Corporate criminal prosecutions in the Federal Court - Part 1
Increased Federal Court funding reflects the focus on corporate crime – A quick summary of corporate criminal matters in the Federal Court
In March 2019, the Federal Government announced funding of $35 million to support the expansion of the Federal Court into corporate crime. This would appear to be a direct response to what is anticipated to be a large increase in the investigation and prosecution of corporate crime as a result of the Royal Commission into Misconduct in Banking, Superannuation and Financial Services Industry and ASIC’s renewed vigour and focus on litigation. This also builds on $41.6 million in funding being provided to the Commonwealth DPP to prosecute the increasing number of briefs referred by ASIC.
What is the Federal Court’s jurisdiction?
The majority of criminal offences are dealt with in the criminal courts in each state of Australia – whether they be the Magistrates, Local, District or Supreme Courts. These courts usually deal with both State offences and Commonwealth offences.
The Federal Court of Australia was established in 1977 and primarily deals with civil disputes arising from Commonwealth legislation. This includes, for example, civil disputes relating to the following Commonwealth legislated areas:
Bankruptcy related matters including the power to make various orders relating to bankrupts;
Competition and consumer law such as mergers, misuse of market powers and false advertising;
Reviews of administrative decisions from the Administrative Appeals Tribunal, such as appeals from decisions made by Centrelink officers or the ATO;
Maritime law relating to claims made by ship owners and operators for payment due to disputes over shipping contracts and items;
Matters relating to corporations and ASIC such as appointment of liquidators and winding up of companies; and
Appeals from a single Judge of the Federal Court, and other courts including appeals from the Supreme Court of Norfolk Island.
Challenges to warrants and notices issued by Federal agencies
The most common “crime related” matters that end up in the Federal Court involve challenges to determinations made by Federal agencies such as the Australian Federal Police and the Australian Crime Commission. This can include the following:
challenges to the validity of notices issued requesting a person (or company) to produce documents or attend to a compulsory examination;
challenges to the validity of warrants and other orders. For example, a challenge to an order made by a Magistrate requiring a person to give the Australian Federal Police access to and passwords for a computer storage device (see the judgment in Luppino v Fisher (No 2)  FCA 1100).
The question of the validity of notices or orders requiring a person suspected of a criminal offence to provide information is an important one. The information collected by an agency may or may not be used as a basis for obtaining evidence and supporting criminal charges against that person or others. This information is usually provided under compulsion and without the protection of the privilege against self-incrimination or legal professional privilege.
There is a delicate balance between the public interests of investigating criminal activity and the right to privacy of an individual or business.
At Kingston Fox Lawyers, we can assist you with reviewing notices and orders issued by Commonwealth agencies.
The Federal Court and criminal prosecutions
By comparison to other jurisdictions in Australia (like the Local and District Court, for example), the jurisdiction of the Federal Court is relatively new – it is only since 2009 that the Federal Court has been able to hear criminal indictable offences.
The Federal Court issued a Criminal Practice Note on 15 May 2017 which sets out the procedures for the management of matters through the court process.
The types of summary criminal matters that can be heard in the federal court include offences against the Copyright Act 1968 (Cth), the Fair Work Act 2009 (Cth), the Competition and Consumer Act 2010 (Cth), the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) and the Australian Energy Market Act 2004 (Cth). Summary offences are heard before a Judge alone
More serious matters dealt with on indictment, are heard before a judge and a jury. There is no provision for Commonwealth criminal prosecutions dealt with on indictment to be heard by judge alone. The Federal Court has jurisdiction to hear two types of matters on indictment:
making a contract containing a cartel provision - section 44ZZRF of the Competition and Consumer Act; and
giving effect to a cartel provisions - section 44ZZRG of the Competition and Consumer Act.
The Federal Court also has jurisdiction to deal with criminal appeals and to deal with applications involving criminal contempt arising from examinations carried out by federal law enforcement.
Like to know more about criminal cartels? Click here for more information.
Have questions or can we help you out with a notice you’ve received? Give us a call on 02 8590 6084
This is general information only and does not constitute legal advice