The Morrison Government has commissioned the Australian Law Reform Commission (ALRC) to undertake a comprehensive review of the corporate criminal responsibility regime.
Justice Robert Bromwich has been appointed as a part-time member of the ALRC to assist with the review.
“It is essential that our laws are effective in holding corporations to account for criminal misconduct by their officers,” the Attorney-General said.
“This review will examine ways those laws can be strengthened.
“Under the Criminal Code, criminal responsibility applies to corporations for the actions of employees, agents or officers of those corporations, where the corporation expressly or impliedly authorises or permits those actions.
“For example, corporate liability provisions can be used to hold a company liable for any criminal offences where a corporate culture exists that tolerates or encourages culpable conduct.
“The review will consider reforms to the Criminal Code and other relevant legislation to provide a simpler, stronger and more cohesive regime for corporate criminal responsibility. This includes consideration of any practical challenges to investigating and prosecuting these crimes.”
The Attorney-General said Justice Bromwich, as a federal court judge and former Director of the Commonwealth Director of Public Prosecutions, was uniquely qualified to assist with the review.
“I am confident Justice Bromwich will provide a substantial contribution to the work of the commission on this review,” the Attorney-General said.
“The review will consider options for implementing recommendations of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry and the ASIC Enforcement Review Taskforce.”
The terms of reference for the review are attached and information about the review will be available on the ALRC website.
The Commission’s report will be delivered to the Government by 30 April 2020.
Terms of Reference
Review of corporate criminal liability
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 Corporate 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.
Consultation
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.