Richfould then took up employment as a shepherd with Mr. No further billings will occur after the 15th June After robbing the store, the entire entourage including Morriss' wife and children were marched down to Hall's Inn where a dance was in progress. Banks should comply with applicable laws and regulations in all jurisdictions in which they conduct business, and the organisation and structure of the compliance function and its responsibilities should be consistent with local legal and regulatory requirements. Planning and infrastructure Planning and infrastructure. The event attracts Guernsey drivers who come to Alderney with high powered cars, motorbikes, sidecars and karts. Boards Ministerial Advisory Committee About health boards Board appointments Current appointment processes Board education events Board education resources.
You are here
Kalanick joined Camp and gives him "full credit for the idea" of Uber. Following a beta launch in May , Uber's services and mobile app officially launched in San Francisco in Graves started out as general manager and shortly after the launch was named as CEO. In , the company changed its name from UberCab to Uber after complaints from San Francisco taxi operators.
The company's early hires included a nuclear physicist, a computational neuroscientist , and a machinery expert who worked on predicting demand for private hire car drivers and where demand is highest.
In July , the company introduced UberX, a service option which allows people to drive for Uber using non-luxury vehicles, subject to a background check, registration requirement, and car standards.
In early , the company hired many researchers from the robotics department of Carnegie Mellon University and established Uber's Advanced Technologies Center in the Strip District, Pittsburgh to develop self-driving cars.
On September 14, , Uber launched its first self-driving car services to select customers in Pittsburgh, including Pittsburgh Mayor Bill Peduto , using a fleet of Ford Fusion cars each equipped with 20 cameras, seven lasers, GPS , lidar , and radar equipment that enabled the car to create a three-dimensional map utilizing landmarks and other contextual information to keep track of its position.
In November , Uber announced a non-binding plan to buy up to 24, Volvo XC90 SUV vehicles designed to accept autonomous technology between and Such vehicles require a different type of steering and braking mechanism and sensors. The lawsuit was expected to be a problem for Uber's development of autonomous cars; however, it was settled.
See Uber Accusation of trade-secret theft by Waymo. In , Toyota made an undisclosed investment in Uber and looked into leasing options, which could potentially aid Uber drivers financially, a move in response to the other partnerships between Toyota's and Uber's counterparts. In August , Uber sold its operations in China to Didi.
In March , Uber announced the merger its services in Southeast Asia with those of Grab in exchange for a On May 30, , CEO Dara Khosrowshahi said Uber is "on track" have an initial public offering in , but he also said, "Lots of things can happen in the world but we have a reasonable buffer as well, so I think we're in a pretty good spot".
With this hire, Uber expects to file for an IPO in In New York City, the increased usage of Uber and other transportation network companies has negatively affected the values of Taxi medallions , transferable permits or licenses authorizing the holder to pick up passengers for hire. When Uber was led by Travis Kalanick, Uber took an aggressive strategy in dealing with obstacles, including regulators.
In , Kalanick said "You have to have what I call principled confrontation. In , while in the midst of a regulatory battle, Portland, Oregon's transportation commissioner called Uber management "a bunch of thugs".
In June , Uber distributed to its riders the personal contact information of a commissioner in Virginia who opposed the company and told riders to flood his inbox with complaints. In November , CEO Dara Khosrowshahi dropped the "win at all costs" strategy and implemented new values for the company, including "we do the right thing". Bradley Tusk , a former campaign manager for Michael Bloomberg , played a significant role in advising Uber on New York City regulations.
In May , Rachel Whetstone became the senior vice president of policy and communications. In April , Whetstone left and was replaced with Jill Hazelbaker. According to statistics published by the company in April , men account for In the United States, White people make up However, for technology-related jobs, White people are Wolff , a supporter of anti-capitalism , called Uber and similar services an "old scam", "nothing new", and similar to other unsafe capitalist industries such as taxis, which initially originated as a way to competitively undercut prevailing systems by offering cheaper services produced with lower standards, only to eventually come under regulation due to public concerns over safety.
