Criminal, civil and administrative penalties for white collar crime

Submission 54

UNCLASSIFIED

Senate Standing
Committee on
Economics
References
Committee
Inquiry into penalties for
white-collar crime

April 2016

Submission by the
Australian Federal Police
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Criminal, civil and administrative penalties for white collar crime

Submission 54

UNCLASSIFIED
Contents
Executive Summary ............................................................................................................... 3
Introduction.......................................................................................................................... 4
Terms of Reference ............................................................................................................... 5
Background: nature of white-collar crime ................................................................................. 6
Evidentiary standards for offences ........................................................................................... 7
Corporate criminal liability ................................................................................................... 8
Corporate culture ............................................................................................................. 8
Knowingly concerned........................................................................................................ 8
Mechanisms to recover wrongful gains ..................................................................................... 9
Confiscation of criminal assets.............................................................................................. 9
Other matters: evidence gathering ........................................................................................ 10
Bankers affidavits and search warrants ............................................................................... 10
Electronic service of warrants and receipt of evidence ........................................................... 11
Sharing of financial information .......................................................................................... 11
Other matters: incentives to comply ...................................................................................... 11
Australia ....................................................................................................................... 11
Canada ......................................................................................................................... 12
Conclusion .......................................................................................................................... 12

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Criminal, civil and administrative penalties for white collar crime

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Executive Summary
White-collar crime is a form of serious financial crime, which includes offences such as
fraud, bribery, corruption and money laundering. These offences can cause serious
harm to the community. The Australian Crime Commission has estimated that serious
and organised crime costs the Australian economy $36 billion per year, of which
organised fraud comprises $6.3 billion. 1 Strong criminal penalties form part of a range
of measures needed to effectively combat such crimes.
Serious financial crime is difficult to investigate and prosecute. It is often complex,
premeditated and carried out by well-educated and resourced perpetrators. Professional
advice (wittingly or unwittingly provided) is often used to help evade law enforcement
and fight prosecution. Criminal conduct often occurs over long periods of time before it
is discovered, and involves cross-border, structured transactions and multiple parties
that are deliberately used to evade detection and investigation.
These characteristics of serious financial crime mean that investigators face significant
challenges obtaining sufficient evidence to bring prosecutions. A perception that there is
a low risk of being detected means that criminals are willing to take risks in committing
serious financial crimes. Even if they are detected, offences may not be made out in
court due to challenges associated with gathering sufficient evidence.
Any assessment of the efficacy of criminal penalties for serious financial crime must
take into account the degree to which they are able to be enforced and the availability
of effective non-criminal measures. While strong criminal penalties are important to
deter and punish wrongdoing, they must be supported by sufficient powers to gather
evidence and incentives to encourage whistle-blowers to come forward and companies
to voluntarily self-report wrongdoing. Both incentives to encourage voluntary
compliance with the law and other mechanisms to reduce the profit motivation of
serious financial crime are critical to a holistic strategy to combat such crime.
The AFP has been, and continues, to work closely with the Government through the
Attorney-Generals Department to ensure that the legislative framework for combating
serious financial crime and white collar crime remains robust and effective.
Key reforms recently enacted through the Crimes Legislation Amendment (Proceeds of
Crime and Other Measures) Act 2016 include amendments to:

clarify the operation of the non-conviction based confiscation regime in the

Proceeds of Crime Act 2002 in response to recent court decisions; and

introduce new false accounting offences into the Criminal Code.

These reforms are having a significant positive impact on the ability of the AFP to
combat serious financial crime, including by ensuring its continued ability to take civil
action to reduce the ability of perpetrators to enjoy their illegitimate profits.
The AFP will continue to work with the Government to support the existing strong
framework to detect, deter and punish serious financial crime.

Australian Crime Commission, The costs of serious and organised crime in Australia 2013-14, p. 7.

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Criminal, civil and administrative penalties for white collar crime

Submission 54

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Introduction
1.

The AFP welcomes the opportunity to make a submission to the Senate Standing
Committee on Economics inquiry into the inconsistencies and inadequacies of current
criminal, civil and administrative penalties for corporate and financial misconduct or
white-collar crime.

2.

