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

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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.The Conversation

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.

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Trump says Republicans would have won US midterms if he was on ballot

US President Donald Trump claimed Republicans would have won the 2026 midterm elections in a landslide if he had been on the ballot, as Democrats made significant gains in key congressional contests.

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US President Donald Trump has reacted to the Republican Party’s setbacks in the 2026 US midterm elections, claiming that the party would have secured a landslide victory if he had been on the ballot.

Trump made the remark as Democrats registered significant gains in congressional contests, putting Republican control of Congress under pressure.

The November 3 midterm elections were widely seen as an important test of Trump’s presidency, with all 435 seats in the House of Representatives and 35 Senate seats up for election.

According to Trump’s assessment, his presence on the ballot would have changed the outcome for Republicans.

The President’s remarks came after Democrats made significant advances in several closely watched races, challenging Republican control of both chambers of Congress.

Democrats make gains in key congressional races

The election results indicated a strong performance by Democrats in several important contests.

In the Senate, Democrats flipped multiple Republican-held seats, including victories in Texas, South Carolina and Ohio. In the House of Representatives, Democratic candidates also defeated several Republican incumbents, bringing the party closer to securing a majority.

The developments raised the possibility of Democrats taking control of both chambers, although some contests were still being counted.

A change in congressional control would have significant implications for Trump’s remaining presidential term, potentially making it more difficult for his administration to advance its legislative agenda.

Why the 2026 US midterm elections matter

The US midterm elections take place halfway through a president’s four-year term. Unlike presidential elections, voters elect members of Congress, including representatives and a portion of the Senate.

The elections are particularly important because the party controlling Congress has considerable influence over legislation, government spending and oversight of the administration.

For Trump, the 2026 elections were a major political test as Republicans sought to maintain their congressional majorities.

Democratic gains could change the political balance in Washington during the final two years of his presidency.

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Trump approval rating near record low at 32% ahead of US midterms

US President Donald Trump’s approval rating remained at 32% ahead of the congressional midterm elections, just above his record-low reading of 31% recorded two weeks earlier, according to a nationwide poll.

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US President Donald Trump’s approval rating remained close to its lowest level ahead of Tuesday’s congressional midterm elections, with a nationwide poll indicating that a significant section of American voters viewed their ballots as an opportunity to express opposition to the Republican leader.

According to the latest poll completed on Monday, November 2, only 32% of respondents approved of the job Trump was doing as President. The figure was unchanged from the previous week and just one percentage point above his record-low reading of 31%, recorded two weeks earlier.

The findings come as Republicans seek to retain their majorities in Congress, with all 435 seats in the House of Representatives up for grabs and several closely contested races expected to shape the Senate.

Although Trump himself is not on the ballot, his presidency has emerged as a significant factor in the midterm elections.

Democrats lead Republicans in nationwide congressional preference

The poll found that Democrats held an eight-percentage-point advantage over Republicans when respondents were asked which party they preferred to see in charge of Congress.

Around 46% of respondents favoured Democrats, compared with 38% who preferred Republicans.

However, the Democratic lead was narrower than the 11-percentage-point advantage recorded in a similar poll conducted a week earlier.

The so-called generic ballot question provides an overall indication of voters’ preferences between the two parties for control of Congress. However, it does not account for differences between individual states and congressional districts, which ultimately determine the composition of the House and Senate.

Political strategists from both parties believe Democrats have a stronger opportunity to take control of the House of Representatives. Their prospects in the Senate are considered more difficult, with the party facing challenges in states including Alaska and Michigan.

Half of independent voters see their vote as opposition to Trump

The survey also highlighted the extent to which Trump is influencing voters’ decisions despite not contesting the election himself.

Among registered independent voters, 50% said they viewed their congressional vote as a vote against Trump.

In comparison, 13% said their vote was in support of the President, while 33% said Trump was not a factor in their voting decision.

These findings indicate that voters’ views of the President are an important consideration for a section of the electorate heading into the congressional elections.

Rising cost of living emerges as a major election issue

Economic concerns, particularly the rising cost of living, featured prominently in the poll.

Around 78% of respondents said the cost of living would be either a very important or the most important issue in determining their voting decisions.

When asked which party was better equipped to handle the issue, 43% chose Democrats, compared with 32% who favoured Republicans.

The poll also pointed to concerns over rising fuel prices following the US military campaign against Iran, which began in February.

The increase in fuel prices has added to the economic challenges facing the Trump administration ahead of the elections.

Democrats report greater enthusiasm about voting

The survey also found a difference in voting enthusiasm between supporters of the two major political parties.

Around 49% of Democratic voters said they were very enthusiastic about voting in the midterm elections.

Among Republican voters, the corresponding figure stood at 33%.

The difference in enthusiasm is an important factor for both parties as they seek to mobilise their supporters and secure votes across the country.

The latest poll surveyed 1,765 US adults online and had a margin of error of two percentage points.

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Two helicopters collide while landing in Nepal, one Indian killed

Two helicopters struck each other while approaching a heliport near Mount Everest in Nepal. One Indian national died, while another person was taken to hospital with injuries.

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An Indian national was killed and another person injured after two helicopters collided while attempting to land at a high-altitude heliport in Nepal’s Solukhumbu district, near Mount Everest.

Nepal Police confirmed the incident in a post on X. The heliport is located around 250 km from Kathmandu, the country’s capital. The deceased was identified as Vasanth Kumar Balaramaramadu, an Indian national, according to a report by Kathmandu Post.

The accident came into public attention after a video purportedly showing the collision circulated on social media. The footage appears to show the rotor blades of the two helicopters striking each other shortly before landing, following which both aircraft fall onto the icy ground.

However, the authenticity of the video has not been independently verified by report.

Nabin Raja Budhathoki, who is in charge of Solukhumbu district police, told AFP that one foreign national had died at the scene, while another injured person had been taken to hospital.

Helicopters play an important role in Nepal, transporting tourists, mountaineers and supplies across its mountainous terrain. They are also used for emergency evacuations.

Nepal has eight of the world’s 14 highest mountains and receives thousands of foreign climbers and trekkers every year. Flying in these high-altitude areas presents considerable challenges.

At higher elevations, thinner air gives helicopter rotor blades fewer air molecules to push against, reducing the lift they can generate. Engines also receive less oxygen for combustion, which can affect their power output.

A similar high-altitude helicopter accident was reported just days earlier in India’s Uttarakhand. That helicopter crashed shortly after taking off from Badrinath, killing all six people on board, including the pilot and five passengers.

An Indian national was killed and another person injured after two helicopters collided while landing at a high-altitude heliport in Nepal’s Solukhumbu district, near Mount Everest. A purported video of the collision has surfaced on social media, but its authenticity remains unverified.

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