CLAW2208 Course Guide - Table of Contents

CLAW2208 Course Guide - Table of Contents

FULL COURSE GUIDE

Detailed and well-structured course notes constructed with regards to lectures, legislation and a broad array of relevant case law.

1. Lecture 1 — Role & Drivers of Regulation

2. Lecture 2 — Australian Legal System & Division of Power

3. Lecture 3 — Principles for Good Regulatory Policy, Regulatory Process, Legislation Act 2003

4. Lecture 4 — Regulatory Strategies (Self-regulation, Quasi-regulation, Co-

regulation, Explicit Government Legislation), Regulatory Codes & Enforcement 5. Lecture 5 — Enforcement, Sanctions and Compliance, Regulatory Review

6. Lecture 6 — Regulatory Risk, Liability, Whistleblowing, Compliance Strategies 7. Lecture 7 — Dispute Resolution & Avoiding Litigation

8. Lecture 8 — Privacy and Small Business Issues

9. Lecture 9 — Business Model Innovation (Sharing Economy, Online Commerce) 10.Lecture 10 — Digital Economy, Social Media and Liability, Digital Platforms and

Liability

11.Lecture 11 — Surveillance, Artificial Intelligence and Autonomous Vehicles, Class Actions and Litigation Funding

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Tuesday, 24 March 2020

CLAW2208 - Lecture 5

REGULATORY ENFORCEMENT AND SANCTIONS Required Text: None

REGULATORY ENFORCEMENT AND SANCTIONS

Regulatory approaches to enforcement vary between industries:

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Swift one-off response to immediate or serious contravention — quarantine contraventions, environmental pollution

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On-going regulation with a focus on securing compliance — education, cooperation, negotiation and conciliation

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Periodic contact between regulator and community _ taxation reporting

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Minimal explicit government intervention in self-regulatory environments

Regulatory agencies:

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ACCC — Australian Competition and Consumer Commission

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ATO — Australian Taxation Office

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ASIC — Australian Securities and Investments Commission

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APRA — Australian Prudential Regulation Authority

COMPLIANCE PYRAMID Other options may include:

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Voluntary industry self-regulation codes

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Dispute resolution

CONSUMER DISPUTE RESOLUTION PYRAMID Under both these pyramids there are is a lot of criticism that Australia is spending too much time at the bottom end of the pyramid

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Formal justice Courts, tribunals

Informal justice Mediation / conciliation, Industry Ombudsmen, Legal / financial assistance

Everyday justice

Access to information handling matters, Internal complaints mechanisms

Tuesday, 24 March 2020 PROFESSIONAL DISHONESTY REGULATORY SYSTEMS AND SANCTIONS

Systems:

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Criminal action

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Disciplinary action

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Civil action

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Conciliation

Sanctions / redress

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Custodial sanctions

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Fines / non-custodial

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Licensing restrictions

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Compensation

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Apology / explanation

Are significantly increased pecuniary penalties the most appropriate strategy for publishing corporations?

If the penalties aren’t high enough many companies will simply see the fine as a ‘cost’ of doing business. They may see the derived benefit from the contravention as being more valuable than the loss from the fine itself. The recent penalties introduced in the ACL combat this by including company turnover in their considerations for fine limits.

OECD report — found Australian penalties to be significantly lower than in other OECD jurisdictions, especially for long-standing anti-competitive behaviour. On world standards.

most others use “methodology which includes sales of the infringing company’s product”

“we do not want breaches of our competition law to be seen as an acceptable cost of doing business. We need penalties that will be large enough to be noticed by senior management and company boards, and also shareholders” — Rod Sims, ACCC Chairman Appropriateness of punishing individuals — can’t go all the way with punishing

corporations unless we punish executives who are involved in the contraventions. Corps are artificial entities and the controlling mind and will are the executives and officers.

Too high penalties for corps maybe means that shareholders, employees and customers suffer — which may not necessarily achieve the objective.

https://www.accc.gov.au/media-release/oecd-finds-australian-competition-law-penalties- are-significantly-lower

What alternative sanctions may be effective in relation to corporate law breakers?

Public warning — naming and shaming is often effective to discourage corp law breaking

DEFERRED PROSECUTION AGREEMENTS

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New model of corporation enforcement — invitation for corporations to confess

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Cth Director of Public Prosecutions (DPP) may invite a corp alleged to have engaged in serious corporate crime to negotiate an agreement (granting amnesty on conditions) 2

Tuesday, 24 March 2020 To obtain a DPA a corp may have to:

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cooperate with law enforcement

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provide evidence against culpable individuals (those deserving blame)

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admit to facts and pay a financial penalty

AUSTRALIAN CONSUMER LAW

^{CASE STUDY}

ACCC sits in the executive not the judicial ACCC may issue:

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Substantiation notices to demand information — where contravention suspected (suing not required)

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Infringement notices — where reasonable grounds to believe contravention

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Public warning notices — where reasonable grounds to believe contravention AND satisfied that one/more persons have suffered detriment or likely to

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Enforceable undertakings (effect similar to DPA) — promise not to repeat the misconduct

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Industry Code audits

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Prosecution and criminal fines, civil pecuniary penalties

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Non-punitive orders — community services, probation, disclosure, corrective advertising, adverse publicity order

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Disqualification orders

s155 gives ACCC substantial powers in obtaining information:

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immunity policy, whistleblowers, industry code audits, complaints

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parties to cartels, price fixing, the first to break ranks and blow the whistle will be granted immunity from prosecution

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where reason to believe breach of law — not power to go on fishing trips

Civil pecuniary penalties s29

For corporations, this will be the greater of:

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$10 million

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3x the value of the benefit received

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