Corporate Frauds and Liquidation

Introduction

In the current scenario, when there has been high profile corporate frauds and liquidation in which the directors had sizable involvement, it is pertinent to carry out a review for the various sanctions (both civil and criminal) that are available under the aegis of the Corporations Law in Australia so as to regulate the conduct of the directors and act as a deterrent for the directors to discharge their duties. The provision of these sanctions stems from the fact that in incidents where wrongdoing and negligence is observed and established, it is imperative that the liability must be borne by the directors and the immunity available to them by the legal entity of the underlying firm needs to be curbed. In this regard, it is imperative that while a company is a separate legal entity but still it cannot take business decisions and cannot enact contractual relations that are required to carry on the business. This is usually done by the management and the other employees who tend to act as the agents of not only the company but also the owners especially in the current era when usually the owners and management are separate. Due to the underlying agency relationship, fiduciary duties are bestowed upon the directors so that they maintain their loyalty towards the principal and also ensure that honesty is maintained. The various duties are applicable in accordance with the common law and also the relevant statute i.e. Corporations Act 2001 which specifies the various duties of the directors by way of various sections. It is expected that directors must comply with these duties as these are meant to be in line with the long established principles.

Additionally, in line with the concept of vicarious liability, in the event of any loss or damage, the liability has to be borne by the principal only as it is the superior party and the agents have the immunity in such cases. The directors have enjoyed this immunity but have acted negligently and indulged in fraud so as to further their own interests at the cost of the interest of the principal or the company. In such cases, while an option existed in common law that the company could initiate actions against the directors for violation of the underlying fiduciary duties bestowed upon them but in the absence of sanctions, the aggrieved stakeholders did not have the option to hold the defaulting directors personally accountable for the losses caused. This case has been bridged with the various provisions of the corporate law especially Corporations Act 2001 which has explicitly mentioned the various duties and have introduced provisions whereby the personal liability of the directors has enhanced. In this backdrop, the aim of the given paper is to critically analyse the existing civil and criminal penalty sanctions that tend to exist under the aegis of Australian Corporations Law and opine on the sufficiency of these and suggest recommendations and critical measures so as to ensure that these are effective in acting as barriers to unethical and negligent conduct by the directors.

Genesis of Civil Penalty in Australian Context

The civil penalty provisions were introduced in the corporate law only in the 1990s in the form of part 9.4 B which arose primarily on account of the three reforms whic

The criminal liability which was available under the aegis of Company Law was limited to only those instances where criminality was involved.

An amendment should be carried out in the statutory duty regarding honesty that is bestowed upon the officers employed by the corporate so that the ambit of criminal liability is restricted to conduct that is classified as having elements of criminal nature and not otherwise.

People may suffer losses due to conduct of directors where no criminality is involved, and hence the civil sanctions could serve as effective compensatory tool to make for the losses suffered by the stakeholders which were avoidable.

The objective of the recommendations of the Cooney Committee was to limit the usage of criminal sanctions to selective situations rather than deploying these in a generous manner. Further, the committee neither intended nor recommended that the criminal sanctions be completely done away with. Also, the civil sanctions were proposed to deal with activities that fell short of criminal activities and had both monetary and non-monetary component attached. Additionally, the proposals of the Cooney Committee aimed to provide for a host of enforcement measure arrangement in a pyramid format. This was in line with the theoretical underpinnings derived from the strategic regulation theory.

Theory of Strategic Regulation

The above theory aims to provide a perspective from the macro aspect in relation to ensuring compliance through regulations and enforcement sanctions. As per this theory, persuasion is the best mechanism to secure regulatory compliance and preferable to legal enforcement due to the underlying cost implications of the legal proceedings. In order to ensure that that persuasion is effective, it is imperative that the conciliatory gestures on the part of the regulatory must be backed by punishment threat. The punishment threat should be posed by the regulators in as an integrated sanctions set and the arrangement of the sanctions should be in such a manner that the responses must escalate as the severity of the underlying contravention increases[3].

This is captured in the form of a pyramidal model which is diagrammatically captured as indicated below[4].

As expected the enforcement pyramid apex is occupied by incapacitation which could be attained by the usage of either criminal or civil measures. It is quite expected for a given individual, the criminal sanctions would be highlighted as the most severe penalty. On the lowest end of the enforcement pyramid are persuasion and education which serve as the least severe measures of compliance. Usually, persuasion and education is found to be effective for those actions which are amount to minor non-compliance only. The necessity of the other compliance levels arises in the backdrop of those individuals who believe that compliance with the regulations does not serve self-interest and as a result regulatory costs must be levied in proportion to the benefit draws so as to ensure that the potential punishment arising from non-regulation outweighs the benefits[5]. The various sanctions and penalties in this regard have already been arranged in the form of a pyramid. The closer a given sanction is to the tip or apex of the pyramid shown above, the more severe would the enforcement mechanism be. Further, as expected, the civil penalties tend to occupy the middle portion of the enforcement pyramid in line with their severity as compared to the others[6].

