Australian Corporate Regulation: Theory and Practice – The Australian Securities and Investments Commission and the Regulation of Corporate Misconduct

Comino, Vicky (2011). Australian Corporate Regulation: Theory and Practice – The Australian Securities and Investments Commission and the Regulation of Corporate Misconduct PhD Thesis, School of Law, The University of Queensland.

       
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Author Comino, Vicky
Thesis Title Australian Corporate Regulation: Theory and Practice – The Australian Securities and Investments Commission and the Regulation of Corporate Misconduct
School, Centre or Institute School of Law
Institution The University of Queensland
Publication date 2011-02
Thesis type PhD Thesis
Supervisor Keith Fletcher
Ross Grantham
Total pages 420
Total black and white pages 420
Subjects 18 Law and Legal Studies
Abstract/Summary The focus of this thesis is to explore how, and to what extent, the Australian Securities and Investments Commission (ASIC) in its original and primary role as corporate regulator can achieve more effective regulation of the corporations legislation. 'Effective' regulation is defined as involving two aspects namely, a proper structure and effective implementation of that structure. The thesis is divided into two broad parts. The purpose of the first part is to determine, by an examination of a variety of regulatory models, which of those models provides the most appropriate underlying theoretical approach for ASIC to guide its strategies and practice as corporate regulator. Special consideration, however, is given to strategic regulation theory in recognition that the core strategic concept of a 'pyramid of enforcement' underpinned fundamental reforms made in 1993 in Australia to the enforcement of the statutory duties of company officers by the introduction of the civil penalty regime, currently contained in Pt 9.4B of the Corporations Act 2001 (Cth). Strategic regulation theory provides perspectives on how regulatory compliance can be secured most effectively. It argues that sanctions in the enforcement pyramid should escalate as contraventions of the law become more serious and that criminal liability should apply only for continued non-compliance or for the most serious breaches of the law. The second part of the thesis seeks to assess the extent to which strategic regulation theory has enabled ASIC to be an effective corporate regulator. It will be argued that the difficulties that ASIC has experienced concerning implementation of the pyramid have undermined and continue to undermine its ability to effectively regulate corporate misconduct. The thesis concludes by making recommendations, which should assist ASIC to be a more effective regulator and enable it to better meet the regulatory challenges of the future.
Keyword Corporate misconduct
civil penalties
quasi-criminal offences
strategic regulation theory
responsive regulation
pyramids of enforcement
Corporations Act Pt 9.4B.

 
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