Monash University Law Review Volume: 4 Dated: (June 1978) Pages: 181-206
The United Kingdom's bankruptcy order is reviewed and critiqued in terms of the possibility and desirability of enacting it in Australian States.
In 1972, the United Kingdom added the criminal bankruptcy order to the sentencing options of criminal courts. The order mandates that upon conviction of any indictable offense occasioning loss or damage to property which has not been the subject of restitution by the defendant, the sentencing court can make an order which constitutes an act of bankruptcy, so that the victim is treated as a creditor for a debt of the amount specified in the order. This amalgamation of criminal proceedings and civil remedies is intended to be an advance in victim compensation schemes and a deterrent to property crimes. Unlike other imported victim compensation schemes, criminal bankruptcy cannot readily be transposed to Australian State jurisdictions without disrupting existing bankruptcy structures and distorting orthodox bankruptcy tenets. Although criminal bankruptcy is presented as an innovative scheme of victim compensation and an effective deterrent to acquisitive crime, it is neither. On balance, it attains little that cannot already be achieved through the orthodox bankruptcy machinery. Further, it is likely to disrupt moves to decriminalize bankruptcy procedures and, in focusing on spectacular losses, it diverts attention from the need to develop comprehensive and effective compensation schemes for ordinary crime victims. Footnotes are provided.