Enforceable Undertaking: A Restorative Sanction

Abstract

An enforceable undertaking is a promise enforceable in court. The alleged offender, known as the promisor, promises the regulator (for the purpose of this article, the Australian Securities and Investments Commission) to do or not to do certain actions. As an administrative sanction, an enforceable undertaking aims to protect the public, prevent similar breaches from occurring in the future and implement corrective action in the case where the alleged breach affected outsiders. Such aims are desirable, because an undertaking may not only impact the alleged offender but it also has a positive effect on the victim of the alleged breach and the community they live in. Accordingly, this article looks at the notion of restorative justice to assess whether an enforceable undertaking can be restorative in nature.