This submission focuses on the impact and availability of criminal and civil penalties
for the investigation, prevention and deterrence of serious financial crime (of which
white-collar crime is a subset) including, where applicable, corporate criminality. The
AFP investigates Commonwealth criminal offences such as fraud, money laundering
and corruption, including the bribery of Commonwealth and foreign public officials. 2
AFP investigations form one part of an integrated, holistic approach to crime.

3.

Recent legislative amendments to introduce new false accounting offences and

respond to judicial decisions on the Proceeds of Crime Act 2002 through the Crimes
Legislation Amendment (Proceeds of Crime and Other Measures) Act 2016 support the
AFP in combating serious financial crime. The AFP continues to work closely with the
Government to support the continued effective operation of the existing legislative
framework.

4.

Economic crime has a very high impact on Australian society, and this level of harm is
reflected in the AFPs Case Categorisation and Prioritisation Model (CCPM). Serious and
organised crime, including organised fraud, money laundering and corruption, has
been estimated to cost the Australian economy $36 billion per year. 3 Serious financial
crimes including white-collar crimes are not, contrary to some perceptions, victimless
crimes. They have a real and significant impact on individuals and society as a whole
even when there are no complainants coming forward to report their losses or harm
suffered. Such crimes can facilitate or hide the commission of other serious criminal
activity, including organised crime and terrorism, deprive people and communities of
valuable resources and assets, and distort the legitimate economy.

5.

Accordingly, the AFP supports strong penalties for both individual and corporate
perpetrators of serious financial crime and white-collar crime, commensurate with the
severity of its impact on society. The availability of appropriate penalties is important
to deter criminal behaviour and send a clear message that society does not support
such behaviour. Criminal sentences (monetary fines and, in relation to individual
offenders, imprisonment) are proportionate and dissuasive measures to combat
serious financial crime.

6.

In addition to criminal penalties, the AFP considers the availability of other measures,
such as administrative and civil penalties, is equally important to address the serious
harm caused by white-collar wrongdoing. Such measures are crucial in circumstances
where criminal liability cannot be proven, but the conduct has resulted, or will result,
in harm being caused to the community, or a profit or gain being wrongfully obtained.
The AFP works closely with partner agencies to ensure a full range of treatments,

Some of these offences include conduct which is also the subject of State/Territory legislation and investigated by
the relevant State/Territory agencies.
3
Australian Crime Commission, The costs of serious and organised crime in Australia 2013-14.

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Criminal, civil and administrative penalties for white collar crime

Submission 54

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including civil and administrative measures, are considered and deployed where
appropriate.
7.

Serious financial crime is often complex, well-concealed and difficult to detect. It may
involve a significant degree of planning and pre-meditation, as well as the complicity
or assistance (witting or unwitting) of other parties. In addition to appropriate
penalties, law enforcement and partner agencies require a range of powers to detect,
investigate, prevent and deter such crimes. For example, key reforms passed in the
Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Act 2016
ensure the effective operation of the non-conviction based confiscation regime in the
Proceeds of Crime Act 2002, and enable the AFP to continue to take action to combat
the profit motivation of serious financial crime.

8.

Measures to ensure information can be obtained in a timely manner, and which

remove the profit motivation and provide strong deterrence, are fundamental. Without
such measures, the ability of law enforcement to secure swift and certain punishment
for serious financial crime will remain limited. On the other hand, the potential profits
to be made from serious financial crime will continue to motivate individuals and
companies to engage in criminal behaviour.

Terms of Reference
9.

The terms of reference for the inquiry are as follows:

the inconsistencies and inadequacies of current criminal, civil and administrative
penalties for corporate and financial misconduct or white-collar crime, with
particular reference to:
a. evidentiary standards across various acts and instruments;
b. the use and duration of custodial sentences;
c. the use and duration of banning orders;
d. the value of fine and other monetary penalties, particularly in proportion to
the amount of wrongful gains;
e. the availability and use of mechanisms to recover wrongful gains;
f.

penalties used in other countries, particularly members of the Organisation

for Economic Co-operation and Development [OECD]; and

g. any other relevant matters.

10.

