Corporate Crime

All business owners, company directors, employers and employees are subject to stringent work practices. There are a number of complex legislative and regulatory instruments that you and your business need to navigate in order to ensure compliance with appropriate standards and to avoid criminal investigation and criminal prosecution.

Investigations into business practices and company practices are stressful and take a toll on all aspects of the business’s day to day operations.  If you or your business is being investigated by a regulatory or prosecuting body, it is important that you receive advice at the earliest opportunity.  Being properly represented during the investigation stage of a matter means that you have every opportunity to minimise the risks to your business both from an operational perspective and from a public relations perspective.

These investigations can take many forms. Robertson O’Gorman Solicitors has advocated for their clients in all aspects of corporate crime.  Our work sees us representing individuals and companies in the following investigations, proceedings and prosecutions.

ASIC, the Australian Securities and Investments Commission is responsible for investigating and prosecuting contraventions of the Commonwealth Corporations Act 2001.

ASIC, as the investigating authority, has a wide range of powers to investigate these matters. ASIC has the power to compel directors, employers and employees to attend compulsory hearings where those being questioned cannot legally refuse to answer questions.

Some examples of the types of behaviour which may lead to an ASIC investigation or prosecution include:

  • Company directors committing acts of fraud against the company;
  • Carrying on financial services without appropriate licenses;
  • Falsification of Company records; and
  • Offences of insider trading and other market manipulation tactics against the stock market.

A director or other officer of a company commits an offence if they are reckless or are intentionally dishonest and fail to exercise their powers and discharge their duties in good faith and in the best interests of a company. The offence provisions are broadly framed and can capture a wide range of alleged conduct.

There are a number of provisions that set out the duties and powers of a company director and of other officers.  Section 184 of the Corporations Act 2001 sets out certain conduct which would be criminal if committed by an officer or directors.

If you are unsure of your duties, obligations and powers in relation to your position within the company structure, you should immediately seek legal advice so as to ensure you are not personally liable for any failings by you or the company.

Workplace Health and Safety legislation and regulation is a complex area for businesses, especially small businesses, to navigate.  Failures to ensure that there is a safe system of work for employees and customers can place you at risk of investigation and prosecution.

When injuries occur in workplace environments, assessments are made as to the degree of seriousness or culpability of the individuals, managers and office holders involved.  Possible penalties for breaches of the law range from fines to jail terms.

If the offence involves an element of recklessness on the part of the business those offences may be prosecuted in the District Court. Lesser offences will be prosecuted in the Magistrates Court.

In 2017, the Queensland Parliament introduced an offence of industrial manslaughter.  These provisions make it an offence for a person conducting a business, or a senior officer, to negligently cause the death of a worker or employee.  In particular the offence applies if the worker dies or is fatally injured, in the course of carrying out work for the business.

The investigation and prosecution process for offences of this nature are deeply concerning for the individuals and senior officials involved.  Having expert advice at the earliest opportunity means that you can be assured of appropriate representation throughout the proceedings.

The maximum penalty for industrial manslaughter for an individual is 20 years imprisonment or for a body corporate it is 100,000 penalty units.

Our Australian taxation system is a system of self-assessment and relies on taxpayers to act honestly in fulfilling their taxation obligations.  The Commissioner of Taxation has the power to ensure compliance with the taxation laws.  Penalties are applicable to persons who contravene the taxation administration legislation.

If you are charged with having committed a criminal tax offence, the investigation will be conducted by the ATO (Australian Taxation Office) and the prosecution will be conducted by the Commonwealth Director of Public Prosecutions.

The law provides for a number of offences including:

  • Making false and misleading statements;
  • Failing to keep accurate accounting records;
  • Failing to lodge taxation returns or activity statements; and
  • Failing to pay tax or remit the tax deductions of employees.

There are a number of facets to corporate and business tax which are closely studied as part of the ATO’s investigating authority.  Businesses and companies must ensure that their records are properly kept.

If you are concerned about an ATO investigation, you can telephone Robertson O’Gorman Solicitors to obtain advice in relation to your position.

There are a number of bodies within Australia whose purpose is to investigate crimes and professional misconduct.  Often these investigating bodies and commissions are granted wide ranging powers to summons people to give evidence, compel a witness to attend a hearing and to compel that witness to answer questions.  A right to silence does not apply within those commissions and it is important that individuals claim a privilege against self-incrimination if available to them.

Although you cannot speak about your attendance at these commissions to members of your family, friends, or colleagues, you are entitled to have a lawyer present to ensure that your rights are not infringed.

If you receive a summons from the Australian Criminal Intelligence Commission or the Crime and Corruption Commission, you should immediately seek legal advice.  Other bodies include the Australian Securities and Investments Commission hearings and Australian Borderforce Commission.

We recommend that you seek legal advice before appearing in any tribunal. Often, we can delay your appearance for a reasonable time to allow you to obtain legal advice.