Company Law Changing Nature of Corporate Collapses in Australia

Question: Discuss about theCompany Lawfor Changing Nature of Corporate Collapses in Australia. Answer: Introduction There has been an increase in the corporate collapses over the last two or three decades. Most of these corporate collapses are a result of relevant corporate law which had been put in place in order to avoid any wrongdoing which essentially could impact the interest of the company in an adverse manner. But often, the agents or the management of certain companies tend to be driven by their own personal interests which essentially lead to the collapse of albeit healthy entities (Mak, Deo Cooper, 2005). Even though over the years, there have been periodic modifications in the corporate law so as to plug loopholes, but the nature of corporate crimes has also evolved over the years in the Australian context. In order to evaluate the same, certain corporate collapses before the turn of the century would be taken and the same would be compared with corporate scandals in the recent past particularly those which involve bribery related corruption. Besides, in wake of the current challenges and nature of corporate crime, the relevant changes that need to be initiated in the corporate law would also be highlighted. One of the key scandals that took place in the 1980s was the WA Inc scandal which was a political scandal that arose because of the close association between businessmen and government as a result of which a quid pro quo relationship emerged. The scandal resulted in loss to public exchequer to the tune of $ 600 million on account of the bankruptcies witnessed by major corporations in the aftermath of stock market crash that took place in 1987. These corporations were Rothwells, Bond Corporation, Parry Corporation and Bell Group (O'Brien, Webb, 1991). These businesses were owned by selective businessman who were close to the Labour government existing at that time and provided tremendous funding support to the government. The state government in return provided state guarantees to the various assets of the corporations mentioned above at inflated prices which eventually led to losses to the exchequer on liquidation of corporations (Sykes, 1994). A host of breaches in corporate law were observed in this scandal. The most primary being breach of duties by the directors to ensure that their conduct should be driven by care and due diligence directed towards the company. However, the directors indulged in reckless business practices which eventually led to the bankruptcy and hence did not take enough measures to keep the company solvent. Besides, the actions taken by the directors were not in the best interest of the respective companies (O'Brien, Webb, 1991). This is apparent from the dubious business practices of Rothwells which acted as a last resort lender. Further, there was misrepresentation of financial information by the directors and practices related to asset overvaluation and liability minimisation were common so as to keep the stock price artificially high. Also, there were dubious transactions which happened at astronomical valuation which was the case in the sale of Bell Group to Alan Bond in 1987. It was apparent that with these transactions, it was apparent that eventually the corporations would become bankrupt (Sykes, 1994). The dubious conduct of the Bell Group was apparent in the issue of bonds when it was facing financial difficulties. At the time, the group was practically insolvent but still borrowed additional money and hence the directors breached their fiduciary duties by duping investors through the issue of fresh securities. The group along with Alan Bond finally went bankrupt in 1991. However, at the time, most of the assets with the group and its subsidiaries were liquidated by the banks (Allens, 2008). As a result, the directors failed in their fiduciary duty of securing the interest of creditors. This led to the longest case in Australian legal history i.e. WESTPAC BANKING CORPORATION -v- THE BELL GROUP LTD (IN LIQ) [No3][2012] WASCA 157; 44 WAR 1; 89 ACSR 1; 270 FLR 1 which reached settlement only in 2013 with the court directing the banks to return the money it realised through asset sale. In this decision, the court also highlighted that the directors also have the duty to take care of t he valid interests of the creditors even though this is not explicitly mentioned in the law (Hargovan. Harris, 2014). Another corporate collapse which deserves a mention is the liquidation of HIH Insurance in 2001. The company was one of the largest insurance companies in Australia at that time and had rapidly grown in the last decade of the 20th century. However, the company had several issues related to the faulty business practices which eventually led to the demise. The primary concern was the lack of