An Analysis of Penalties Under ASIC Administered Legislation: Scoping the Issues

Abstract

This working paper is the first published output of an eighteen month (December 2014-June 2016) research project conducted by staff at the Melbourne Law School that examines enforcement and penalties regimes under legislation administered by the Australian Securities and Investments Commission (ASIC). During 2015 and early 2016 the project will conduct a review of selected penalties over a ten year period from 2005 to 2014. This paper is an introductory publication that scopes the issues that will be examined in the course of the project. The paper begins with a brief overview of the project and identifies topics that will be considered as the project progresses. Part II discusses key findings in ASIC’s Report 387: Penalties for Corporate Wrongdoing which compares the penalties available to ASIC in relation to comparable regulators in other jurisdictions. Part III examines current debates about corporate wrongdoing and the adequacy of penalties, including the impact of recent parliamentary inquiries. Part IV explains ASIC’s regulatory and enforcement functions and briefly discusses the policy rationales that underlie such functions. Part V presents a preliminary set of data on ASIC’s enforcement activity sourced from its six monthly Enforcement Reports. Part VI makes initial observations in relation to comparable financial market regulatory agencies in other jurisdictions by reference to various criteria, including funding models. Part VII concludes the working paper.

Keywords: enforcement, financial regulation, penalties, corporate wrongdoing

JEL Classification: G18, G38, K22, K42