Corporate criminal responsibility in the natural resources sector
Photo: Josh Kelly
Adam Fairhurst, Associate Director, Forensic Services, BDO Australia
D
o your organisation’s officeholders regularly review corporate compliance procedures and regulations? If not, now is the time to act. Just as safety compliance is paramount to protect your people, corporate compliance is paramount to protect you and your organisation. Putting it in perspective Imagine receiving a notice to appear in court on behalf of yourself and your organisation, alleging you are criminally liable for the actions of one or more of your organisation’s employees. How is it that an officeholder can be held accountable for something they are unaware of? Unfortunately, under Australian legislation, “ignorance of the law is no excuse”. As an officeholder for a company, this could be a very real circumstance. Criminal allegations levelled against an organisation and officeholders bring with them a raft of risk issues and consequences, both personally 104
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and professionally, no matter the circumstances. Regardless of any outcome, reputational damage is a certainty and it only gets worse from there. Whether it is legal costs or subsequent monetary penalty, the financial consequences may also be material, and then, there is the possibility of imprisonment. The gravity of the potential outcomes of criminal prosecution highlights the need for proactivity when it comes to corporate compliance procedures and regulations. Once claims are lodged with relevant authorities, it will be your conduct and the established organisational policies that will determine the outcomes of any action taken.
Better yet, a proactive approach will assist to avoid these potentially careerdefining circumstances. The landscape is changing Adding further complexity to the compliance landscape is the Australian Law Reform Commission’s (ALRC) recent inquiry into the review on ‘Corporate Criminal Responsibility’. The outcomes of this inquiry will likely see the compliance goal posts change, with continual ongoing transformation. Mining companies listed on the Australian Securities Exchange (ASX) could greatly benefit from proactively reviewing their compliance programs, governance, and whistleblowing
