Redefining Market Manipulation in Australia: The Role of an Implied Intent Element
Company and Securities Law Journal, Vol. 27, pp. 8-22, 2009
15 Pages Posted: 10 Apr 2009
Date Written: April 10, 2009
The Australian market manipulation law has been amended with a view to improving its efficacy. Amongst the major amendments is the removal of the term "intent" from the wording of the relevant provisions. This article argues that despite the change, the intent element is still to be implied into the law. For criminal liability, the Criminal Code supplies the fault elements, albeit some technical problems with its application. This is termed statutorily implied intent approach. In civil penalty cases where the Criminal Code has no operation, intent should be implied through the concept of "artificiality" for a number of reasons. This is dubbed self-implied intent approach as intent is inherently embedded in the concepts of 'artificiality'. It is also submitted that the general intent to be judicially developed through the self-implied intent approach may represent an improvement on the specific intent requirement found in the former provisions.
Keywords: market manipulation, intent, artificiality, civil penalty
JEL Classification: K22
Suggested Citation: Suggested Citation