Corporate Criminal Responsibility Inquiry Final Report released

In these final recommendations, the ALRC has moved away from some more radical proposals in its 2019 discussion paper, though key reforms are still proposed. Those proposals focus on adequate systems and controls (through new proposed offences and defences) and a harmonised model for corporate attribution which covers anyone acting on the company’s behalf.

For HSF’s detailed overview of the key proposals and what they might mean for companies now and in the future, click here.

ASIC enforcement update for January to July 2020

The Australian Securities and Investments Commission (ASIC) has released its enforcement update report for the period January to July 2020 which continues to emphasise its commitment to prosecution and enforcement action.

From a corporate crime perspective, in the six month period covered by the report, criminal proceedings were commenced against 18 individuals (involving 233 charges laid), and 94 individuals were charged in summary prosecutions for strict liability offences (involving 207 charges).

ASIC also had significant civil penalties imposed against large financial institutions.

Modern Slavery Developments at the Commonwealth level

The Australian Government has continued taking steps towards implementation of the Modern Slavery Act 2018, providing further tools and guidance to the public for navigating the regulatory framework.

The Australian Government has launched its Online Register for Modern Slavery Statements, which will provide access to statements from large businesses as required under the Modern Slavery Act 2018 (Cth). The register, administered by the Australian Border Force, is available here.

The Australian Human Rights Commission, together with professional services firm KPMG, have launched the first of five sector-specific guides to help Australian businesses understand and manage their modern slavery risks. The ‘Property, Construction and Modern Slavery: Practical responses to managing risks to people’ guide aims to support businesses to respond meaningfully to the modern slavery risks in the property and construction sector, including in relation to raw material supply chains and construction labour.

Modern slavery developments at NSW level

The New South Wales (NSW) Government has confirmed its intention to harmonise its proposed State-based modern slavery legislation with the Commonwealth Modern Slavery Act 2018 (Cth Act).

The NSW Government’s position was provided in a response letter to the Final Report into the Modern Slavery Act 2018 and associated matters, which followed an inquiry into the path forward for the NSW Modern Slavery Act 2018 (NSW Act). Whilst the NSW Act was passed by the NSW legislature, it has not yet been proclaimed to come into force given areas of overlap and inconsistency with the Cth Act.

The Report set out several key recommendations for enhancing the NSW Act. A key recommendation was that the NSW Government work with the Commonwealth Government to seek harmonisation of the consolidated revenue threshold for modern slavery reporting, ideally with $50 million consolidated revenue as a national standard. The current threshold under the Cth Act is $100 million in consolidated revenue, whereas the NSW Act has a threshold of $50 million ‘turnover’.

Our briefing is available here.

The Australian Combatting Corporate Crime Bill: What does it mean for companies?

The Crimes Legislation Amendment (Combatting Corporate Crime) Bill (the Combatting Corporate Crime Bill) will be the most significant shake up of Australia’s anti-corruption landscape for companies since the foreign bribery offence was introduced in 1999. It introduces a new ‘failure to prevent’ foreign bribery offence, lays the groundwork for Australian regulatory guidance on anti-corruption compliance programs, and opens the way for a new enforcement model for corporate crime through a deferred prosecution agreement (DPA) scheme. With the ALRC’s Report on Corporate Criminal Responsibility broadly endorsing key elements of the Combatting Corporate Crime Bill, we expect it to continue moving through Parliament in future sittings.

In our briefing (available here) we canvass five questions to ask to help organisations prepare for these anticipated changes.