26/10/2021

Legal Framework

Classification of Criminal Offences

Set out the main categories of offences in your jurisdiction (eg, misdemeanours and crimes). In your response please present the general prerequisites for an offence to be characterised (eg, constituent elements) and specify whether an intent and/or a motive is necessary for an offence to be punishable. Also specify whether a person may be held liable for attempting to commit an offence, in the event the attempted offence is not completed.

Australia, as a constitutional federation, has a complex system of criminal laws comprising offences against the laws of the Commonwealth of Australia as well as offences against the laws of each of the Australian States and Territories (including, for some States, both common law and statutory offences).

Commonwealth and State and Territory offences are generally classified as either:

  • summary offences: (sometimes called “simple offences”) triable before a judge without a jury; or
  • indictable offences: triable before a judge and jury (some of which may be tried summarily).

Most offences will only be established if the prosecution proves, beyond a reasonable doubt, that:

  • the accused’s conduct satisfied the physical element(s) for the offence; and
  • the accused had the relevant state of mind, such that the physical element(s) coincided with the requisite fault element(s) for the offence (e.g. intention, knowledge, wilful blindness, recklessness or negligence, depending on the offence).

Some offences, particularly in relation to the management of corporations and financial services licensees, are “strict liability” or “absolute liability”, meaning there is no requirement to prove state of mind elements for the physical elements of the offence.

It is not necessary for the prosecution to prove a motive (since intention and motive are distinct concepts at law in Australia), although proof of a motive may assist a judge or jury more readily to infer intention and, potentially, the identity of the person who committed the offence.

Under both Commonwealth and State and Territory laws, a person who attempts to commit an offence may be held criminally liable and punished as if the offence had been committed, even if the offence is not completed.

Statute of Limitations

Which limitation period(s) applies/apply to the main categories of offences (eg, statute of limitations)? In your response explain how limitation periods are calculated and when a limitation period begins to run. Is there a specific statute of limitations dealing with concealed and/or continuing offences?

At the Commonwealth level, limitation periods will apply where the maximum penalty which may be imposed for the offence is six months imprisonment for an individual (or less), or 150 penalty units for a body corporate (or less). In those cases, the applicable limitation period is one year, unless that limitation period has been modified by statute. For example, in the case of offences against the Corporations Act 2001 (Cth) (Corporations Act), the limitation period is 5 years after the act or omission alleged to constitute the offence (but this period is capable of being extended with Ministerial consent).

Otherwise, Commonwealth offences are not subject to a limitation period.

Each of the States and Territories has its own statute(s) of limitations. In general, limitation periods tend to be prescribed for summary offences and not for indictable offences (including indictable offences which are triable summarily). The applicable limitation periods for summary offences range from 6 months to 2 years from the date of the alleged offence, depending on the jurisdiction and the offence in question.

Extraterritorial Reach

Do enforcement authorities/courts have jurisdiction to enforce their authority for white-collar offences outside your jurisdiction? If so, specify which laws have an extraterritorial reach.

Australian law presumes that criminal legislation has only domestic effect. This presumption is capable of being displaced by clear language demonstrating a legislative intention to create an offence with extra-territorial operation.

The Parliaments of Australia and each of the States and Territories are able to enact offences with extra-territorial operation, provided that there is a substantial and bona fide connection between the subject-matter and the Commonwealth or the State or Territory in question (e.g. offences committed abroad by Australian citizens or offences involving conduct partially within Australia and partially overseas).

Examples of offences with an extra-territorial operation include anti-money laundering and counter-terrorism finance offences, fraud offences, offences involving the use of carriage services, conspiracy offences and accessory offences.

Corporate Liability and Personal Liability

Under what circumstances may a legal entity be subject to criminal liability? May both individuals and companies be held liable for the same offence? Specify if there is a policy preference as to when to pursue a legal entity or a natural person or both. Is there a personal liability for managers and directors if the legal entity is deemed liable for an offence? If so, under what circumstances? In the context of a merger or an acquisition, may a successor entity be held liable for offences committed by the target entity that occurred prior to the merger or acquisition?

Commonwealth and State and Territory criminal laws treat corporations as legal persons which are capable of committing crimes.

For example, under s.4 of the Crimes Act 1900 (NSW) (NSW Crimes Act), “person” is defined to include “any society, company or corporation”, such that a corporation could in theory be prosecuted for any of the various offences under that Act, provided that the requisite physical and fault elements are capable of being attributed to the corporation through the conduct of one or more individuals. Further, s.16 of the Crimes (Sentencing Procedures) Act 1999 (NSW) (NSW Sentencing Procedure Act) prescribes fines for corporations in respect of offences which are otherwise punishable by imprisonment.

Part 2.5 of the Criminal Code Act 1995 (Cth) (Commonwealth Criminal Code) extends criminal liability for Commonwealth offences to corporations and specifies the general test for attribution of physical and fault elements. The Crimes Act 1914 (Cth) (Commonwealth Crimes Act) prescribes monetary penalties for corporations in respect of those offences which otherwise only carry prison sentences.

The general test of attribution in Part 2.5, however, has been displaced in respect of various Commonwealth offences by other legislation. This has recently been identified by the Australian Law Reform Commission (ALRC) as an area requiring legislative simplification, since the variety of attribution tests has the potential to lead to confusion as to the circumstances in which a corporation may be criminally responsible, and complicates the litigation process.

Under the Commonwealth’s general test of attribution:

  • if a physical element of an offence is committed by an employee, agent or officer of a corporation within the scope of their employment, the physical element will be attributed to the corporation;
  • if a fault element of an offence is intention, knowledge or recklessness, that fault element will be attributed to a corporation that expressly, tacitly or impliedly authorised or permitted the commission of the offence. This can be established by:
    • proving that the board of directors or a high managerial agent of the corporation intentionally, knowingly or recklessly carried out the relevant conduct, or expressly, tacitly or impliedly authorised or permitted the commission of the offence; or
    • that a corporate culture existed within the corporation that directed, encouraged, tolerated or led to non-compliance with the relevant provision; or
    • that the corporation failed to create and maintain a corporate culture that required compliance with the relevant provision; and
  • if a fault element is negligence in relation to a physical element of an offence and no individual employee, agent or officer of the corporation has that fault element, that fault element may nonetheless exist if the body corporate’s conduct is negligent when viewed as a whole (i.e., by aggregating the conduct of any number of its employees, agents or officers). Negligence may be evidenced by the fact that the prohibited conduct was substantially attributable to inadequate management, control or supervision of the conduct of one or more of its employees, agents or officers, or failure to provide adequate systems for conveying relevant information to relevant persons in the body corporate.

