If a corporation or one of its officers has engaged in
misconduct, there can be significant benefits to admitting the
misconduct, taking immediate steps to rectify that misconduct and
cooperating with regulators.
The Australian Securities and Investments Commission
(ASIC) has recently made it clear that it intends
to adopt a 'why not litigate' approach to the enforcement
of corporate laws. A tougher regulatory environment, however,
should not deter corporations and officers from early cooperation
with regulators given the impact that cooperation and genuine
remorse can have on civil and criminal penalties.
The Federal Court's approach
In the recent decision of Fair Work Ombudsman v Transpetrol
TM AS (No 2) [2019] FCA 608 (3 May 2019) (FWO v
Transpetrol), the Federal Court found that the Fair Work
Ombudsman (FWO) 'overreached' in seeking
the initial range of penalties claimed in light of the conduct of
Transpetrol after considering, among other