This submission will discuss matters relating to:

the ability of law enforcement and partner agencies to obtain timely, sufficient
evidence and enable the prosecution or prevention of serious financial crime
including white-collar crime and related wrongdoing

the availability of non-conviction based mechanisms to remove or reduce the

profit motivation of serious financial crime, and

ensuring serious financial crime is viewed seriously by the community,

irrespective of the corporate or professional status of its perpetrators.

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Background: nature of white-collar crime
11.

White collar crime is a form of serious financial crime. The AFP does not distinguish
white collar crime from financial crime types such as those related to organised
crime, which do not come within the commonly understood definition of white collar
crime. The AFPs preferred terminology for all such criminal activity is serious
financial crime.

12.

The term white-collar crime generally refers to financially-motivated, non-violent

crime and can cover a broad range of criminal conduct. Criminal conduct may occur in
the course of the perpetrators business or profession. In some cases, perpetrators
exploit their social status or that of the business or profession with which they are
associated, for example, corporate fraud or corruption. Other offences involve criminal
conduct benefitting a business directly, for example bribery of a foreign official to
obtain a business advantage, or indirectly, by profiting from the proceeds of crime,
such as through money laundering.

13.

Despite some misconceptions, serious financial crime, including white-collar crime, can
cause serious harm to the community. Fraud against the Commonwealth, and bribery
and corruption of public officials, can result in the misdirection or wastage of scarce
public resources, leading to poorer quality public services. Money laundering is a key
facilitator of serious and organised crime, with proceeds of crime used to fund other
criminal enterprises or activities, including terrorism. The initial financial impact of
serious financial crime and white-collar crime is only the tip of the iceberg. While the
full extent of the cost of such crime to society is difficult to measure, the ACC has
recently estimated that serious and organised crime costs the Australian economy $36
billion per year, of which organised fraud comprises $6.3 billion. 4

14.

Serious financial crime often involves sophisticated attempts to hide the wrongful
conduct and a level of planning that makes it difficult to detect and investigate.
Perpetrators may be well-educated and well-resourced, allowing them to take
advantage of specialist or professional advice to evade law enforcement and
prosecution. The difficulties in detection and investigation of such crime may be
further aggravated where it involves:

conduct occurring over lengthy periods of time prior to discovery

transactions occurring over multiple jurisdictions, including overseas jurisdictions

financial arrangements deliberately structured in a way that complicates and

obscures money trails

syndicate structures in which the more senior members distance themselves from
the actual commission of criminal conduct, meaning that they benefit from crime
but are often beyond the remit of criminal prosecution

decisions or transactions for which more than one person may be responsible, or
no single person has clear responsibility (for example, where actions were
consistent with a corporate entitys usual way of doing business, or encouraged or
sanctioned by its corporate culture), or

transactions involving corporate entities or other third parties.

Australian Crime Commission, The costs of serious and organised crime in Australia 2013-14, p. 7.

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15.

Consequently, obtaining sufficient evidence to prosecute serious financial crime is

often difficult. Although a range of evidence may be sought, documentary evidence,
such as transaction records and financial accounts, is often crucial to an investigation.
However, such evidence is often susceptible to alteration or destruction, or may
otherwise be inaccurate or incomplete. For example, proof of an offence may require
evidence of the money trail (the movement of money in and out of, and within, the
financial system), as well as evidence of decisions made by the perpetrators linking
the movement of money to the intended commission of the offence.

16.

Complicating factors such as those listed above can create significant obstacles to the
successful investigation and prosecution of criminal offences. For example, it may be
difficult to:

17.

identify the full nature and extent of the offending, including the degree of criminal
fault (intention, knowledge, recklessness or negligence)

identify parties who were involved in, or responsible for the decision to engage in,
the relevant transactions

trace the flow of money to its ultimate beneficiary or the perpetrator of the crime
(particularly where sophisticated money laundering techniques are used), or

obtain records or other evidence, particularly from an overseas jurisdiction.

The difficulties involved in investigating serious financial crime necessitate policy

responses that address the impediments to obtaining relevant evidence and the social
harm caused by criminal conduct. Without such measures, the ability of individuals
and bodies corporate to profit from white-collar crime without being detected or
subject to fitting punishment will continue to drive its commission and cause society
harm. While Australia has a robust criminal law framework to address serious financial
crime and white-collar crime, any assessment of the efficacy of criminal penalties
should take into account the degree to which they are able to be enforced and the
availability of effective non-criminal measures.

