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  

(Robin) Hui Huang

Chinese University of Hong Kong - Faculty of Law; University of New South Wales - Faculty of Law

Date Written: April 10, 2009

Abstract

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

Huang, (Robin) Hui, Redefining Market Manipulation in Australia: The Role of an Implied Intent Element (April 10, 2009). Company and Securities Law Journal, Vol. 27, pp. 8-22, 2009. Available at SSRN: https://ssrn.com/abstract=1376209

(Robin) Hui Huang (Contact Author)

University of New South Wales - Faculty of Law ( email )

Sydney, New South Wales 2052
Australia
61-2-9385 9649 (Phone)
61-2-9385 1175 (Fax)

Chinese University of Hong Kong - Faculty of Law ( email )

Shatin, New Territories
Hong Kong
852-39431805 (Phone)
852-29942505 (Fax)

HOME PAGE: http://www.law.cuhk.edu.hk/people/huang-hui-robin.php

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