It is possible for an individual and a corporation to be found directly liable in respect of the same offence. An individual may be personally liable as an accessory to a corporation’s offence or as a principal offender, including where the individual is deemed to be a principal offender because of their role and status in the management of the corporation (including in the field of taxation, occupational health and safety and environmental regulation).

Generally, there is no formal policy preference at either Commonwealth level or State/Territory level as to when to prosecute a legal entity or a natural person or both, and the prosecution of a legal entity will not prevent the prosecution of an individual for their involvement in the same or a related offence, nor vice versa. However, prosecutors at both the Commonwealth and State/Territory levels are empowered to exercise their discretion to grant concessions to persons who participated in alleged offences in order to secure their evidence in the prosecution of others, provided that certain conditions are met. There also exists, in respect of market misconduct offences and cartel offences, immunity regimes designed to encourage early reporting and cooperation with regulatory and prosecutorial authorities.

There is no concept of successor liability for corporations under Australian law. A successor entity will not be held liable for offences committed by the target entity that occurred prior to the merger or acquisition.

Damages and Compensation

What are the legal grounds and conditions under which victims of a white-collar offence may claim compensation for their loss? Set out which courts have jurisdiction to allocate damages to the victims of a white-collar offence. Are class actions or equivalent procedural means admitted in your jurisdiction for white-collar matters?

Each State and Territory has established processes which enable a criminal court to direct an offender to compensate an aggrieved person(s) for injury or loss occasioned by the offending conduct. Similarly, under the Commonwealth Crimes Act, a court may order an offender to make reparation to a person in respect of loss suffered or expense incurred by reason of a Commonwealth offence.

Additionally, a number of Commonwealth, State and Territory laws that impose white-collar criminal liability contain parallel provisions which grant civil rights of action by or on behalf of victims and/or other persons who have suffered loss as a consequence of contravening conduct including in some jurisdictions as a class action.

For example, the Corporations Act imposes duties on company directors and officers which, if breached, can give rise to criminal liability, as well as liability to compensate the corporation for any losses suffered as a consequence of the breach. Several Commonwealth, State and Territory statutes impose criminal liability for conduct in a variety of contexts in trade or commerce relating to unfair practices, false or misleading representations and pricing, as well as liability to compensate persons who have suffered losses as a consequence.

Generally, persons who claim to have suffered a loss as a consequence of the contravening conduct and bring civil proceedings bear the onus of proving, on the balance of probabilities, that the conduct in question occurred and that there was a causal nexus between the conduct in question and the loss suffered. Evidence of a criminal conviction or of a finding of fact in a criminal proceeding will not be admissible in civil proceedings to prove the existence of a fact that was in issue in the criminal proceeding.

Recent Case Law and Latest Developments

Outline the latest developments or proposals for reform in relation to white-collar offences in your jurisdiction. Highlight any significant recent case law developments.

In April 2020, the ALRC provided a report to the Australian Government following a review of the Commonwealth corporate criminal responsibility regime (CCR Report). The CCR Report examined the regime for establishing corporate criminal responsibility in Part 2.5 of the Commonwealth Criminal Code, including mechanisms that could be used to hold senior corporate office holders and other individuals liable for corporate misconduct. In broad terms, the ALRC’s recommendations to improve and reform the regime seek to:

  • simplify and clarify laws that reduce the regulatory compliance burdens on companies;
  • criminalise corporate systems of conduct or patterns of behaviour that lead to breaches of civil penalty provisions;
  • standardise legal tests for attribution of criminal responsibility to companies to provide greater certainty, consistency and clarity; and
  • implement a new model of ‘failure to prevent’ offences of misconduct overseas by Australian corporations.

The ALRC’s recommendations are not binding on the Australian Government. However, the Australian Government has indicated it is carefully considering each of the recommendations with a view to future legislative reforms.

The Australian government is also presently considering specific reforms in respect of a variety of white-collar offences.

Strengthening of anti-bribery legislation

In December 2017, the Australian Senate introduced the Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2017 (Cth) (CLACCC Bill), which was aimed at improving Australia’s anti-foreign bribery compliance and enforcement response. The CLACCC Bill proposes, among other things, a new offence for failing to prevent foreign bribery; lowering the bar for prosecution of bribery offences; and introducing a deferred prosecution scheme, to incentivise voluntary reporting. The 2017 CLACCC Bill lapsed but was reintroduced in the same form, with the same title in 2019 and is still being considered by the Australian Parliament.

Introduction of trading plans

In a Commonwealth Senate report published in April 2021, it was recommended that the Australian Government provide for a trading plan scheme for company founders, similar to the one in place under the US Securities and Exchange Commission Rule 10b5-1. Under such a scheme, founders of Australian listed companies (and, potentially, also other company “insiders”) would be able to set up a plan to sell their shares, without being liable for insider trading, provided the individual did not possess inside information at the time the plan was established. The Australian Securities Exchange has indicated support for a trading plans regime.


Enforcement

Enforcement Authorities

What is/are the main authority/authorities that has/have powers of investigation, prosecution and enforcement for white-collar offences? Is there any civil or administrative enforcement against white-collar offences? Highlight any conflicts of jurisdiction between prosecutors and civil/administrative authorities. Are there specialised police squads, judges and criminal courts for white-collar offences?

The main authorities with powers of investigation and/or powers to institute and/or prosecute criminal proceedings in respect of white-collar offences include:

  • Commonwealth Director of Public Prosecutions (CDPP). The CDPP institutes and carries on prosecutions on indictment for Commonwealth offences and has the power to take over prosecutions for Commonwealth offences instituted by other persons and agencies.
  • Australian Securities and Investments Commission (ASIC). ASIC is an independent Commonwealth authority which regulates corporations, managed investment schemes, participants in the financial services industry and people engaged in credit activities under various Commonwealth laws, including the Corporations Act, the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) and the National Consumer Credit Protection Act 2009 (Cth). ASIC has information gathering and investigatory powers and the power to initiate criminal prosecutions for offences and is authorised to prosecute some minor offences. ASIC will refer more serious offences to CDPP for prosecution.  ASIC may also commence proceedings seeking civil penalties.
  • Australian Competition and Consumer Commission (ACCC). The ACCC is an independent Commonwealth authority, whose role is to enforce the Competition and Consumer Act 2010 (Cth) (Competition and Consumer Act) and a range of additional legislation, promoting competition and fair trading. The ACCC has information gathering and investigatory powers as well as the power to initiate criminal prosecutions for offences under the Competition and Consumer Act. The ACCC has signed a memorandum of understanding to refer serious cartel conduct to the CDPP for prosecution.  The ACCC may also commence proceedings seeking civil penalties.
  • Commissioner of Taxation. Through the Australian Taxation Office (ATO), the Commissioner is responsible for administering Commonwealth taxation laws. The ATO has information gathering and investigatory powers and may initiate prosecutions in the name of the Commissioner in respect of a taxation offence. The ATO has prosecutors who conduct the prosecution of summary taxation offences. Generally, the prosecution of more serious taxation offences will be referred to the CDPP.
  • Australian Federal Police (AFP): The AFP is the primary agency responsible for the provision of police services in respect of the laws of the Commonwealth, and will often be responsible for or will assist other Commonwealth agencies in the investigation of suspected Commonwealth offences.  In addition to the regulatory agencies noted above, the AFP will also receive referrals from the Australian Transaction Reports and Analysis Centre (AUSTRAC) (Australia’s money laundering and terrorism financing regulator) with respect to suspected crimes identified as part of its monitoring and investigatory processes.