The pyramid structure of sanctions is recommended so as to ensure that the regulatory compliance levels are maximised. The first assumption in this regard is that there is voluntary intent on the part of the subjects to voluntarily comply with the norms. Thus, in such an ideal situation, the role of a regulator would be highly simplified as there would not be any requirement of neither any threat nor any inducement on the part of the regulator. The key rationale for the strategic regulation theory coupled with the pyramid enforcement model is the fact that regulation would be complied with which may take some time and would involve a dynamic mix of normative desire on the part of the individual coupled with instrumental deterrence on the part of the regulator. In this context, Ayres and Braithwaite are of the opinion that by presenting a threat to the subjects that any continued non-compliance would be tackled by more severe measures, the regulators compliance is attained at the lower levels only. This is in line with the premise that the fact that the regulator has big sticks for embarking punishment on the subject, then it is likely that compliance would tend to be achieved at the lower levels of pyramid enforcement[7].

As a result of the above theory, it is apparent that sanctions tend to perform three different functions that are highlighted below[8].

Protective Function – Ensure that protection is offered in incidences involving actual or potential violations of the law.

Enforcement Function – Ensure that the individuals that break the law are punished and hence enhance compliance.

Preventive Function – Ensure that there is a deterrent that ensures that incidents of law violation are minimised.

Enforcement Pyramid – Directors Duties (Corporations Law)

While the above enforcement pyramid provided a generalistic overview of the enforcement pyramid, the relevant pyramid that is applicable for the directors duties as applicable under the relevant provisions of the Corporations Law is highlighted below.

The various provisions that are indicated on the above pyramid are briefly narrated below.

Persuasion & Education – This involves various programmes to enhance surveillance which may take the form of media release which is frequently deployed by ASIC (Australia Securities Investment Commission) so as to enhance the overall awareness for minimising contraventions and bringing an improvement in the level of compliance. These cover a broad array of materials dealing with different aspects and schemes that are relevant to the stakeholders. Besides, ASIC also organises periodic programs for education and advice which may be in the form of round table discussions and tend to focus on various nuisances in relation to formation of company and obligations thereafter particularly those advocated by the Corporations Law. The particular focus of these is the directors and senior officers who may be held personally liable for breach of the norms[9].

Negotiation and Settlement

It is noteworthy that with regards to cases where there ASIC suspects non-compliance, ASIC in empowered through s11(4), ASIC Act to initiate negotiation of such cases and eventually bring them to a settlement without taking the manner to court. Also, since 1998, ASIC also is bestowed with the power of accepting undertaking with legal sanctity for matters that fall within its domain as defined in the ASIC Act. Also, there have been certain instances in the past when ASIC has successfully used these undertakings so as to ensure that a particular defaulter does not participate in the management decision making[10].

Examinations & Investigations

In accordance with the ASIC Act, the following powers are available to ASIC[11].

ASIC is entitled to conduct an investigation which may be suo moto and taken for the Corporations Law administration or to investigation contravention of law and may also be initiated at the behest of a report by the liquidator reporting some wrongdoing (s 13 and s 15)

A notice may be served for an individual requiring him/her to appear before the ASIC staff and provide answers to specific questions under oath which would enable ASIC to complete their investigation (s 19, ASIC Act)

The books and the company account may be inspected if required (s 18, ASIC Act).

Even though these are potential high level measures, but due to procedural lapses, delays and the lack of adequate support in this investigations conducted by ASIC results in these being placed at a lower scale.

Notices, fines or letter of warning

This marks a transition from the incentive or carrot approach to the stick approach but the sticks are small which are not meant for punitive sanctions but serve as eye opener. The mechanisms available at this level are wide in array and tend to be preventative. However, they are quick and do not require court intervention. It is noteworthy that the deterrence value of the available mechanism tends to be specific and is not general. For instance, ASIC may issue a show cause notice to the directors of the company which may have filed for bankruptcy and is settling the creditors at an amount which is at significant discount to the outstanding dues (s 600-2, Corporations Law). Besides, in case a particular individual has violated any of the regulations, then a penalty notice may be served which would indicate that the concerned defaulter would have to pay a specific penalty amount before a specific due date (s 1313, Corporations Law)[12].

