For the last four decades (at least) governments and political activists of left and right have cavilled at ‘white collar crime’. On the Left, the complaint was that only the poor, working class or ‘Othered’ attracted the attention of the authorities, leading to prisons full of young men, often ‘of colour’, while ‘corporate crooks’ went free (as, too often, they did). On the Right, it was that frauds should not benefit from exchanges brought about by deceit or corruption (which they’ve tended to do … regardless of Laura Norder).
Heaven knows, they’ve had a point. As the Hayne Royal Commission’s findings show (to choose only from the most recent example – similar points could be drawn from a long list of inquiries into commercial misconduct stretching through the Wheat Board scandal, the State Banks, HIH – the list isn’t short) put a suit in charge of someone else’s money and you need a system to make sure she doesn’t help herself to it. To that end, we now have financial services licensing, audit regulation, AML/CTF legislation, anti ‘Modern Slavery’ reugulations, indeeed an entire forest of measures supposedly designed to ensure the probity of commercial life. Not least, for a decade, we’ve had anti-bribery legislation in the Crimes Act, modelled on UK provisions with extra-territorial reach. And, yet.
And yet, dig into the federal government’s latest proposals for the subordinate legislation dealing with the restructuring of small businesses (open for consultation for 8 days – consultation on the principal legislation has now closed after similarly short consultation) , and we find, buried in an almost impenetrable thatch of cross-references, this gem:
‘if a person (the broker) referred the company to the restructuring practitioner—set out details of the relationship between the broker and the restructuring practitioner and details of any payments made, or to be made, to the broker by the restructuring practitioner in connection with that referral;’
A provision of considerable obscurity, to be sure. Translated into the more plain language of commerce, it means the small business ‘restructuring practitioner’ will need to tell you if she’s paying a kickback to her referrer, and if so, how much. In doing so, it sanctions what has hitherto been prohibited for decades – the offerring of inducements for or to an insolvency practitioner, payments that in any other context would be treated as an indication of corruption. So, we have a government that outlaws bribery both here and abroad, while at the same time sanctioning it among a population it claims to regulate.
But, then, we all know that what governments say, and what they do are two quite different things.