The relevant State and Territory police services and crown prosecutors investigate and prosecute State and Territory offences.

Initiating an Investigation

How are white-collar investigations initiated? Are there any rules or guidelines governing the initiation of any investigation?

Police and the key regulators referred to above are empowered to initiate and carry out investigations into criminal conduct, to institute criminal proceedings and to conduct prosecutions (generally, for minor or summary offences) or refer the prosecutions of indictable offences to the CDPP or State prosecutors.

Investigations by regulators (ASIC, ACCC, ATO)

ASIC, the ACCC and the ATO have discretion to determine which suspected criminal matters they will investigate and will consider a range of factors when deciding whether to investigate or take enforcement action.  Factors relevant to the exercise of the discretion are largely driven by their respective regulatory objectives.  Each have a range of compliance and enforcement tools at their disposal, including, among other things, the ability to pursue a variety of civil enforcement remedies.

For example, the specific factors that ASIC may consider broadly include:

  • strategic significance, including the seriousness of the misconduct and its impact on the market, market integrity and investor or consumer confidence;
  • regulatory benefits of pursuing misconduct, including whether the misconduct is widespread or part of a growing trend and whether enforcement action will send an effective message to the market;
  • issues specific to the case, such as the time since the misconduct occurred, whether it was an isolated instance, and the availability of evidence; and
  • alternatives to formal investigation, such as engagement with stakeholders, surveillance, guidance or policy advice.

AFP investigations

The AFP’s Case Categorisation and Prioritisation Model (CCPM) sets out guidance to assist the AFP in determining whether to investigate, including by categorising matters by incident type, impact on Australian society, the importance of the matter to the AFP and the resources required to investigate. Economic crime (including money laundering) and bribery of Commonwealth or foreign public officials are categorised as having a high impact on Australian society.

Additionally, the Minister for Home Affairs may give written directions to the Commissioner of the AFP, with respect to general policy in relation to the performance of the AFP’s functions. The most recent direction, issued in December 2020, included cyber-crime, fraud and anti-corruption as expected focus areas for the AFP.

Powers of Investigation

What powers do investigative authorities generally have to gather information and documents related to white-collar offences? Under what circumstances can investigative authorities (i) demand that a company under investigation produce documents; (ii) raid a company and seize documents; (iii) demand an employee, officer or director of a company under investigation or a third party submit to questioning?

Australia’s key regulators have information gathering and investigative powers, including powers to require documents to be produced, require individuals or companies to provide information or be examined in relation to particular conduct, and search powers (subject to the issue of a warrant).

Regulatory information gathering and investigative powers (ASIC / ACCC / ATO)

ASIC, the ACCC and the ATO each have a range of compulsory information-gathering powers at their disposal.

ASIC is empowered to inspect any book (including, among other things, financial records) that a person is required by law to keep, and is also empowered to issue written notices to:

  • compel the production of other books in a person’s possession relating to the affairs of a body corporate or registered scheme; or
  • require a person who ASIC suspects or believes, on reasonable grounds, is able to give information relevant to a matter that it is investigating, to give to ASIC all reasonable assistance in connection with the investigation, and to appear before a specified member or staff member for examination on oath.

The ACCC is empowered to issue written notices to persons requiring them to:

  • furnish, by writing signed by that person, any information which the ACCC has reason to believe the person can give in relation to a suspected contravention of the legislation it administers; or
  • produce any documents which the ACCC has reason to believe the person can produce in relation to such a contravention; or
  • appear before the Commission or a specified member or staff member for examination on oath.

Likewise, the ATO is empowered to issue notices in writing, for the purpose of the administration or operation of a taxation law, to:

  • compel the giving of any information which the Commissioner requires, or the production of any documents in the person’s custody or under the person’s control; or
  • to attend and give evidence before the Commissioner, or an individual authorised by the Commissioner.

Additionally, ASIC, the ACCC and the ATO each have powers to search premises in Australia and seize materials either with the informed consent of the occupier of the premises or with a warrant issued by a magistrate. A magistrate may issue such a warrant if the magistrate is satisfied, by information on oath, that there are reasonable grounds for suspecting that there is evidentiary material on the premises or there may be evidentiary material on the premises within the next 72 hours. The AFP may be authorised to execute or to assist in executing such a warrant.

AFP powers

The AFP has a range of investigative powers, including powers:

  • to apply to the Federal Circuit Court of Australia for a written notice requiring a person to produce documents which are relevant to, and will assist in the investigation of, a serious offence (provided the AFP officer holds a reasonable belief that the person has such documents);
  • to apply to a magistrate for the issue of a warrant to search premises (provided there are reasonable grounds for suspecting that there is, or will be within the next 72 hours, evidentiary material at the premises); and
  • in serious and urgent circumstances to stop, detain and search a conveyance without a warrant if a constable suspects, on reasonable grounds, that a thing relevant to an indictable offence is in or on the conveyance and that it is necessary to exercise the power in order to prevent the thing from being concealed, lost or destroyed.

State and Territory police forces have similar investigative powers to the AFP.

Internal Investigations

To what extent are internal investigations necessary/mandatory and considered by enforcement authorities/courts? Outline any rules governing internal investigations.

In Australia, internal investigations are generally conducted on a voluntary basis, usually in response to the discovery of a regulatory or compliance issue, or an investigation by a regulator, such as ASIC. By proactively conducting an internal investigation, a corporation or firm will be better prepared to deal with any regulatory investigation or enforcement action. Additionally, if an entity seeks to apply to ASIC or the ACCC for immunity pursuant to each regulator’s respective immunity regimes (referred to below), the grant of immunity will depend (among other things) on the entity’s full cooperation, which may require a full internal investigation of the facts.