Remedial Civil based remedies

These remedies have been traditionally pursued by shareholders coupled with undischarged creditors. The ASIC Act coupled with the Corporations Law tends to deploy the available civil remedies as enforcement tools which could be deployed by ASIC. This provides a potent means by which repeated defaulters could be made to comply. Some of the available mechanisms include orders from the court in relation of assets being frozen and also ensuring that no asset transfer or foreign travel is permissible. Further, an order may be issued against a particular defaulter for payment of a particular fine for damage caused to the company. Also, the court could order the company to be wound up and appoint a liquidator. Besides, ASIC is also authorised to commence legal action in public interest or on the behalf of aggrieved shareholders[13].

Management Banning Orders

The management banning orders tend to draw sanctity from three sections in the Corporation Law namely s. 230. s. 599 and s.600. As per section 230, banning orders may be issued to a repeat defaulter or belongs to a company which is found to be a regular defaulter. Further, in accordance with section 600, banning orders may be issued to directors of company that has been liquidated and has not paid even 50% amount due to the unsecured creditors. Additionally, section 599 deals with banning a person from acting as the director who has been previously the director of two or more companies entering liquidation[14].

Incapacitation

This lies at the highest level of the enforcement pyramid but the key issue is that civil and criminal sanctions are placed together. Additionally, there is a large degree of overlapping between the civil and criminal sanctions as the provisions available under both these overlap to huge extent and hence leads to confusion[15].

Evaluation of civil penalties

Even though on paper, the civil penalties provided for in the Corporations Law seem to be a bountiful but though empirical observations, it has been observed that there are implementation issues which is why there is loss of efficiency when the regulations of the statute book are actually implemented in real life situations. While the levying of civil penalties is an effective alternative to initiating criminal proceedings which may not be always warranted and may be difficult to establish also but in actuality there usage is limited in practicality because of the following reasons[16].

Usually the breach or contravention of the law is not serious enough so as to warrant civil penalty and usually the lower level punishments are sufficient.

It is significant that the defaulter should not be bankrupt already as the banning orders on defaulters do not serve any purpose as on account of their bankruptcy, they anyways cannot manage a company and act as a director.

Banning orders is anyways provided under specific provisions and civil penalties in the form of incapacitation are limited only for very serious offences.

Additionally, even though the civil penalties have been deployed in some cases particularly the famous liquidation cases like HIH, it seems that there is a preference amongst the ASIC staff to implement the lower level enforcement strategies than go for the highest level of civil penalties. This may be explained on account of the following reasons[17].

As the resources and funding available with the ASIC is limited, hence pragmatism is observed the ASIC staff during ongoing investigations where preference is accorded to civil strategies other than civil penalties since the former involves lesser hassles and found to be more effective.

There is uncertainty amongst the staff working at ASIC in relation to the judgement pronounced by the court in case of civil penalty and the underlying implications of the same for the decision making process.

Further, there is not complete clarity in relation of the duties of the directors which leaves some ambiguity and hence discourages the potential use of civil penalties due to the underlying subjectivity involved.

Besides, an additional reason which is attributed to the limited usage of civil penalties is the fact that it has been placed with criminal penalties which is contrary to the recommendation of the Mooney Committee which proscribed use of civil penalties as a middle level enforcement mechanism which criminal penalty being an apex level mechanism. However, with the passing of the CLERP Act reform, this anomaly has been fixed and civil penalty has been fixed at the middle level which now allows for simultaneous application of criminal and civil penalty which under the earlier regime was a big issue highlighted below[18].

With the above reform, the usage of civil penalty by ASIC is increasing. As per research, it is estimated that during the period from 2000 to 2004, 25 such cases were filed by ASIC and it managed to achieve success i.e. in getting civil penalty orders passed in 18 of the 19 cases finalised. This involves a host of high profile liquidation cases including Rich vs. ASIC[19] in relation to the One Tel bankruptcy and subsequent liquidation. In this particular case, the directors were successful in escaping the civil penalty by refusing to place the requisite documents before ASIC which could have been used against them. Further, since there are procedural issues and comparison of civil penalty proceedings with criminal proceedings, hence the utility of civil penalties as an effective tool of corporate regulation is limited[20].

