Things To Think About

Should sentences for consumer law offences be increased?  The Productivity Commission has released its draft report on the operation of the Australian Consumer Law; while generally satisfied with the performance and cooperation of the ten relevant regulators, the commission was critical of consumer law penalties.  It proposes increasing maximum penalties, possibly “aligning them with the penalties for breaches of competition provisions in the Competition and Consumer Act 2010”.    One knobbly issue not discussed in the report is the fact that in Victoria, owing to the state’s definition of indictable crime, ACL offences are not considered indictable: maximum penalties are expressed in dollar terms, not penalty units.

What does compliance with anti-bribery and corruption law look like for a multi-national corporate group?  Hogan Lovells has published what it describes as a “global study” of Chief Compliance Officers’ attitudes and concerns.  In keeping with the current emphasis placed on corporate culture in regulatory enforcement globally, the firm advises: “Compliance and ethics should be fully integrated into all operations. Senior management must emphasize the importance of compliance and ethical conduct as a core value and strategy, so employees are in no doubt that ethical conduct takes precedence over the pursuit of profit.”

Notable Litigation Actions

Quite the fortnight for the ACCC: it won its appeal in the High Court ACCC v Flight Centre Travel Group Ltd [2016] HCA 49: Flight Centre and the relevant airlines were competitors, despite Flight Centre also acting as agent for those airlines.  Meanwhile, the Federal Court handed down $15M in penalties for attempted cartel conduct in ACCC v Australia and New Zealand Banking Group Limited [2016] FCA 1516.  On the other hand, it lost its unconscionability case in the Federal Court: ACCC v Woolworths Limited [2016] FCA 1472.  Angela Merritt’s thoughts on the latter here.  It also filed an interesting little case on flushable wipes that, the ACCC says, aren’t flushable.

And for those following the AMI litigation: contempt proceedings have concluded with a $350,000 fine.

It seems that every week a regulator secures a new record fine for corporate misconduct.  This fortnight it was the US DOJ (environment and natural resources division), securing it’s highest penalty to date for “deliberate vessel pollution” (Princess Cruise Lines Ltd – $40M), and, according to The Korea Times, the South Korean Trade Commission’s largest fine for misleading conduct in trade (Audi Volkswagen Korea – $32M).  Closer to home, ASIC announced “Australia’s largest consumer credit remediation program” to address BMW’s responsible lending failures.

Law & Policy Updates

The Supreme Court of Victoria has updated its practice notes, with effect from 30 January 2017.

EPA Victoria has started using drones to gather evidence of illegal waste dumping.

In France, a “Proposed Law Regarding Transparency, the Fight Against Corruption and the Modernization of Economic Life,” has been passed.

Event Calendar

29-30 January 2017: Financial Institutions, Regulation and Corporate Governance Conference (Melbourne)

8 February 2017: ASIC RegTech Roundtable (video conference)

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 the enforcement and administration arrangements underpinning the Australian Consumer Law (submissions close 23 January 2017)

Inquiry into the social issues relating to land-based driverless vehicles in Australia (submissions close 6 February 2016)