Mutual Legal Assistance Treaties and Cross-Border Co-operation

What international agreements and legal instruments are available to local authorities with respect to mutual legal assistance and cross-border co-operation? Highlight any blocking statutes or equivalent regulation that apply. Also cover extradition and the circumstances (if any) under which it is authorised for white-collar offences.

Australia is a party to various bilateral and multilateral treaties designed to facilitate mutual assistance in criminal matters. Where Australia does not have a treaty with a country from which it requests, or receives a request, for mutual assistance, this does not preclude the request from being made. However, in the absence of any such treaty, the request for mutual assistance and whether it is accepted will depend (in respect of outbound requests) on the domestic laws of the country whose assistance is sought and (in respect of inbound requests) on whether any mandatory or discretionary grounds for refusal apply under the Mutual Assistance in Criminal Matters Act 1987 (Cth).

All inbound and outbound extradition requests are handled in accordance with the Extradition Act 1988 (Cth). Australia will only accept an extradition request from a country that has been declared an extradition country under domestic regulations.

In addition, Australian regulators have entered into memoranda of understanding with their international equivalents (e.g. the UK FSA; and the US SEC and FINRA). These agreements facilitate the exchange of information between regulators in relation to offences.

Prosecution

How are white-collar prosecutions initiated? Do enforcement bodies/courts have any discretion in charging a company or an individual with a white-collar offence? If so, are there any rules or guidelines governing this decision?

Each Australian regulator is able to initiate investigations into potential criminal offences. In respect of serious and indictable offences, where a regulator considers it appropriate, they will refer the matter to the CDPP for consideration as to whether to prosecute.

The Prosecution Policy of the Commonwealth (Prosecution Policy) underpins and guides all decisions of the CDPP in whether to prosecute. The factors considered by the CDPP vary from case to case, but relevantly include:

  • whether the offence was serious or trivial;
  • any mitigating or aggravating circumstances;
  • the passage of time since the alleged offence;
  • attitudes of the victims;
  • the need to give effect to regulatory or punitive imperatives; and
  • the likely outcome in the event of a finding of guilt.

Deferred Prosecution

Does your legislation provide alternative mechanisms to resolve a criminal investigation without a trial (eg, deferred prosecution agreement, non-prosecution agreement or equivalent)? If so, please provide details.

Deferred prosecution agreements (DPA) are not currently available but are under consideration at the Commonwealth level as part of the CLACCC Bill (referred to above in Section - Recent Case Law and Latest Developments). 

Plea Agreements

May a defendant voluntarily acknowledge charges in exchange for a conviction on reduced charges, or in exchange for an agreed-upon sentence? Please detail the rules or guidelines governing the ability for a defendant to plea bargain.

Plea negotiations are common in criminal proceedings in Australia.

The Commonwealth Prosecution Policy includes provisions governing plea negotiations in relation to Commonwealth offences. It provides that negotiations between the defence and the prosecution as to charges and a plea can be consistent with the requirements of justice, subject to:

  • the charges to be proceeded with bearing a reasonable relation to the nature of the criminal conduct of the defendant;
  • those charges providing an adequate basis for an appropriate sentence in all the circumstances of the case; and
  • there being evidence to support the charges.

Any decision to agree to a plea agreement proposal must take into account all the circumstances of the case and other relevant considerations including:

  • the defendant’s willingness to cooperate and the extent to which they have already done so;
  • whether the sentence that is likely to be imposed if the charges are varied as proposed would be appropriate for the criminal conduct involved;
  • the desirability of prompt and certain dispatch of the case;
  • the defendant’s antecedents;
  • the time and expense involved in a trial and any appeal proceedings; and
  • the likelihood of adverse consequences to witnesses.

The prosecution will not agree to a charge negotiation proposal initiated by the defence if the defendant continues to assert their innocence with respect to a charge or charges to which the defendant has offered to plead guilty.

For information on sentencing, please see section - Assessment of Penalties.

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White-Collar Offences

Criminal Company Law and Corporate Fraud

Which criminal company law and corporate fraud offences are recognised in your jurisdiction? Please include the constituent elements of each offence. Set out any corresponding sanctions.

Corporate criminal offences

Although corporate criminal prosecutions are predominantly heard in State courts, the majority concern contraventions of Commonwealth legislation. In theory, corporations are capable of being convicted of any Commonwealth offence, including ones for which the prescribed punishment is imprisonment. But in practice, most prosecuted corporate crime relates to the contravention of financial, economic, environmental and workplace regulations.

Although the Commonwealth Criminal Code contains various offences that may be committed by corporations (and their officers, agents and employees), it is not the sole source of Commonwealth criminal offences. Nor does it codify or harmonise the principles relating to white-collar offences. Outside the Commonwealth Criminal Code, the richest sources of offences commonly applying to corporations (and their officers, agents and employees) are found in the Corporations Act and various statutes concerning financial services law, competition law, tax and environmental protection. Examples of corporate criminal offences include insider trading, market manipulation, serious cartel conduct and money laundering offences.

Constituent elements of offences

The prosecution of most offences requires the prosecutor to prove, beyond a reasonable doubt, one or more physical elements coinciding with applicable fault elements (see section - Corporate Liability and Personal Liability). The Commonwealth Criminal Code provides a framework for the majority of offences applying to corporations, including attribution (although some offences are governed by separate statutory regimes which dictate different principles).

Corporate Fraud

The Commonwealth Criminal Code proscribes:

  • fraud against Commonwealth entities including:
    • obtaining a financial advantage by deception;
    • dishonestly obtaining a gain or causing a loss to a Commonwealth entity;
    • dishonestly causing a loss or a risk of loss; and
  • knowingly making false or misleading statements to a Commonwealth entity in connection with an application for a license, permit, registration or benefit.

Similar fraud offences to those detailed above, but which relate to fraud directed at persons other than Commonwealth entities, are provided for in State and Territory legislation.

The Corporations Act includes offences relating to the concealment, destruction, alteration or falsification of accounting records or company books, and misleading or deceptive conduct in trade or commerce in relation to financial services or financial products.

Bribery, Influence Peddling and Related Offences

Identify the main bribery/influence peddling offences in your jurisdiction (please specify whether bribery of foreign public officials and bribery between private parties are also criminalised)? Please include the constituent elements of each offence. Set out any corresponding sanctions.

Bribery, being the provision of a benefit that is not due to a person with the intention of influencing that person, is generally unlawful in Australia. Commonwealth law proscribes bribing a Commonwealth or foreign public official. Bribery between private parties is not criminalised at a national level, however each State and Territory has its own laws proscribing private bribery.

