COVID-19: Changes to ALRC operations

Further information regarding coronavirus (COVID-19) can be found on the Australian Government website: www.aus.gov.au.

From Wednesday 25 March, the Australian Law Reform Commission will action enquiries by email only, due to the current status of COVID-19.

The health and well-being of our staff and visitors is paramount, and to help stop the spread of disease, the ALRC business office will be temporarily closed. While the physical office is closed, the team will remain busy, working on the Inquiry into Australia’ corporate criminal responsibility regime.

Please direct all questions to info@alrc.gov.au

As this situation unfolds, the ALRC will continue to monitor government advice and respond to any changes as required.

Thank you for your understanding and cooperation.

 

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The ALRC welcomed over 290 attendees to the Corporate Criminal Responsibility Seminar Series held earlier this year. Each location featured an expert panel who delved into the most contentious issues raised from the Corporate Crime Discussion Paper, drawing discussion from the submissions received and consultations with regulatory bodies and stakeholders. The key aspects of the Discussion Paper considered at each seminar were the regulatory model, attribution and individual liability. Attendees from the judiciary, bar, law firms, regulators, law enforcement, industry, government and civil society had the opportunity to ask questions of the panel, and to continue the discussions over refreshments. The lively debate in each seminar has provided the ALRC with further ‘food for thought’ as we progress with writing the final report.

Download the Corporate Crime Slide Presentation.

Download the Individual Liability for Corporate Misconduct Paper.

Thank you to the panellists for the generosity of their time and expertise in participating in the seminars. Our thanks are also extended to our partners in Perth, the University of Western Australia, and in Melbourne, Monash University, for hosting well-attended and informative sessions.

Perth

Perth – 24 February 2020

 

Melbourne – 26 February 2020

Sydney – 27 February 2020

Brisbane – 2 March 2020

24, 26, 27 February, 2 March 2020
Perth | Melbourne | Sydney | Brisbane

Join fellow stakeholders to deep dive into the inquiry of Australia’s corporate criminal responsibility regime prior to the completion of the ALRC’s Final Report.

The ALRC is holding a series of seminars in Perth, Melbourne, Sydney and Brisbane to provide an update and to encourage additional feedback into the current inquiry. Presentations will focus on the Discussion Paper, released in November, which sought input from stakeholders about Commonwealth corporate criminal law.

The seminars will be led by a panel of judges, academics and practitioners focusing on the ALRC’s proposed model of corporate regulation, the attribution of criminal responsibility to corporations and individual liability for corporate fault, while also discussing other aspects of the proposals.

The interactive seminars present the opportunity to highlight key issues identified in submissions received, indicate the ALRC’s potential direction following those submissions and to seek further feedback on the position the ALRC may adopt in its Final Report.

Registrations now closed.

For queries regarding your registration, please contact corporatecrime@alrc.gov.au.
Registrations will close 24 hours prior to each seminar.

Perth Seminar

24 February 2020 | 5.00pm-7.00pm | State Library of WA, 25 Francis Street, Perth

UWA Law School Logoco-hosted with the University of Western Australia

Panel:
The Hon Justice SC Derrington, President, Australian Law Reform Commission
Professor Elise Bant, The University of Western Australia
Paul D Evans, Quinn Emanuel Urquhart & Sullivan
Rebecca Faugno, The University of Western Australia
Joe Longo, Senior Advisor, Herbert Smith Freehills

Melbourne Seminar

26 February 2020 | 5.00pm-7.00pm | Monash University Chambers, Lonsdale Street, Melbourne

co-hosted with the Transnational Criminal Law Group, Monash University

Panel:
The Hon Justice SC Derrington, President, Australian Law Reform Commission
The Hon Justice RJ Bromwich, Part-Time Commissioner, Australian Law Reform Commission
Professor Liz Campbell, Monash University
Professor Jonathan Clough, Monash University
Michael Wyles QC, Barrister

Sydney Seminar

27 February 2020 | 5.00pm-7.00pm | Federal Court of Australia, 184 Phillip Street, Sydney

Panel:
The Hon Justice SC Derrington, President, Australian Law Reform Commission
The Hon Justice RJ Bromwich, Part-Time Commissioner, Australian Law Reform Commission
Dr Penny Crofts, University of Technology Sydney
Dr Olivia Dixon, The University of Sydney
Dean Jordan SC, Barrister

