Regulatory Enforcement and Sanctions: Regulatory Challenge & Review

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Regulatory Enforcement and Sanctions: Regulatory Challenge & Review by Mind Map: Regulatory Enforcement and Sanctions: Regulatory Challenge & Review

1. Freedom of Info Act 1982

1.1. Ideal of an open government is facilitated if citizens have the opp to gain access to admin files

1.2. AU = first country under Westminister government style to introduce F.O.I laws

1.2.1. Imperative of gov outweighing concerns as to the adverse effect of such laws on the operation of CW bureaucracy

1.3. Gives everyone the right ot access admin files and docs on them held by any CW government body

1.3.1. documents, written or printed, photos

1.3.2. Exception: cannot access secure docs of cabinet and exec council

1.4. Aim = promote AU's representative democracy

1.5. Objectives of FOI

1.5.1. Increase public scrutiny and accountability of gov

1.5.2. Provide access to personal info

1.6. increasing public participation in government processes - better informed DM process

1.7. 30 day response period deadline

1.7.1. In saying this: at cost of applicant in both time and money (substantial fees) in the delay

1.8. Executive can refuse access to info if in interest of public

1.9. Exemptions: based on public interest test

1.9.1. CW-State relations

1.9.2. Personal privact

1.9.3. Business info

1.9.4. Research

1.9.5. Economy

1.9.6. Deliberative processes

1.9.7. Agency operations

2. Regulatory Enforcement & Sanctions

2.1. Regulatory Agencies

2.1.1. Even the ACCC alone has huge regulatory powers bestowed upon them under s155 of Australian Constitution.

2.1.1.1. Can issue a s155 notice if they believe something to be wrong - not enabling a phishing expedition

2.1.1.2. Strong powers to attain information: can require power to attend and give evidence

2.1.1.2.1. Sources a lot of their information from tip-offs, complaints & whistleblowing e.g from sour executives who never got the promotion; from sexual assault victims.

2.1.1.3. Immunity Policy

2.1.1.3.1. If you are party to cartel conduct and the first to blow the whistle on fellow conspirators; you are immune from ACCC action and prosecution.

2.1.1.4. Administered codes e.g Industry Codes Audits

2.1.1.5. Although they cannot fine you; they have a range of powerful administrative actions that they can take.

2.1.1.5.1. E.g pay an infringement fine but no criminal record as there is no conviction or trial

2.1.2. Massive array of actions that regulatory bodies can take

2.1.3. Australian Trade Organisation (ATO)

2.1.4. Australian Securities & Investments Commission (ASIC)

2.1.5. APRA

2.1.6. ACCC & ACL

2.1.6.1. Independent statutory authority established under the Competition & Consumer Act to administer the Act

2.1.6.1.1. For Consumer Protection matters under the ACL, the ACCC works with state and territory consumer agencies under a one law/multiple regulators model

2.1.6.2. Visy and Amco

2.1.6.2.1. Dominate cardboard and packaging industry in AU

2.2. Enforcement Options

2.2.1. The Regulator's enforcement varies with the type of industry or environment and the nature of the legislation it administers

2.2.1.1. One-Off Responses

2.2.1.1.1. Some circumstances call for a swift, one-off response to an immediate and serious contravention e.g custom seizures, quarantine contraventions, or environmental pollution.

2.2.1.2. Continuing Policy Function

2.2.1.2.1. Other regulated environments call for on-going regulation where there is likely to be greater focus on securing compliance through education, cooperation, negotiation and conciliation

2.2.1.2.2. E.g 18/24 real estates agents in west Sydney failed random inspections from the FairTrade agency, which stated they conduct audits on an ongoing basis.

2.2.1.3. Periodic Regulatory Schemes & Contact

2.2.1.3.1. Such as that, where reporting requirements under taxation and corporations regulatory schemes mandate contact at regular intervals

2.2.1.3.2. Other variations exist where contact between regulator and the regulated =

2.2.1.4. Self-Regulation & Co-Regulation

2.2.1.4.1. Some industries lend themselves to self-regulatory arrangements where there is no or minimal explicit government intervention; or Co-Regulation with some government involvement

2.2.2. Compliance and Enforcement Options: Criminal Prosecution for breaches of the law is only one of a range of approaches ACL regulators may take to ensure compliance with the law. Other tools/strategies include...

