The CDPP has specialist commercial prosecutors who deal with commercial offences, such as insider trading, stock market manipulation and breach of duty by company officers as well as fraud offences under State or Territory law. These are serious offences for which deterrent penalties, including actual imprisonment, are often sought and imposed. Complex commercial crime can be difficult to detect, difficult to investigate and difficult to prosecute.
Matters are referred to the CDPP by investigative agencies including the Australian Competition and Consumer Commission (ACCC), the Regulation and Enforcement Branch of the Australian Financial Security Authority (AFSA, which was formerly known as the Insolvency and Trustee Service Australia (ITSA)), the Office of the Registrar of Indigenous Corporations (ORIC) and the Australian Securities and Investments Commission (ASIC). Amongst the matters referred by ASIC are offences under the Corporations Act 2001, the Australian Securities and Investments Commission Act 2001, the National Consumer Credit Protection Act 2009.
As a consequence our commercial prosecutors deal with many and varied offences from different areas of the Commonwealth criminal law and also related State or Territory laws. For example, a commercial prosecutor might deal with an offence such as a failure by a bankrupt to comply with a requirement to provide something that is intended to facilitate the administration of the bankrupt’s estate pursuant to the Bankruptcy Act 1966; or a breach of duty by a company officer pursuant to the Corporations Aboriginal and Torres Strait Islander Act 2006; or offences of forgery and using a forged document contrary to sections 144.1 and 145.1 of the Criminal Code.
Further, the CDPP is responsible for prosecuting offences under the Competition and Consumer Act 2010, including any briefs that the ACCC might refer in relation to the serious cartel offences in sections 44ZZRF and 44ZZRG. The ACCC is responsible for receiving and managing applications for immunity from criminal prosecution for a serious cartel offence. The CDPP plays an important role in this process. Where the ACCC makes a recommendation to the Director that an applicant for conditional immunity under the ACCC’s Immunity Policy for Cartel Conduct should be granted immunity, the Director decides whether to grant an undertaking under section 9(6D) of the DPP Act by applying the criteria in Annexure B of the Prosecution Policy of the Commonwealth. No briefs in relation to alleged cartel conduct have been referred to the CDPP at this stage.
- Corporations Act 2001
- Australian Securities and Investments Commission Act 2001
- National Consumer Credit Protection Act 2009
- Bankruptcy Act 1966
- Corporations (Aboriginal and Torres Strait Islander) Act 2006
- Criminal Code
- Competition and Consumer Act 2010
The Personal Liability for Corporate Fault Reform Act 2012 commenced in December 2012 and amended the law relating to personal liability for offences committed by corporations. In particular, the Act removed criminal liability from company secretaries for contraventions by the company of certain requirements in the Corporations Act.