Brisbane Seminar

2 March 2020 | 5.00pm-7.00pm | Federal Court of Australia, 119 North Quay, Brisbane

Panel:
The Hon Justice SC Derrington, President, Australian Law Reform Commission
The Hon Justice RJ Bromwich, Part-Time Commissioner, Australian Law Reform Commission
Dr Vicky Comino, The University of Queensland
Lincoln Crowley QC, Barrister
Justin McDonnell, Partner, King & Wood Mallesons

2020 Seminar Series Corporate Criminal Responsibility Leaflet

Download 2020 Seminar Series Corporate Criminal Responsibility

The ALRC monitors the media for references to the Commission and its inquiries. This list is not comprehensive.

On 15 November, the ALRC released a Discussion Paper as part of its Corporate Criminal Responsibility Inquiry. In the Discussion Paper, the ALRC proposed reforms to individual liability for corporate criminal conduct. The proposals are set out in Chapter 7 of the Discussion Paper, and a shorter summary is available here.

These proposals respond to stakeholder concerns that the current regulatory framework undermines genuine efforts at compliance by individual corporate officers, while simultaneously failing to hold errant senior executives to account.

One of the key objectives of these proposals was to ensure that senior executives – including the CEO, CFO, and heads of department – can be held accountable for corporate misconduct, in light of their critical role in managing the conduct of the corporation (or the parts for which they have oversight). Compared to directors, who are already subject to considerable regulation, ‘C-suite’ executives (and those senior executives immediately below them) are less likely to be held responsible for corporate misconduct, despite often being in a position of greater influence over the day-to-day operations of corporations.

In preparing the Discussion Paper, the ALRC considered various approaches to individual liability for corporate misconduct that might address this gap, including variations on managerial liability, deemed liability, and a ‘failure to prevent’ approach. The ALRC also considered an approach modelled on the Banking Executive Accountability Regime (BEAR), which commenced in 2018 and applies to Authorised Deposit-taking Institutions (ADIs), which are licensed financial and banking institutions.[i] Given the infancy of that regime and the reservations expressed by stakeholders, the ALRC did not pursue that approach in the Discussion Paper.

However, the ALRC considers it may be helpful for stakeholders reviewing the Discussion Paper to revisit the BEAR approach, particularly in light of the decision earlier this week by the Australian Prudential Regulation Authority (APRA) to commence an investigation into possible breaches of the BEAR by directors and senior officers of Westpac.[ii] To the ALRC’s knowledge, this is the first such investigation of a corporation or its officers under the new regime, and as such will be closely watched.

 

What has the ALRC proposed?

The ALRC’s proposals would make an executive officer liable for a civil penalty where they were in a position to influence the conduct of a corporation in relation to an offence, and they cannot prove that they took reasonable measures to prevent that offence.

 

What is the BEAR?

Under the new regime, ADIs must identify ‘accountable persons’ within the corporation, and provide documentation identifying these persons and their respective responsibilities to the regulator (APRA). An ‘accountable person’ is any person who, as a result of their position in the ADI or a subsidiary, has actual or effective senior executive responsibility for management or control of the ADI, or a significant or substantial part of the operations of the ADI or group.[iii]

The Act additionally sets out various responsibilities that may be identified with an accountable person, such as senior executive responsibility for anti-money laundering, compliance, internal audit, or overall risk controls.[iv] ADIs must ensure that all aspects of their business operations are covered by one or more accountable persons, and that those persons have clear lines of responsibility.[v]

The regime sets out specific obligations for accountable persons in the performance of their responsibilities (which are similar to the obligations of the ADI itself under the regime). These include:

  • Acting with honesty and integrity, and with due skill, care, and diligence;
  • Dealing with APRA in an open, constructive, and cooperative way; and
  • Taking reasonable steps in conducting their responsibilities to prevent matters from arising that would adversely affect the prudential standing or reputation of the ADI.[vi]

‘Reasonable steps’ include – but are not limited to – implementing or overseeing:

  • Appropriate governance, control, and risk management;
  • Safeguards against inappropriate delegations of responsibility; and
  • Appropriate procedures for identifying and remediating problems that do or may arise in relation to the matter.[vii]

 

How does the BEAR relate to the ALRC’s proposals for individual liability?