Need for criminal law

With regards to corporate crime, the sanctions of criminal nature are driven by the intent to punish the defaulter for their conduct and rely on punishment acting as a deterrent to improve conduct and compliance[21]. It is widely believed that the criminal sanctions tend to the most effective enforcement mechanism amongst the various mechanisms of enforcement that are available to deal with those corporations and managers who default. Not only does conviction in criminal cases lead to imprisonment and consequent liberty loss, the significantly greater damage is inducted in the form of damage the underlying defaulters’ market image and reputation suffers which may well be beyond repair[22]. In this regards, there have been passionate pleas from various quarters particularly the public prosecutors that there needs to be periodic review of the underlying penalties (especially the maximum amount) and further the jail term imposition must be increased especially in case of serious defaults by directors and other officers[23].

The impact of criminal sanctions or punishments is primarily derived from the social stigma still attached to jail term and the underlying bad publicity that results from this. It is estimated that the loss of public face coupled with a criminal record wreck such a huge damage which is significantly greater by any civil sanctions, civil penalty orders or any administrative sanctions. Research also tends to support this view as the public drama and media coverage associated with criminal sanctions is significantly higher as compared to the civil sanctions[24]. Hence, from the regulators’ perspective, criminal sanctions implies an effective mechanism which would tend to effective ensure that repeat offense is not done as the concerned defaulter may not be ever again be able to occupy a position where such fraud could be conducted.

In this regard, it makes sense to review the policies adhered to by other developed nations which could potentially act as a potent benchmark. In this regard, consideration should be given to the functioning of SEC (Securities & Exchange Commission) of US which frequently deploys criminal indictments in a successful manner against those who are involved in major frauds[25]. The punishment of 150 years of jail imprisonment to Bernard Madoff coupled with the lifetime imprisonment to the defaulting directors of Enron Corporation stand testimony to the successful usage of criminal sanctions by the SEC[26]. Besides, it is noteworthy that not only in corporate law but also in other fields of law such as trade law, environmental law, patent law there is an increasing reliance on criminal sanctions as these are supposedly more effective in comparison to the other modes which are more compensatory rather than being punishments. It has been noticed that there is an innate tendency to segregate traditional crimes from offences leading to non-compliance with regulations and usually criminal punishments and law is deployed only to regulate and punish actions and conduct which is considered as outright immoral. It is imperative to alter this and be stricter with regards to regulatory offences as the impact of these could be much wider in scope and size than traditional crimes which are directed to a selected individual(s)[27].

ASIC supports the levying of criminal sanctions in cases where there is ample evidence to reach such a conclusion. Based on the data available in the public domain, it is apparent that during the period 2001-2006, the number of criminal prosecutions that were initiated by ASIC, were infact higher than the proceedings initiate for civil penalty. However, on closer scrutiny, it was noticed that most of these were directed against proprietary companies directors and very few such cases were initiated against the directors of public companies where the criminal intent is more likely to be found considering the potential gains to be made through corporate frauds[28]. One such high profile case which deserves a special mention is the HIH liquidation case in which criminal sanctions were imposed on the directors. However, considering the pivotal role that these criminal sanctions could potentially serve in acting as an effective deterrent, it is pivotal the ASIC must focus on criminal sanctions in high profile cases where fraud is potentially present and further adequate publicity should be provided to these so that others are well informed of the likely consequences of indulging in unfair means[29].

In the context of levying criminal sanctions, a notable contribution has been made by Hawkins who proposes that criminal sanctions should be applied as the last resort measure when the other tools have failed to ensure compliance. He identifies two types of actions that warrant the application of criminal sanctions. Firstly, it should be applicable in those cases that are one-off and exceptionally serious and secondly in those cases where the person concerned has resisted the efforts by the regulatory agency so as to ensure compliance with other legal means. Thus, the views are in line with the posulate advocated in the strategic regulation theory where the enforcement mechanisms are essentially arrangement in a pyramidal format[30].

Relevant Cases

There have been quite a number of cases where criminal charges should have been pressed against the defaulting directors but have not been done.

One of the high profile cases that falls in this category is the Vizard case[31] where there was clear evidence available with ASIC in relation to insider trading by Vizard as per the records provided by his accountant but still criminal sanctions were not pressed against him. The reason lies with the DPP(Director of Public Prosecutors) who did not press for criminal charges as a signed testimony by the accountant was not available. However, it seems strange that considering the amount of convincing proof available in this regard, why the accountant was not pressed to provide a signed testimony in this regard. In this regard, it is imperative that the ASIC should have its own prosecution wing instead of relying on DPP which tends to rely too much on state laws and thereby tend to proceed only when irrefutable evidence is available. Further, the focus of DPP primarily lies on those cases where the amount of sentence as defined by the state laws would be of greater duration than for technical offences which are capped at five years. Clearly, this creates a divide and limits in the underutilisation of the criminal sanctions especially in high profile cases where even a shorter punishment would be beneficial for the regulation climate considering the amount of damage to reputation and public image that the jail imprisonment would bring no matter how long the duration[32].

