White Collar and Corporate Crime Charges
Clear advice on penalties, defences and what to expect in a corporate or financial crime matter.
"White collar" or corporate crime is a broad term covering offences typically involving dishonesty, deception or breach of trust committed in a business, financial or corporate setting, rather than through violence. These matters are prosecuted mainly under the Corporations Act 2001 (Cth) and the Criminal Code Act 1995 (Cth), and, where the conduct involves a state-based dishonesty element, the Crimes Act 1900 (NSW). Common examples include breaches of directors’ duties, insider trading, market manipulation, false or misleading disclosure to shareholders or the market, and dishonest conduct in relation to a financial product or service.
These matters are frequently investigated by the Australian Securities and Investments Commission or the Australian Federal Police, often over a period of months or years, involving forensic accounting, subpoenaed corporate records and compulsory examinations, before any charge is laid. Because much of the conduct in question occurs through paperwork, emails and financial records rather than a single observable incident, these prosecutions can turn heavily on the interpretation of complex transactions, the accused’s specific knowledge and intent, and expert accounting evidence.
Maximum penalties for the more serious offences in this area, such as dishonest use of position as a director, insider trading, and dishonest conduct in relation to a financial product or service, were significantly increased by the 2019 Commonwealth corporate crime penalty reforms and now reach 15 years imprisonment, alongside substantial fines and disqualification from managing corporations. Not every offence in this area carries the same maximum, however. Related but distinct provisions, such as making a false or misleading statement about a financial product, carry a materially lower maximum, which is one of several reasons the specific section relied on matters a great deal. Given the overlap between regulatory, civil and criminal processes in this area, the same conduct can also trigger ASIC civil penalty proceedings and disqualification proceedings alongside a criminal prosecution, making early strategic advice on how these different processes interact essential.
Penalties
What you could be facing
| Penalty | Maximum | Notes |
|---|---|---|
| Dishonest use of position as a director or officer (s184 Corporations Act 2001 Cth) | 15 years imprisonment and/or a substantial fine | Applies where a director or other officer dishonestly uses their position with the intention of gaining an advantage or causing detriment to the company. Increased from an earlier 5-year maximum by the 2019 Commonwealth corporate crime penalty reforms. |
| Insider trading (s1043A Corporations Act 2001 Cth) | 15 years imprisonment and/or a fine | Applies to trading, or procuring another person to trade, while in possession of material non-public information. The individual fine is calculated by reference to a fixed amount or a multiple of the benefit obtained, whichever is greater. |
| Dishonest conduct in relation to a financial product or service (s1041G Corporations Act 2001 Cth) | 15 years imprisonment | Covers dishonest conduct in the course of carrying on a financial services business, or in relation to a financial product. |
| False or misleading statements likely to affect the price of a financial product (s1041E Corporations Act 2001 Cth) | 5 years imprisonment | A separate, lower-maximum offence from section 1041G. Covers a false or materially misleading statement, rather than dishonest conduct itself, and is often charged where the conduct falls short of what section 1041G requires. |
| General dishonesty affecting a Commonwealth entity (s135.1 Criminal Code Cth) | 10 years imprisonment for obtaining a gain (s135.1(1)); 5 years for causing a loss (s135.1(3)) | Relevant where the conduct affects a Commonwealth agency or program, such as the Australian Taxation Office. |
Possible Defences
Ways this charge can be challenged
Absence of dishonesty
Dishonesty, judged by the standards of ordinary people, is a central element of most offences in this area. A genuine, even if mistaken, belief that conduct was authorised, permissible, or in the company’s interests can undermine this element.
No intent to gain an advantage or cause detriment
For directors’ duties offences in particular, the prosecution must prove a specific intention to gain an advantage or cause detriment, not merely that a breach of duty occurred in a civil sense, which alone is not enough to establish criminal liability.
Reliance on professional advice
Having obtained, and genuinely relied on, advice from accountants, lawyers or compliance professionals before taking the relevant action can be highly relevant to both intention and dishonesty, and is frequently a central plank of the defence in these matters.
Lack of actual knowledge or involvement
In larger or more complex corporate structures, a person may not have had actual knowledge of, or personal involvement in, conduct carried out elsewhere in the business, which can be a genuine basis to contest individual liability.
What Happens Next
The Local Court process
- 01
An ASIC or AFP investigation, often involving compulsory examinations, search warrants and subpoenaed financial records, precedes any charge, and can run for a considerable period before a brief of evidence is finalised.
- 02
Once charged, the matter is listed for mention, with an early decision required as to whether it will proceed in the Local Court for less serious matters, or be committed to the District Court given the indictable nature of most serious corporate offences.
