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Abstract:
The research project examines how the Australian Securities and Investments Commission (ASIC) uses civil penalties as an enforcement tool against company directors. It identifies and critically evaluates the factors which impact upon ASIC enforcement decisions regarding civil penalties. The methodology employed for the research involved collection of data about the use of civil penalties and a series of semi-structured interviews with senior ASIC enforcement personnel from regional offices around Australia. Those interviewed included: National Director, Enforcement; Regional Commissioner; Regional Director, Enforcement; Regional Assistant Director, Enforcement; and Regional General Counsel.

Civil penalties were introduced by the Federal Parliament in 1993 with the expectation that they would be a significant enforcement tool. On 1 July 1998, the Federal Parliament extended the application of civil penalties under the Corporations Law to a number of additional statutory provisions including provisions involving share capital transactions and the management of managed investment schemes.

However, our research has found that ASIC has commenced only 14 civil penalty applications relating to 10 case situations since civil penalties were introduced in 1993.

The research identifies a number of reasons for this:

1. Civil penalties are seen by many of those interviewed as being inflexible and having limited utility as an enforcement option.

2. There are a number of alternative remedies which, from ASIC's point of view, appear to be more viable than civil penalties. In particular, there are injunctions which provide a "real time" remedy as well as section 600 of the Corporations Law which allows ASIC, in certain circumstances, to ban a person from managing a corporation. Section 600 is an effective remedy according to many of those who we interviewed as it does not require ASIC to bring court proceedings although the person banned may challenge the ASIC banning order in court. In order to ban a person from managing a corporation for breach of a civil penalty provision, ASIC must bring court proceedings.

3. A number of those interviewed expressed reservations about delays associated with use of the courts in the area of enforcement and, in addition, some of the difficulties of interpretation that have resulted from certain judgments of courts. These uncertainties in the interpretation of basic statutory provisions regulating directors' duties (which are civil penalty provisions) reinforce the trend to use alternative enforcement mechanisms.

4. There was some indication that many of those in the enforcement section of ASIC come from a criminal law background and therefore have a tendency to prefer criminal actions rather than civil penalties. The suggestion was that this would change over time as the personnel of ASIC changed.

5. Those interviewed indicated that the requirement to liaise with the Director of Public Prosecutions (DPP) over significant enforcement matters adds another level of complexity to the decision-making process. The consequences resulting from the requirement to liaise with the DPP was a recurring theme in the interviews. These consequences include (i) the requirement means that the DPP effectively has a veto over the use of civil penalties; (ii) the need for the DPP to satisfy itself that there is no criminal element in a matter may result in delay that can undercut the opportunity for a civil penalty action; and (iii) ASIC and the DPP have different enforcement objectives. The role of the DPP is to prosecute criminal breaches of the law while ASIC has broader objectives which include using civil remedies. These different objectives can impact upon the likelihood of civil penalties being pursued.

6. Unclear drafting of the civil penalty provisions, particularly regarding the elements that must be proved to satisfy the court that a breach of a civil penalty provision has occurred, limits the use of civil penalties. Where the same conduct may breach both a civil penalty provision and a provision in a State Criminal Code, there is an incentive to frame the legal action as a breach of the Criminal Code because of the uncertainty surrounding the civil penalty provisions.

Abstract:
The Australian Federal Parliament introduced civil penalties into company law in 1993 with the expectation that there would be more effective enforcement of directors' duties. However, in the six years since civil penalties were introduced, the Australian Securities and Investments Commission (ASIC) has commenced only 14 civil penalty actions. The research undertaken by the authors reveals that civil penalties are perceived by ASIC as serving only a limited deterrent function. The factors responsible for this include ASIC's: (1) resource constraints, including financial constraints; (2) relationships with other regulatory agencies, such as the Director of Public Prosecutions (DPP) and the judiciary; (3) ability to choose from a range of sanctions; and (4) concerns about the limited utility of civil penalties given the unclear nature of the civil penalty regime and its regulatory praxis.

Abstract:
As the pace and intensity of globalisation gathers pace and national economies become more inter-dependent, so there grows a greater emphasis on the structures and processes of multi-lateral governance. This paper shows these processes at work by examining the efforts in recent years by the Organisation for Economic Cooperation and Development (OECD) to shape what should be prevailing international standards in the area of tax competition through its various initiatives regarding what the OECD terms Harmful Tax Practices. The analysis highlights the strategic importance of: accountability and governance; relative strengths/weaknesses of international protocols, eg treaties, conventions, frameworks of understanding; the appropriate roles of regulatory actors - national, regional and international; the inevitable effects of self-interest on both regulated and regulating actors; and regulatory capacity, especially in less developed economies. The paper's case study illustrates the regulatory reality that political contexts, allied with issues of power and legitimacy are crucial in determining how much impact in reality a multi-lateral regulatory actor such as the OECD can have.

multi-lateral governance, OECD, tax competition

Abstract:
The goal of improving standards of governance has been a driver for much of the corporate law reform that has occurred in many of the most developed nations in recent years, such as Australia's Corporate Law Economic Reform Program (CLERP) and the New York Stock Exchange (NYSE) Corporate Governance Rules of 2003. In this paper, we review global and national (US, UK and Australian) corporate governance schemes to identify 'core' features or aspects of those governance structures. In this way, this paper identifies the features or variables of a 'model' corporate governance structure which can be distilled from these governance schemes and draws conclusions relating to the nature, operation, 'continuity' and 'centrality' of those variables. Also, the paper considers how the impacts of these broader developments striving for good governance may have application to sporting organizations. The paper closes by noting how good governance is increasingly being viewed as essential for the sustainability of sporting sector organizations and integrated into their organizational protocols.

corporate law, comparative corporate governance, sporting sector

Abstract:
Despite Australia being one of the least corrupt countries in the world, a recent survey by Diana Bowman and George Gilligan reveal it's a key issue for many Australians.

corruption, Australia, survey

Abstract:
Financial crime is increasingly seen as a threat to the integrity of Australia's important financial sector. This paper examines the difficulties of evaluating the costs of financial crime and considers specific initiatives that have been undertaken in recent years to combat such activities.

Abstract:
Purpose - The aim of this paper is to examine public awareness and perceptions on corruption in Australia, a country that traditionally has been viewed as having relatively low levels of corruption.

Design/methodology/approach - The paper presents the findings of a random telephone survey of 300 people aged 16 and above, across the three most populated Australian states.

Findings - The paper suggests that corruption may be a greater issue of concern for the Australian public than has been assumed in the past, given the relatively low levels of reported systemic corruption in Australia. Moreover, while there may be widespread agreement that corruption in Australis is harmful and perhaps inevitable, people can find it difficult at times to differentiate between what is corrupt and what is not.

Originality/value - The findings presented in this paper illustrate that corruption is an issue of concern for members of the Australian public, with the majority of respondents agreeing that corruption seems to be increasing in Australia. These findings should be considered by state and federal anti-corruption bodies as they frame their policies and processes.

Australia, corruption, perceptions