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Westpac’s scandal highlights a system failing to deter corporate wrongdoing

Published

7 years ago

November 25, 2019

Elise Bant, University of Melbourne and Jeannie Marie Paterson, University of Melbourne

The news that Australia’s anti money-laundering regulator has accused Westpac of breaching the law on 23 million occasions points to the prospect that powerful members of corporate Australia are still behaving badly.

This despite the clear lessons offered by the Banking Royal Commission.

Regulators are still struggling to find the right balance between pursuing wrongdoers through the courts – an admittedly costly, time-consuming and highly risky business – and finding other means to punish and deter misconduct.

Australia’s anti money-laundering regulator, AUSTRAC, is seeking penalties against Westpac in the Federal Court.

Each of the bank’s alleged contraventions attracts a civil penalty of up to A$21 million. In theory, that could equate to a fine in the region of A$391 trillion.
In practice, it is likely to be a mere fraction of that sum. Commonwealth Bank breached anti-money-laundering laws and faced a theoretical maximum fine of nearly A$1 trillion, but settled for A$700 million.

No doubt the reality that companies can minimise penalties is a factor in why breaches continue.

This impression is reinforced by revelations last week that financial services company AMP continued to charge fees to its dead clients despite the shellacking it received at the hands of the royal commission.

Last month a Federal Court judge refused to approve a A$75 million fine agreed between the Australian Competition and Consumer Commission and Volkswagen to settle litigation over the car company’s conduct in cheating emissions tests for diesel vehicles. The judge was reported to be “outraged” by the settlement, which meant Volkswagen did not admit liability for its misconduct.

The A$75 million is a drop in the ocean of the likely profits obtained from this systemic wrongdoing and pales into insignificance next to fines imposed in other countries.

Proposals for law reform

So business as usual, right?

Maybe not for long. The Australian Law Reform Commission has just released a discussion paper on corporate criminal responsibility.

It points out that effective punishment and deterrence of serious criminal and civil misconduct by corporations in Australia is undermined by a combination of factors.

These include a confusing and inconsistent web of laws governing the circumstances in which conduct is “attributed” to the company. Similar problems of inconsistency arguably also undermine other key areas, such as efforts to give courts the power to impose hefty fines based on the profits obtained by the wrongdoing

The repeated attempts to come up with new and more effective attribution rules arise because corporate wrongdoers are “artificial people”. For centuries, courts and parliaments have struggled with how to make them pay for what is done by their human managers, employees and (both human and corporate) agents. All too often a company’s directors disclaim all knowledge of the wrongdoing.

To fix this, the ALRC recommends having one single method to attribute responsibility. It builds on the attribution rule first developed in the Trade Practices Act 1974 (Cth) and now used, in various forms, across various statutes.

The ALRC proposes that the conduct and state of mind of any “associates” (whether natural individuals or other corporations) acting on behalf of the corporation should be attributable to the corporation.

This goes well beyond the traditional focus on directors and senior managers and would provide some welcome consistency in the law.

Importantly, serious criminal and civil breaches that require proof of a dishonest or highly culpable corporate “state of mind” can be satisfied either by proving the state of mind of the “associate” or that the company “authorised or permitted” the conduct.

A “due diligence” defence would protect the corporation from liability where the misconduct was truly attributable to rogue “bad apples” in an otherwise a well-run organisation. There would be no protection in the case of widespread “system errors” and “administrative failures” so pathetically admitted during the royal commission.

The ALRC also proposes that senior officers be liable for the conduct of corporations where they are in “a position to influence the relevant conduct and failed to take reasonable steps to prevent a contravention or offence”.

This would place the onus on those in a position to change egregious corporate practices to show they took reasonable steps to do so.

Removing the penalty ceiling

These recommendations, if adopted could prove a game-changer for regulators asking themselves “why not litigate?” and corporations used to managing the fall-out of their misconduct as simply a “cost of business”.

The ALRC’s recommendations that the criminal and civil penalties should be enough to ensure corporations don’t profit from wrongdoing will be welcomed by many. Some academics have gone further and argued that the law should be changed to make it clear that civil, not just criminal penalties, should be set at a level that is effective to punish serious wrongdoing.

The ALRC also raises the question whether current limits on penalties should be removed. The Westpac scenario might be just the kind of case to make that option attractive.

Elise Bant, Professor of Law, University of Melbourne and Jeannie Marie Paterson, Professor of Law, University of Melbourne

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Latest world news

S Jaishankar says India is a natural option for Russia amid Europe tensions

External Affairs Minister S Jaishankar said India remained a natural option for Russia as Moscow increasingly turned towards Asia amid strained relations with Europe. He highlighted the continuity of India-Russia ties and their significance for the balance of power in Asia.

Published

22 hours ago

October 14, 2026

APNLive Desk

External Affairs Minister S Jaishankar has described India as a natural option for Russia as Moscow increasingly looks towards Asia amid deteriorating relations with Europe. He said India’s longstanding relationship with Russia had remained steady despite significant changes in the international strategic landscape.

Jaishankar made the remarks during a conversation with John Micklethwait, editor-in-chief of the Bloomberg New Economy Forum. He discussed how the Russia-Ukraine war had affected Moscow’s relationship with Europe and contributed to Russia’s growing focus on Asia.

Jaishankar highlights Russia’s shift towards Asia

Jaishankar said Russia’s relationship with Europe had become deeply strained following the Ukraine war. He noted that Russia had historically viewed itself as a European country and placed considerable importance on its relations with Europe and the United States.

