Corporate Crime
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.
Our speciality areas
Anti-bribery & corruption
- Advise how best to manage operating across international boundaries and aligning your business practices with increased requirements across multiple jurisdictions.
- Assist in designing and implementing ABC risk assessments, policies, programs, training, communications and other controls.
- Assist with internal investigations into alleged bribery and corruption, and with investigations or inquiries by domestic and international agencies in key jurisdictions such as the US and the UK.
Anti-money laundering
- Advise all sectors on AML and CTF laws and regulations, which often have extraterritorial reach. As challenges associated with AML and CTF are frequently cross-jurisdictional in nature, the global reach of the Allens Linklaters partnership supports our team's ability to assist clients with navigating these challenges.
- For financial services firms, manage complex reporting lines and navigating broad product offerings to translate (both manually, and aided by technology) the very proscriptive, yet often unclear, requirements of the AML and CTF Act and Rules, and guidance from AUSTRAC, into practical compliance systems.
Corporations Act and ASIC Act
- ASIC has a renewed focus on investigating and prosecuting offences under the Corporations Act, including dishonest conduct in the provision of financial services, trust accounting breaches, insider trading and market manipulation.
- Advise on these laws, undertaking compliance reviews and defending corporations in externally led investigations.
Export controls & sanctions
- Advise in Australia, Asia, the US and Europe on implementing policies and programs to ensure compliance with the wide array of sanctions and export control obligations. This can include advising on the application of Australian and other sanctions laws, conducting risk assessments, preparing or updating a sanctions compliance program, conducting training and providing 'on-tap' external legal advice on complex issues.
- Help you understand the application of sanctions and export control laws to their specific business operations and engaging with the various relevant regulatory authorities.
- Via Linklaters, navigate these laws across international borders, ensuring smooth facilitation of your corporate export and trade.
Our approach
Investigations and trials
Corporate criminal investigations and trials pose unique challenges. Investigations can take years and involve complicated issues of evidence and procedure. There are often complex interactions between corporate criminal matters, mandatory reporting obligations to regulators, continuous disclosure obligations (for listed companies), director duties and ancillary civil penalties and class actions.
We have market-leading subject matter expertise and an understanding of the unique issues that arise in a criminal investigation and trial process.
We've been at the coalface with law enforcement, regulators and corporates
We have people who have worked on both sides of the fence, giving us unique insight and experience. Protecting your organisation calls for a deep understanding of the law and a global view of what others have done to tackle the thorny, on-the-ground, compliance issues associated with crime risks. Our multi-disciplinary team of experts in compliance and risk, transactions and investigations has a deep knowledge of international regulators' priorities and expectations. We understand the detail of Australian regulation and legal frameworks, the interplay and overlap between the risk areas and the international legal and regulatory context.
Our expertise runs deep, across all industries
Your industry may be more exposed to business crime risks and require a greater level of protection. Each area of business crime calls for detailed knowledge of the relevant regulation across all sectors and the risks that apply. Whether we are providing advice, due diligence or running a major investigation, we take a commercial and innovative approach to meeting objectives and solving problems. Our approach is adapted to fit the risk, importance and timing of the project or issue.
We are proud to be a contributor to the Bribery Prevention Network. The Bribery Prevention Network is a public-private partnership that brings together business, civil society, academia and government with the shared goal of supporting Australian business to prevent, detect and address bribery and corruption and promote a culture of compliance.
Experience
Corporations Act and ASIC Act offences
Acting for companies (including major financial institutions) and individuals being investigated for offences under the Corporations Act and ASIC Act.
Criminal cartel conduct
Acting in criminal cartel proceedings for a large financial services client – the first criminal cartel proceeding in financial services in Australia and only the second against an Australian company.
Anti-bribery and corruption
Acting in investigations by the AFP, ASIC, Parliamentary Inquiries, the US DOJ and SEC and UK SFO, and disclosure class actions arising from foreign corruption allegations.
Anti-money laundering
Conducting numerous investigations for banks in relation to potential breaches of the AML/CTF regime, including in response to requests from AUSTRAC.
Sanctions and export controls
Acting for companies being investigated by sanctions or expert control regulators, or conducting internal investigations into compliance with sanctions laws.
Taxation offences
Defending a financial institution alleged to have committed promoter penalty offences under the Taxation Administration Act.