The Turnbull Government is strengthening criminal and civil penalties for corporate misconduct and boosting the powers of the Australian Securities and Investments Commission (ASIC) to protect Australian consumers from corporate and financial misconduct.
These stronger new penalties will ensure that those who do the wrong thing will receive appropriate punishment.
These reforms represent the most significant increases to the maximum civil penalties, in some instances, in more than twenty years. They bring Australia's penalties into closer alignment with leading international jurisdictions, and ensure our penalties are a credible deterrent to unacceptable misconduct.
The Government will increase and harmonise penalties for the most serious criminal offences under the Corporations Act to a maximum of:
- For individuals: (i) 10 years' imprisonment; and/or (ii) the larger of $945,000 OR three times the benefits;
- For corporations: (i) the larger of $9.45 million OR (ii) three times benefits OR 10% of annual turnover.
The Government will expand the range of contraventions subject to civil penalties, and also increase the maximum civil penalty amounts that can be imposed by courts, to the maximum of:
- the greater of $1.05 million (for individuals, from $200,000) and $10.5 million (for corporations, from $1 million); or
- three times the benefit gained or loss avoided; or
- 10% of the annual turnover (for corporations).
In addition, ASIC will be able to seek additional remedies to strip wrongdoers of profits illegally obtained, or losses avoided from contraventions resulting in civil penalty proceedings.
ASIC's powers will also be significantly increased through:
- expanding their ability to ban individuals from performing any role in a financial services company where they are found to be unfit, improper, or incompetent;
- strengthening their power to refuse, revoke or cancel financial services and credit licences where the licensee is not fit or proper; and
- boosting ASIC's tools to investigate and prosecute serious offences by harmonising their search warrant powers to provide them with greater flexibility to use seized materials, and granting ASIC access to telecommunications intercept material.
The Turnbull Government is committed to ensuring ASIC is armed with greater powers to effectively deter, prosecute, and punish those who do the wrong thing, to improve community confidence and outcomes for consumers and investors in the financial services and corporate sector.
These reforms come on top of strong Government action to reform our financial services sector to better protect Australian consumers over a number of years.
The Government has already provided $127 million in additional funding to ASIC to bolster its investigative and surveillance capabilities; implemented an industry funding model for ASIC to give it secure funding; appointed a new chairman for ASIC, Mr James Shipton, and announced a new second Deputy Commissioner with an enforcement focus, Mr Daniel Crennan QC; established a new standards setting body for financial advisers; and established a new one stop shop for consumer complaints which is free for consumers, binding on financial institutions and can order compensation where appropriate.
Today's reforms to ASIC's powers and penalties follow recommendations made by the ASIC Enforcement Review Taskforce (The Taskforce). The Taskforce was established in October 2016 to fulfil the Government's commitment to review the adequacy of ASIC's enforcement regime in response to the Murray Financial System Inquiry, and provided its report to Government in December 2017.
The Government has agreed, or agreed in principle, to all 50 of the Taskforce recommendations and will prioritise the implementation of 30 of the recommendations.
The remaining 20 recommendations relate to self-reporting of breaches, industry codes and ASIC's directions powers, which will be considered alongside the final report of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry.
The Government thanks all the members of the Taskforce, including the Panel of Experts, Treasury, ASIC, Attorney-General's Department, Commonwealth Director of Public Prosecutions, as well as all stakeholders who participated in the consultation of the various position papers put forward by the Taskforce.
The Government's full response to the Taskforce Report can be found on the Treasury website.