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Articles by Elise Bant
Culpable corporate mind, legal blameworthiness
Corporate culpability under law relies on a”Where’s Wally” logic to identify a natural person within a corporation to hold responsible for corporate wrongdoing but finding the “smoking gun” has proven elusive.
Cracking down on corporate fraud - Openforum
This is because it has been impossible to prove corporate fraud unless we can pinpoint guilty individuals at the helm, or catch them with their hands in the till. Last week, that restrictive approach changed. The High Court found that corporations think, and act, directly through their systems, policies and practices. So, if a company had a predatory business model, it can be assumed that this was a knowing and deliberate strategy that can be penalised through the courts.
Guilty corporate minds: regulating corporate (mis) conduct
Description Enforcing good company behaviours and punishing corporate wrongdoings using laws designed to assess the intentions of individuals is fraught because corporate entities do not have minds. ‘Systems Intentionality’ seeks to offer a new, and workable, way to assess the intentions of a corporation. Systems Intentionality proposes that corporations manifest their states of mind through their systems of conduct, policies and practices.
ACCC vs Big Tech: Round 10 and counting
Australia, like many other countries, is engaged in an ongoing debate about the kinds of laws that are needed to respond to advances in digital technology and artificial intelligence (AI). This on top of the oligarchic dominance of ‘Big Tech’ – namely Meta, Amazon, Alphabet and Apple. Even now Australia has ongoing governmental inquiries into privacy law, Internet of Things and cyber security law, the regulation of digital platforms and Australia’s AI policy framework.
Privacy erosion by design: why the Federal Court should throw the book at Google over location data tracking
The Australian Competition and Consumer Commission has had a significant win against Google. The Federal Court found Google misled some Android users about how to disable personal location tracking. Will this decision actually change the behaviour of the big tech companies? The answer will depend on the size of the penalty awarded in response to the misconduct. In theory, the penalty is A$1.1 million per contravention.
The Federal Court rules on misleading conduct from Google
The Australian Competition and Consumer Commission has had a significant win against Google, after the Federal Court found Google misled some Android users about how to disable personal location tracking. But will this decision actually change the behaviour of the big tech companies? The answer will depend on the size of the penalty awarded in response to the misconduct. In theory, the penalty is $1.1 million per contravention.
There's a bill before the Senate that would make it easier for banks to lend irresponsibly
The Hayne royal commission into misconduct in the banking, superannuation and financial services industry found Australia’s responsible lending requirements were correctly calibrated. They are set out in the National Consumer Credit Protection Act, which requires lenders to offer credit that is “not unsuitable” for the borrower. Hayne’s first recommendation (Recommendation 1.1) was that the National Consumer Credit Protection Act “not be amended to alter the obligation to assess unsuitability”.
Westpac's scandal highlights a system failing to deter corporate wrongdoing
The news that Australia’s anti money-laundering regulator has accused Westpac of breaching the law on 23 million occasions[1] 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[2].
It's about to become easier to lend irresponsibly, to help the recovery
What used to be known as a requirement to lend responsibly is now regarded as red tape. The National Consumer Credit Protection Act introduced by the Rudd government after the global financial crisis introduced responsible lending obligations that required lenders to ensure the loans they were offering were “not unsuitable” for borrowers. No longer.
how ASIC is trying to make corporate misconduct hurt
Wed Sep 19 Written by Elise Bant, Professor of Law, University of Melbourne On September 6, 2018, the Australian Securities and Investments Commission launched proceedings[1] against two arms of the National Australia Bank alleging a widespread and long standing practice of charging fees for no service. An intriguing aspect of the action is that the claim acknowledges that the two firms have already agreed to pay back around A$87 million to the affected customers.
Fines that'll hurt. ASIC's powerful, if ill-fitting, teeth
At last, our corporate watchdog has a strong set of teeth with which to fight crime and serious misconduct in the financial sector. The Treasury Laws Amendment (Strengthening Corporate and Financial Sector Penalties[1]) Bill finally made it through parliament last week. In cases of serious misconduct it will empower the Australian Securities and Investments Commission to seek new, hefty fines.