Wolff predicted that TNCs would eventually fall under the same type of regulation as taxi companies. Following Uber's success, there was an influx of new startups describing their product as "Uber for X". According to Wired, Uber for X "has become a kind of shorthand for convenience—a technological solution for any of life's frustrating, dull tasks, one that either makes them more convenient or automates them completely". Uber developed an internal software tool called Greyball , which uses data collected from the Uber mobile app other means, to avoid giving rides to certain individuals.
The tool was used starting in By showing "ghost cars" driven by fake drivers to the targeted individuals in the Uber mobile app, and by giving real drivers a means to cancel rides requested by those individuals, Uber was able to avoid giving rides to known law enforcement officers in areas where its service is illegal.
Investigative journalism by The New York Times and the resulting report, published on March 3, , made public Uber's use of Greyball since , describing it as a way to evade city code enforcement officials in Portland, Oregon , Australia, South Korea, and China.
Uber reportedly used Greyball to identify government officials through factors such as whether a user frequently opens the app near government offices, a review of social media profiles by Uber employees to identify law enforcement personnel, and the credit cards associated with the Uber account.
On March 8, , Uber admitted that it had used Greyball to thwart government regulators and pledged to stop using the service for that purpose. In May , the United States Department of Justice opened a criminal investigation into Uber's use of Greyball to avoid local law enforcement operations. The United States Department of Labor issued guidelines in July to deal with, what it considers, "misclassification" of workers. It argues that any "worker who is 'economically dependent' on the employer should be treated as an employee.
By contrast, a worker must be in business for himself or herself to be an independent contractor. According to a February lawsuit filed by Waymo , owned by an affiliate of Google , ex-Google employee Anthony Levandowski allegedly "downloaded 9. In a lawsuit was filed alleging that Uber uses "sophisticated software" to defraud both drivers and passengers. According to the suit, under the upfront pricing model, when a passenger is quoted a price the app shows a longer more expensive route, meanwhile would-be drivers are shown a shorter cheaper route.
The passenger is charged for the more expensive route, while the driver is paid the cheaper, with Uber pocketing the difference. In March , a lawsuit was filed against Uber in the United States accusing the company's drivers of not serving a woman with cerebral palsy due to her service dog in violation of the Americans with Disabilities Act and the Texas Human Resources Code. Uber operates as a transportation network company , which, in some regions, are illegal to operate.
Regulations can include requirements for driver background checks, fares, the number of drivers, and licensing. In , Uber was targeted by GrabYourWallet for its alleged relation to Trump travel ban Executive Order , which has also been referred to as a de facto "Muslim ban. Uber fares are based on a dynamic pricing model, in which fares are higher during periods of high demand for rides. The same route costs different amounts at different times as a result of factors such as the supply and demand for Uber drivers at the time the ride is requested.
In , then-CEO Travis Kalanick responded to criticism of dynamic pricing by saying that it will take time for customers to get used to dynamic pricing after decades of fixed rates in taxis.
Refine your search options. Our vision is that Victorians and visitors enjoy safe and responsible gambling and liquor environments. The VCGLR regulates businesses focusing on the people, premises, products and promotions involved in supplying gambling to ensure the integrity of Victoria's gambling industries and to minimise harm.
Every situation is unique. What best describes your situation in the Victorian gambling industry? Gaming venue operator Gaming industry employee Wagering and sports betting Bookmaker and employee Lotteries Bingo Keno Raffle Casino Community and charitable gaming Manufacturer, supplier or tester Monitoring service.
The VCGLR regulates businesses focusing on the people, premises, products and promotions involved in supplying liquor to ensure the integrity of Victoria's liquor industries and to minimise harm. What best describes your situation in the Victorian liquor industry? How can we help? You are here Home. More in this section. Who can apply and how much does it cost? Where do I go to apply?
