Principled Regulation: Federal Civil and Administrative Penalties in Australia (ALRC Report 95)
ALRC Report 95 was in tabled March 2003. The ALRC's task was to consider the many disparate federal regulatory and penalties schemes that had developed over the last three decades or so to identify those areas where the injection of some structure could give them, both collectively and individually, greater clarity, transparency and consistency.
While the focus was on civil and administrative penalties, it was necessary to consider how they differ from, and are similar to, criminal sanctions.
This Report is divided into six Parts.
Part A deals largely with the theory of penalties and their role in government regulation. It looks at why penalties are used, how they vary and the role of fault in distinguishing between criminal sanctions and regulatory contraventions. Part A also reviews the federal regulatory scheme, considering in summary the regulators operating within the federal regulatory sphere.
Part B looks specifically at corporate responsibility, in particular the responsibility of bodies corporate for breaches committed by their employees and officers, and the responsibility of employees and officers for breaches by the body corporate as a whole.
Part C looks at the enforcement responses available to regulators and the Commonwealth DPP (as the principal criminal prosecuting authority in Australia), and the relationships between these bodies.
Part D looks at procedural protections that should be reinforced or restated to protect regulated parties so that their position under the law is more clearly stated and better understood. This Part considers procedural fairness, elements of fairness, and fairness in dealings with regulators.
Part E considers the way in which the penalties are set, both in the legislation establishing particular penalties schemes and by courts or the law generally in particular cases.
Part F looks at certain aspects of the recovery of monetary penalties and, in particular, the effects of insolvency, the recovery of investigation costs, and the recovery of monetary penalties themselves.
View ALRC Report 95 in HTML on the AustLII website.