Reforms needed to clarify corporate criminal liability

2 minute read 23.11.2020 Mark Standen

Recommendations have been made to reform corporate criminal liability to provide greater clarity and understanding of this complex area of law. Our team provides their insights to UNSW's Centre for Law Markets and Regulation (CLMR).

Key takeouts

Corporate criminal liability is difficult to interpret and as a result, few prosecutions are brought against companies due to the complexity surrounding criminal liability.

The Australian Law Reform Commission (ALRC) issued Report 136 in August 2020, which made substantial recommendations for the reform of corporate criminal liability.

The recommendations should lead to some improvements to complexity around corporate liability but there is still much to be done in the area of criminal individual liability.

Following the ASIC Enforcement Review Taskforce in December 2017, and the Financial Services Royal Commission in February 2019, the Australian Law Reform Commission (ALRC) issued Report 136 in August 2020, in which it made substantial recommendations for the reform of corporate criminal liability.

The ALRC was clear that there is a purpose for corporate criminal responsibility as some instances of corporate misconduct cannot be adequately regulated by civil penalties.

Professor Dimity Kingsford-Smith, MinterEllison Chair of Risk and Regulation at UNSW and Mark Standen, Partner and Head of MinterEllison Corporate Advisory believe the recommendations should lead to some improvements but caution there is more to be done.

“It is very complicated and very uncertain because you have to prove criminal liability at the highest possible standard of proof that is beyond reasonable doubt,” said Professor Kingsford-Smith.

Read the full article by UNSW Law.

Mark Standen was recently a panellist at a CLMR event on this topic, along with Professor Pamela Hanrahan (UNSW Business School), Dr Olivia Dixon (Law Faculty, University of Sydney), and Professor Dimity Kingsford Smith, UNSW MinterEllison Chair in Risk and Regulation. Listen to the panellists discuss these issues here - UNSW CLMR webinar, Risk and Regulation: Corporate Criminal Liability.