The Policy and Practice of Enforcement of Directors' Duties by Statutory Agencies in Australia: An Empirical Analysis

Abstract

The enactment of the civil penalty regime in 1993 introduced a new approach to the enforcement of directors’ duties by statutory agencies in Australia. The policy considerations that led to the regime, and which continue to inform current policies on corporate law enforcement, require that: civil enforcement be given primacy over criminal enforcement, with the latter reserved for more serious misconduct; a range of sanctions be calibrated to the severity of the misconduct in accordance with a pyramidal model of enforcement; and sanctions be set at a sufficient level to deter misconduct. This article analyses the extent to which these policies have been applied in practice by reference to a 10-year dataset of 27 civil, 72 criminal and 199 administrative directors’ duties matters (involving 360 defendants) brought by the Australian Securities and Investments Commission and the Commonwealth Director of Public Prosecutions. The dataset, which includes data obtained from ASIC and the CDPP that has not previously been published, indicates that such policies have, to a large extent, not been applied in practice. These are significant findings given the central role that enforcement of directors’ duties performs in the regulation of corporate activity in Australia and the impact of such activity on society and the economy.

Keywords: Directors' Duties, Enforcement, Civil Penalties, Australian Securities and Investments Commission