The terms of reference for the corporate crime inquiry being held by the Australian Law Reform Commission have been released by the Attorney-General.
The ALRC has been tasked with the review, which will look into Australia’s corporate criminal responsibility regime.
The inquiry, led by ALRC president, the Honourable Justice Sarah Derrington, will review part 2.5 of the Commonwealth Criminal Code and consider options for regime reform, according to a statement from the Attorney-General Christian Porter to strengthen and simplify the regime.
“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,” the Attorney-General said.
“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,” he continued, noting this includes consideration the practical challenges associated with investigating and prosecuting these crimes.
“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,” Mr Porter said.
Considerations of the review will encompass comparative corporate criminal responsibility regimes in relevant foreign jurisdictions, the potential application of part 2.5 of the code to extraterritorial offences by corporations, as well as look at alternatives to the expansion of the scope and application of relevant legislation.
Whether the code “needs to incorporate provisions enabling senior corporate officers to be held liable for misconduct by corporations” will also be under consideration, as well as potential options for reformation of the code to consider how issues highlighted by the banking royal commission and the ASIC enforcement review taskforce can best be addressed.
Alongside Justice Sarah Derrington, the Honourable Justice Robert Bromwich has been appointed as a part-time commissioner for the inquiry, with the Attorney-General considering him as “uniquely qualified to assist with the review”.
The Attorney-General also noted that in accordance with the ALRC’s usual process, a discussion paper will be released at an interim stage, with interested stakeholders invited to make formal submissions in response.
The ALRC is due to report on its findings on 30 April 2020.