ASIC on culture, conduct and conflicts of interest in vertically-integrated businesses in the funds management industry

ASIC's report on its review of the management of conflicts of interest in the vertically integrated funds-management industry (VIEW LINK) and its seven indicators of culture caught my eye. Currently the Criminal Code (Cth) defines corporate culture as meaning 'an attitude, policy, rule, course of conduct or practice existing within the body corporate generally or in the part of the body corporate in which the relevant activities takes place'. To establish the fault element of intention, knowledge or recklessness for an offence under Commonwealth legislation (note currently this does not apply to Chapter 7 of the Corporations Act 2001 (Cth)), ASIC can prove corporate culture showed an attitude of non-compliance to the provision breached, or instead prove a failure to maintain a corporate culture requiring compliance with the provision. The indicators: tone from the top; spread of tone throughout organisation; how tone translates into business practices; does accountability exist; is there open communication, scope for effective challenge of practices, procedures and messages; do the activities of recruitment, training and remuneration support the conflicts management policy; the nature of the governance framework.