NCJ Number
180152
Date Published
1999
Length
6 pages
Annotation
Although civil penalties for the enforcement of corporation director duties have been available to Australian securities regulators since 1993, they have been rarely used.
Abstract
The regulation of corporation director duties in Australia is primarily governed by the Corporations Law administered and enforced by the Australian Securities and Investments Commission (ASIC). The Corporations Law is the principal statute regulating Australian corporations. The regime of sanctions relative to corporation director duties was fundamentally reformed in 1993 with the introduction of new measures focused on civil penalties that drastically reduced criminal law oversight of corporation director duties. Research was conducted to examine how the ASIC uses civil penalties as an enforcement tool against corporation directors. Goals were to identify and critically evaluate factors that affected ASIC enforcement decisions regarding civil penalties and to understand how the civil penalty regime was perceived by those involved in applying the Corporations Law. Semi-structured interviews were completed with senior ASIC enforcement personnel from regional offices throughout Australia. Data analysis was then carried out to identify key factors influencing how the ASIC used and perceived the civil penalty regime. Four factors were nominated by those interviewed as being primarily responsible for the view of civil penalties as serving only a limited enforcement function: (1) resource constraints, including financial and personnel constraints; (2) relationships between the ASIC and other regulatory agencies; (3) recourse to alternative sanctions; and (4) concerns about the limited utility of civil penalties and the unclear nature of the civil penalty regime in the Corporations Law. 12 references and 1 figure