There are some clear overlaps between the BEAR and the ALRC’s proposals, including the obligation of senior executives to take reasonable steps or measures to prevent misconduct by the corporation and to ensure that appropriate compliance and risk-management procedures are in place. Both approaches also reflect an expectation that senior executives act with honesty and due diligence, though these standards are incorporated in different ways.

The ALRC has proposed a form of functional managerial liability, in which any senior officer who was in a position to influence misconduct in practice may be civilly liable unless they can prove that they took reasonable measures to prevent the misconduct. The BEAR, in contrast, adopts a hybrid form of liability that is both positional and functional: accountable persons are identified based on their position in the ADI, but liability arises in relation to the functional responsibilities of that person in the corporation.

Another key distinction is that while the BEAR creates stand-alone duties for accountable persons, the ALRC proposals would deem an executive officer liable where they have failed to prevent an offence by the corporation. The ALRC’s proposed liability model is tied to the corporation committing one of a specified set of serious offences. In that way, it is narrower than the BEAR, which creates standalone duties and does not expressly require the ADI to have committed an offence in order for an accountable person to be in breach. At the same time, the ALRC’s proposed model may in fact be broader than the BEAR, as liability may attach to a broader range of corporate misconduct, and not just matters that would affect the prudential standing of an ADI.

Finally, in terms of enforcement, the BEAR provides that an accountable person found in breach of their obligations may be disqualified by APRA from acting as an accountable person. This may have serious consequences in preventing a person from taking on senior roles within an ADI. APRA may also make orders for reduction of an accountable person’s variable remuneration (bonuses). Only the ADI itself may be liable for pecuniary penalties.

The ALRC’s proposals, on the other hand, would make an executive officer liable for a civil penalty where they were in a position to influence the conduct of a corporation in relation to an offence, and they cannot prove that they took reasonable measures to prevent that offence. Additionally, where the officer has done so knowingly, intentionally or recklessly, they may be criminally liable.

 

Could the BEAR provide an alternative model for individual liability?

The BEAR has attracted a mix of supporters and detractors in its short life. In the Final Report of the Financial Services Royal Commission, Commissioner Hayne recommended that the BEAR should be extended to the superannuation industry, noting that:

Those responsibilities should either already be identified or, at least, be readily identifiable. If that is correct, and it should be, preparation of accountability statements and accountability maps, though a burden, should not be a large burden. Performance of the obligations would then entail no reporting or recording beyond what prudent administration would require anyway.[viii]

However, early consultations raised concerns about the regime’s replicability beyond ADIs, particularly where business risk is not subject to prudential oversight. Concerns were also expressed about the administrative burden imposed by the regime.

While the current investigation by APRA into the conduct of senior executives at Westpac is unlikely to be concluded before the ALRC is due to report to the Attorney-General in April 2020, that investigation will nonetheless be closely watched, as it may provide valuable insight into the potential appropriateness or otherwise of extending the BEAR to non-financial corporations.

 

[i] Banking Act 1958 (Cth).

[ii] Australian Prudential Regulation Authority, APRA launches Westpac investigation and increases capital requirement add-ons to $1 billion, APRA (17 December 2019), <https://www.apra.gov.au/news-and-publications/apra-launches-westpac-investigation-and-increases-capital-requirement-add-ons>.

[iii] Banking Act 1958 (Cth) s 37BA(1).

[iv] Banking Act 1958 (Cth) s 37BA(3).

[v] Explanatory Memorandum, Treasury Laws Amendment (Banking Executive Accountability and Related Measures) Bill 2017 (Cth), [1.11]–[1.13].

[vi] Banking Act 1958 (Cth) s 37CA. The responsibilities of ADIs are set out in s 37C.

[vii] Banking Act 1958 (Cth) s 37CB.

[viii] Financial Services Royal Commission, Final Report of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (2019) 265.

When sentencing an offender key objectives include:

  • denouncing the conduct of the offender;
  • ensuring that the offender is punished justly for the offence;
  • deterring the offender and others from committing the same or similar offences;
  • promoting the rehabilitation of the offender;
  • protecting the community by limiting the capacity of the offender to re-offend; and
  • promoting the restoration of relations between the community, the offender and the victim.

