Chambers and Partners White-Collar Crime 2023 Guide: Overview of Corporate and Personal Liability, Criminal Offences, and Prosecution of Legal and Natural Entities in Australia.

Police – Accident – Death – Obituary News : Our Dispute + Investigations team has recently authored the Australian chapter of the Chambers and Partners White-Collar Crime 2023 Guide. This comprehensive guide provides an overview of various aspects of white-collar crime, including corporate and personal liability, damages and compensation, plea agreements, corporate fraud, bribery, influence peddling, insider dealing, tax fraud, competition law, cybercrimes, protection of company secrets, money laundering, self-disclosure, whistle-blower protection, and assessment of penalties.

The Chambers and Partners White-Collar Crime 2023 Guide is an extension of the Chambers Global Practice Guide: White-Collar Crime. In this guide, our team covers the legal framework and classification of criminal offenses in Australia. As a constitutional federation, Australia has a complex system of criminal laws that include offenses against the laws of the Commonwealth of Australia, as well as offenses against the laws of each Australian state and territory. These offenses are generally classified as either summary offenses, which can be tried before a judge without a jury, or indictable offenses, which require a judge and jury trial.

To establish an offense, the prosecution must prove beyond a reasonable doubt that the accused’s conduct satisfied the physical element(s) for the offense and that the accused had the relevant state of mind. Some offenses, particularly those related to the management of corporations and financial services licensees, are considered “strict liability” or “absolute liability,” meaning that there is no requirement to prove the state of mind element for the offense.

The guide also provides information on the statute of limitations in Australia. At the Commonwealth level, limitation periods apply to offenses with a maximum penalty of six months imprisonment for individuals or 150 penalty units for a body corporate. The limitation period is generally one year, but it can be extended in certain cases. Each state and territory has its own statute of limitations, with limitation periods generally prescribed for summary offenses rather than indictable offenses.

The extraterritorial reach of Australian criminal legislation is also discussed in the guide. By default, criminal legislation is presumed to have only domestic effect, but this presumption can be displaced by clear language indicating extraterritorial operation. Examples of offenses with extraterritorial operation include anti-money laundering and counter-terrorism finance offenses, fraud offenses, offenses involving the use of carriage services, conspiracy offenses, and accessory offenses.

The guide further explains the concept of corporate liability and personal liability in Australian criminal laws. Corporations are treated as legal persons capable of committing crimes, and offenses can be attributed to a corporation through the conduct of one or more individuals. The general test of attribution under the Commonwealth Criminal Code allows for the attribution of physical and fault elements to a corporation if committed by an employee, agent, or officer within the scope of their employment, or if authorized or permitted by the corporation. Negligence can also be attributed to a corporation if its conduct as a whole is found to be negligent.

The guide also addresses the prosecution of legal and natural entities for the same offense. It is possible for both an individual and a corporation to be found directly liable for the same offense. There is no formal policy preference as to whether to prosecute a legal entity or a natural person or both, and the prosecution of a legal entity does not prevent the prosecution of an individual.

Overall, the Chambers and Partners White-Collar Crime 2023 Guide provides a comprehensive overview of white-collar crime in Australia, helping individuals and businesses understand the legal framework, liability, and other important aspects of this area of law. Our Dispute + Investigations team is proud to have contributed to this guide, showcasing our expertise in white-collar crime matters..