The ALRC has been asked to undertake a comprehensive review of the corporate criminal responsibility regime, with a particular focus on the need for effective laws to hold corporations to account for criminal misconduct.
This Inquiry comes at a time of renewed focus on protecting Australian consumers from egregious conduct by corporations and increasing regulation in the area of corporate wrongdoing. It also follows the release of the Final Report of the ASIC Enforcement Taskforce in December 2017, and more recently, the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (‘the Financial Services Royal Commission’) in February 2019.
The Terms of Reference require the ALRC to consider whether reforms are necessary or desirable to improve Australia’s corporate criminal liability regime, specifically Part 2.5 of the Criminal Code Act 1995 (Cth) (‘the Criminal Code’) in addition to other relevant Commonwealth legislation regulating corporate behaviour.
Further, the ALRC was asked to consider the availability of other mechanisms for attributing corporate criminal responsibility including mechanisms that could be used to hold individuals, such as senior corporate officer holders, to account for corporate misconduct.
The ALRC was also asked to review Commonwealth criminal procedure laws and rules as they apply to corporations, including the interaction between Commonwealth and state and territory criminal procedure laws with a particular focus on committal hearings in criminal matters.
The Terms of Reference direct the ALRC to specifically consider a broad range of issues when examining Australia’s corporate criminal responsibility regime, including:
• comparative corporate criminal regimes in relevant jurisdictions;
• the potential application of Part 2.5 of the Criminal Code to offences committed extraterritorially by corporations;
• consideration of possible alternatives to expanding the scope and application of Part 2.5 of the Criminal Code, such as introducing or strengthening other statutory regimes for corporate criminal liability;
• consideration of whether Part 2.5 of the Criminal Code needs to incorporate provisions enabling senior corporate officers to be held liable for misconduct by corporations; and
• options for reforming Part 2.5 of the Criminal Code, or other corporate liability regimes, to facilitate implementation of the recommendations made by, or to address issues highlighted by, the Hayne Royal Commission and by the ASIC Enforcement Review Taskforce.
This Inquiry also sits alongside ongoing Commonwealth legislative reform concerning deferred prosecution agreements, foreign bribery offences and phoenix companies.
The ALRC is planning to release a Discussion Paper on 15 November 2019 which will set out proposed reforms and ask questions to assist the ALRC to prepare formal recommendations. Submissions on the Discussion Paper will be due by 31 January 2020.
The ALRC is due to report on 30 April 2020.