While litigation is often considered a last resort for achieving regulatory objectives, its use can have significant impacts on the regulator and regulated entity, and a consequential impact on industry, government and the public.

Regulation, Litigation, Enforcement examines the procedural aspects of litigation in the regulatory context from the perspective of theory, policy and practice. It considers litigation issues common to all regulatory schemes, such as investigation and information gathering powers, and criminal law aspects of regulatory litigation. The different regulatory regimes are considered together so that they can be compared and contrasted.

Regulation, Litigation, Enforcement reviews the need for regulation, forms of regulation and techniques of regulation. Pre-litigation steps are covered; coercive investigatory powers examined; and the limitations imposed by privilege discussed.

Chapter coverage includes:

• Directors’ and Officers’ insurance in the regulatory litigation context;
• the law on whistle blowers and immunity;
• pleadings, including the specific issue of challenging Australian Competition and Consumer Commission pleadings in cartel cases;
• enforcement of the continuous disclosure regime under the Corporations Act 2001 (Cth) and the Australian Securities Exchange listing rules;
• the interaction between public and private enforcement, looking at how the Australian Securities and Investments Commission and shareholder class actions interact;
• tax litigation;
• settling civil penalty litigation brought by the Australian Competition and Consumer Commission;
• criminal proceedings; and
• the criminalisation of cartels.

Regulatory litigation has unique challenges because it usually involves the government as the plaintiff or prosecutor and the stakes are often high. Such complex subject-matter deserves analysis as an inter-related whole, which is the aim of this work.

Legal practitioners engaged in regulatory enforcement/litigation will find this work extremely useful. It will assist practitioners who are new to the area to understand the basics such as investigatory powers and pleadings, but it is also highly useful for experienced practitioners who have to address novel issues such as criminalisation and the rise of class actions. In-house lawyers, company secretaries and compliance professionals that have a regulatory interface, as well employees of regulators such as ASIC and ACCC, and students of litigation and/or regulation, will all benefit from this unique work.

From: Ethos, June 2012
Reviewed by Jane Grace, Australian Communications and Media Authority

The text explores the notion of “responsive regulation” and the concept of the “enforcement pyramid” with litigation as the last resort. There is an exploration of the various regulatory approaches and theories. One of the issues explored is “regulatory capture”, which happens when a regulatory agency, formed to act in the public’s interest, eventually acts in ways that benefit the industry it is supposed to be regulating, rather than the public.

The debate over the use of rules, as opposed to the articulation of principles and the choice between command and control regulation, as opposed to “soft law” techniques such as self-regulation, is considered. Principles-based regulation is advocated as it prevents firms from seeking to take advantage of “loopholes” and discourages “checklist” type approaches to compliance. The concerns associated with principles-based regulation are the lack of certainty and guidance for a regulated entity.

The book examines the coercive investigatory powers of ASIC, the Australian Competition and Consumer Commission and the Australian Taxation Office, and the limits on those investigatory powers that are imposed by legal professional privilege, the privilege against self-incrimination and penalty privilege. There is a chapter on whistleblowers’ immunity, pleading and the criminalisation of cartel conduct.

This is a well-written and useful book which sets out the key debates in the area. It provides insights into the crucial challenges faced by regulators from both a theoretical and practical perspective.

1. Regulatory Theory, Litigation and Enforcement
2. Coercive Investigatory Powers of ASIC, ACCC and ATO
3. Coercive Investigatory Powers - Legal Professional Privilege, Privilege Against Self-Incrimination and Penalty Privilege
4. Directors’ & Officers’ Insurance in the Regulatory Litigation Context
5. Whistleblowers and Immunity, ACCC Immunity Policy, Corporations Act Pt9.4AAA
6. The Role of Pleadings in Litigation
7. Challenging ACCC Pleadings
8. ASIC and Enforcing the Continuous Disclosure Regime
9. Public and Private Enforcement – ASIC and the Shareholder Class Action
10. Tax Litigation
11. Preventing the ATO from Bankrupting Your Client
12. Settling Civil Penalty Litigation with the ACCC
13. Overview of the Commonwealth Criminal Process
14. Criminalisation of Cartels

Product Reviews

• Ethos, June 2012 [PDF 290550]
• Law Society Journal April 2013 [PDF 47776]