Clare O'Neil (Hotham, Australian Labor Party, Shadow Minister for Justice) Share this | Hansard source

by leave—I move amendments (1) and (4) on sheet 1 as circulated in my name together:

(1) Schedule 1, item 117, page 54 (lines 17 to 24), omit paragraph 1317G(4) (c), substitute:

(c) 10% of the annual turnover of the body corporate for the 12 month period ending at the end of the month in which the body corporate contravened, or began to contravene, the civil penalty provision.

[removing cap on civil penalties]

(2) Schedule 2, item 8, page 97 (lines 19 to 26), omit paragraph 12GBCA(2) (c), substitute:

(c) 10% of the annual turnover of the body corporate for the 12 month period ending at the end of the month in which the body corporate contravened, or began to contravene, the civil penalty provision.

[removing cap on civil penalties]

(3) Schedule 3, item 7, page 128 (lines 22 to 29), omit paragraph 167B(2) (c), substitute:

(c) 10% of the annual turnover of the body corporate for the 12 month period ending at the end of the month in which the body corporate contravened, or began to contravene, the civil penalty provision.

[removing cap on civil penalties]

(4) Schedule 4, item 4, page 166 (lines 19 to 26), omit paragraph 75D(2) (c), substitute:

(c) 10% of the annual turnover of the body corporate for the 12 month period ending at the end of the month in which the body corporate contravened, or began to contravene, the civil penalty provision.

[removing cap on civil penalties]

Labor is moving two amendments to this bill which will be moved and voted on separately, but for the purposes of having a constructive debate in the chamber I think some of the speakers will refer to both amendments as we discuss, so we can have two divisions at the end. For the convenience of the House I want to outline in broad terms what both of those amendments cover. Then other members can refer to both in their contributions.

The first amendment that Labor is moving for this bill is to remove the cap of one million penalty units from the 10 per cent of turnover limb in the new civil penalties regime created by the bill. The second amendment that I will move shortly will increase the maximum penalties for the most serious corporate crimes that are described in the bill from 10 years, as it has been drafted, to 15 years. The crimes that have been essentially defined as the most serious are those that involve dishonesty and fraud. The ASIC Enforcement Review Taskforce has agreed, and adopted essentially, that these are of that description.

I will return to the first amendment, which is the removal of the one million penalty units cap in the 10 per cent of turnover limb in the new civil penalties regime. It's quite a mouthful but a very important part of what will become law very shortly. For reasons that aren't clear to Labor, the government has decided to effectively undermine the fairness of the cap on civil penalties of 10 per cent of turnover, by effectively reducing the exposure of larger institutions. I want to be really clear, firstly, that Labor supports the 10 per cent of turnover limit for penalties. We don't support the additional restriction of one million penalties cap in the bill. This amendment is so important to Labor because it's very out of step with other pecuniary penalties handed down in Australia and overseas. It is out of step with the contemporary reality of financial service providers and banks, and it creates a regime that's not effectively futureproofed as our financial institutions continue to grow in size.

I want to note that the Consumer Action Law Centre was very strong on this point when they made a submission to the ASIC enforcement reviews processes. I'm going to quote a little bit from their submission. They said, 'We are not convinced that theirs is a strong policy justification for introducing a maximum limit on civil penalties of one million penalty units, that's currently $210 million. Setting a maximum does not recognise that there are large differences in size of banks, insurers and superannuation funds and that a penalty in excess of this amount may be appropriate in the context of very large corporations.'

I'll finish the quote there, because I want to talk in really plain English about what the government is proposing and how that differs from Labor. This bill is really coming out of an enforcement review that was done prior to the royal commission. What the royal commission has shown us, if there's any one thing, is that the current framework for criminal law and civil law—indeed, for corporate malfeasance and its enforcement—is not working to deter the types of crimes that we're so concerned about in this chamber. Setting a limit of $210 million in fines, which is effectively what the government is doing here by imposing a cap, is really saying that an institution that could be many billions of dollars in turnover is going to have its fines restricted in a way that wouldn't happen to a smaller company. I think if you sat down with Australians and talked to them about this they would see that it's very consistent with the approach to penalising criminal wrongdoing that we've seen on the other side of the chamber. We know this is a government that voted 26 times against a royal commission. The Prime Minister, who sits opposite us in the chamber, voted 26 times. He called it a 'populist whinge'. Here we again have the government seeking to curtail the ability of courts to give appropriate sized penalties for incredibly serious wrongdoing.

We on this side of the chamber have a very different approach to corporate wrongdoing. I don't think it matters if you break the law and you're wearing a suit or you're not wearing a suit. When you break the law, you break the law, and you need to be punished appropriately. So the amendments Labor is moving will strengthen this bill, we believe, in important ways. They're thoughtful amendments that we have consulted on with a variety of bodies. I'll be pleased to see the House vote and support them.

See this speech in context