Things To Think About

The UK Court of Appeal has published its 2015/2016 annual report; criminal practitioners will note many familiar issues arising for appellate review in that jurisdiction (fresh evidence; assistance to authorities; late applications for adjournment; the relationship between compensation and confiscation orders).  One of the passages repeated in the report is the Court’s reminder in Fanning [2016] EWCA Crim 550 (an inconsistent verdict case) that: “It is essential for the sound development of the Criminal Law and to prevent over complication that it should rarely be necessary for a court to reformulate or add a gloss to well established law”.

Two articles on CSR have been published in the latest Company and Securities Law Journal: ‘Reconsidering the Self-regulatory Approach to Corporate Social Responsibility’ by Raisa Blanco, and ‘Corporate Social Responsibility and “Contemporary Community Expectations”‘ by Jean Jacques du Plessis.

Notable Litigation Actions

An interesting little case concluded this fortnight.  NSW EPA prosecuted Wellington Council for a pollution offence.  After entering a guilty plea, but prior to sentencing, the council was dissolved by proclamation, and its liabilities (among other things) transferred to a newly constituted council.  (A second proclamation purported to allow legal proceedings against dissolved councils to  be taken as proceedings against new councils.)  The NSW EPA argued that the act of pollution, Wellington Council’s submission to the Court’s jurisdiction and consequences of its guilty plea were all transmitted to the new council.   The NSW Land and Environment Court did not agree: the prosecution was declared abated by the first proclamation.  Environment Protection Authority v Wellington Council [2017] NSWLEC 5

Over in the US, the class action against DuPont (now Chemours) for injury caused by C-8 leaks (recall last year’s story here) has settled in-principle for $670.7 million.

Law & Policy Updates

ACCC has indicated it will seek higher civil pecuniary penalties:  “”We may have been too cautious [on penalties] in the past,” Mr Sims told The Australian Financial Review.  “Certainly in future we won’t settle unless the penalties are in accord with what we think they should be.  We are now getting encouragement from the court. We’ve had both the Coles and ANZ cases where we are getting messages that the size of the company matters. We then had the Nurofen decision where the full court felt that the penalty should have been much larger and the $1.75 million penalty would reinforce a view that ‘the price to be paid for the contravention was an acceptable business strategy with no more than the cost of doing business’.”

Meanwhile, the Victorian Government has commenced significant reform of the EPA: “The Victorian Government is committed to modernising the Environment Protection Authority (EPA) to meet Victoria’s environment and human health challenges now and into the future. The government response to the EPA Inquiry details the suite of reforms for the overall transformation of the EPA to a world class environmental regulator. These are the first major reforms since the EPA was formed in 1971.”

And in a nifty example of regulatory cooperation, VicRoads and the Victorian EPA have signed an MoU to facilitate joint investigation of transport of prescribed industrial waste.

Over in the UK, the FCA’s latest policy statement confirms additional measures to improve communication with persons under investigation and increase the transparency of its exercise of discretion in enforcement actions.  These are the sorts of practical improvements that most regulators could consider implementing (if they don’t already have similar policies).

Event Calendar

17 February 2017: NELA Climate Change and Environmental Legislation Conference (Murdoch, WA)

28 February- 1 March 2017: Informa Responsible Lending and Borrowing Summit (Sydney)

20-21 March 2017: ASIC Annual Forum (Sydney)

27-28 July 2017: ACCC & AER Regulatory Conference (Brisbane)

Submissions Open


Inquiry into consumer protection in the banking, insurance and financial sector (submissions close 7 March 2017) Senate Standing Committee on Economics

ASIC consultation paper proposing to consolidate and clarify Australia’s market integrity rules (submissions close 7 March 2017) ASIC