rather than the traditional view of relying solely on individual intent.
This work has had powerful impact. Both the Victorian and Perth Commissions used Systems Intentionality to shape the requirements for Crown’s rehabilitation, over a five-year period and under external supervision, which continues today.
“As an academic, you want to contribute and do something that matters in the long term. That’s hopefully what my work is doing.”
Corporate Culture sat at the heart of 2 Royal Commissions into Crown Casino.
