The ALRC welcomes Associate Professor Andrew Godwin as Special Counsel for the Review of the Legislative Framework for Corporations and Financial Services Regulation.
Associate Professor Godwin holds a number of senior positions at Melbourne Law School and has many years experience in corporate practice. He is joining the ALRC for a fixed-term secondment commencing in December.
The addition of Associate Professor Godwin strengthens the range of experts on the Inquiry advisory committee, comprising judges, government representatives, practitioners, and academics with vast experience in financial services. “The calibre of experts overseeing the Inquiry will ensure a rigorous, principled, and practical approach to unravelling the complex issues raised in the terms of reference,” Associate Professor Godwin said.
The Inquiry provides an exciting opportunity to significantly improve the effectiveness of laws that regulate financial services, by making the laws easier for everyone to understand and use. It forms part of the Government’s response to the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry released in February 2019.
Three sub-topics are specifically outlined, each of which is to be the subject of an interim report by the ALRC, prior to release of the consolidated Final Report:
- the appropriate use of definitions in corporations and financial services legislation;
- the regulatory design and the hierarchy of primary law provisions, regulations, class orders, and standards; and
- potential reframing or restructuring of Chapter 7 of the Corporations Act.
Initial consultations commenced recently with a successful schedule of meetings taking place in Canberra. In November the first advisory committee meeting will convene to discuss a work plan for the Inquiry.
The ALRC will deliver interim reports on the review of corporations and financial services regulation in November 2021, September 2022, and August 2023, with the final report and recommendations due to be provided by 30 November 2023.
For enquiries, please email financial.services@alrc.gov.au.
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The Law Society of Tasmania Law Letter Article by ALRC Principal Legal Officer Micheil Paton
In December 2019 the ALRC released a suggested program of work for the next five years. The topics that the ALRC suggests should be prioritised are: automated decision making and administrative law; principle-based regulation of financial services; defamation; press freedom and public sector whistleblowers; and corporate structures for social enterprises.
Human Rights Pulse Article by ALRC Legal Officer Tess Van Geelen
In early September, the second revised Draft of an international treaty on business and human rights was released by a working group established by the UN Human Rights Council (the OEIGWG). At regional and national levels, a number of states have also taken decisive steps towards better regulating the human rights impacts of business. Despite these promising developments, however, recent controversies – such as Rio Tinto’s destruction of the sacred 46,000 year old Juukan Gorge rock shelters in Western Australia – have given new urgency to the need for more effective regulation of the human rights impacts of business.
In a recent report, the Australian Law Reform Commission (ALRC) recommended that the government introduce a ‘failure to prevent’ offence for certain transnational crimes that may be committed by corporations, including slavery, human trafficking, and crimes against humanity. The ALRC further suggested the Australian Government should review the broader business and human rights framework, and consider mechanisms such as human rights due diligence in order to give full effect to the state’s obligations under international human rights law. This article outlines the ALRC’s recommendations in light of international treaty developments and the Juukan Gorge tragedy, highlighting the urgent need for substantial reform in this space.
Australia Considers New Approaches to Corporate Criminal Liability
Today’s guest post is from Matt Corrigan and Samuel Walpole, respectively General Counsel and Legal Officer at the Australian Law Reform Commission (ALRC).
The growth of multinational corporations in both size and number has raised concerns in many jurisdictions about the State’s capacity to hold corporations liable for crimes committed in the course of their business activities, including (but not limited to) bribery of foreign officials. One of the challenges of using the criminal law to address corporate misconduct is that the traditional criminal law evolved with “natural persons” (that is, real people) in mind.
Australian Bar Review Article by ALRC Legal Officer Samuel Walpole.
The latter part of the 13th century was a period of great legislative reform of the early common law. It was also a time of social and economic change in England, marked by an expanded role for merchants and an increased demand for credit. Within this context came the Statute of Acton Burnell 1283 and Statute of Merchants 1285 which provided a statutory system for recognition and enforcement of debts that ameliorated several shortcomings of the medieval common law of debt. This article will consider whose interests were served by the statutes. It will be suggested that the statutes were intended to serve merchants, both domestic and foreign, though they were also intended to assist creditors more generally. These aims accorded with the parties that the statutes in their operation ultimately came to benefit.
(2020) 49 Australian Bar Review available via online subscription or hard copy.
On 24 September 2020, ALRC Principal Legal Officer Micheil Paton and Senior Legal Officer Sarah Fulton answered questions from students in a class on Law Reform, at the request of Professor Simon Rice OAM, the Kim Santow Chair of Law and Social Justice at the University of Sydney Law School. The students had read a number of probing articles relating to the various law reform agencies and processes in Australia and overseas, and were keen to ask a range of questions relating to the approach and experience of the ALRC.
Topics of interest included:
- use of data and empirical research;
- the ALRC’s relationship with government, including financial dependence and intellectual independence;
- hearing from diverse and marginalised voices on inquiry topics;
- the value of, and challenges in managing, large volumes of non-expert public input;
- the unique contribution of dedicated law reform agencies amongst a ‘crowded field’ of bodies engaging with legal policy.
