Risk and compliance
CORPORATE CRIME
REVIEW OF THE CORPORATE CRIMINAL RESPONSIBILITY
In April 2019, the Federal Government commissioned the Australian Law Reform Commission to review Australia’s corporate criminal liability regime under part 2.5 of the Commonwealth Criminal Code. The ALRC will be specifically looking at the role of corporate culture under section 12.3 of the Commonwealth Criminal Code, which allows a court to find a fault element of a crime committed by a corporation. This can be in circumstances where corporations who have a culture of directing, encouraging or tolerating non- compliance with the relevant provision, or a culture which leads to non-compliance. Alternatively, the circumstances may involve a corporation failing to create or maintain a corporate culture of compliance with the relevant provision, which may mean that the corporation is found to be at fault. This is a great concern for directors and officers who could be found criminally liable for the criminal offences committed by their companies whether or not they had knowing involvement. The report is due to be finalised by 30 April 2020.
A FEDERAL COURT CRIMINAL DIVISION
In November 2018, the Federal Treasurer announced the Government’s intention to create a criminal jurisdiction in the Federal Court, which was further confirmed in the Government Response to the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry ( Financial Services Royal Commission ). These announcements follow the large number of criminal prosecutions recommended by Counsel Assisting the Royal Commission. The creation of a Federal Court Criminal Division is designed to redirect corporate crime prosecutions from heavily burdened state courts. With greater resourcing, the Government expects regulators to increase their prosecution of corporate misconduct, including the type of misconduct identified during the Financial Services Royal Commission.
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