How do I apply? Complete the 'Application for a Proof of Age card' form. Fill in the applicant's details section of the form. Category B Driver licence or learner permit Security card Credit card or bank passbook Medicare card Shooters licence Student identification card. Sign the applicant's declaration in the presence of an authorised person. How long before I receive my card? Your Proof of Age card will be sent to you within 20 - 25 business days.
What happens if there is a mistake on my card? Again, having a properly staffed and supervised Compliance function looking after legal and regulatory obligations is one way a director or other officer might show reasonable care in meeting those obligations. In Re Caremark International Inc. Derivative Litigation , a 4 year investigation by the United States Department of Health and Human Services and the Department of Justice into alleged violations by Caremark employees of federal and state health care laws culminated in Caremark being charged on indictment in with multiple felonies.
It thereafter entered into a number of agreements with the Department of Justice and others, including a plea agreement in which it pleaded guilty to a single felony of mail fraud and agreed to pay civil and criminal fines. The plaintiffs, shareholders in Caremark, brought a derivative action on behalf of Caremark against its directors alleging that they had breached their fiduciary duty of care to Caremark and seeking recovery of these losses from them personally.
A settlement was proposed and presented to the Delaware Court of Chancery for approval. In the course of his judgment, Chancellor Allen said at pp There was no claim in that case that the directors knew about the behavior of subordinate employees of the corporation that had resulted in the liability. Rather, as in this case, the claim asserted was that the directors ought to have known of it and if they had known they would have been under a duty to bring the corporation into compliance with the law and thus save the corporation from the loss.
The Delaware Supreme Court concluded that, under the facts as they appeared, there was no basis to find that the directors had breached a duty to be informed of the ongoing operations of the firm. In notably colorful terms, the court stated that "absent cause for suspicion there is no duty upon the directors to install and operate a corporate system of espionage to ferret out wrongdoing which they have no reason to suspect exists.
Obviously the level of detail that is appropriate for such an information system is a question of business judgment. And obviously too, no rationally designed information and reporting system will remove the possibility that the corporation will violate laws or regulations, or that senior officers or directors may nevertheless sometimes be misled or otherwise fail reasonably to detect acts material to the corporation's compliance with the law.
But it is important that the board exercise a good faith judgment that the corporation's information and reporting system is in concept and design adequate to assure the board that appropriate information will come to its attention in a timely manner as a matter of ordinary operations, so that it may satisfy its responsibility. Thus, I am of the view that a director's obligation includes a duty to attempt in good faith to assure that a corporate information and reporting system, which the board concludes is adequate, exists, and that failure to do so under some circumstances may, in theory at least, render a director liable for losses caused by non-compliance with applicable legal standards.
However, it approved the proposed settlement agreement on the basis that it was an adequate, reasonable and beneficial outcome for all parties. There is no direct equivalent case law that I am aware in Australia, although I think the High Court would find this dicta persuasive.
The obligation for directors to keep themselves informed on compliance matters is, I believe, inherent in the requirement in CA s 1 see above that directors exercise reasonable care and diligence. It is also reinforced by CA s 2 , which provides: The director's or officer's belief that the judgment is in the best interests of the corporation is a rational one unless the belief is one that no reasonable person in their position would hold.
Indeed, he or she will be unable to avoid liability for insolvent trading by claiming that they had never learned to read financial statements It applies to all offences under Commonwealth law, unless expressly included.
Corporate criminal responsibility in relation to CA Chapter 7 is dealt with by CA sB, which we looked at in lecture 1. The latter section provides that a body corporate is fixed with the conduct and state of mind of any director, employee or agent of the body corporate acting within the scope of their actual or apparent authority.
The CCC characterises offences as generally having a physical element and a fault element s3. The references to "corporate culture" in s The legislative intent behind these provisions is clear — every corporation should have appropriate policies, which it monitors and enforces, requiring compliance with key Commonwealth legislative requirements. The latter section provides that a person is negligent with respect to a physical element of an offence if his or her conduct involves: See also CCC s For these purposes, a failure to exercise due diligence may be evidenced by the fact that the prohibited conduct was substantially attributable to: Sometimes the fact of the contravention will demonstrate that the compliance program is not effective, and in such cases there will be little reason to give much credit to the contravening entity in fixing a pecuniary penalty.
