Protecting your business
Australia is experiencing a rapid change in corporate criminal enforcement, aligning it more closely to the approach taken by US and UK enforcement agencies.
Significant legislative reform is also being considered, which may make it easier to prosecute corporations and individuals for corporate criminal conduct. These developments present a major risk for corporations, their boards and executives.
Recent developments include:
- Increasing civil and criminal pecuniary penalties and sentence terms in the Corporations Act, as well as various financial services legislative instruments.
- A lowering of the burden required to prove dishonesty offences in the Corporations Act.
- The Australian Law Reform Commission has been mandated with a comprehensive review of Australia's corporate criminal responsibility regime, with a focus on corporate criminal liability and the liability of individuals for corporate criminal conduct.
- The AFP, CDPP, ASIC and the Federal Court have all received increased funding for criminal investigations and proceedings, and the ACCC has demonstrated its appetite to pursue criminal cartel proceedings, with recent corporate convictions and charging decisions.
- The Government has proposed vesting the Federal Court with an expanded jurisdiction in relation to corporate crime to reduce the time it takes between charging and verdict.
- Proposed adoption of an absolute liability offence for failure to prevent foreign bribery to make it easier to prosecute corporations.
- Proposed introduction of a deferred prosecution agreement regime for various offences under the Corporations Act and Criminal Code.
- Changes to Australia's whistleblower laws, which will encourage greater reporting, as well as criminalising breach of confidentiality and prohibiting victimisation.
- In a tightening global security environment, the Australian government has recently increased its focus on sanctions, including ushering in new Magnitsky-style reforms to Australia's sanctions laws.
How can we help?
We are commercially focused and understand not only what the law requires, but also the best practice approaches in investigating, defending proceedings, advocating positions, negotiating with prosecutors and resolving risk. We can assist you to:
- review and improve your compliance and risk management frameworks to mitigate exposure to corporate criminal enforcement;
- manage and resolve criminal investigations and enforcement actions;
- via Linklaters, provide access to an international network of corporate crime experts in the US, UK, APAC region and elsewhere;
- navigate complex regimes: advise you on, and assist in, assessing the level of financial crime exposure and risk across your organisation. We can also assist you in designing and implementing a robust compliance framework tailored to you and the risks your business faces; and
- respond to incidents: we have deep experience assisting clients with all aspects of an investigation in response to a potential incident, engaging with regulators and providing advice on compliance measures to address it, and preventing further incidents from occurring in the future.
Our speciality areas include anti-bribery and corruption, anti-money laundering, Corporations Act and ASIC Act, cartel conduct, employment and environment, exports and sanctions and financial services laws.