Here are the five things you should know happened this fortnight.
Competition Heats Up…
The Harper reforms to the Competition and Consumer Act 2010 are now ‘live’: among other things, a broader range of conduct is now prohibited as unlawful misuse of market power. Rod Sims has explained how the new laws will help the regulator deal with – among other things – “colluding robots”. You may be saddened to hear that “[i]n Australia, we take the view that you cannot avoid liability by saying “my robot did it”.
…But There’s A Chill In Paradise
The Paradise Papers have reinvigorated debate on whether current tax laws for multinationals are serving the communities to whom companies sell their goods and services.
EU Commissioner Pierre Moscovici expressed indignation at various corporate tax minimisation schemes revealed by the Papers and called for compulsory reporting of tax optimisation schemes, beneficial ownership of corporations, and the blacklisting of tax havens.
On our own shores, the ATO has reassured the Australian public that it is working its way through the Papers and is working with Joint International Taskforce on Shared Intelligence and Collaboration (JITSIC) member countries to identify any unlawful conduct.
Litigation All Sorts (a selection of interesting matters)
Infringement Notice: ACMA has issued a $360,000 infringement notice to TPG for spam.
Enforceable Undertaking: WorkSafe NZ has accepted an EU (only the fifth in its history) from Metropolitan Waste(Waikato) Limited, following the injury of a worker.
Civil Pecuniary Penalty: ASIC has secured its first CPP for breach of the “best interests” duty; it’s interesting that the parties agreed that the penalty could be paid in instalments over two years, and that they preferred this detail not be recorded in the orders. ASIC v Golden Financial Group Pty Ltd (No 2) [2017] FCA 1267. The ACCC has also had a noteworthy win: the Federal Court determined that Meriton Property Services Pty Ltd engaged in misleading and deceptive conduct. The conduct in question was the hotel chain’s efforts to ensure that certain customers (those who had complained, or stayed during a period of maintenance, for example) would not receive an email invitation from TripAdvisor to leave a review of their Meriton hotel following check-out. The defendant accepted it had engaged in that behaviour, but denied it was misleading or deceptive. Noting that ss18 and 34 prohibit certain conduct, not just representations, the court was satisfied that there was a sufficient causal nexus between Meriton’s conduct and consumers likely being led into error – despite the involvement of third parties in the making and publication of the representations (being consumers and TripAdvisor). ACCC v Meriton Property Services Pty Ltd [2017] FCA 1305.
Prosecution: The Supreme Court of Victoria has moved the trial of Hazelwood Power Corporation Pty Ltd for offences under the Occupational Health and Safety Act 2004 (Vic) to Melbourne; it concluded that the safeguards used in the system of jury trials to eliminate unfairness would be insufficient to eliminate unfairness if a jury trial were held in Morwell, and the unusual features of the case required the trial to take place elsewhere.
The Collar Or The Corporation?
This fortnight, Nicolas Bourtin argued in The Washington Post that there’s plenty of prosecution of individuals happening in the US, and that prosecutors are bold and capable. But the Corporate Crime Reporter rejected the analysis, suggesting a troubling explanation for what it perceives as a dearth of prosecutions of the biggest (white collared) fish: “[m]aybe … prosecutors know how the game is played. And if they want to keep playing it, if they want to swing through the revolving door to a big payoff on the other side, they won’t get uppity and start criminally prosecuting big banks, big corporations or their executives.” Mr Bourtin, it should be noted, was a federal prosecutor, but now works as a partner in a major international white-collar defence firm.
In the UK, the head of the SFO, David Green, argued that DPAs in appropriate cases allow the office to concentrate on prosecuting individuals: an interesting comment reflected in the current SFO Tesco litigation, in which the company secured a DPA, but three directors have been prosecuted.
The Rare and Unusual Prosecutor Public Explanation – Two Sightings in a Fortnight!
It’s not often that prosecutors explain their decisions to the public, but it does happen from time to time, and it happened this fortnight. WorkSafe Victoria has determined that the company that organised last year’s Falls Music and Arts Festival, at which there was a crowd surge injuring ninety-five people, had complied with all “the conditions imposed by various bodies in relation to the event, such as crowd control, crowd size, and positioning and size of exits.” It therefore determined “there was insufficient evidence to establish any offence under the 2004 OHS Act and no further action will be taken”.
Meanwhile, and rather more peculiarly, the Victorian DPP felt the need to advise that he did not order any review of the “Jason Roberts case”.