The court noted that Nissan had earlier been convicted of similar offences and "therefore had direct experience of the need for a comprehensive compliance program". Even though "extensive efforts [had since] been made to devise and implement a compliance program that should ensure that errors of the kind which occurred will not happen in the future", Von Doussa J nonetheless imposed significant penalties for the breach, in part because "the shortcomings in the compliance program operating at the time of these offences contributed to the happening of each offence".
In TPC v CSR Ltd , the company was criticised for having a compliance program that was "less than vigorous" and for not taking steps to avoid a repetition of the kind of conduct which was the subject of the proceedings. It had not updated its compliance manual since it was introduced in and had not conducted any staff training since a seminar held in French J said at p52, These include the following: The deliberateness of the contravention and the period over which it extended.
Whether the contravention arose out of the conduct of senior management or at a lower level. Whether the company has a corporate culture conducive to compliance with the Act, as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention.
Whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention. The compliance program as indicated by the evidence appeared desultory and in need of reinforcement. No indication of any corrective measures or revitalisation of that program was offered. It is to its credit that it has withdrawn its defences and submitted to injunctions restraining further contravention. I have no doubt that the preparation of the case by the Commission has consumed an enormous amount of time and financial resources.
In an agreed settlement, Chemeq consented to two declarations that it had contravened the market disclosure provisions by failing to tell the ASX about the increased costs of constructing and commissioning a manufacturing facility and the commercial impact of a US patent it was granted. In delivering his decision, French J said: In considering the appropriate penalty for the contravention by a corporation of a regulatory requirement, whether it be a requirement imposed by the Act or the Trade Practices Act Cth or other regulatory frameworks, it is relevant to consider whether the corporation has in place policies and procedures designed to achieve compliance with such requirements.
The Court will consider the form and content of the policies and procedures and also the measures adopted by the corporation to ensure that they are understood and applied. A well drafted set of policies and procedures will mean little if there is no follow up in terms of training of company officers including directors and, where appropriate, refresher training. In the present case there is provision for induction training but no clear evidence of follow-up and refresher training. Compliance policies and procedures will not be effective unless there is, within the corporation, a degree of awareness and sensitivity to the need to consider regulatory obligations as a routine incident of corporate decision-making.
It does not require a risk averse mentality in the conduct of the company's business, but rather a kind of inbuilt mental check list as a background to decision-making. This may be more difficult to achieve where, as in the present case, there is a positive obligation that is not related to any particular decision. The conduct of corporate business may involve consideration of the many shifting circumstances that make up a dynamic business environment. To identify those matters, including changes in circumstance, which attract the obligation of continuous disclosure, may not always be a straightforward exercise.
There will be clear cases, and not so clear cases. There should be some process for ensuring that changes in circumstances or market information requiring disclosure are identified. Absent a positive monitoring mechanism, the company's compliance system may leave open the risk of non-disclosure by oversight.
The factors relevant to the level of penalty for contravention of the continuing disclosure provisions of the Act may be identified in part by reference to the elements of the contravention set out in the Act where those elements accommodate a spectrum of possibilities affecting its seriousness. The greater the seriousness of the contravention when measured by reference to those elements, the greater the harm that will be done if like re-offending should occur and the higher the penalty that should be imposed to minimise that risk.
Issues of deliberation, recklessness and negligence are also relevant to risk of recurrence and what is necessary to deter such conduct by the particular company and others in the future. The presence or absence of compliance systems is of importance. It is desirable also that the Court, in fixing penalty, is made aware of the reasons for the contravention.
This may enable it to determine whether there were inadequate compliance systems or whether the contravention involved aberrant disregard by an individual of relevant policies and procedures. The seniority of those in the company who were involved in the contravention is also relevant because it goes to the risk of recurrence and the extent to which their conduct is likely to be noticed by subordinates within the company and by others in the wider corporate community.