Each of these objectives may be relevant to sentencing corporate offenders. However, the ALRC has found that there are limitations on the ability of courts to pursue relevant objectives when sentencing corporations. This blunts the force of the criminal law as a regulatory tool for addressing corporate wrongdoing.

In Chapter 10 of its recent Discussion Paper on Australia’s corporate criminal responsibility regime, the ALRC makes proposals to improve the process and outcomes of sentencing corporations. The ALRC proposes to enhance the court’s sentencing toolkit by:

  • providing for a range of non-monetary penalty options for corporations; and
  • strengthening the information base available to courts when sentencing corporations.

The ALRC suggests that court-imposed penalties should be supplemented by a national debarment regime, which would limit the involvement of criminally convicted corporations in contracting for government work.

Proposals also aim to promote consistency between the processes of sentencing and imposing civil penalties on corporations.

Finally, the ALRC invites stakeholder views on the desirability of reforms to maximum penalties for corporations and improving the availability of compensation for victims of corporate wrongdoing.

Figure 1 provides an overview of the effect of the ALRC’s proposals and questions on sentencing. The proposals relating to non-monetary penalties and statutory guidance on sentencing corporations are discussed in more detail below.

Figure 1: Overview of proposals and questions from Chapter 10 of Discussion Paper (Sentencing Corporations)

Expanding the court’s sentencing toolkit for corporate offenders

The ALRC proposes to equip the court with a general power under the Crimes Act 1914 (Cth) to make a range of non-monetary penalty orders when sentencing corporations that have committed a Commonwealth offence (Proposal 15).

The desirability of a general power to make non-monetary penalty orders stems from the well-known limitations of monetary penalties for corporations. Setting monetary penalties at a level that deters corporations is a fraught exercise, and the costs of monetary penalties are liable to be passed on to parties who were not involved in the wrongdoing (consumers, employees, shareholders). Furthermore monetary penalties are poorly adapted to promoting the sentencing purposes of rehabilitation and restoration, and may be viewed as insufficiently denunciatory.

Empowering courts to impose non-monetary penalties in addition to or, in appropriate instances, instead of monetary penalties would strengthen the court’s ability to impose a sentence that best promotes the aims of sentencing in respect of the corporation and offending in question. A centralised source of power to make these orders promotes consistency and avoids unnecessary duplication across statutes.

Figure 2: Overview of proposed non-monetary penalty options (Proposal 15) 

Each of these orders could be imposed by the court for any relevant sentencing purpose. This differs from existing provisions, which confine the imposition of non-monetary penalty orders to ‘non-punitive’ purposes.[ii]

Where court supervision of these orders would be inappropriate, an independent monitor might be appointed to supervise compliance with the orders, and report to the court as required.

The ALRC also proposes the introduction of an equivalent power to make non-monetary penalty orders for corporations in respect of civil penalty provision contraventions (Proposal 16). The proposed provision would be located in the Corporations Act 2001 (Cth). The power to make orders dissolving a corporation would be excluded from this provision.

These proposals are not novel. The ALRC has made similar recommendations in previous reports.[iii] As has the New South Wales Law Reform Commission.[iv] There is also precedent for the availability of these types of orders in overseas jurisdictions (namely, the US, UK, and Canada).

Statutory guidance on sentencing corporations

The ALRC proposes further amendments to the Crimes Act 1914 (Cth) and the Corporations Act 2001 (Cth) to facilitate the provision of consistent and appropriately adapted statutory guidance on sentencing and imposing civil penalties on corporations.

Existing statutory guidance on the factors relevant to sentencing Commonwealth offenders (Crimes Act 1914 (Cth) s 16A(2)) is primarily targeted to sentencing natural persons. While a number of the existing statutory factors may be relevant to sentencing corporations, others will not apply and, more critically, s 16A(2) does not provide for a number of factors that are highly relevant to sentencing corporations. The courts have instead drawn on the case law relating to imposing civil penalties on corporations to fill the gaps in the existing statutory guidance.

The ALRC proposes the introduction of a non-exhaustive list of statutory factors for courts to consider when sentencing corporations for a Commonwealth offence (Proposal 13, see below). Consideration of these factors would be mandatory to the extent that they are relevant and known to the court.

