What is white-collar crime in Australia?
White-collar crime is the working label — not a statutory term — for financially motivated, non-violent offending in commercial and professional settings: insider trading, market manipulation, criminal breaches of directors' duties, serious and complex fraud, and the offences that surface through regulatory investigation. In Australia these matters live mainly in Commonwealth law — the Corporations Act 2001, the ASIC Act 2001 and the Criminal Code — and they are investigated by regulators (chiefly ASIC, sometimes with the AFP or the ATO) and prosecuted by the Commonwealth Director of Public Prosecutions.
That architecture matters more than the label. A white-collar matter is a different procedural world from a state police prosecution: the investigation runs longer and quieter, the investigator holds compulsory powers that override the right to silence, the same facts can travel down a criminal path or a civil-penalty path — and the subject of the investigation often has real influence, early, over which path that is.
ASIC investigations and section 19 examinations
Australian Securities and Investments Commission Act 2001 (Cth), s 19: ASIC may, by written notice, require a person to appear for examination on oath and answer questions, where it suspects on reasonable grounds the person can give information relevant to an investigation.
ASIC investigations typically announce themselves with paper: a notice to produce books and records, then, for individuals, a section 19 examination summons. The examination is private, conducted on oath, and recorded. Three things about it surprise even sophisticated people:
- It is compulsory. Attendance is required; refusing to attend or answer is itself an offence;
- The right to silence is abrogated. You cannot decline to answer because the answer may incriminate you. What survives is a use protection: if privilege is claimed before answering, the answer itself generally cannot be used against you in criminal proceedings — but the leads it generates can be, and the transcript can be deployed in other ways;
- You are entitled to a lawyer — present at the examination, and far more usefully, engaged before it. How privilege claims are made, what documents are reviewed in advance, and how answers are framed are matters of preparation, not improvisation.
This compulsory-powers world parallels the NSW Crime Commission's examination regime — the same logic of compelled answers, use immunity and contempt exposure. Dean acts in both; see NSW Crime Commission and the wider Commissions, Inquests & Disciplinary pages.
A section 19 examination is not an interview you can decline — or wing
The misconception that does the most damage in this area: treating the examination as a conversation that goodwill and candour will see off. People attend unrepresented, answer expansively to appear cooperative, waive what should have been claimed, and discover later that they have organised the case against themselves — or against their company, or their colleagues. The opposite error is as costly: treating it as an interrogation to be stonewalled, which compulsory powers convert into an offence in its own right.
The examination is a formal proceeding with precise rules about what must be answered, what protections exist, and how they are engaged. It rewards preparation and punishes both candour and defiance when either is offered unadvised. If a summons has arrived, the time to get advice is now — not the week of the examination.
Insider trading
Corporations Act 2001 (Cth), s 1043A: a person who possesses inside information — information not generally available that a reasonable person would expect to have a material effect on price or value — must not trade in the relevant financial products, procure trading, or communicate the information to a likely trader.
Insider trading is prosecuted criminally and seriously, and its reach is wider than the popular picture of the trading floor. The provision catches anyone who possesses inside information — executives and directors, but also advisers, accountants, lawyers, employees down the chain, and family or friends at the end of a tip. The offence has three limbs: trading, procuring another to trade, and tipping — communicating the information to someone likely to trade.
The maximum penalty for an individual is 15 years' imprisonment and substantial fines — up to $1,485,000 (4,500 penalty units, Cth) or three times the benefit gained, whichever is greater. The defended ground is usually the information itself: whether it was truly not generally available, whether it was material, what the person actually possessed and when. Trading records prove trades; they do not prove knowledge, and the gap between the two is where these cases are fought.
Directors' duties: where civil breach becomes criminal
Corporations Act 2001 (Cth), s 184: a director or officer commits an offence if they are reckless, or intentionally dishonest, and fail to exercise their powers and discharge their duties in good faith in the best interests of the corporation or for a proper purpose — or if they dishonestly use their position, or information obtained through it, to gain an advantage or cause detriment. Maximum penalty: 15 years' imprisonment.