The degree of damage, if any, inflicted on the market by the non-disclosure is relevant as part of the exercise of assessing the seriousness of the contravention and so the level of risk associated with re-offending. The acknowledgment by a corporation that it has contravened the law, its cooperation with the regulator in that regard, the steps it has taken internally to avoid repetition and relevant changes in the composition of the board or senior management should also be taken into account in the kind of risk assessment that informs a deterrent approach to punishment.
It may also be relevant to consider the impact, if any, on shareholders when a penalty is sought against a corporation. Penalties imposed on officers of the corporation for their part in such contraventions affect those officers alone. Penalties imposed on the corporation may affect shareholders including those who have become shareholders on a set of assumptions induced by the very non-disclosure complained of.
In some cases it is possible also that creditors may be affected. Who then is being deterred when only the corporation is penalised?
I am not sure that there is a satisfactory answer to this concern within the present statutory scheme. One might imagine that if a penalty is to be significant to a corporation it will also be significant to its shareholders in its impact on the capital which backs their shares.
In a company with capitalisation as high as that of Chemeq, the impact on individual shareholders may be insignificant. The penalties that count most are likely to be those imposed on the responsible individuals. Nevertheless the law as presently framed requires the assumption that the contravening corporation is a person distinct from its shareholders and that it can be deterred by the imposition of appropriate penalties.
From the preceding discussion I extract the following factors relevant to the level of penalty for contravention of the continuous disclosure provisions. The list is non-exhaustive: The extent to which if at all the contravention was the result of deliberate or reckless conduct by the corporation. The extent to which the contravention was the result of negligent conduct by the corporation.
The period of time over which the contravention occurred. The existence, within the corporation, of compliance systems in relation to its disclosure obligations including provisions for and evidence of education and internal enforcement of such systems. Remedial and disciplinary steps taken after the contravention and directed to putting in place a compliance system or improving existing systems and disciplining officers responsible for the contravention.
The seniority of officers responsible for the non-disclosure and whether they included directors of the company. Whether the directors of the corporation were aware of the facts which ought to have been disclosed and, if not, what processes were in place at the time, or put in place after the contravention to ensure their awareness of such facts in the future.
Any change in the composition of the board or senior managers since the contravention. The degree of the corporation's cooperation with the regulator including any admission of contravention.
The prevalence of the particular class of non-disclosure in the wider corporate community. Its duties include developing guidelines for sentencing in federal courts; collecting data about crime and sentencing; and serving as a resource to Congress, the Executive Branch and the Judiciary on crime and sentencing policy. It first published its Sentencing Guidelines Manual in to provide federal judges with a set of rules to ensure that similar offenders who committed similar offences received similar sentences.
Originally, the guidelines only applied to individual offenders. The guidelines on sentencing of organisations were added in and now form Chapter 8 of the Sentencing Guidelines Manual. The guidelines on the sentencing of organisations are credited with helping to establish the compliance and ethics industry in the US: See also In re Caremark , supra, at , where the Delaware Court of Chancery credited the organisational guidelines with providing "powerful incentives for corporations today to have in place compliance programs to detect violations of law, promptly to report violations to appropriate public officials when discovered, and to make prompt, voluntary remedial efforts.
They then add prescribed numbers of points if the organisation's management was knowingly involved in, condoned, or was tolerant of, the criminal act, if the organisation has a history of prior breaches, if it has violated a court order or if it has obstructed justice.
The prescribed deduction in culpability score for an effective compliance and ethics program is 3 points. This deduction does not apply if, after becoming aware of an offence, the organisation unreasonably delayed reporting the offence to appropriate governmental authorities or if certain high level personnel participated in, condoned, or were wilfully ignorant of, the offence.