In addition to the introduction of specific guidance for sentencing corporate offenders, the ALRC reiterates previous recommendations for wholesale reform of s 16A(2).[v] Implementation of these recommendations would involve restructuring the statutory guidance on sentencing Commonwealth offenders to:

  • introduce separate provisions setting out the purposes and principles of sentencing;
  • provide a non-exhaustive list of eight broad categories of factors relevant to the purposes and principles of sentencing, with examples of the types of factors under each category; and
  • separately require the court to consider factors pertaining to the administration of the federal criminal justice system (such as guilty pleas and cooperation with authorities).

The ALRC also proposes the introduction of guidance for the imposition of civil penalties on corporations (Proposal 14). As there is currently no general statutory guidance on the imposition of civil penalties, introducing a list of factors relevant to imposing civil penalties on corporations that merely mirrors Proposal 13 is not possible. The ALRC’s proposed list of factors for the imposition of civil penalties on corporations therefore incorporates the corporations-specific factors identified in Proposal 13, in addition to the types of general factors that are currently furnished by s 16A(2) in the criminal context.

In the absence of an effective legislative scheme for civil penalties, it is beyond the scope of the ALRC’s current inquiry to recommend a statutory provision that would govern both individuals and corporations. Nonetheless, the ALRC has previously recommended the introduction of such a legislative scheme, which would have incorporated a provision governing the civil penalty setting process for individuals and corporations.[vi] The ALRC reaffirms its view that this would be a sensible approach.

[i] Carol Beaton-Wells and Brent Fisse, Australian Cartel Regulation: Law, Policy and Practice in an International Context (Cambridge University Press, 2011) 458–9.

[ii] Competition and Consumer Act 2010 (Cth) s 86C; Australian Consumer Law s 246; and Australian Securities and Investments Commission Act 2001 (Cth) s 12GLA.

[iii] Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders (Report No 103, 2006) rec 30-1; Australian Law Reform Commission, Principled Regulation: Federal Civil & Administrative Penalties in Australia (Report No 95, 2002) recs 27–1, 28–3. See also Australian Law Reform Commission, Compliance with the Trade Practices Act 1974 (Report No 68, 1994) [10.9].

[iv] New South Wales Law Reform Commission, Sentencing Corporate Offenders (Report 102, 2003) rec 4.

[v] Recommendations 4–1, 5–1, 6–1, and 6–8 from Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders (Report No 103, April 2006).

[vi] Australian Law Reform Commission, Principled Regulation: Federal Civil & Administrative Penalties in Australia (Report No 95, 2002) rec 29-1.

On Monday 2 December 2019, the ALRC launched the report of the Future of Law Reform project at a well-attended and high-spirited event in the Commonwealth Law Courts building in Brisbane. President of the ALRC, Justice Sarah Derrington, outlined the origins and purposes of the project, reflecting on the ALRC’s longstanding commitment to public involvement in law reform. Inaugural Chairman of the ALRC, the Hon Michael Kirby AC CMG, spoke about what constitutes an ideal ALRC inquiry topic, and emphasised the need for champions of law reform. 

The Australian Law Reform Commission (ALRC) is today releasing a report suggesting an ambitious agenda for law reform over the next five years. The report will be launched by the current ALRC President, the Hon Justice Sarah Derrington, and the inaugural ALRC Chairman, Hon Michael Kirby AC CMG, in the Commonwealth Law Courts Building in Brisbane.

The report highlights five areas of law suggested for an ALRC review. If accepted by the Attorney-General, the report could map out the work of the ALRC over the next five years.

The five law reform topics identified by the ALRC are:

  • principle-based regulation of financial services;
  • automated decision making and administrative law;
  • defamation;
  • press freedom and public sector whistleblowers; and
  • legal structures for social enterprises.

The Hayne Royal Commission identified an urgent need to simplify the law in order to regulate more effectively the financial services industry. Legislation needs to identify more clearly the principles underlying specific provisions, to ensure the intent of the law can be understood and followed. An ALRC inquiry could make a significant contribution by demonstrating how this could be achieved in practice. This would build on the ALRC’s current inquiry into Corporate Crime.

Automated decision making is increasingly common in our society, including in government departments. Algorithms and artificial intelligence may present opportunities for more efficient and accurate government decisions, but have also been the subject of controversy. An ALRC inquiry could examine whether the law could better safeguard fair and transparent outcomes.

