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BFCSA: Criminal law review to target boards, executives

Posted by on in ROYAL COMMISSION URGENT
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Criminal law review to target boards, executives

Australian Financial Review Apr 10, 2019 12.15am

Michael Pelly

 

The federal government has ordered a comprehensive review of white-collar crime laws, with the aim of making it easier to sheet home responsibility for misconduct to senior executives and directors.

Attorney-General Christian Porter will announce on Wednesday that the Australian Law Reform Commission will be asked to consider ways to "strengthen" the regime.

Mr Porter said a key task for the ALRC would be to consider whether the Commonwealth Criminal Code "needs to incorporate provisions enabling senior corporate officers to be held liable for misconduct by corporations".

Former Federal Court judge Robert Bromwich will be appointed a part-time member of the ALRC for the project, which will also consider options for implementing recommendations of the banking royal commission and the ASIC Enforcement Review Taskforce.

Mr Porter said the terms of reference would include "consideration of any practical challenges to investigating and prosecuting these crimes".

"It is essential that our laws are effective in holding corporations to account for criminal misconduct by their officers," he said.

The review will provide further backing for ASIC and its new "why not litigate approach", which the regulator's deputy chairman Daniel Crennan, QC, reinforced on Tuesday in ASIC's latest enforcement update.

Mr Crennan revealed that 76 charges had been laid in the second half of 2018 and warned that civil or criminal matters brought by ASIC should not be treated by financial services firms as "ordinary" litigation.

Mr Porter noted that under the Criminal Code, criminal responsibility applied to corporations for the actions of employees, agents or officers of those corporations, where the corporation expressly or impliedly authorised or permitted those actions.

"For example, corporate liability provisions can be used to hold a company liable for any criminal offences where a corporate culture exists that tolerates or encourages culpable conduct," he said.

"The review will consider reforms to the Criminal Code and other relevant legislation to provide a simpler, stronger and more cohesive regime for corporate criminal responsibility."

He said Mr Bromwich, who is also a former director of the Commonwealth Director of Public Prosecutions, was "uniquely qualified to assist with the review".

The Attorney-General cited the "the complexity of this regime and its challenges as a mechanism for attributing corporate criminal liability".

"Under the code, criminal responsibility applies to corporations for the action of employees," Mr Porter said.

"Where a corporation expressly or impliedly authorises or permits these actions, you have a question about how and where liability arises.

"The BEAR [Banking Executive Accountability Regime] is one approach you can take to clarifying these grey areas, but it's timely to sit down and look at how we allocate responsibility when corporations engage in criminal conduct – both the corporation and individuals."

The terms of reference also ask for an examination of "the availability of other mechanisms for attributing corporate criminal responsibility and their relative effectiveness" and "the appropriateness and effectiveness of criminal procedure laws and rules as they apply to corporations".

ASIC's enforcement update says its focus over the next six months will be on "gatekeeper conduct to ensure people are meeting the standards required by law. Gatekeepers can include company directors and officers, auditors, insolvency practitioners and business advisers.

The regulator also says it is "looking closely at misconduct involving financial services licences, as well as the sale of inappropriate products to consumers".

Mr Crennan said the "message to corporate Australia is that ASIC is focused on enforcement".

"As the royal commission found, this is what Australians expect of their regulator and this is what ASIC will deliver."

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