A non-legal foundation for a Compliance function - compliance with legal and ethical obligations promotes confidence in market integrity and trust in business dealings. It therefore encourages an environment where all market participants can prosper. Many industry bodies have codes of ethics and codes of conduct designed to promote market integrity - see, for example, the Australian Financial Markets Association , Financial Planning Association , Financial Services Council and Stockbrokers Association of Australia.
Note that there is a strong correlation between legal obligations and ethical standards, eg, through the obligation to "do all things necessary to ensure that the financial services covered by the licence are provided efficiently, honestly and fairly" CA sA 1 a and not to engage in misleading or deceptive conduct CA sH. Condition 4 above is imposed on all licensees. ISO is a decided improvement on AS and AS , particularly if you view it as the introduction suggests - ie, as guidelines rather than a standard.
ASIC acknowledges that what are appropriate compliance measures will vary depending on the nature, scale and complexity of the licen see's business and that: The standard is a useful benchmark that we expect licensees to use as a guide in planning and implementing compliance measures, processes and procedures. We accept that there may be compliance arrangements that are not consistent with every element of AS but which nevertheless may ensure compliance with the licensee obligations eg local subsidiaries of global companies which adopt the compliance measures, processes and procedures of their parent globally across the organisation, or systems specifically developed for an entity.
Nonetheless, AS can play a role in helping a licensee decide whether such compliance measures, processes and procedures are adequate to ensure the licensee complies with Australian law. With compliance programmes in recent times the Federal Court has indicated its reluctance to make orders for trade practices compliance programs in terms of the existing standard for compliance programs. In response to those concerns the ACCC has developed four trade practices compliance templates which assist greater clarity and measurability.
Parenthetically, these templates make no reference at all to AS Depending on the size and risk profile of the company, a Trade Practices Compliance Program can be as simple as implementing an effective complaints handling system and training relevant staff; or as comprehensive as setting up a team of dedicated compliance staff and conducting regular risk assessment checks.
The templates do not seek to diminish the importance of the Australian Standard for Compliance Programs. The templates can be viewed on ACCC's website at: The Commission submits that it is not a substantial mitigating circumstance as it had no effect on the behaviour of GWF's management. GWF places great weight upon the compliance program. One needs to look at the compliance program in two respects.
Firstly one must ask whether there was a substantial compliance program in place which was actively implemented by GWF; the answer is in the affirmative which is a mitigating factor as is GWF's revision of the program …. The compliance guide made it quite clear that the Act could not be ignored and that "severe pecuniary penalties" were involved if the Act was contravened.
Seminars were also conducted. Secondly, one must ask whether the implementation of the compliance program was successful and in the circumstances of this case the answer must be in the negative. It appears that all GWF's officers who participated in the contraventions were well aware, or ought to have been well aware from the documentation that they had received and seminars some had attended, that what they were doing was a clear contravention of the Act which "may involve severe pecuniary penalties".
To this extent the compliance program failed and has been the subject of revision since the contraventions became known. Such failure was not an isolated failure; it occurred on different occasions and with different officers. In my view the level of penalties should take this failure into account. True it is that a compliance program was in place but the program in the circumstances of the contraventions under consideration was not effective. It was disregarded or ignored by the top Victorian management of the Tip Top division.
If it is not effective with management at the level involved in these contraventions it must be brought home to GWF and its officers at every level that they must obey the law.
In my opinion a significant deterrent element is required in relation to these contraventions. There were, however, a number in relation to AS that came about because, up until , it was common for the ACCC to seek orders in litigation that a defendant implement a compliance program that complied with that standard. In ACCC v Rural Press Ltd , ACCC sought an order that the defendants implement a compliance program conforming to AS , which the defendants opposed on the basis that they had already adopted an adequate compliance program of their own.
Per Mansfield J at pp43, As noted earlier, it does not have statutory recognition. It makes clear that it is a guide only, so that individual corporations should use the system best suited to their operations: The Court, in the face of opposition to implementing AS, should not assume that it is necessarily superior to that proposed by another independent expert formulator or provider of such programs in achieving an effective compliance program for a particular entity.