Defamation laws have struggled to come to terms with modern developments in technology and communications. There is also ongoing debate about the appropriate balance between freedom of expression and the protection of reputation. In recent years, federal courts have increasingly handled defamation disputes, traditionally the work of state courts. By conducting an independent federal defamation inquiry, the ALRC could build on the work of other government-led reviews.

Press freedom and protections for whistleblowers have been hotly debated in recent months. An ALRC inquiry could shed light on whether any changes to the law may be required to appropriately protect press freedom, and whether changes are needed to make laws protecting public sector whistleblowers clearer and more effective.

Social enterprises are organisations that seek to make money, but are also committed to social or environmental goals. It has been suggested that existing legal structures fail to reflect the needs of social enterprises. An ALRC inquiry would examine whether new corporate structures should be introduced.

President of the ALRC, the Hon Justice Sarah Derrington, said, “It is the first time the ALRC has formally sought the views of the Australian public on future inquiry topics. Their input has enriched the process and given a real sense of the legal issues that concern them. We gratefully acknowledge the many individuals who have voluntarily contributed their time and expertise to this project.”

Justice Derrington further noted, “In suggesting these five inquiry topics, the ALRC is not pre-judging the merits of any particular views, but is setting out areas of contention that could benefit from further examination.”

The process of preparing the report has involved extensive research and consultation. The ALRC released two preliminary research papers, held six public seminars and webinars around Australia, conducted an online survey and received over 400 responses, involved law students from two universities in research, and held a number of consultations with stakeholders including government departments.

The report highlights that the best inquiry topics are those that play to the particular strengths of the ALRC, including independence from government, impartiality, legal expertise, and a transparent consultative process.

The full report is available for download.

All media enquiries should be directed to: Matt Corrigan, General Counsel, matt.corrigan@alrc.gov.au, 0427 658 595

 

 

Justice SC Derrington, President of the ALRC, presented at the Charity Law Association of Australia and New Zealand (CLAANZ) Annual Public Lecture 2019 at the University of Melbourne on 29 November 2019.

Some of you may be aware that, on the 20th of next month, the ninth film in the Star Wars movie franchise will arrive in cinemas. The most recent film in that franchise was entitled “The Last Jedi”. In the Star Wars universe, the Jedi are a group of warriors trained in the mystic ways of “the Force”.  Some of you are no doubt also aware that the fictional Jedi have spawned a purported religion, ‘Jediism’, with its ‘philosophy based on the beliefs of the Jedi … in the Star Wars films’. Although initially viewed as a humorous approach to a census question, ‘Jediism’ is said to have grown to encompass 177,000 self-identifying adherents in the United Kingdom. In Australia, 48,000 people identified as Jedis in the latest census.

Read the full speech here

In its Discussion Paper on Australia’s corporate criminal responsibility regime, the ALRC proposes a simplified method for attributing criminal responsibility to corporations.   What follows is a short summary and explanation of the key principles underlying that proposal.

The law treats corporations as ‘people’. Therefore, the prohibitions imposed on people are usually applicable for both humans and corporations.  

Corporations, by their very nature, operate, act, and think through human actors. 

A key difficulty for imposing criminal liability upon corporations is that generally a corporation commits acts or omissions through humans.  So, for a corporation to be held responsible for a crime, the elements of the crime (physical/conduct and mental/fault) are typically committed by a relevant person and attributed to the corporation.

The Australian Commonwealth law contains essentially three methods of attribution:

  1. Part 2.5 of the Criminal Code;
  2. a smorgasbord of statutory attribution provisions, which generally have common characteristics (the ALRC refers to this as the ‘TPA Model’ in the Discussion Paper); and
  3. the common law.

The TPA Model applies to 88% of the legislation reviewed by the ALRC and is therefore clearly the most common statutory attribution method across the Commonwealth. The ALRC considers that Part 2.5 is a narrower attribution method as the prosecution must prove that either a ‘high managerial agent’ had the requisite state of mind or the corporation otherwise permitted or authorised the conduct. In contrast, while the statutory attribution methods vary, the TPA Model typically attributes conduct of directors, employees or agents, acting within the scope of their actual or apparent authority, to the corporation.

