The adequacy of ASIC's 'tool-kit' to meet its obligations under corporations and financial services legislation

Comino, Vicky G. (2016) The adequacy of ASIC's 'tool-kit' to meet its obligations under corporations and financial services legislation. Company and Securities Law Journal, 34 5: 360-386.

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Author Comino, Vicky G.
Title The adequacy of ASIC's 'tool-kit' to meet its obligations under corporations and financial services legislation
Journal name Company and Securities Law Journal   Check publisher's open access policy
ISSN 0729-2775
Publication date 2016
Sub-type Article (original research)
Volume 34
Issue 5
Start page 360
End page 386
Total pages 27
Place of publication Rozelle, Australia
Publisher Lawbook Co.
Collection year 2017
Language eng
Formatted abstract
In the wake of a string of high profile financial scandals and the Australian Securities and Investments Commission's (ASIC) mixed track record in some highly publicised cases, it is not surprising that ASIC has been subjected to increasing public scrutiny. Yet, because of the government's commitment to balance the Budget, this has meant that public authorities like ASIC have been put under intense funding pressure. The purpose of this article is to consider whether the current enforcement options that ASIC has in its "tool kit" are adequate for it to be an effective corporate and financial services regulator. In particular, it will examine the use of civil settlements and enforceable undertakings, as well as what are known in the literature as "deferred prosecution agreements". It will be argued that these "new" tools allow ASIC to not only enhance its enforcement capability, but also achieve "justice". This is especially so if the overarching philosophy guiding their use is grounded in the restorative/preventive (rather than retributive) justice paradigm. In this way, settlements, enforceable undertakings and deferred prosecution agreements can harness the potential to change the organisational/corporate cultures that produced the wrongdoing in the first place. However, to close gaps in ASIC's armoury, it will also be argued that ASIC should be equipped with additional remedies and powers available overseas. These include "disgorgement" penalties and the power to ban certain retail products.
Q-Index Code C1
Q-Index Status Provisional Code
Institutional Status UQ

Document type: Journal Article
Sub-type: Article (original research)
Collections: HERDC Pre-Audit
TC Beirne School of Law Publications
 
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Created: Tue, 19 Jul 2016, 13:41:03 EST by Carmen Buttery on behalf of T.C. Beirne School of Law