Bribery of a foreign public official

It is a Commonwealth offence for a person to provide a benefit to another person, in circumstances where the benefit is not legitimately due to the recipient and the benefit is provided with the intention of influencing a foreign public official (who need not be the recipient of the benefit) in the exercise of their official duties. In order to commit an offence, the person offering the benefit must do so in order to obtain or retain business or a business advantage that is not legitimately due. Importantly, the advantage does not actually need to be obtained to establish the offence.

Bribery of a Commonwealth public official

Similarly, persons are prohibited from dishonestly providing a benefit to a person with the intention of influencing a Commonwealth public official in the exercise of their duties. It is not necessary that the person giving the bribe knew that the official was a Commonwealth public official, or that the duties were duties in their capacity as a Commonwealth public official. Corresponding offences apply to public officials that solicit or accept bribes.

Penalties

The penalties for bribing a Commonwealth public official or a foreign public official are:

  • Individual: imprisonment for not more than 10 years, a fine of not more than 10,000 penalty units, or both; and
  • Body corporate: not more than the greatest of the following:
    • a fine of 100,000 penalty units;
    • three times the value of the benefit obtained (if the value can be determined); or
    • 10% of annual turnover during the preceding 12 months.

False accounting offence

It is also an offence intentionally to alter or destroy an accounting document that a person is required to make under statute or common law to conceal or disguise the giving or receiving of a bribe. The maximum penalty for this offence is half of that for the primary bribery offence.

Anti-bribery Regulation

Does your jurisdiction provide for a specific obligation to prevent bribery and influence peddling? Is there an obligation to maintain a compliance programme? If so, please specify the regulation and legislation applicable and provide details of the obligation and the required elements of the compliance programme. Is it a specific criminal and/or administrative/civil offence not to implement such a compliance programme?

Australian authorities strongly encourage Australian companies, particularly companies conducting business offshore and/or with foreign governments, to implement robust and effective anti-bribery and corruption compliance programs. Despite this, there are currently no laws in Australia that create a specific obligation to prevent bribery and influence peddling, including by requiring the institution of a compliance plan program.

However, the CLACCC Bill (see Section - Recent Case Law and Latest Developments), currently before the Australian Parliament, proposes to introduce a new corporate offence of failing to prevent bribery of foreign public officials. The proposed offence renders a corporation criminally liable where an officer, employee or agent of the corporation commits a bribery offence for the profit or gain of the corporation, unless the corporation can prove that it had instituted adequate procedures to prevent foreign bribery.

Insider Dealing, Market Abuse and Criminal Banking Law

What are the main offences in relation to insider dealing, market abuse and criminal banking law (ie, illicit banking or financial solicitation, illicit conduct of banking business) in your jurisdiction? Please include the constituent elements of each offence. Set out any corresponding sanctions.

Insider trading

Under the Corporations Act, persons are prohibited from transacting, tipping or procuring other persons to transact in financial products (including securities) while in ‘possession’ of information that they know, or ought reasonably to know, is inside information.  Persons are also prohibited from conveying ‘inside information’ where they know, or should reasonably know, that the recipient will trade with the information or cause others to trade with the information.  ‘Inside information’ is information that is:

  • not ‘generally available’; and
  • price sensitive (determined by reference to whether a reasonable person would expect it to have a material effect on the financial product’s price or value).

‘Possession’ of inside information is not defined in the Corporations Act, although the language of the statute suggests that a person may be in possession of inside information even if they do not appreciate its significance.  The concept of ‘possession’ is extended in relation to corporations and partnerships, such that a corporation is taken to know, and possess, information if an officer of the corporation knows or possesses it in their capacity as an officer of the corporation, and a member of a partnership is taken to know, and possess, inside information if another member of the partnership or an employee of the partnership has come to know or possess it in their capacity as a member of the partnership or in the course of the performance of their duties.

Market manipulation

In Australia, market manipulation is addressed through a general proscription and a series of specific prohibitions contained in Division 2 of Part 7.10 of the Corporations Act. Broadly, it is an offence to take part in or carry out one or more transactions that have, or are likely to have, the effect of creating or maintaining an artificial price for trading in financial products on a financial market operating in Australia. It is also an offence to:

  • engage in conduct that would have the effect of creating a false appearance of active trading of financial products, or artificially maintaining, inflating or depressing the prices of financial products;
  • enter into a fictitious or artificial transaction that results in the trading price for a financial product to be maintained, inflated, depressed or rendered volatile;
  • disseminate information about an illegal transaction or conduct constituting market manipulation where the person either engaged in the illegal transaction / conduct, or may receive a direct or indirect benefit from disseminating information about it;
  • make a false or materially misleading statement, knowing or being recklessly indifferent to the veracity of the statement, that is likely either to induce persons to trade or to induce a price effect; and
  • trade for the purpose of influencing a financial benchmark.

Penalties

The maximum penalty for insider trading or market manipulation are:

  • Individual: imprisonment for not more than 10 years and/or the greater of 4,500 penalty units or three times the profit gained, or loss avoided;
  • Body corporate: the greater of 45,000 penalty units, three times the profit gained, or loss avoided or 10% of the body corporate’s annual turnover.

In addition to any criminal prosecution, civil penalty proceedings may be commenced against a person or corporation for insider trading or market manipulation.

Tax Fraud

What are the specific offences in relation to tax fraud and what must be proven by the competent authorities to establish a criminal offence? Please outline the constituent elements of each offence and corresponding sanctions. Is there a specific obligation to prevent tax evasion? Is the failure to prevent tax evasion a criminal and/or an administrative/civil offence in your jurisdiction?

In Australia, the Commonwealth government levies all major income taxes on Australian individuals and companies. Serious tax fraud (or evasion) is generally prosecuted under the fraudulent conduct offences in Part 7.3 of the Commonwealth Criminal Code. The main offences are:

  • by a deception, dishonestly obtaining Commonwealth property with the intention of permanently depriving the other of the property;
  • by a deception, dishonestly obtaining a financial advantage from the Commonwealth;
  • conspiring with another person with the intention of dishonestly obtaining a gain from (or causing a loss to) the Commonwealth; and
  • obtaining a financial advantage from the Commonwealth while knowing or believing that there was no eligibility to receive that advantage.

Penalties

For the first three offences above, the maximum penalty is 10 years imprisonment.

The fourth offence above is a lesser offence, punishable by 12 months imprisonment.

Failure to prevent tax evasion is not presently a criminal offence in Australia.

