Royal commission workload

The Commonwealth Director of Public Prosecutions was allocated an extra $41.6 million late last year, over eight years, to prosecute cases of financial misconduct identified by ASIC and the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry.

One of the biggest cases could be criminal charges against AMP, which the royal commission's barrister, Rowena Orr QC, recommended for misleading ASIC.

Government officials and ministers, including Treasurer Josh Frydenberg, are concerned cases could get bogged down in the state court system, where they will have to join long queues of prosecutions waiting for judges to become available.

Delays could create a perception that the banking royal commission, which is due to submit its final report on February 1, hasn't had serious consequences for individuals from banks, insurance companies and life insurers who may have broken the law.

The $3 billion, 2009 collapse of Storm Financial took until 2016 for a verdict, when Emmanuel and Julie Cassimatis were found guilty of breaching the Corporations Act. Glen Hunt

"It could be done fairly easily," said Norman O'Bryan SC, a Melbourne barrister who prosecuted the Australian wheat board chairman for ASIC over sanctions breaches in Iraq. "I am sure if they are of a mind to do it, it would be done very quick."

Inconsistent penalties


The department, which a political source said has wanted to make the change for years, said it would make a recommendation by February 1. Attorney-General Christian Porter declined to comment.

Business crimes include misleading investors, false accounting, market manipulation, insider trading, bribery, tax evasion and money laundering.

Prosecutions for serious criminal breaches of the corporations law are done in state supreme courts.

Civil prosecutions are carried out in the Federal Court, which is often better resourced than state courts. Last year the government allocated an extra $9.9 million over four years to the court to cover the cost of two new judges who will hear civil cases mounted by ASIC.

Some lawyers prefer appearing before federal judges, who they say have fewer legal idiosyncrasies although sometimes have a reputation for tardiness.

"The quality of the decision-making across the board in the Federal Court is higher than the decision-making across the board in the state supreme courts," Mr O'Bryan said.

One of the problems with the current system is that courts across the country impose different penalties for the same crimes. If the Federal Court was given responsibility for corporate crime, standard penalties would be more likely, lawyers said.

"It's absolutely right to have a federal criminal jurisdiction to ensure consistency across the nation but it needs to be recognised that doing that is hugely costly," said Matt Keogh, a former public prosecutor who is now a Labor MP from Perth.


"A higher priority would be to look to having a Commonwealth sentencing act to ensure consistency of application by the state courts."

Who will pay?

Several practical problems would have to be solved for a federal takeover. Most Federal Court judges have backgrounds in commercial law, and more would have to be hired with criminal expertise.

State justice systems currently cover the cost of holding trials, which would switch to the federal government, and some kind of federal legal aid system might have to be created so everyone accused could have access to legal representation, Mr Keogh said.

There would be no certainty criminals would be brought to justice quickly. Even the Federal Court can struggle with corporate prosecutions.

The $3 billion, 2009 collapse of Storm Financial took until 2016 for a verdict, when Emmanuel and Julie Cassimatis were found guilty of breaching the Corporations Act by failing to stop inappropriate advice being given to investors.

A penalty wasn't issued until last year, when the couple was fined $70,000 each.