Effective Regulation by the Australian Securities and Investments Commission: The Civil Penalty Problem‪.‬

[This article focuses on the Australian Securities and Investment Commission's ('ASIC's) original and primary role as the regulator of corporate laws to determine whether it is an effective regulator. 'Effective' regulation is defined as involving two aspects, namely, a proper structure and effective implementation of that structure. In 1993, fundamental reforms were made to the regime of sanctions concerning enforcement of the statutory duties of corporate officers in Australia when the civil penalty regime, currently found in part 94B. of the Corporations Act 2001 (Cth), was introduced. By adopting this approach, it was hoped that ASIC could deal more effectively with corporate misconduct and that civil penalties would be the major element of its overall enforcement structure. ASIC has had stone success recently in using the civil penalty regime, especially against directors in high profile eases. Nevertheless, ASIC's ability to be an effective regulator is compromised. While Parliament has shown a preference for civil, not criminal, process, ASH? has been denied the opportunity to fully implement this objective. The author therefore calls .[or Parliament to enact legislation that will settle the procedures pertaining to civil penalties. Arguably, the need for this law reform has been made more urgent in view of the humiliating loss recently suffered by ASIC when the Supreme Court of New South Wales dismissed the civil penalty proceedings against One. Tel founder Jodee Rich and former finance director Mark Silbermann.] I INTRODUCTION