- 1 Here are the five things you should know happened this fortnight.
Here are the five things you should know happened this fortnight.
No joint and several liability for civil pecuniary penalties
The Federal Court has determined that the Competition and Consumer Act 2010 does not permit a court to order joint and several liability for civil pecuniary penalties: ACCC v Cement Australia Pty Ltd  FCAFC 159. The case also repays careful reading of the analysis of the ‘course of conduct’ principle for civil pecuniary penalty litigation. This issue has received significant judicial attention over the last few years, but continues to perplex.
Victorian sentencing courts are no longer constrained by current sentencing practice. The High Court reminded the VSCA that “[e]xamination of sentences imposed in comparable cases may inform the task of sentencing but such examination goes beyond its rationale when it is used to fix boundaries that, as a matter of practical reality, bind the court.” DPP v Dalgliesh  HCA 41.
Whistleblower protections: full steam ahead
Following last month’s Senate Inquiry report on Whistleblower Protections, the Turnbull government has announced an Expert Advisory Panel on whistleblower protections: external members are Professor A J Brown (Griffith University), Dr David A Chaikin (University of Sydney), Mr Michael Croker (CAANZ) and Mr John Nguyen (Deloitte). Meanwhile, the ACCC is making its own accommodation for whistleblowers:
“The ACCC has launched a new online tool for the agriculture sector to anonymously report concerns about competition or fair trading issues.”
The changing face of corporate crime prosecution in the US
Reviewing the past 20 years of corporate prosecution in the US, Michael Volkov is critical of the direction the DOJ took during the Obama administration, arguing the Yates’ memo was too little, too late and has had limited impact:
“the Justice Department has now embraced a new model of enlisting corporations to conduct internal investigations, usually with the assistance of outside counsel, and reporting back to the Justice Department on what occurred and who was involved in the criminal violations. As part of this new strategy, the Justice Department has ignored its traditional role in prosecuting culpable individuals.”
In a speech at NYU, US Deputy Attorney General Rosenstein advised that the Yates memo is currently under review. He makes a range of interesting comments about his department’s attitude to corporate misconduct and its plans for the future – many points addressing Volkov’s criticisms.
Human rights and corporate crime
It’s been a year since “The Corporate Crimes Principles” was published; one of its authors told the Corporate Crime Reporter this fortnight that despite some frustration at the lack of political will to improve laws to facilitate the prosecution of multinationals for human rights abuses, he is optimistic that the report may still precipitate change.
Meanwhile, Amy Howe reports on the recent US Supreme Court hearing of Jesner v Arab Bank, in which victims of terrorist attacks are suing the Arab Bank, claiming it “maintained accounts for known terrorists, accepted donations that it knew would be used to fund terrorism, and distributed millions of dollars to families of suicide bombers”. She says the court seemed divided; watch this space.
And don’t forget:
27 October 2017: due date for responses to Treasury’s Consultation Paper on “Reforms to Address Illegal Phoenix Activity”.