Evidentiary standards for offences

18.

Legislative drafting of serious financial crime offences such as fraud, bribery and
money laundering reflects the complexity of those crimes. Most relevant
Commonwealth Criminal Code offences comprise multiple physical elements. These
elements relate to conduct, as well as a result of conduct or circumstances in which
conduct, or a result of conduct, occurs. They also generally include fault elements of
knowledge or intent, 5 and in some cases, additional elements of dishonesty, or an
ulterior intention that a certain outcome be achieved as a result of the conduct
engaged in.

19.

While piecing together the money trail and establishing the physical elements of an
offence can be a complicated matter, it is the tendency of perpetrators of serious
financial crime to go to great lengths to distance themselves from the crime which
makes prosecution particularly challenging. As discussed above, proving elements of

Although some offences, such as money laundering, include fault elements of recklessness or negligence;
these will be discussed further below.

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Criminal, civil and administrative penalties for white collar crime

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serious financial crime offences is often difficult due to an absence or paucity of
documentary evidence. In particular, investigators often experience difficulties proving
the necessary fault element, dishonesty or ulterior intention where bodies corporate or
third parties, such as agents or intermediaries are involved.

Corporate criminal liability

20.

Part 2.5 of the Criminal Code provides that a body corporate may be found guilty of
any offence, including one punishable by imprisonment, and that the Code applies to
bodies corporate in the same way as it applies to individuals. 6 Consequently, serious
financial crime offences in the Code, such as those relating to bribery, fraud and
money laundering, are all equally applicable to bodies corporate as well as individuals.
Corporate culture

21.

The Criminal Code evidences a clear intention to apply criminal responsibility to bodies
corporate, subject to modifications necessary because of the fact that criminal liability
is being imposed on a body corporate. In particular, the corporate culture provisions
are innovative in that they appear intended to allow criminal liability to be attributed
to a corporation without a finding of fault in relation to an individual.

22.

Notwithstanding the breadth of the definition of corporate culture in subsection

12.3(6) of the Criminal Code, investigators nonetheless face difficulties in gathering
evidence to prove a corporate culture that authorised or permitted the commission of
an offence, or that a body corporate failed to create and maintain a corporate culture
that required compliance. This is especially the case where a body corporate has in
place formal policies that despite being compliant with the law, are not intended to be
taken seriously. Proving a non-compliant corporate culture in such circumstances is
often difficult for the same reasons it is difficult to attribute intention, knowledge or
ulterior intention to an individual: people take great care to avoid incrimination.
Additionally, potential whistle-blowers face a range of challenges and disincentives.

23.

The effectiveness of penalties in deterring serious financial crime, including

white-collar crime, is highly dependent on the ability to investigate and prosecute
bodies corporate as appropriate. To date, there have not been any successful
prosecutions under the corporate criminal responsibility provisions of the Criminal
Code, where a body corporate has pleaded not guilty.
Knowingly concerned

24.

The criminal law has long recognised that persons involved in the commission of an
offence should be held criminally responsible, even where they did not actually commit
an offence. Such derivative liability is important to deter and punish those who would
seek to support or encourage criminal activity, regardless of their motivation for doing
so.

25.

Under Division 11 of the Criminal Code, there is currently inadequate provision for
criminal liability of those who would be characterised as ringleaders in serious and
organised crime syndicates. Although such persons can be prosecuted on the basis of
6

Section 12.1.

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accessorial liability (aiding, abetting, counselling or procuring the commission of an
offence), these forms of liability imply that the offender was not as culpable as the
person who committed the main offence. In fact, such persons should be considered
more culpable, due to their leadership roles and conduct which is often deliberately
calculated to distance themselves from the commission of the main offence.
26.

Criminal syndicate leaders, for example, generally make the most profit, while often
remaining just beyond the reach of the law. Where a defendant is charged with aiding
or abetting the commission of an offence, there is a risk that their level of criminality
is viewed as inferior to the person who actually committed the offence. Even if
convicted, inadequate sentences which fail to dissuade criminal behaviour may result
from misperceptions borne of the inappropriate nature of the charge.

