Footnote:
In: Published in the Australian Business Law Review, Vol. 51, No. 1, 2023, pp. 6-35
Nach Informationen von SSRN wurde die ursprüngliche Fassung des Dokuments February 12, 2023 erstellt
Description:
Australia’s corporate and securities regulator, the Australian Securities and Investments Commission (ASIC), has extensive enforcement powers that it can use to ensure compliance with the law. One of these is the power to issue infringement notices. An infringement notice specifies a monetary penalty to be paid by a corporation or individual who ASIC believes has contravened the law. Infringement notices have been extensively used by ASIC since they were introduced in 2004 and are considered by ASIC to provide it with a faster and more efficient means of deterring and punishing minor contraventions of the law than taking the matter to court. However, infringement notices are controversial for reasons including (1) the significant increase in the areas of law administered by ASIC which are now subject to infringement notices (including continuous disclosure by companies, consumer credit, market integrity and financial advice); (2) the substantial monetary penalties that are payable for some infringement notices (for example, in one area of the law ASIC administers it has the power to issue an infringement notice for $4.125 million); and (3) their use in areas of the law which are both complex and have serious offences for contraventions, leading some to argue that courts should decide the penalties rather than ASIC. The authors examine all infringement notices issued by ASIC between 2004 and 2022, documenting how the use of the notices differs substantially according to the area of law and also how the use of infringement notices has varied over time. Reasons for these findings are explored by the authors, including (1) a decline in the use of infringement notices since 2019 because ASIC moved to more court based enforcement strategies; and (2) the recent use by ASIC of infringement notices to respond to a new area of concern – “greenwashing”, which occurs when companies misrepresent the extent to which their practices (or particular financial products or investment strategies) are environmentally friendly, sustainable or ethical