Another case worth mentioning is the Jamie Hardie case where the prosecutors pressed for civil sanctions only as they believed that it would serve the underlying motive of compensating the victims which was secured through the civil penalties. However, in such cases it is imperative that lessons must be taught to the erring officials so as to set an example which deters such cases in the future and hence saves time, resources and inconvenience for the regulators who have to deal with such cases[33].

Conclusion

On the basis of the above discussion, it would be prudent to conclude that the current enforcement mechanisms as outlined in the Corporations Law is based on strategic regulation theory which provides for a pyramidal enforcement structure that has been highly successful based on empirical studies. The same arranges various enforcement mechanisms in a pyramidal structure with severity of the mechanisms increasing as one moves from base to the top. One of the shortcomings initially was that that both civil and criminal sanctions were clubbed together which led to issues highlighted in the paper. However, the CLERP reforms rectified the same and ensured that civil penalties occupied a mid-tier with criminal penalties occupying the apex level. While the civil penalties have been useful, it is recommended that their potential use needs to streamlined and adequate resources in terms of funding and manpower should be available so as to ensure that the full potential in this regard be utilised. Along the civil sanctions, criminal penalties are having pivotal importance considering the loss of reputation and social stigma that is associated with imprisonment. Their effectiveness has been established through relevant literature on the subject. However, as is evident from the discussion, ASIC has largely utilised these provisions against the smaller companies with very few large companies facing criminal sanctions. It is imperative that with the aid of a dedicated prosecution department, ASIC should press for criminal punishment in cases where purposeful wrongdoing is reflected on the basis of the available evidence which would ensure that effective deterrent is established for future breaches in this regard. Therefore, it would be fair to conclude that the current provisions are quite wholesome but judicious usage of the same needs to be carried out in the face of increasing incidence of corporate frauds and wrongdoing.

Bibliography

Ashworth, A. ‘Is the Criminal Law a Lost Cause?’ (2000) Law Quarterly Review, 116

Bayot J, New York, ‘Tyco chief jailed, fined $222m’, AFR, 21 September 2005, p 13.

Bird, H “The Problematic Nature of Civil Penalties in the Corporations Law” (1996) 14 Company and Securities Law Journal 405

Bird, H Chow, D Lenne J and I. Ramsay, “ Strategic Regulation and ASIC Enforcement Patterns: Results of an empirical study” (2005) 5 Journal of Corporate Law Studies 191.

Braithwaite, J “Responsive Business Regulatory Institutions” in C Cody and C Sampford (eds), Business, Ethics and Law (1993), 88.

Braithwaite, J Ayres, I Responsive Regulations: Transcending the Deregulation Debate, Oxford University Press 1992.

Comino, V, 'Civil or Criminal Penalties for Corporate Misconduct: Which Way Ahead?' (2006) 34 (6) Australian Business Law Review 428-446

Comino, Vicky "The Challenge of Corporate Law Enforcement in Australia" [2009] UQLRS 3; (2009) 23 (3) Australian Journal of Corporate Law 233-265

Gething, M “Do We Really Need Criminal and Civil Penalties for Contraventions of Directors’ Duties?” (1996) 24 Australian Business Law Review 375

Gilligan,G Bird, H and Ramsay, I, “REGULATING DIRECTORS’ DUTIES - HOW EFFECTIVE ARE THE CIVIL PENALTY SANCTIONS IN THE AUSTRALIAN CORPORATIONS LAW?” (1999), https://law.unimelb.edu.au/__data/assets/pdf_file/0004/1710256/145-CivilPenaltiesFinal2.pdf

Grabosky, P “Discussion Paper: Inside the Pyramid: Towards a Conceptual Framework for the Analysis of Regulatory Systems” (1997) 25 International Journal of the Sociology of Law 195, 196

Kluver, J “ASIC Investigations” in Australian Corporation Law: Principles and Practice, Volume 3, looseleaf, Chapter 15

Mann, K ‘Punitive Civil Sanctions: The Middle Ground Between Criminal and Civil Law’ (1992) 101 Yale Law Journal 1795, 1798

Scholtz, J ‘Deterrence, Cooperation and the Ecology of Regulatory Enforcement’ (1984) 18 Law & Society Review 179

Senate Scrutiny of Bills Committee, ‘Application of Absolute and Strict Liability Offences in Commonwealth Legislation’, Report 6/2002

The Australian Law Reform Commission, Principled Regulation Report: Federal Civil and Administrative Penalties in Australia, December 2002