Simplicity

The ALRC considers that there should be one single statutory method of attribution under Commonwealth law. Multiple attribution methods create complexity and uncertainty.[1]

The ALRC considers that the proposed single method of attribution should combine aspects of the current attribution methodology under Part 2.5 and the TPA Model. In addition, the ALRC proposes two key principled changes:

  1. attributing conduct and fault from ‘associates’; and
  2. incorporating a due diligence defence.

Substance over form: ‘associates’

  • The ALRC proposes attribution based on the substance of the relationship between the person and the corporation rather than the title or role of the person:

associate: any person who performs services for or on behalf of the body corporate 

  • A broad definition of associates is appropriate to reflect the nature of contemporary corporate business, which may utilise a variety of legal structures to operate (for example, contractors and subsidiaries, rather than just employees or agents).

  • Importantly, liability only attaches to conduct engaged in for or on behalf of a corporation; the company would not be responsible for all behaviour of persons who are working for or who are otherwise merely associated with the company.

  • Fault can also be proved by reference to the conduct of the corporation as a whole, that is if a corporation ‘authorised or permitted the conduct’. This preserves the language which precedes the corporate culture provisions in Part 2.5. Thus it remains open to a prosecutor to prove that a corporation authorised or permitted the conduct, by reference to a particular corporate culture.

The importance of blameworthiness: the due diligence defence

  • In considering the principles underpinning corporate attribution, it is the ALRC’s view that it is essential that corporations be culpable before they are criminally responsible. Pure vicarious liability on the basis of conduct of certain individuals is insufficient.

  • Where fault is being attributed from an individual, a corporation should be afforded a defence to prove a lack of culpability, by proving (on the balance of probabilities) that the corporation is not blameworthy (i.e. that it took reasonable steps to prevent the conduct).
  • Given corporate criminality only attaches to conduct which is engaged in by individuals acting on behalf of a corporation, if the corporation wants to assert that it should not be responsible for the actions of those humans, then it is appropriate for the burden of proof should rest on the corporation.

The prosecution must still prove, beyond reasonable doubt, that the person acted for or on behalf of the corporation. 

  • Corporations should have an overarching duty to exercise due diligence to prevent criminal activity being carried out in the course of their business activities, by their associates.
    • This does not mean that a corporation is responsible for the associate’s personal conduct, or that a corporation is prima facie guilty if any criminality occurs in the course of business. Rather, it the ALRC’s view that a corporation should take reasonable steps to ensure that their business is conducted in accordance with law.

  • Ordinarily, under the criminal law it is not appropriate to impose a legal burden upon a defendant. However, corporations are not humans. The same concerns which give rise to necessary criminal law protections for humans do not exist for corporations.
    • A corporation does not require the same protections as an individual (due primarily to its inability to be incarcerated and access to greater resources than an individual).
    • The very nature of corporations is such that it would be almost impossible for a prosecutor to find and bring evidence of the due diligence of a company.
  • Importantly, the due diligence defence provides protection to corporations from the actions of rogue ‘bad apples’. The legal consequences should be very different for a corporation where a rogue call centre operator breaching both company procedures and the law to maximise their sales commission, and a situation where call centre operators are encouraged to maximise sales in breach of the law and where there is no internal sanction for sales completed in breach of the law.[2]

A principled simplification

  • As the TPA Model applies to 88% of the legislation reviewed, a proposal to replace the TPA Model with Part 2.5 of the Criminal Code, would result in a significant narrowing of the attribution of the criminal law to corporations.
  • To date, the ALRC has received no evidence to suggest this would be appropriate. There is no suggestion of a proliferation of successful prosecutions of companies under the TPA Model. To the contrary, it would appear that the public perception of corporate crime (and the evidence presented at the Royal Commission) far outweighs the number of prosecutions of corporations.

The ALRC invites submissions on all of the proposals made in the Discussion Paper, including the appropriateness or otherwise of the proposed attribution method, and encourages submissions that include a suggested attribution method.

 

[1]  As a consequence the ALRC is also not in favour of specific failure to prevent offence at this stage.

[2] See the Freedom Insurance Case Study cited in ‘When Should Officers be Liable for Corporate Crime?’ (ALRC paper, 19/11/2019).