ASIC Enforcement Outcomes: Trends and Analysis
Company and Securities Law Journal, Vol. 35, No. 5, pp. 289-321, 2017
40 Pages Posted: 1 Nov 2017 Last revised: 2 Mar 2018
Date Written: October 31, 2017
The Australian Securities and Investments Commission (ASIC) views enforcement as an important part of its regulatory role and dedicates a significant amount of resources to surveillance and enforcement activity. This article considers what kinds of enforcement outcomes ASIC achieves and what these outcomes tell us about the way ASIC uses its enforcement resources. The authors analyse ASIC’s enforcement outcomes for the five-year period from 1 July 2011 to 30 June 2016. This analysis shows that many of ASIC’s enforcement outcomes are criminal outcomes (nearly 70 percent), but this is due to the high number of criminal outcomes obtained by ASIC’s small business compliance and deterrence team — the other regulatory areas (market integrity, corporate governance and financial services) have a greater focus on administrative outcomes. There are clear differences between each of ASIC’s four main regulatory areas in the use of enforcement methods (criminal, civil, administrative remedies, enforceable undertakings/negotiated outcomes and public warning notices). There are also notable differences in the number of enforcement outcomes obtained by these four enforcement teams. For example, in the area of market integrity, which includes insider trading, there is a strong emphasis on criminal outcomes. However, in the area of financial services, there is a strong emphasis on administrative outcomes. These differences are influenced by particular enforcement approaches that ASIC takes towards certain kinds of misconduct.
Keywords: enforcement, corporate law, Australian Securities and Investments Commission
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