Proposed changes to the corporate criminal responsibility regime could “add complexity to individual liability” in areas where the Banking Executive Accountability Regime (BEAR) applies, the Insurance Council of Australia (ICA) has warned in a submission.

BEAR has been in place since July 2018, with large banks required to comply with higher conduct and accountability requirements.

The Australian Law Reform Commission (ALRC) has proposed a “functional approach” to define who a corporation’s “associates” are to determine whether a company should be liable for the acts of its directors and employees.

Accordingly, the term “associates” would replace “officers, employees and agents”.

“The two key ways in which ALRC proposals differ from BEAR and raise concerns for our members are the concept of influence and reversal of the onus of proof,” ICA says.

It says the ALRC suggestions “would undermine the fundamental principles of natural justice.”

“In addition, an individual faces a practical difficulty in bearing this reversal of onus of proof where they may no longer be an employee of the company and therefore find it difficult to obtain the evidence to satisfy the burden.”

The ALRC released its discussion paper in November and will provide its report by April 30 to Attorney-General Christian Porter, who announced the review into the criminal responsibility regime last year.

Click here for the discussion paper.