Financial Record-Keeping

What are the main offences in relation to financial record-keeping in your jurisdiction? What must be proven by the competent authorities to establish failure to keep or disclose accurate financial records as a criminal offence? What are the penalties for failure to keep or disclose accurate financial records?

The main offences relating to financial record keeping are contained in the Corporations Act and the Commonwealth Criminal Code. They relate to the failure to keep financial records and to the concealment, destruction, alteration or falsification of accounting records or company books. It is also an offence under the Corporations Act to fail to take all reasonable precautions to guard against the falsification of books or records and to facilitate the discovery of any falsification.

Corporations Act offences

Under the Corporations Act, in order to establish the offence of failing to keep or preserve financial records (a strict liability offence), it is necessary to establish that a corporation either failed to keep financial records:

  • that correctly recorded and explained its transactions and financial position and performance, and that would enable true and fair financial statements to be read and audited; or
  • for seven years after the transaction covered by the records was completed.

The offences under the Corporations Act are punishable by imprisonment for between one and two years or by a fine.

Commonwealth Criminal Code offences

A person commits an offence under the Commonwealth Criminal Code if they make, alter, destroy or conceal an accounting document or fail to make or alter an accounting document where there is a legal obligation to do so, for the purpose of facilitating, concealing or disguising matters relating to a bribe.  Such an offence is punishable by:

  • Individual: imprisonment for not more than 10 years and / or a fine of not more than 10,000 penalty units;
  • Body corporate: not more than the greatest of the following:
    • a fine of approximately 10,000 penalty units;
    • three times the value of the benefit obtained (if the value can be determined); or
    • 10% of annual turnover of the body corporate during the preceding 12 months.

Cartels and Criminal Competition Law

Identify the main criminal and/or administrative offences relating to cartels and criminal competition law? Under what circumstances can legal entities be subject to criminal/administrative liability for cartel and criminal competition law offences? What sanctions can be imposed?

The principal criminal offences under the Competition and Consumer Act relate to ‘serious cartel conduct’. A corporation (or individual) will be guilty of an offence if the corporation:

  • makes and / or gives effect to a contract, arrangement or understanding that contains a ‘cartel provision’;
  • intends to do so; and
  • does so with the knowledge or belief that the contract, arrangement or understanding contains a ‘cartel provision’.

A ‘cartel provision’ is one for which:

  • the purpose or effect is fixing, controlling or maintaining price;
  • the purpose is preventing, restricting or limiting production or supply;
  • the purpose is allocating customers or territories between the parties; or
  • the purpose is rigging bids for the supply or acquisition of goods or services,

and which is between parties that are, relevantly, ‘in competition’ with each other.

Penalties

The penalties for cartel offences are:

  • Individual: imprisonment for not more than 10 years and / or a fine of 2000 penalty units;
  • Body corporate: not more than the greater of
    • a fine of $10 million,
    • three times the total value of the benefits obtained by one or more persons which are attributable to the commission of the offence, or, if the total value of the benefits cannot be determined, 10% of the corporation's Australian annual turnover for the 12-month period immediately preceding the offence.

Consumer Criminal Law

Identify the main criminal and/or administrative offences relating to consumer criminal law? For each offence include which sanctions can be imposed.

The Australian Consumer Law (ACL) provides for offences relating to unfair practices, unsolicited consumer agreements, and breaches of safety standards. Specific offences include making false or misleading representations about goods or services, engaging in certain negotiations of unsolicited consumer agreements, propagating pyramid selling schemes and supplying goods while failing to comply with information standards.

Many of the offences in the ACL are strict liability offences, punishable by fines.

Cybercrimes, Computer Fraud and Protection of Company Secrets

Identify the main offences in relation to cybercrimes, computer fraud and breach of company secrets in your jurisdiction. Please include the constituent elements of each offence and necessary components to establish a criminal offence. What sanctions can be imposed?

In Australia, the main offences in relation to cybercrimes, computer fraud and breach of company secrets are set out in the Commonwealth Criminal Code and legislation of the Commonwealth, States and Territories.

Relevantly, the Commonwealth Criminal Code criminalises various cyber offences, including:

  • unauthorised access to, or modification of, ‘restricted data’ which includes data held in a computer and access to which is restricted by an access control system;
  • unauthorised impairment of data / electronic communications; and
  • possession or control of data with intent to commit an offence.

The penalties for cyber-crimes under the Commonwealth Criminal Code depend on the severity of the crime and can be punishable by imprisonment, with the minimum sentence being 2 years.

The States and Territories have also enacted legislation which criminalise similar cyber offences.

Financial/Trade/Customs Sanctions

Identify the main offences in relation to financial/trade/customs sanctions.

Types of sanctions

Australia implements two types of sanctions:

  • United Nations Security Council (UNSC) sanctions, which Australia must impose as a member of the United Nations; and
  • Australian autonomous sanctions, which are imposed as a matter of Australian foreign policy.

Pursuant to the Charter of the United Nations Act 1945 (Cth) and the Autonomous Sanctions Act 2011 (Cth), it is an offence for a body corporate or an individual to engage in conduct that contravenes a sanction law or condition of a sanction law. Australian sanctions laws include general prohibitions on providing a sanctioned service, engaging in a sanctioned commercial activity, and dealing with a designated person or entity. Sanctions are generally imposed in relation to specific countries and activities (e.g. providing financial assistance for military activity in Iran).

Contravention and penalties

The maximum penalties for an offence are the same under both Acts:

  • Individual: imprisonment for not more than 10 years or the greater of a fine not exceeding 3 times the value of the transactions (if the value can be determined) or a fine of 2,500 penalty units; or
  • Body corporate: the greater of a fine:
    • not exceeding 3 times the value of the transactions (if the value can be determined), or
    • of 10,000 penalty units.

Misleading a government agency

It is also an offence to give false or misleading information to a Commonwealth entity in connection with the administration of a sanction law.

Contravention by an individual is punishable by imprisonment for 10 years, 2,500 penalty units, or both.

As set out in section - Corporate Liability and Personal Liability, criminal liability for Commonwealth offences extends to body corporates, with the penalty being not greater than 5 times the amount of the maximum pecuniary penalty that could be imposed on an individual.

Concealment

Please set out the relevant constituent elements of concealment. What must be proven to establish concealment as a criminal offence? Identify any concealment predicate offences. May a person be held liable for both the predicate offence and concealment? What sanctions can be imposed?

Various statutes render the concealment of a criminal offence, including through the destruction of records, a crime. For example, the Commonwealth Crimes Act makes it an offence to benefit (either directly or indirectly) from:

  • compounding or concealing; or
  • abstaining from, discontinuing or delaying a prosecution of; or
  • withholding evidence of,

an indictable offence, where that offence is against a law of the Commonwealth or a Territory. The penalty for an individual is up to three years imprisonment.