prudent risk management strategy as the company dependent on reinsurance unlike peer companies which adhered to stringent provisioning norms. Besides, the company also indulged in reckless decision making which was apparent in the acquisition of FAI Insurance at a huge premium which made very little business sense (Mak, Deo Cooper, 2005). As a result of this acquisition, Rodney Alder (son of Larry Alder) became one of the directors of HIH insurance. After the liquidation of HIH in 2001, Rodney Adler had to face criminal charges and was found to be in breach of key provisions of corporate law. He was found to have breached s. 999 of Corporations Act 2001 when he gave out incorrect information with the intention of inducing share sale of HIH to certain investors. Additionally, he was found guilty of violation of s. 184(1)(b) of Corporations Act 2001 as his actions were not in the best interest of the company and thus he had breached the duty of the director. Infact the other directors of the company has also breached the duties of the directors by acting in a reckless manner which is apparent from the acquisition of FAI insurance without adequate due diligence. Additionally, the business expansion into risky verticals and new geographies was also not well planned and hence clearly there was breach of fiduciary duties by the directors (Mirshekary, Yaftian, Cross. 2005). Owing to the violation of duties of directors, post the HIH d ebacle, the Corporate Law Economic Reform Program Act 2004 (CLERP) was initiated. This led to sweeping changes in the corporate law in the form of CLERP 9 particularly with regards to corporate governance norms which aims to provide requisite checks and balances to prevent abuse of power (Gay Simnett, 2012). Due to the expanding reach of globalisation, the reach of modern businesses is not only limited to domestic markets but seeks to look at global markets. Australian businesses are also not lagging in this regard and are actively pursuing their business interests globally. However, this global marketplace raises new avenues of concerns for corporate law. While in the past, the root cause of corporate collapse essentially remaining within the national boundaries, same could not be said about the global companies of Australia. As these have business interests across the world, it is difficult for the regulators to keep a close watch on the foreign operations (Heaton, 2015). A case in point is the construction giant Leighton Holdings which through its subsidiary Leighton Offshore is facing investigations from the regulators (ASIC and AFP). In 2012, the company was caught in bribery scandal related to huge kickbacks paid to Iraqi officials through a Monaco based company in order to secure lucrative oil contract (Mckenzie Bachelard, 2016) More recently, accusations of foreign bribery have again resurfaced in connection with a project in India where apparently lucrative sub contracts were promised in exchange for a particular project (Duffy, 2016). Various other countries have also launched investigations into the case as this is fast emerging as a eye opener for national governments (Nicholson, 2016). Another relevant case involves the payment of kickbacks by Australian Wheat Board (AWB) to Iraqi officials for furthering business interests under the aid program (Adams, 2013). Clearly, the above incidents highlight the seriousness of the issue of foreign bribery. The relevant Australian law in this regard initiated with the Commonwealth Criminal Code 1995 which after four years paved way for Criminal Code Amendment (Bribery of Foreign Public Officials) Act. The amendment of the 1995 law was enacted in order to ensure that Australian standards in this regard were at par with the global standards (Adams, 2013). However, the key concern remains enforcement which is apparent from the fact that till 2015, there have been only two companies that have based prosecution. Even in the AWB case, the Australian Federal Police (AFP) did not proceed with the criminal matters investigation because of limited public interest coupled with slim conviction charges. Further, even in the bribery scandal revolving around Leighton, there have been no charges. The result of the lax enforcement in this aspect leads to complacency and the lack of adequate risk monitoring by compani es which are prone to such bribing of foreign officials (Heaton, 2015). The above fears are validated by a Deloitte survey as per which 23% of the firms had experienced incidents of bribes being paid during the last five years. Additionally, 75% of the surveyed Australian firms having foreign operations did not ever conduct any assessment related to corruption risk. Also, of the 25% companies that did carry out an assessment of corruption risk, 40% never initiated any program to manage the corruption risk on a proactive basis. It