Explanatory Memorandum
(Circulated by the authority of the Parliamentary Secretary to the Treasurer, the Hon Bernie Ripoll MP)Chapter 8
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights ( Parliamentary Scrutiny ) Act 2011
Personal Liability for Corporate Fault Reform Bill 2012
8.1 This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
8.2 Under the Council of Australian Governments (COAG) National Partnership Agreement to Deliver a Seamless National Economy, personal criminal liability for corporate fault should be imposed only where it is fair and principled to do so, and not as a matter of course. COAG has endorsed a set of Principles (the COAG Principles) which provide factors to be considered in determining whether such personal liability is justified. The Personal Liability for Corporate Fault Reform Bill 2012 amends a number of Acts to:
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- remove personal criminal liability for corporate fault where such liability is not justified;
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- remove the burden of proof on defendants to establish a defence to a charge;
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- replace personal criminal liability for corporate fault with civil liability where a non-criminal penalty is appropriate; and
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- where personal criminal liability is justified, insert notes to make clear the circumstances where such liability would apply.
8.3
8.4 This reform will ensure that under Commonwealth law, company directors are not held personally criminally liable for corporate fault as a matter of course. Such liability will be imposed only where:
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- there are compelling public policy reasons;
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- liability of the corporation is not likely on its own to sufficiently promote compliance; and
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- it is reasonable in all the circumstances for the director to be liable.
Human rights implications
8.5 This Bill engages and promotes the right to the presumption of innocence in Article 12 of the International Covenant on Civil and Political Rights. The Bill amends provisions to remove obligations on defendants to show an applicable defence. Removing this obligation promotes the presumption of innocence.
Conclusion
8.6 This Bill is compatible with human rights. It promotes the right to the presumption of innocence.
Parliamentary Secretary to the Treasurer, the Hon Bernie Ripoll MP