In order to give a full description of white-collar crime regulation in Australia, it is also necessary to analyze the existing system of penalties. Penalties are used in most of the world countries nowadays in order to keep people away from getting engaged in white-collar crimes. Unfortunately, in some countries, systems of penalties have not been developed at a high enough level; therefore, the statistics of white-collar crimes is quite significant. In Australia, “legislation to confiscate the proceeds of crime has now been enacted in all jurisdictions in Australia except for Tasmania.
Its remote foundations lie in the common law doctrines of attainder and deodand, in the development of statutory forfeitures from the mid-nineteenth century and in the long and ignoble history of customs laws. ” Unlike the legislation against white-collar crimes which is being used in the United States, Australian regulation of this field does not have a highly-emphasized organizational focus. According to Braithwaite, all of the business activity regulating agencies in Australia have “dismal enforcement record by international standards.
We find them under-resourced, operating with statutes which provide for wrist-slapping financial penalties. This is true in companies and securities regulation (as we still breathlessly await our first-ever conviction of an insider trader), environmental enforcement, occupational health and safety, consumer protection, regulation of the media or banking and insurance regulation. ” Unfortunately, the current legislation does not enforce penalties in the way they would need to be enforced.
It is necessary to mention that, according to Australian legislation, a confiscation order can be executed against the person involved into the white-collar crime. In the recent legislation, a pecuniary penalty order refers to “an order of a court against the person in respect of the benefits derived by the person from the commission of the offence. It is a financial sanction calculated by reference to the profits or gains made from criminal behaviour and rests on the principle of restitution by forcing the convicted person to disgorge the 'proceeds' or 'profits' of his or her crime.
” Freiberg also mentions that “legislation also creates a number of powerful ancillary orders: a restraining order, which prevents the unauthorised disposition or dealing with property pending the making of a confiscation order, a production order, which requires a person to produce a document which may assist the authorities in identifying tainted property and a monitoring order, which requires financial institutions to provide information concerning financial dealings to the authorities”. Penalties enforcement in Australian white-collar crime legislation is very much related to the concept of “benefit”.
“In the absence of specific legislative direction, courts will have regard to the ordinary meaning of the word by determining how much the defendant has gained from the transaction” . “The function of the court is to make a sound discretionary judgment about the amount of benefit taken by the defendant. A 'benefit' may include a gain, profit, reward or advance, but is not synonymous with “profit” . However, it should be mentioned that despite some developments in the legislation, it is still not very efficient.
It has been concluded by Braithwaite that the state of white-collar crime regulation in Australia does not come even close to the regulation in the US for example, despite some improvements in the recent years. According to the author, “the Australian regulatory agency during the 1980s imposed the toughest enforcement- the Trade Practices Commission…responsible for enforcement concerning misleading representations to consumers, price-fixing rip offs, abuse of market power and a range of other forms of anti- competitive conduct.
” However, penalties enforced in Australia are not even half as high as in other highly-developed countries. For example, in the US some executives have to stay in prison for a very long time if they make crimes. They are also obliged to pay large sums of money as fines, up to $290 million dollars for very serious crimes. For comparison, in Australia this figure has been raised only up to $10 million, which is a much lower penalty. That is why it is possible to conclude that currently corporate criminal liability does not play an important role in the prevention of crimes.
The system is not efficient yet. Regulators have been trying to provide an efficient legislative framework for the prevention of white-collar crimes but it has failed in many aspects. Conclusion. White-collar crimes are becoming more and more frequent in the recent years. Particularly this problem touches Australia due to the deregulation of this field which has occurred in the past. Even though white-collar crimes do not usually bring danger to the health of people, they are considered very dangerous in many ways.
In Australia, the largest group which is influenced by all kinds of white-collar crimes are older people. They often become victims of such kinds of fraud as telemarketing, advertisements, fraud in healthcare and computers and some other fields. Protection for this group of consumers is being provided with the help of giving them information about all of the possible schemes which can be applied against them. Unfortunately, most of the efforts to prevent consumer white-collar crimes have failed due to inefficient legislation.
The only field in which attempts to prevent fraud were relatively successful was the field of financial transactions. Currently, the legislation in Australia does not enforce large penalties of executives engaged in various fraud schemes. The Trade Practice Commission has suggested some actions in order to prevent white-collar crimes but they still need improvement. It is very important for Australian regulators to turn to the experience of the US in the field of white-collar crime regulation.
It is necessary to adopt efficient laws and enforce large penalties for those who get involved in this type of activities.
Bibliography. 1. Australian Bureau of Statistics (ABS) 1998, Household Use of Information Technology, Australia, ABS, Canberra, Cat. No. 8146. 0. 2. Aziz, S. J. , Bolick, D. C. , Kleinman, M. T. , Shadel, D. P. The National Telemarketing Victim. Call Center: Combating Telemarketing Fraud in the United States in Journal of Elder Abuse and Neglect. Vol. 12, Number 2. 2000.