Each of the States and Territories have similar offences in relation to concealment.

Similarly, there are statutory offences for concealment in relation to specific regulatory regimes. For example, it is an offence under the ASIC Act to conceal, destroy, alter or remove from the jurisdiction, ‘books’ (broadly defined) which relate to a matter that ASIC is investigating, or about to investigate. The penalty for an individual can be up to five years imprisonment.

Further, under the Corporations Act, it is an offence for officers of companies to fraudulently conceal the removal of any part of the property of the corporation or conceal any debt owed to or by the corporation (among other things).

The penalty for an individual is up to two years imprisonment.

As set out in section - Corporate Liability and Personal Liability, the penalty for a body corporate for each of the Commonwealth offences of concealment is not greater than 5 times the amount of the maximum pecuniary penalty that could be imposed on an individual.

Aiding and Abetting

May a person who conspires with or assists another to commit a corporate offence be held liable? What sanctions are incurred?

Generally, at both Commonwealth and State and Territory levels, a person who aids, abets, counsels or procures the commission of an offence will be taken to have committed the primary offence.  A person may be found guilty of aiding and abetting in situations where the person who committed the primary offence has not been found guilty of that primary offence.

In some instances, an accessory may be liable for the same or substantially similar penalty as the person who committed the primary offence.

Money Laundering

Identify the main offences in relation to money laundering in your jurisdiction (include predicate events). Please include the constituent elements of each offence, what must be proven to establish a criminal offence and what sanctions are incurred. Is there a specific obligation to prevent money laundering and if so, is it a criminal/administrative/civil offence not to fulfil such obligation? If so, please provide details as to (i) the competent prosecution and enforcement authority/authorities, (ii) the circumstances under which one can be held liable for such a failure and (iii) the criminal/administrative/civil penalties incurred (financial sanctions, jail sentences, monitoring process, etc).

Offence of money laundering

It is an offence under Part 10 of the Commonwealth Criminal Code to launder money in Australia. Money laundering offences fall into tiers depending on whether it is the proceeds of crime or will become an instrument of crime, and the alleged offender’s knowledge, reckless indifference or negligence as to whether it is the proceeds of or an instrument of crime. The penalty (which can be a significant fine or prison sentence) depends on the state of mind of the offender.

Obligations to prevent money laundering

The Anti-Money Laundering and Counter Terrorism Financing Act 2006 (Cth) (AML/CTF Act) places a positive obligation on reporting entities (broadly, financial institutions or providers of designated services) to have a program in place to identify, mitigate and manage the risks posed to their business by money laundering and terrorism financing. AUSTRAC administers and has the power to enforce the AML/CTF Act.  A failure to have or comply with an adequate program can result in AUSTRAC applying to the court for a civil pecuniary penalty, payable to the Commonwealth. The penalty may be:

  • Individual: up to 20,000 penalty units; or
  • Body corporate: up to 100,000 penalty units.

Defences/Exceptions

Defences

What are the main common defences for white-collar offences in your jurisdiction? Is the existence of an effective compliance programme a defence in your jurisdiction? If so, for which offences?

In Australia, general criminal law defences apply to white-collar crimes (e.g. innocence, duress, honest and reasonable mistake, etc).

The Commonwealth Criminal Code establishes some defences of general application for body corporates, including the following:

Mistake of fact: in relation to strict liability offences (i.e. those with a physical element but no fault element) a person will not be criminally responsible for an offence if at or before the time of the relevant conduct, the person, having considered whether or not facts existed, is under a mistaken but reasonable belief about those facts, and, had those facts existed, the conduct would not have constituted an offence.

A corporation can only rely on this defence if the employee, agent or officer who carried out the conduct was under a mistaken but reasonable belief about facts that, had they existed, would have meant that the conduct would not have constituted an offence and the corporation proves that it exercised due diligence to prevent the conduct.

No authorisation: in offences where intention, knowledge or recklessness is a fault element, the offence can be attributed to a corporation that expressly, tacitly, or impliedly authorised or permitted the commission of the offence. However, attribution will not be established where the corporation proves that it exercised due diligence to prevent the conduct, or the authorisation or permission of the offence.

Intervening conduct: a body corporate may plead the defence of intervening conduct against the physical element of a strict or absolute liability offence where it can demonstrate that the physical element of the offence was brought about by a person (who is not an employee, agent or officer of the body corporate) who the body corporate has no control over and could not reasonably be expected to guard against the occurrence of the intervening conduct or event.

The defences outlined above are not an exhaustive list and certain white-collar offences may be countered with specific defences.

Exceptions

Are there any exceptions or de minimis exceptions for white-collar offences in your jurisdiction? Are there any exempt industries and/or sectors?

There are no blanket exceptions to white-collar offences for any particular types of transactions, sectors or persons. However, statutory regimes may provide for specific exceptions to certain offences (e.g. the ‘exception’ to insider trading prohibitions protecting underwriters that acquire securities pursuant to an underwriting agreement obligation).

Furthermore, Commonwealth, State and Territory prosecutors each have policies that govern the exercise of their prosecutorial discretion which guide determinations as to which matters are prosecuted (in light of their scarce resources and overall considerations of justice). Prosecution decisions are made on a case-by-case basis. Matters such as the merits of a case, its prospects, and the alleged magnitude and type of harm may be considered.

Co-operation, Self-Disclosure and Leniency

Is self-disclosure a mitigating factor? Is co-operation with investigators or prosecuting authorities a mitigating factor? Are there any other applicable leniency measures?

Australian regulators, investigators and prosecuting authorities may take account of self-disclosure and co-operation in making decisions concerning whether to proceed with an investigation or prosecution. However, except to the extent noted below, there is no requirement for them to do so with respect to white-collar offences, and it is by no means certain that self-disclosure and/or co-operation would assist a party considering such a step. Self-disclosure and co-operation with investigators or prosecuting authorities may also be considered by a court in sentencing.

ACCC Immunity Policy

The ACCC has an immunity and cooperation policy for cartel conduct which applies to both individuals and corporations. Where an individual or corporation intends to make an application for immunity, they can request that the ACCC place a marker. The marker allows the applicant a limited amount of time to gather the information necessary to demonstrate that they satisfy the requirements for conditional immunity. Once a marker has been requested, the individual or corporation must cooperate fully with the ACCC in order to obtain conditional immunity including by providing full disclosure of information to the ACCC.

