Anmerkungen:
In: Australian Journal of Competition and Consumer Law, Vol. 30, No. 4, 2022, pp. 287-308
Nach Informationen von SSRN wurde die ursprüngliche Fassung des Dokuments April 8, 2022 erstellt
Beschreibung:
Publicity orders (POs), which are orders requiring a person or company to publicly disclose information, typically about the person’s or company’s wrongdoing and the penalties imposed by the court for that wrongdoing, are extensively used by some regulators, including the Australian Competition and Consumer Commission. In contrast, the Australian Securities and Investments Commission (ASIC) has, until recently, infrequently used the power it has under ss 12GLA and 12GLB of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) to seek POs from the court, even though these sections were introduced into the ASIC Act in 2001. This reluctance by ASIC to seek POs changed in 2021 with a series of cases in which courts imposed POs on defendants under s 12GLB. Sections 12GLA and 12GLB of the ASIC Act provide for different types of POs – punitive and non-punitive – albeit in almost identical terms. The authors examine the use of POs under the ASIC Act, including the distinction between the two types of POs and the significant recent increase in the use by ASIC of POs under s 12GLB. The authors also discuss the non-punitive and punitive purposes of POs and consider the types of punishment that can be imposed by punitive PO – the infliction of financial harm and reputational damage - as well as how the form and content of information required to be disclosed by a PO relates to this punitive purpose