ASIC Publishes Enforcement Report for July-December 2015 (Aus – criminal)

This great little report includes infographics summarising some of the features of criminal investigations undertaken by ASIC.  It shows, for example, that in its criminal investigation into Myra home loans, ASIC executed 14 search warrants, served 148 notices to produce, indexed over 15 million pages of electronic evidence, seized 37 devices, prepared 178 witness statements and conducted 210 interviews.

Court Of Appeal Criticises Criminal Charge Book Over Workplace Offence (Aus – criminal)

In DPP v Vibro-Pile (Aust) Pty Ltd and DPP v Frankipile Australia Pty Ltd, the offenders appealed their convictions and sentences, while, somewhat unusually, the DPP also appealed, arguing the sentences were manifestly inadequate.  The companies had been found guilty, following a jury trial, of various Occupational Health and Safety Act crimes.  The offenders lost their appeals, but the DPP was successful; each offender’s sentence was increased to $750,000.

The Victorian Court of Appeal used the case as an opportunity to reiterate that “proof of a breach of the OHSA does not require proof that the breach caused actual harm to any person.”

It then criticised the Victorian Criminal Charge Book’s (“VCCB”) formulation of OHSA offence elements, and noted that in the case at hand, “[t]he trial was conducted with the critical issue articulated in [the way set out in the VCCB].  There are three potential problems with this articulation of the issue.  The first is that, whilst  the formulation is logically correct, it does not state the elements of the offence in the terms of the statute.  The second is that, where there has been an accident, this articulation —  focusing on whether the omission to take the measure caused the risk — can too readily lead to a focus on the ‘cause’ of the accident.  Thirdly, and consequently, this articulation can be mischaracterised as placing a burden on the prosecution to prove that the defendant caused the accident.  As we have said, that is not what the offence provision requires.  Each of these problems is illustrated by the way this trial was conducted by the parties.”  Stay tuned for an amendment to the VCCB.

Also note the Court’s criticism, at [141] of the particularisation of charge 4.  The Court suggests each of the first three particulars should have been the subject of a separate charge.  The charge as formulated made the conviction vulnerable to appeal, and, as noted at [186], it meant that the judge’s own determination as to which particulars were proven, not the jury’s ‘inscrutable’ determination, necessarily founded the sentencing for that charge.

Polluters Plead Guilty Over Criminal Asbestos Dumping (Aus – criminal)

The Land and Environment Court of New South Wales has sentenced Romanous Construction Pty Ltd and Romanous Contractors Pty Ltd for two pollution offences, prosecuted by Hurstville City Council.  Each company was fined $42,000, ordered to publish a notice in the local papers, and ordered to pay costs. The sentencing reasons set out the text to be included in each notice in the Annexes.

Proposal To Increase Environmental Investigation Powers In Queensland (Aus – regulatory)

On 15 March 2016, the Environmental Protection (Chain of Responsibility) Amendment Bill 2016 (the Bill) was introduced to the Queensland Parliament.  Among other things, it is proposed to allow the DEHP to impose a condition of financial assurance on a transferred environmental authority, increase access rites of authorised officers, increase power to compel persons to answer questions, and make it more difficult for a court to stay a decision about issuing a protection order.  It is hoped that the legislation, if introduced, will “avoid the state bearing the costs for managing and rehabilitating sites in financial difficulty.

ACCC Reviews Its Consumer Work; Sets New Priorities For 2016 (Aus – regulatory)

In his wide-ranging speech at the National Consumer Congress this month, Rod Sims noted “I am often asked about timelines for mergers reviews and court cases, but no timeline is as important as the deadline for Infinity cables.”  It’s a reminder that some of the most important regulatory work occurs far from courtrooms.  Priorities for 2016 in the ACCC consumer space include Indigenous consumer protection, issues around representations made by large businesses about extended warranties, post-purchase vehicle care, health claims and small business protection from unfair contract terms.

80 Tonnes Of Catalytic Dust Released By Petroleum Refinery; Guilty Plea (Aus – Criminal)

In a recent Queensland summary prosecution of an unnamed petroleum refinery, the Wynnum Magistrates Court delivered a $20,000 penalty.  The company had failed to comply with a condition of its environmental authority “which required that an effective start-up procedure be used for the refinery’s Fluid Catalytic Cracking Unit. The failure to use an effective start-up procedure resulted in the release of [approximately 80 to 90 tonnes of] dust.”

ASIC Investigation Results In Consumer Refunds But No Litigation (Aus – regulatory)

Despite ASIC’s findings that there are “significant deficiencies in [payday lender] Nimble’s compliance with the responsible lending laws”, ASIC has elected not to litigate, but broker an out-of-court agreement in which Nimble repays some $1.5M to affected consumers, makes a “$50,000 contribution to Financial Counselling Australia” and “engage an independent external compliance consultant to review their current business operations and compliance with the consumer credit regime and report back to ASIC”.

Allegations of Tabcorp Bribery In Cambodia Under Investigation (Aus)

The Age reports that the AFP is currently investigating allegations that Tabcorp acted corruptly when Mr Funke Kupper was its chief executive. “Gaming industry sources said the $200,000 Tabcorp payment was made to a consulting firm connected to one of Hun Sen’s sisters in a transaction facilitated by one of Hun Sen’s nephews.  The payment was made as Tabcorp was examining the potential to get Cambodian government backing to launch an online sports betting business. At the time, Tabcorp’s newly-acquired subsidiary Luxbet wanted to access the lucrative Asian gambling market in the lead up to the 2010 FIFA world cup.  The securing of a Cambodian gaming licence, which would give the company a platform to trade across Asia and internationally, would have only been issued with the permission of Hun Sen or his regime’s senior officials.”

US Asks Court To Stop Distribution of Refried Beans, Allegedly Adulterated With ‘Filth’ (USA)

“A civil complaint was filed today in the U.S. District Court for Kansas … to stop the distribution of adulterated food, the Department of Justice announced today.

Native American Enterprises LLC (NAE), manufactures and distributes food, namely ready-to-eat (RTE) refried beans and sauces.  The complaint alleges that the company’s RTE refried beans and sauces are adulterated in that they have been prepared, packed and/or held under insanitary conditions whereby the food may have become contaminated with filth or have been rendered injurious to health.  According to the complaint, the insanitary conditions include the presence of Listeria Monocytogene (L. mono) in NAE’s facility and insanitary employee practices.  The department filed the complaint at the request of the U.S. Food and Drug Administration (FDA).”

Icecream And Ammonia (USA)

“The Oregon Ice Cream Company has agreed to make safety improvements and upgrade its refrigeration equipment to prevent toxic anhydrous ammonia releases at its manufacturing facility in Eugene, Oregon. In the settlement announced today by the Environmental Protection Agency, the company will also pay $55,000 in penalties for multiple violations of federal safety rules and risk management program requirements designed to prevent chemical emergencies.”

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