is apparent from this that the Australian companies lack the necessary internal processes so as to be proactive with regards to payment of foreign bribes and the only action is primarily reactive as is apparent from the Leighton case (Heaton, 2015). In absence of appropriate internal regulations to detect foreign bribery and take effective actions, the onus is on the government to take the requisite measures so that the reputation of Australian businesses is not tarnished in the business world. The continuation of this trend in an unabated form could adversely impact the ability of the Australian companies to bag projects oversees. However, the government till now has not been proactive in this regard. The testimony to this fact is the failure of the government to meet the various obligations that were highlighted at the OECD Convention on foreign bribery. The government has subsequently not been successful in implementation of the various recommendations. Also, the government has not yet come out with a national plan to deal with corruption which it originally proposed to release in 2012 (Heaton, 2015). In wake of the above facts, it is essential that appropriate modifications need to be made so as to curb this menace which could rapidly become out of control. In this regard, the most critical mechanism which needs reforms is the strict enforcement of the existing law. This is because invariably proper and timely enforcement of laws lead to compliance in the long run. In order to overcome the legal hassles related to proving bribery, provision related to books and records can be introduced on the lines of US Foreign Corrupt Practices Act. As a result of this provision, there would be a legal obligation on the companies to maintain detailed records of transactions which would enhance the overall transparency and also improve internal compliance and risk assessment (Adams, 2013). Further, like in UK, any failure in bribery prevention should be treated as a criminal offence. The only defence that the companies could avail is by adhering to reasonable internal controls and reporting nor ms which enhance transparency and accountability. Additionally, whistle-blowers also need to be encouraged in this regard through the implementation of appropriate legislation in this regard. Also the prosecutors should be made extended wider options for settlement like non-prosecution agreement so as to ensure timely settlement (Heaton, 2015). Thus, in wake of the above discussion, it would be fair to conclude that with Australian businesses going global, the focus of corporate collapse has shifted from internal concerns to concerns spanning into foreign territory. In this regard, the current regulations in Australia are not effective due to weak enforcement. Taking a cue from other developed nations such as US and UK, it is the need of the hour that requisite changes must be incorporated in the relevant law and enforcement process so as to enhance the conviction rate. In the long run, this would improve transparency and accountability while improving the reputation of Australian businesses. References Adams, M. (2013), Bribery, corruption and a reputation inpieces, Retrieved from https://theconversation.com/bribery-corruption-and-a-reputation-in-pieces-18900 Allens (2008), Restructuring and Insolvency, Retrieved from https://www.allens.com.au/pubs/insol/foinsolnov08.htm Duffy, C. (2016), Whistleblower accuses Leighton International of kickbacks and facilitation payments, Retrieved from https://www.abc.net.au/news/2016-04-22/leighton-allegations/7350886 Gay, G. Simnett, R. (2012), Auditing and Assurance Services in Australia, Sydney: McGraw-Hill Education Hargovan, A. Harris, J.(2014), Before the High Court, Sydney Law Review, 35(2), 433-50 Heaton, A. (2015), Are Australias Foreign Bribery Laws Failing?, Retrieved from https://sourceable.net/are-australias-foreign-bribery-laws-failing/ Mak, T., Deo, H. Cooper, K. (2005), Australias Major Corporate Collapse: Health International Holdings (HIH) Insurance May the Force Be with You, Journal of American Academy of Business, 6(2),104-12. Mckenzie, N. Bachelard, M.(2016), Unaoil Leighton: Dirty Deals and Double Crosses, Retrieved from https://www.theage.com.au/interactive/2016/the-bribe-factory/day-2/leighton-feature.html Mirshekary, S., Yaftian, A. Cross, D. (2005), Australian Corporate Collapse: The Case of HIH Insurance, Journal of Financial Services Marketing, 9(3), 249-58. Nicholson, L. (2016), Biggest bribery scandal: US, UK, Australia launch probe into mass oil industry corruption, Retrieved from https://www.rt.com/news/337961-unaoil-corruption-scandal-investigation/ O'Brien, P. Webb, M.(1991), The Executive State--WA Inc The Constitution, Perth: Constitutional Press Sykes, T.(1994).The Bold Riders: Behind Australia's Corporate Collapses. St Leonards, NSW:Allen Unwin