27.

The AFP believes that amending the Criminal Code to include knowingly concerned as
an additional form of secondary criminal liability would significantly alleviate this gap
in the current law and facilitate prosecution of serious financial crime offences. The
concept of knowingly concerned was included in the Crimes Act 1914 when it was
first enacted and thus has a long history in Australian law. As noted by the
Commonwealth Director of Public Prosecutions, it required proof that a person had
intentionally concerned themselves with the essential elements or facts of a criminal
offence; mere knowledge of the offence was insufficient. 7 It more accurately reflects
the nature of organised crime, and is simpler to apply than the archaic formulation of
aid, abet, counsel or procure.

28.

The Government introduced legislative amendments to amend the Criminal Code to

include knowingly concerned as a form of derivative liability through the Crimes
Legislation Amendment (Powers, Offences and Other Measures) Bill 2015. However,
the schedule of the Bill including these amendments was defeated in the Senate.

Mechanisms to recover wrongful gains

Confiscation of criminal assets
29.

Confiscation of criminal assets is a vital tool in taking the profit out of crime and
preventing the reinvestment of criminal profits into further criminal activity. In
particular, the non-conviction based asset forfeiture regime under the Proceeds of
Crime Act 2002 (POCA) can be used to target senior members of criminal syndicates,
who benefit from financial crime but sufficiently distance themselves from the
offending to place themselves outside the remit of traditional criminal justice
measures. Through the joint Criminal Assets Confiscation Taskforce (CACT), the AFP is
focusing on asset confiscation as an alternative method to recover wrongful gains from
all forms of serious financial crime.

Commonwealth Director of Public Prosecutions, Inquiry into the Crimes Legislation Amendment (Powers,
Offences and Other Measures) Bill 2015: Submission by the Commonwealth DPP, 7 May 2015, p. 6.

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Criminal Assets Confiscation Taskforce (CACT)
The CACT, led and hosted by the AFP, combines the expertise and resources of
the AFP, the Australian Crime Commission and the Australian Taxation Office. The
CACT has investigation and litigation teams in Brisbane, Sydney, Melbourne,
Perth and Canberra, thereby providing national coverage. These teams also
provide financial investigative support to other operational areas of the AFP.
The CACT investigates conviction-based and non-conviction-based proceeds of
crime matters under the POCA. The CACT employs a dynamic and integrated
approach to asset confiscation and develops the most effective and appropriate
strategy for each individual case. In 201415, AFPs specialised Criminal Assets
Litigation practice restrained more than $246.6 million in criminal assets, making
it the most successful year to date. These results arise from a number of forms of
serious financial crime, including white collar offending such as insider trading
and fraud, as well as other crime types such as drug offences.

30.

The AFP continues to work closely within Government to ensure the regime under the
Proceeds of Crime Act 2002 remains effective in light of evolving case law in this area.

Other matters: evidence gathering

31.

As outlined above, the nature of many serious financial crimes is such that they are
difficult to prosecute in large part due to the challenges involved in obtaining sufficient
evidence to meet evidentiary standards.
Bankers affidavits and search warrants

32.

The ability to obtain financial transaction and related records is often critical to the
investigation and prosecution of serious financial crime, including white-collar crime.
However, current processes for obtaining such information from financial institutions
still largely reflect the historical approach of the criminal law. Such processes are often
resource-intensive and duplicative for both financial institutions and investigating
agencies, and impede the timely progress of an investigation to prosecution.

33.

For example, a financial institution may be willingly cooperating with government

agencies in respect of an investigation (which may not relate to the institution itself).
Accordingly, it may prepare and provide information and documents to a government
agency in response to a production order or other statutory requirement. However, for
this information to be collected and adduced in court, a search warrant must be
executed on the financial institution and a bankers affidavit is often required. This
means that financial institutions may need to provide or present the same documents
or information on multiple occasions.

34.

The AFP is working with Government and private sector partners to explore options to
improve efficiency in these processes and ensure relevant material is provided to
support investigations in a timely manner with minimum burden on industry.
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Electronic service of warrants and receipt of evidence
35.

