Is There Underenforcement of Corporate Criminal Law? An Analysis of Prosecutions Under the ASIC Act and Corporations Act: 2009–2018

Company and Securities Law Journal, Vol. 38 No. 6, 2021, pp. 435-458

24 Pages Posted: 4 Oct 2021 Last revised: 8 Nov 2021

See all articles by George Gilligan

George Gilligan

University of Melbourne - Centre for Corporate Law

Ian Ramsay

Melbourne Law School - University of Melbourne

Date Written: August 16, 2021

Abstract

An important international debate is whether there is underenforcement of corporate laws that reduces law’s deterrent value. This article examines this issue in the context of Australia by investigating prosecutions under the Australian Securities and Investments Commission Act 2001 (Cth) and the Corporations Act 2001 (Cth) from 2009 to 2018. The data was obtained from the Commonwealth Director of Public Prosecutions and had not previously been made available to researchers. Key findings are: limited levels of enforcement; substantial prosecutorial concentration upon a small number of sections in the legislation; low levels of prosecutions against corporations compared to individuals; high rate of successful prosecutions; high proportion of defendants are male; and penalties are limited in their severity. The article is a window upon 10 years of corporate law enforcement in Australia and its findings can act as a comparator empirical baseline regarding future research on enforcement of Australian corporate criminal law.

Keywords: enforcement; corporate law; criminal prosecution; penalties; Australian Securities and Investments Commission; Commonwealth Director of Public Prosecutions

Suggested Citation

Gilligan, George and Ramsay, Ian, Is There Underenforcement of Corporate Criminal Law? An Analysis of Prosecutions Under the ASIC Act and Corporations Act: 2009–2018 (August 16, 2021). Company and Securities Law Journal, Vol. 38 No. 6, 2021, pp. 435-458, Available at SSRN: https://ssrn.com/abstract=3916720

George Gilligan

University of Melbourne - Centre for Corporate Law ( email )

185 Pelham Street, Carlton, Building 106
Victoria 3010
Australia
+61 3 8344 1079 (Phone)

HOME PAGE: http://www.law-ccl@unimelb.edu.au

Ian Ramsay (Contact Author)

Melbourne Law School - University of Melbourne ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia
+61 3 8344 5332 (Phone)

HOME PAGE: http://law.unimelb.edu.au/about/staff/ian-ramsay

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