In this matter, Rural Press has retained independent solicitors to advise it about what steps it should take to procure and implement a trade practices "training tool" to develop a trade practice compliance culture within that group and to prevent conduct which might contravene the Act.
It received that advice, and has commenced to implement it. It has requested its adviser to integrate the proposed action so as to ensure compliance with AS It will incur considerable expense in implementing that program. The ACCC has pointed to features of AS which do not appear to be the subject of specific preventative or instructive action within the Rural Press group if it fully implements that which it has been advised to undertake. However, the capacity to point to particular features of AS which do not find expression in the trade practices compliance program to be undertaken by Rural Press does not mean that its program is not a sound or sensible one.
As I have noted, it has been adopted upon the basis of independent expert advice. I accept that it is a program genuinely directed to ensuring a culture of compliance with the Act within its organisation.
There is no reason to think that the quality of the advice given is other than professional and competent, or that the program is not comprehensive in relation to the structure and needs of Rural Press.
I am not, in those circumstances, disposed to direct Rural Press and Bridge to undertake a trade practices compliance program different from that which it proposes to undertake. The Full Court said: In particular, his Honour was correct to draw attention … to difficulties inherent in the terms of the mandatory injunction sought by the ACCC.
It would have obliged Rural Press and Bridge Printing to implement a program that had not yet been developed and which was, in any event, to be approved by a person appointed by Rural Press with "expert knowledge of trade practices law". The Court should not delegate to a third person the task of specifying the obligations that are the subject of injunctive orders. The matters were resolved by agreement between the parties and a consent order was placed before the court for approval.
French J said at p 42, The undertakings and orders must therefore be formulated with precision so that they are capable of being readily obeyed. Undertakings or orders which are likely to involve vague evaluative judgments or significant debates on their interpretation are not likely to be given the Court's sanction. Similarly, undertakings or orders which are likely to require the Court to be concerned with the ongoing supervision of the conduct of the parties to them will also raise serious questions as to their appropriateness.
So in this case the requirement of compliance with the Australian Standards Association standard for compliance programmes imposes standards which are aspirational in their expression and not readily measured in application.
In my view the contravening advertisement resulted from a systemic failure within Wizard to set in place procedures that ensured that all advertising received legal approval. However, I am not satisfied that the procedures that Wizard has set in place since the advertisement are adequate to prevent a repetition of contravening conduct of the kind that has occurred.
Thus, the present case is one where it is appropriate to grant an injunction to deter a repetition of the contravening conduct and to mould the grant of relief accordingly. One aspect of that deterrence is an expectation that, as a result of the injunction, Wizard will set in place a formal process, based on the recommendations of its legal advisers, that will ensure that there will not be a repetition of the contravening conduct.
The injunctive orders that I propose to grant [that the respondent by itself, its employees, servants and agents or howsoever otherwise, be restrained for a period of 18 months … from causing the publishing or broadcasting of advertisements for its housing mortgage loans which represent that the loans have features that they do not have, or that loans at a specified interest rate have features that they do not have] are a sufficient inducement to Wizard to establish an appropriate compliance program based on the legal advice it receives.
In such circumstances I do not regard it is as appropriate or necessary for the Court to exercise its injunctive power to impose such a program on Wizard. State Pollution Control Commission v Kelly was a case of no system at all. A company director was charged under s10 of the Environmental Offences and Penalties Act the precursor to the Protection Of The Environment Operations Act NSW for the escape of ammonia into stormwater and its release into a stream.
The court rejected his argument on the facts, saying that not only did he not take appropriate precautions, he in fact had elected to take none at all. Per Hemmings J at pp This requires that everything properly regarded as due diligence should be done. I respectfully agree and am of the opinion that in s10, while "all" must have its proper connotation, similar stress must be given to "due".
Due diligence, of course, depends upon the circumstances of the case, but contemplates a mind concentrated on the likely risk. The requirements are not satisfied by precautions merely as a general matter in the business of the corporation, unless also designed to "prevent the contravention".