I, Christian Porter, Attorney-General of Australia, having regard to:
- the corporate criminal responsibility regime in Part 2.5 of the Commonwealth Criminal Code contained in Schedule 1 of the Criminal Code Act 1995 (Cth) (‘the Code’); and,
- the complexity of this regime and its challenges as a mechanism for attributing corporate criminal liability;
REFER to the Australian Law Reform Commission (ALRC) for inquiry and report, pursuant to s 20(1) of the Australian Law Reform Commission Act 1996 (Cth), a consideration of whether, and if so what, reforms are necessary or desirable to improve Australia’s corporate criminal liability regime. In particular, the ALRC should review the following matters:
- the policy rationale for Part 2.5 of the Code;
- the efficacy of Part 2.5 of the Code as a mechanism for attributing corporate criminal liability;
- the availability of other mechanisms for attributing corporate criminal responsibility and their relative effectiveness, including mechanisms which could be used to hold individuals (eg senior corporate office holders) liable for corporate misconduct;
- the appropriateness and effectiveness of criminal procedure laws and rules as they apply to corporations; and
- options for reforming Part 2.5 of the Code or other relevant legislation to strengthen and simplify the Commonwealth corporate criminal responsibility regime.
Scope of the reference
The ALRC should have regard to existing reports relevant to Australia’s corporate accountability system, including reports on: corporate misconduct; corporate criminal law; corporate governance; court procedure which applies in corporate enforcement actions; and law enforcement arrangements relating to corporate misconduct/crime. The reports which the ALRC should consider should include but not be limited to the:
- 2019 Final report of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry; and
- 2017 report of the ASIC Enforcement Review Taskforce.
This review would encompass consideration of:
- comparative corporate criminal responsibility regimes in relevant foreign jurisdictions;
- potential application of Part 2.5 of the Code to extraterritorial offences by corporations;
- consideration of possible alternatives to expanding the scope and application of Part 2.5 of the Code, such as introducing or strengthening other statutory regimes for corporate criminal liability;
- consideration of whether Part 2.5 of the Code needs to incorporate provisions enabling senior corporate officers to be held liable for misconduct by corporations;
- options for reforming Part 2.5 of the Code (or other corporate liability regimes) to facilitate implementation of the recommendations made by, or to address issues highlighted by, the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry and by the ASIC Enforcement Review Taskforce.
Noting the Federal Court of Australia’s criminal jurisdiction, the review should consider the effectiveness of present Commonwealth criminal procedural laws with a focus on their interaction with state and territory criminal procedural law, particularly in relation to committal hearings.
The ALRC should consult widely with: law enforcement authorities charged with policing and prosecuting corporate criminal conduct; courts; and other stakeholders with expertise and experience in the corporate law and white collar crime sectors. The ALRC should produce consultation documents to ensure experts, stakeholders and the community have the opportunity to contribute to the review.
Timeframe for reporting
The ALRC should provide its report to the Attorney-General by 30 April 2020.