The ACCC is not able to grant immunity from criminal prosecution for cartel conduct although the ACCC will make recommendations to the CDPP where it considers such immunity is appropriate. The CDPP will make its own assessment according to the Prosecution Policy of the Commonwealth.

ASIC Immunity Policy

In February 2021, ASIC published an immunity policy for contraventions of Part 7.10 of the Corporations Act, including offences of insider trading and market manipulation.  Under this policy, immunity may be available for individuals who think they may have contravened (with at least one other person) a provision of Part 7.10 and intend to cooperate with ASIC in relation to its investigation and any court proceedings regarding the contravention.  Immunity is not available to corporations under the policy.

In order to qualify for immunity under the policy:

  • the individual seeking immunity must be the first individual who satisfies the immunity criteria and reports the misconduct to ASIC; and
  • the individual must do so prior to ASIC commencing an investigation into the conduct. 

The process for obtaining immunity from ASIC is similar to that of the ACCC, including the marker process.  ASIC is not able to grant immunity from prosecution. However, ASIC can make recommendations to the CDPP that immunity be granted to individuals. The CDPP will then make its own assessment according to the Prosecution Policy of the Commonwealth.

Whistle-Blower Protection

Does your jurisdiction afford any protection to whistle-blowers? If so, please provide details. Are there any incentives for whistle-blowers to report white-collar offences? If so, please provide details. What are the safeguards and internal procedures implemented by companies in your jurisdiction to protect whistle-blowers?

The Corporations Act provides whistle-blower protection to individuals who meet the following criteria:

  • the individual is an ‘eligible whistle-blower’, which includes current or former employees, officers and contractors of a corporation (and relatives, spouses or dependants of those individuals);
  • the disclosure is made to an ‘eligible recipient’, which include directors, company secretaries, senior management, auditors, actuaries of the corporation, ASIC or Australian Prudential Regulation Authority (APRA), or the individual’s legal representatives;
  • the disclosure relates to a regulated entity, which includes companies, banks, insurers, and superannuation entities and trustees; and
  • the individual has reasonable grounds to suspect that the information that he or she is disclosing indicates that the entity has committed an offence or a contravention of Australian law, including of the Corporations Act, Banking Act, Criminal Code, or that the conduct represents a danger to the public or financial system.

In general terms, whistle-blowers who make qualifying disclosures cannot be subject to any civil or criminal liability for making the disclosure. No contractual or other remedy may be enforced or exercised against the whistle-blower on the basis of the disclosure.

The Corporations Act also prohibits the victimisation of the whistle-blower and creates a right entitling any victimised whistle-blower to seek damages. Additionally, a whistle-blower whose employment is terminated as a result of their disclosure may commence court proceedings seeking that their employment be reinstated.

Public companies, large proprietary companies, and corporate trustees of superannuation entities regulated by APRA must have a whistle-blower policy. Among other things, the whistle-blower policy must include information about the legal protections available to whistle-blowers, how a corporation will investigate a disclosure made by a whistle-blower and how they will protect whistle-blowers from detriment.


Burden of Proof and Assessment of Penalties

Burden of Proof

Please outline provisions relating to the burden of proof in white-collar proceedings. Which party has the burden of proof? What is the standard of proof that this party must satisfy? Is there any presumption mechanism in your jurisdiction? If so, provide examples.

The prosecution bears the burden of proving every element relevant to the guilt of the person charged, as well as disproving any matter in relation to which the defendant has discharged an evidential burden of proof. The standard of proof is beyond reasonable doubt: see s.141 of the Evidence Act 1995 (Cth) (and see also Division 13 of the Commonwealth Criminal Code), and s.141 of the Uniform Evidence Acts of the States of New South Wales, Tasmania and Victoria, and the Australian Capital Territory and the Northern Territory.  Similar legislative provisions exist in respect of the States of Queensland, South Australia and Western Australia.

A defendant who wishes to raise a positive defence must generally discharge an evidential burden only, being a burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (the applicable standard of proof in respect of any burden of proof by the defendant being the balance of probabilities). Once that burden has been discharged, the prosecution bears a legal burden of negating the defence as part of the discharge of the prosecution’s burden of proof beyond a reasonable doubt.

Assessment of Penalties

When a defendant is deemed guilty of a white-collar offence by a criminal court, are there any rules or guidelines governing the assessment of penalties? What is the sentencing process? Are there any rules or guidelines governing the assessment of penalties in the event of a deferred prosecution agreement, non-prosecution agreement or plea agreement?

Part IB of the Commonwealth Crimes Act contains provisions which establish general sentencing principles in relation to Commonwealth offences, including the matters to which the court must have regard when passing a sentence, and any reductions for cooperation with law enforcement agencies.

Each of the States and Territories has its own legislation dealing with sentencing procedure, rules and guidelines.

Unlike State and Territory legislation, Commonwealth statutes do not include specific provisions governing the procedures for fact-finding by a court sentencing a Commonwealth offender. As such, procedures and evidentiary rules in the relevant State or Territory in which the sentencing hearing is held will apply, by virtue of ss 68 and 79 of the Judiciary Act 1903 (Cth), to sentencing hearings in respect of Commonwealth offences, except to the extent that a Commonwealth law has expressly or by necessary implication excluded the operation of such State or Territory laws.

Sentencing is strictly a matter for the sentencing court, and although prosecutorial authorities may make a submission that a custodial or non-custodial sentence is appropriate in a particular case, a prosecutor will not be permitted to make a submission as to the bounds of the available sentencing range or to proffer some statement as to the specific result.

Commonwealth and State / Territory sentencing legislation permits the court to take into account various factors when determining a sentence, including whether the accused has plThe authors would like to thank lawyers Dominic Eberl, Kate Bouffler, Rosie Enderby, Kristina Froio and Jordan Phoustanis for their assistance in preparing this chapter.eaded guilty to the charge, the timing of the plea and any benefit to the community, victim or witness derived from the plea, as well as the following, to the extent relevant and known to the court as a consequence of its fact finding on sentencing:

  • the nature and circumstances of the offence, any injury, loss or damage resulting from the offence and any victim impact statement from the victim;
  • the degree to which the person has shown contrition for the offence;
  • the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or of other offences;
  • the deterrent effect that any sentence or order under consideration may have on the person or on other persons;
  • the need to ensure that the person is adequately punished for the offence;
  • any abuse by the person of their position or standing in the community to aid in the commission of the offence; and
  • the probable effect that any sentence or order under consideration would have on any of the person’s family or dependents.

The authors would like to thank lawyers Dominic Eberl, Kate Bouffler, Rosie Enderby, Kristina Froio and Jordan Phoustanis for their assistance in preparing this chapter.


 

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