Most directors'-duties enforcement is civil. The criminal line is crossed by dishonesty or recklessness: the same conduct that founds a civil penalty proceeding becomes a 15-year criminal offence when ASIC can prove the director acted dishonestly or with reckless disregard. Related criminal exposure arises from false or misleading statements to the market or to ASIC, falsified books and records, and insolvent trading in its criminal form.
For directors, the practical consequence is that an investigation's characterisation is in play from the beginning — and submissions, examination answers and document productions all feed into whether the matter is framed as civil or criminal. That is precisely why advice belongs at the start.
Market manipulation and market offences
Corporations Act 2001 (Cth), ss 1041A–1041G: market manipulation, false trading and market rigging, dissemination of information about illegal transactions, and false or misleading statements inducing dealings. Maximum penalties for individuals: 15 years' imprisonment for the most serious offences.
The market-offence provisions criminalise creating an artificial price, false or misleading appearances of active trading, and statements or information likely to induce trading. Modern prosecutions are built on surveillance data, order-book reconstruction and trading-pattern analysis — expert-heavy evidence that is genuinely contestable, because the line between aggressive but lawful trading and manipulation is drawn by inference about purpose.
Penalties — and what actually drives outcomes
The headline maxima are severe: 15 years for insider trading, market manipulation and criminal directors'-duties breaches, with individual fines reaching $1,485,000 (4,500 penalty units, Cth) or three times the benefit. Commonwealth sentencing has its own framework, and general deterrence weighs heavily in white-collar matters — courts say so expressly.
But the outcomes that matter are decided earlier: whether the matter proceeds criminally or civilly, what charges (and how many) are laid, what is conceded and contested, and how cooperation is timed and structured. Those are pre-charge and early-stage decisions. Every matter turns on its own facts — and in this jurisdiction more than most, on its own first six months.
How Lenz Legal approaches white-collar matters
Most people on this page have not been charged. A notice has arrived, an examination is listed, or a colleague has mentioned that investigators are asking questions. That is the right moment to act, because the pre-charge phase is where these matters are most influenceable: examinations prepared properly, privilege claimed correctly, document productions managed, and the engagement with the regulator conducted so that nothing is conceded by accident and nothing useful is withheld by misjudgement.
Where charges come, the work is what serious defence work always is: the brief examined forensically, the expert evidence tested, the inferential cases on knowledge and purpose pressed at their weakest points, and — where resolution is the right course — negotiation conducted early and from an informed position. Dean Lenz brings more than twenty years of criminal defence practice and an Accredited Specialist's standing to matters where the other side of the table is a regulator with compulsory powers, and where careers, registrations and reputations ride on the result alongside liberty.
If ASIC, the AFP or any regulator has made contact — or you expect them to — speak to a lawyer before you respond. The first response sets the trajectory.
White-collar matters — your questions answered
What is white-collar crime in Australia?
The working label for financially motivated, non-violent offences in commercial settings — insider trading, market manipulation, criminal directors'-duties breaches, serious fraud — prosecuted mainly under Commonwealth law by the CDPP, usually following an ASIC investigation. The procedures, the powers and the penalties all differ from state police prosecutions.
What happens in an ASIC investigation?
Typically: compulsory notices to produce documents, then section 19 examinations of relevant people, often over many months and largely in private. The investigation can end in no action, civil penalty proceedings, enforceable undertakings or a criminal brief to the CDPP — and early decisions influence which.
Can I refuse an ASIC section 19 examination?
No. Attendance and answers are compelled, and self-incrimination does not excuse refusal. If privilege is claimed before answering, the answer itself generally cannot be used against you in criminal proceedings — but derived leads can be. You are entitled to a lawyer, and preparation beforehand is where the protection is really built.
Do directors face personal criminal liability?
Yes. Under s 184 of the Corporations Act, intentional dishonesty or recklessness in the exercise of a director's duties — or dishonest misuse of position or information — is a criminal offence carrying up to 15 years. The dishonesty or recklessness element is what separates criminal exposure from civil penalty.