The students’ keen engagement demonstrated a deep interest in how the law works in practice, and how a range of societal perspectives can be reflected in recommendations for change. There were also personal questions relating to the nature and experience of law reform work that suggested students would consider career options beyond pure legal practice. It was exciting to see how the University of Sydney is encouraging students to engage critically with broader questions of how and why law reform should be conducted.
LinkedIn article by Sarah Fulton
Latest report from the Australian Law Reform Commission sets out the ways in which directors and senior executives can – and should – be held responsible when companies break the law.
In Chapter 9 of its Final Report on Corporate Criminal Responsibility, the Australian Law Reform Commission (ALRC) takes a deep dive into how directors and executives of Australian companies may be held personally liable for corporate misconduct. And while it doesn’t recommend a major overhaul – yet – it welcomes a government proposal aimed at strengthening accountability at the top of some of Australia’s largest companies.
New Inquiries Announced
The Attorney-General of Australia, the Hon Christian Porter MP, has issued terms of reference for two Australian Law Reform Commission (ALRC) inquiries.
The first Inquiry topic is judicial impartiality and the second is a review of the legislative framework for corporations and financial services regulation.
Review of Judicial Impartiality
The ALRC has been asked to undertake a review of the laws relating to impartiality and bias as they apply to the federal judiciary. These laws are important to ensure that justice is both done and seen to be done in Commonwealth courts and tribunals.
Review of the Legislative Framework for Corporations and Financial Services Regulation
The ALRC has been asked to inquire into the potential simplification of laws that regulate financial services in Australia.
The Inquiry is part of the Government’s response to the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry.
Corporate Criminal Responsibility – Final Report Released
On Monday 31 August, the Australian Law Reform Commission report, Corporate Criminal Responsibility (Report 136, 2020), was tabled in Parliament by the Attorney-General, the Hon Christian Porter MP.
The implementation of the 20 recommendations made by the ALRC will significantly strengthen and simplify the Commonwealth corporate criminal responsibility regime.
Read ALRC Legal Officer Samuel Walpole’s article about the recommendations relating to attribution of criminal responsibility made in the ALRC’s Corporate Criminal Responsibility Final Report.
Read ALRC Legal Officer Tess Van Geelen’s article regarding Recommendation 19 in the Corporate Criminal Responsibility Final Report on the introduction of a ‘failure to prevent’ offence for transnational crimes.
Corporate Criminal Responsibility Podcast Series
In this podcast series hear from several members of the Australian Law Reform Commission team discussing key issues raised in the Corporate Criminal Responsibility Final Report.
Each of the short interviews unpacks the current landscape and the final recommendations made by the ALRC.
Listen to the Corporate Crime Podcast Series.
Future of Law Reform Webinar Recordings
Last month over 2100 people registered to attend the Future of Law Reform Webinar Series in a nationwide conversation on law reform, covering topics including defamation, automated decision making and administrative law, legal structures for social enterprises, and press freedom. The recordings of each session, along with a summary, are now available.
The Future of Law Reform – Defamation Webinar
Automated Decision Making and Administrative Law Webinar
Legal Structures for Social Enterprises Webinar
Law Reform Relating to Press Freedom Webinar
The Attorney-General of Australia, the Hon Christian Porter MP, has issued terms of reference for two Australian Law Reform Commission (ALRC) inquiries.
The first Inquiry topic is judicial impartiality and the second is a a review of the legislative framework for corporations and financial services regulation.
Review of Judicial Impartiality
The ALRC has been asked to undertake a review of the laws relating to impartiality and bias as they apply to the federal judiciary. These laws are important to ensure that justice is both done and seen to be done in Commonwealth courts and tribunals.
The Terms of Reference direct the ALRC to consider:
- actual or apprehended bias relating to judicial decision-making;
- clarity to decision-makers, the legal profession and the community about how to manage potential conflicts and perceptions of partiality; and
- mechanisms for raising allegations of actual or apprehended bias.
Read the Judicial Impartiality Inquiry Terms of Reference.
Review of the Legislative Framework for Corporations and Financial Services Regulation
The ALRC has been asked to inquire into the potential simplification of laws that regulate financial services in Australia.
The Inquiry is part of the Government’s response to the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry released in February 2019.
Three sub-topics are specifically outlined, each of which is to be the subject of an interim report by the ALRC, prior to release of the consolidated Final Report:
- the appropriate use of definitions in corporations and financial services legislation;
- the regulatory design and the hierarchy of primary law provisions, regulations, class orders, and standards; and
- potential reframing or restructuring of Chapter 7 of the Corporations Act.
Read the Legislative Framework for Corporations and Financial Services Regulation Inquiry Terms of Reference.
Timetables
The final report and recommendations for the Judicial Impartiality Inquiry are due to be provided to the Attorney-General by 30 September 2021.
The ALRC will deliver three interim reports on the Review of Corporations and Financial Services Regulation by November 2021, September 2022, and August 2023 respectively, with the final report and recommendations due by 30 November 2023.
LinkedIn article by Phoebe Tapley
ALRC report calls for greater creativity and flexibility in corporate sentencing.
Commonly cited purposes of sentencing an offender 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.
However, when the offender is a corporation, which has ‘no soul to damn, no body to kick’, are these purposes still pertinent, or even feasible?