The AFP is aware that some jurisdictions allow for the electronic (online) service of
warrants and production orders on banks and financial institutions.

36.

In this digital age, the general public, including the private sector, expect to be able to
deal with government electronically. Banks and financial institutions may prefer to be
able to provide documents and other information to law enforcement electronically,
including documents and information subject to search warrants or production orders.
Sharing of financial information

37.

The AFP has strong working relationships with AUSTRAC, other Commonwealth, State
and Territory government agencies and the private sector, and will continue to explore
information sharing issues in close collaboration with these partners.

Other matters: incentives to comply

38.

As outlined above, a major challenge in investigating and prosecuting serious financial

crime including white-collar crime is obtaining sufficient information and evidence
about the commission of an offence. For example, the commission of an offence may
be subject to a cover up, particularly where it is committed in a corporate context in
the absence of a strong compliance culture. External witnesses or evidence may be
difficult to obtain for various reasons, especially where persons may have been
involved in the commission of an offence or located in other jurisdictions.

39.

In light of the difficulties involved in prosecuting white-collar criminal offences,

jurisdictions such as the United States and United Kingdom have developed the use of
deferred prosecution agreements (DPAs) as an additional approach to traditional
prosecution. DPAs provide an incentive to corporate offenders to self-report
wrongdoing, and as a part of the agreement, to improve their internal compliance
systems. Although DPAs may allow offenders to avoid conviction if their terms are
met, their terms often include the payment of a financial penalty, as well as requiring
the company to incur further costs to improve their compliance systems. Offenders
may also be required to make restitution to the victims of the crime.

Case Studies: Deferred Prosecution Agreements

Australia
The AFP is currently conducting two investigations with companies that are
willing to cooperate on their respective foreign bribery matters. One of these
matters was referred to the AFP by the company itself.
In the absence of DPA arrangements, it is noted that the companies may face
charges irrespective of their ongoing cooperation. This in turn limits the
incentives for companies to self-report serious financial crime matters and
strengthen their compliance systems.

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Canada
In Canada, the media recently reported that one case, involving a major
company and one of its senior executives who were, between them, charged
with foreign bribery and a range of other serious financial crime offences in
2014, is not expected to reach preliminary court hearings until 2018.
The company has publicly expressed its willingness to defend the charges in
court if a DPA scheme is not implemented in Canada. It has argued that the
unavailability of DPAs in Canada disadvantages the company when competing
against rival firms from countries that do have DPA schemes.

40.

The use of deferred prosecution schemes in overseas jurisdictions is an example of

how additional measures can bolster the deterrent effect of strong criminal penalties
by encouraging corporate compliance and cooperation. At the same time, it is
important that individual measures to incentivise compliance are not perceived to be
panaceas for combating serious financial crime including white-collar crime.
Ultimately, these measures target the majority of persons who can be persuaded to
voluntarily comply with the law. They complement the criminal investigation and
prosecution of offences, which serves to reassure those who choose to comply that
they are not disadvantaged because of their compliance and warn those who are
inclined not to comply as to the consequences of non-compliance.

41.

These issues have been canvassed in detail in the Attorney-Generals Department

public consultation paper Improving enforcement options for serious corporate crime:
Consideration of a Deferred Prosecution Agreements scheme in Australia, which was
launched by the Minister for Justice at the OECD Anti-Bribery Ministerial Meeting in
Paris in March 2016. The AFP supports the exploration of options for deferred
prosecution schemes through this public consultation process.

Conclusion
42.

Serious financial crime, including white-collar crime, such as foreign bribery,

money laundering and complex fraud, has a serious impact on the community. While
strong criminal penalties are important to deter and punish wrongdoing, they must be
complemented by a range of other measures to remove the profit motive of crime and
incentivise voluntary compliance.

43.

The AFP continues to work closely with the Government through the
Attorney-Generals Department to consider options to ensure the current legislative
framework remains robust and further enhance its ability to combat serious financial
crime and white collar crime.

44.

It is also important to note that combating serious financial crime and white collar
crime is not just the responsibility of government. To this end, the AFP will continue to
work with the private sector to promote the need to take responsibility for corporate
culture and the implementation of appropriate governance and compliance frameworks
to reduce the opportunity for such crime to occur.

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