However, the conflict had pushed Moscow to look increasingly towards Asia,with much of that shift directed towards China.

The minister said it was in India’s interest, as well as the wider world’s interest, for Russia to maintain multiple relationships in Asia rather than having its options concentrated in one direction.

Against this backdrop, he described India as a natural partner for Russia, pointing to the longstanding nature of the relationship between the two countries.

India-Russia ties remain steady despite global changes

Jaishankar said India and Russia had maintained a consistent relationship over several decades. He emphasised that New Delhi continued to engage with Moscow even as the global order and Russia’s strategic calculations evolved.

According to the minister, India was reassuring Russia that the relationship built over nearly eight decades remained steady despite the changes in Moscow’s relations with Europe and the wider West.

He stressed that India was not passing a value judgment on those changes but was continuing its bilateral engagement with Russia.

Jaishankar said the relationship had benefited both countries and contributed to the balance of power and the broader status quo in Asia.

Why the relationship matters for Asia

Jaishankar’s remarks highlighted India’s position in Russia’s changing regional outlook. As Moscow increasingly turns towards Asia, India continues to maintain its longstanding ties with Russia while navigating a changing international environment.

The minister’s comments underscored the importance he placed on preserving India-Russia ties and ensuring that Russia maintained multiple relationships in Asia.

His assessment came against the backdrop of strained Russia-Europe relations following the war in Ukraine, which has reshaped Moscow’s engagement with Western countries and increased its focus on Asian partners.

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Putin praises PM Modi, says he has very good ideas on Ukraine war

Russian President Vladimir Putin has praised Prime Minister Narendra Modi for repeatedly raising the need to end the Ukraine war, describing his ideas for a settlement as “very good”.

Published

2 weeks ago

October 2, 2026

APNLive Desk

Russian President Vladimir Putin has praised Prime Minister Narendra Modi for his continued efforts to promote an end to the Russia-Ukraine war, saying the Indian leader has “very good ideas” aimed at finding a mutually acceptable solution.

Putin made the remarks while addressing the Valdai Forum of international Russia experts, where he spoke about Modi’s repeated efforts to raise the issue of ending the conflict.

What Putin said about PM Modi

Putin said Modi has continued to raise the question of ending the conflict despite the close and friendly relationship between India and Russia.

According to Putin, the Prime Minister has shown a strong interest in finding a solution and has ideas that could help identify mutually acceptable ways to resolve the conflict.

Putin also described India’s position as neutral while highlighting Modi’s interest in bringing the conflict to an end through peaceful means.

The Russian president expressed gratitude to Modi for his ideas and his desire to see the conflict end as soon as possible.

Modi’s position on the Ukraine war

PM Modi has repeatedly called for dialogue and diplomacy to resolve conflicts, including during his meetings with Putin.

During their September 11 meeting in New Delhi, Modi reiterated that dialogue and diplomacy are the way forward for resolving conflicts.

Modi had also told Putin during their meeting on the sidelines of the Shanghai Cooperation Organisation summit in Bishkek that the situation needed to move from “endless war” towards an end to the war.

India has consistently maintained that conflicts should be addressed through dialogue and peaceful means, with Modi previously describing the present period as not being an era of war.

The Russia-Ukraine conflict began in February 2022 and has continued despite repeated diplomatic efforts to seek a resolution.

Latest world news

S Jaishankar calls Pakistan a “serial practitioner of terrorism” at UN

S Jaishankar criticised Pakistan at the UN General Assembly, referring to a “serial practitioner of terrorism” and warning against attempts to normalise terrorism.

Published

3 weeks ago

September 27, 2026

APNLive Desk

External Affairs Minister S Jaishankar criticised Pakistan during his address to the 81st session of the United Nations General Assembly in New York, saying that a “serial practitioner of terrorism” had misrepresented facts and that arguments were being made to normalise terrorism.

Jaishankar’s remarks came a day after Pakistan Prime Minister Shehbaz Sharif addressed the UN General Assembly and spoke about the 2025 military confrontation between India and Pakistan.

Jaishankar’s message to Pakistan

Referring to Pakistan without naming it directly in that remark, Jaishankar said a “serial practitioner of terrorism” had misrepresented facts before the UN General Assembly.

He said arguments were being made to normalise terrorism and claim immunity from its consequences, adding that such an approach would not stand.

Jaishankar reiterated India’s position that the country would exercise its right to defend itself against terrorism.

He also said that friendship and goodwill could not coexist with terrorism and that understandings based on such circumstances would naturally be called into question.

“It is for the perpetrator of terrorism to mend its ways,” Jaishankar said.

India stresses zero tolerance on terrorism

Jaishankar described terrorism as a persistent threat to peace and called for governments involved in cross-border terrorism to be held accountable.

He also stressed that there should be no dilution in India’s zero-tolerance approach towards terrorism and particularly called for greater attention to its financial aspects.

His remarks came a day after Pakistan Prime Minister Shehbaz Sharif referred to the 2025 India-Pakistan military confrontation during his UN General Assembly address.

Jaishankar backs two-state solution for Palestine

During his UN address, Jaishankar also spoke about the situation in West Asia and said India was prepared to contribute to efforts addressing food and energy security amid continuing tensions and violence.

On the Palestine issue, he reiterated India’s longstanding support for a two-state solution.

Jaishankar said India was also contributing humanitarian assistance and relief efforts for the Palestinian people.

He also warned about continuing threats and pressures around the world and stressed the need for greater stability, security and predictability.