ASIC CALLS FOR WHITE COLLAR CRIME REFORM

The Australian Securities and Investments Commission (ASIC) has published a report considering how the penalties available to ASIC for corporate wrongdoing compare with penalties available to other regulators in Australia and overseas. Some of the key findings in the report are as follows:

  • Both maximum terms of imprisonment and fines available to ASIC are broadly consistent with those available in other international jurisdictions.
  • A broader range of non-criminal monetary penalties are available in other overseas jurisdictions, including greater flexibility to impose higher non-criminal penalties and scope to use non-criminal penalties against a wider range of wrongdoing.
  • In the jurisdictions of other Australian Government regulators, the maximum civic penalties available are higher than those available in the Corporations Act. Domestically, ASIC can only pursue maximum civil penalties of up to AU$1.7 million for bodies corporate, whereas other regulators can pursue up to AU$17 million for bodies corporate. 

Separately, at the ASIC annual conference, ASIC Chairman Greg Medcraft advocated a shift to a US-style points system in fines and sentencing of white-collar crime where sentences and fines are given proportionately to the amount of money wrongfully gained. Mr Medcraft also said that the law in this regard has to be dynamic – for example, penalties should be denominated in units that are indexed to inflation rather than nominal dollar figures – and suggested that ASIC should work with its overseas counterparts, including the US Securities and Exchange Commission and Britain’s Financial Conduct Authority, to probe several banks for alleged fraud in the foreign exchange market.

SEC CHAIR MARY JO WHITE SPEAKS AT ASIC’S ANNUAL CONFERENCE

US Securities and Exchange Commission (SEC) Chair, Mary Jo White, addressed ASIC’s annual conference on 24 March 2014. Ms White discussed international cooperation in the enforcement context, noting that last year the SEC was assisted by its international partners in bringing actions against individuals and corporate entities for bribery offences under the Foreign Corrupt Practices Act. Ms White also noted that the SEC is taking steps to strengthen its enforcement program, including supporting statutory changes to increase the SEC’s maximum civil penalties – for example, by permitting penalty calculations to be based on total investor loss.