Understanding Hayne. Why less is more
Mon Feb 11 Written by Elise Bant, Professor of Law, University of Melbourne One of the most important lessons to come out of last week’s banking royal commission is one of the least likely to grab attention, certainly not in the way the resignation of NAB chair Ken Henry did[1].
Three simple steps to fix our banks
Here are three simple steps to address the widespread misconduct revealed in the interim report of the banking royal commission, arising out of research I have undertaken with my colleague Associate Professor Jeannie Paterson[1]. While not exhaustive, they are good places to start: Step 1: back to basics Commissioner Hayne is spot on when he says that simply adding more regulation is not going to do the job. In fact, more regulation can be more damaging than helpful.
Westpac's scandal highlights a system failing to deter corporate wrongdoing
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.
Westpac's scandal highlights a court system failing to deter corporate wrongdoing
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.
Fines that'll hurt. ASIC's powerful, if ill-fitting, teeth
At last, our corporate watchdog has a strong set of teeth with which to fight crime and serious misconduct in the financial sector. The Treasury Laws Amendment (Strengthening Corporate and Financial Sector Penalties) Bill finally made it through parliament last week. In cases of serious misconduct it will empower the Australian Securities and Investments Commission to seek new, hefty fines.
Understanding Hayne: Why less is more when it comes to simplifying banking law
Elise Bant & Jeannie Marie Paterson | 12 February 2019 GUEST OBSERVATION One of the most important lessons to come out of last week’s banking royal commission is one of the least likely to grab attention, certainly not in the way the resignation of NAB chair Ken Henry did.
Understanding Hayne. Why less is more
One of the most important lessons to come out of last week’s banking royal commission is one of the least likely to grab attention, certainly not in the way the resignation of NAB chair Ken Henry did.
Business + Economy – Views & Research – The Conversation
Artists can be denied control of their creations for life. Bryan Adams at the 2015 AFL Grand Final. Julian Smith/AAP Author's rights Rebecca Giblin, Monash University Individual creators get too small a share of copyright's rewards. What Bryan Adams is proposing in Canada could also work in Australia to help authors get paid and keep works available to the public.
Three simple steps to fix our banks
Here are three simple steps to address the widespread misconduct revealed in the interim report of the banking royal commission, arising out of research I have undertaken with my colleague Associate Professor Jeannie Paterson. While not exhaustive, they are good places to start: Commissioner Hayne is spot on when he says that simply adding more regulation is not going to do the job. In fact, more regulation can be more damaging than helpful.
Fees for no service: how ASIC is trying to make corporate misconduct hurt
On September 6, 2018, the Australian Securities and Investments Commission launched proceedings against two arms of the National Australia Bank alleging a widespread and long standing practice of charging fees for no service. An intriguing aspect of the action is that the claim acknowledges that the two firms have already agreed to pay back around A$87 million to the affected customers. So ASIC isn’t seeking compensation.
Advertisers are using bloggers' faces without their consent
What would you do if you saw your own face being used to advertise a product without your consent? No doubt you’d get in touch with those in the wrong and ask them to take down the offending advertisements. But suppose that while they agree that they shouldn’t be using your image, and agree not to produce any further, offending advertisements, they refuse to remove the existing material or take any other action.
How courts and costs are undermining ASIC and the ACCC's efforts to police misbehaving banks and businesses
The Australian Securities and Investments Commission (ASIC) has come under heavy fire for taking the lighter option of securing undertakings from businesses in breach of the law, rather than tougher penalties. Former Australian Competition and Consumer Commission (ACCC) chairman Allan Fels described ASIC’s operationsas: But ASIC and the ACCC, are soft targets.
How courts and costs are undermining ASIC and the ACCC's efforts to police misbehaving banks and businesses
The Australian Securities and Investments Commission (ASIC) has come under heavy fire[1] for taking the lighter option of securing undertakings from businesses in breach of the law, rather than tougher penalties. Former Australian Competition and Consumer Commission (ACCC) chairman Allan Fels described ASIC’s operations[2] as: When something goes wrong, they call in the offender and they have an agreement with them, instead of going to court and getting fines and sanctions.
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