- 03
Committal proceedings review the strength of the prosecution case, often centred on complex documentary and forensic accounting evidence, before the matter is committed for trial or sentence.
- 04
Case management in the District Court typically involves extensive disclosure of financial records, expert accounting reports and cross-referencing of corporate documents, reflecting the volume and complexity of the evidence usually involved.
- 05
At trial, the prosecution must prove dishonesty and any required intent beyond reasonable doubt, and the defence can challenge the characterisation of the relevant transactions, reliance on professional advice, and the accused’s actual state of knowledge.
- 06
Sentencing reflects the scale of any loss, the number of people or investors affected, the degree of planning and abuse of trust involved, alongside any parallel civil penalty or disqualification proceedings already resolved or still pending, and is generally conducted under Commonwealth sentencing law given the federal nature of most offences in this area.
Sentencing
What courts consider at sentencing
The scale of any loss caused, the number of investors, shareholders or counterparties affected, and the degree of planning and sophistication involved are the primary drivers of sentence, since matters in this area range from a single misleading statement through to prolonged, multi-victim schemes.
A breach of a position of trust, such as a director, officer, or professional adviser, is treated as a significant aggravating factor, as is the deliberate use of complex corporate structures to conceal conduct, while genuine cooperation with regulators, an early guilty plea, and a limited or absent prior record all carry weight in the accused’s favour.
Because most offences on this page are Commonwealth, not NSW state, offences, they are NOT assessed against section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The applicable non-conviction mechanism is instead section 19B of the Crimes Act 1914 (Cth), under which a federal court can dismiss a charge without recording a conviction, or conditionally discharge the offender without a recorded conviction, having regard to the offender’s character and antecedents, the triviality of the offence, and any extenuating circumstances.
A section 19B outcome is realistically available only for a genuinely minor, first-time matter, such as a lower-level false or misleading statement charge under section 1041E with no personal gain and limited impact. It becomes very difficult to obtain for a section 184, 1041G or 1043A matter, or for any offence causing substantial loss to investors, given the seriousness with which deliberate corporate dishonesty is treated at a federal level.
Next Steps
If you've just been charged
Don't respond to an ASIC notice, compulsory examination summons, or AFP request before getting legal advice, even where you believe you have done nothing wrong. These are formal, high-stakes processes with their own legal requirements and consequences for non-compliance.
Preserve, rather than delete or alter, any emails, records or documents relevant to the conduct under investigation. Destroying or altering records once an investigation is known or reasonably suspected can itself amount to a separate, serious offence.
Identify whether you have Directors and Officers (D&O) insurance or another policy that may cover your legal costs, and notify the insurer promptly, since many policies have strict notification deadlines.
Set out, in writing for your lawyer, any professional advice you relied on at the time of the relevant conduct, including from accountants, lawyers or compliance staff, since this can be central to your defence.
Get legal advice before engaging further with ASIC, the AFP, or any parallel civil or disqualification proceeding, since steps taken in one process can have serious, sometimes irreversible, consequences for the others.
Frequently Asked Questions
Common questions
ASIC can pursue civil penalty proceedings, which can result in fines and disqualification but not imprisonment, separately from or in addition to a criminal prosecution for the same underlying conduct, which carries the possibility of imprisonment and requires proof beyond reasonable doubt.
Yes. It is common for the same conduct to be pursued through parallel civil penalty, disqualification and criminal processes, each with different tests and consequences, which is why understanding how they interact is an important part of managing these matters from the outset.
Yes. Genuine reliance on professional advice can be highly relevant to whether the prosecution can prove the dishonesty and intent required for these offences, and is frequently a significant part of how such matters are defended.
Dishonesty is generally assessed by the standards of ordinary, decent people, whether the conduct in question would be considered dishonest by those standards, and whether the accused themselves realised this, are both typically relevant to establishing the element.
Disqualification is a real possibility, whether through a specific Court order on conviction, an ASIC administrative process, or automatic disqualification following certain convictions, and is a separate consequence from any criminal penalty imposed.
It is possible only in a genuinely minor case, and the mechanism is different from the one used for NSW state offences: most matters on this page are Commonwealth offences, assessed under section 19B of the Crimes Act 1914 (Cth) rather than the NSW Crimes (Sentencing Procedure) Act. It becomes progressively harder to obtain as the offence, the loss caused, and the breach of trust involved become more serious.
Related Offences
You may also be looking for
Going to Court?
Speak with our team today for a free first conference and clear, fixed-fee advice on your matter.
Call 0414 444 474