2.2.2.1. Education, Advice, Influencing Good practice

2.2.2.2. Voluntary Industry Code & Self Regulation

2.2.2.3. Dispute Resolution

2.2.2.3.1. Consumer Dispute Resolution

2.2.2.4. Infringement notices

2.2.2.5. Enforceable undertakings

2.2.2.6. Public Warnings

2.2.2.6.1. Puts corporations in the public limelight and shames them into compliance

2.2.2.7. Court Orders

2.2.2.8. Injunctions

2.2.2.9. Compensation Orders

2.2.2.10. Civil Penalties

2.2.2.10.1. Pecuniary penalties

2.2.2.10.2. Disqualification orders

2.2.3. Hierarchy of Regulators' Actions according to preference due to allocation of resources

2.2.3.1. 1. Education, Industry Self-Reg, Formal Written Warnings

2.2.3.2. 2. Infringement Notices, Court Enforceable Undertakings

2.2.3.3. 3. Declarations, Injunctions, Damages, Compensation Orders

2.2.3.4. 4. Non-party redress orders, adverse publicity orders, non-punitive orders, public warning notices

2.2.3.5. 5. Disqualifications orders, Civil Pecuniary Penalties

2.2.3.6. 6. Criminal Conviction & Fines

2.3. Enforcement Tools

2.3.1. Deferred Prosecution Agreements (DPAs)

2.3.1.1. This is an agreement under which the regulators encourage you to come to them and as a reward for encouraging you to "dob yourself in"; they may give discretion to enter an agreement and defer a prosecution if you are on good behaviour for a specified period

2.3.1.1.1. Probably quite effective for more serious corporate crime and enforcement

2.3.1.2. voluntary alternative to adjudication in which a prosecutor agrees to grant amnesty in exchange for the defendant agreeing to fulfill certain requirements.

2.3.2. INFORMAL

2.3.2.1. Haine often criticised financial regulators for their tendency to enforce action at an informal level

2.3.3. ADMINISTRATIVE - THE ACCC

2.3.3.1. Undertakings

2.3.3.1.1. The ACCC can invite you to take a written undertaking i.e. tell you what to say e.g refund money for those affected, to put a public notice in the paper informing the wider public of what happened, introduce a compliance programme to educate staff

2.3.3.2. Substantiation Notices

2.3.3.2.1. ACCC can require you substantiate any claim you make (if you make one)

2.3.3.3. Public Warning

2.3.3.3.1. Name and shame

2.3.3.4. Infringement Notices

2.3.4. LEGAL - THE ACCC

2.3.4.1. Pecuniary Penalties

2.3.4.1.1. $10m per breach of pecuniary laws

2.3.4.1.2. x3 of what you extracted from the public for illict onduct

2.3.4.1.3. Criminal Fines > Civil Fines

2.3.4.2. Representative actions

2.3.4.3. Injunctions

2.3.4.4. Non-punitive orders

2.3.4.4.1. Community service

2.3.4.4.2. Probation

2.3.4.4.3. Disclosure

2.3.4.4.4. Corrective advertising

2.3.4.4.5. Adverse publicity order

2.3.4.5. Disqualification Order

2.3.4.6. Non-Party Consumer redress

2.3.5. LEGAL - PRIVATE LITIGATION

2.3.5.1. Damages or repudiation of contract

2.3.5.2. Injunctions to restrain illegal activity

2.4. Increasingly significant consequences of Regulatory Breach

2.4.1. Corporate Liability

2.4.1.1. $10m // x3 of $ extracted // 10% of corporation's annual turnover

2.4.2. Personal Liability

2.4.2.1. Civil penalties

2.4.2.2. Damages

2.4.2.3. Imprisonment

2.4.3. ACL Review Final Report 2017 has led to legislative reform

2.4.3.1. Australian Consumer Law penalties = aligned with competition penalties (increase from 1.1m to 10m)

3. REGULATORY CHALLENGE & REVIEW

3.1. Quotes that illustrate the reality of the bureaucratic nature of form filling

3.1.1. Ronald Reegan

3.1.1.1. THE 9 MOST TERRIFYING WORDS IN THE ENGLISH LANGUAGE: "I AM FROM THE GOVERNMENT AND I'M HERE TO HELP"

3.1.2. Dwight McDonald

3.1.2.1. "Give me your tired, your poor, your huddled masses, yearning to be free..."

3.1.2.1.1. Reality: "Give me your tired, your poor, your huddled masses, yearning to be free... provided they have satisactorily filled out forms 3584A through 3597Q"

3.2. Administrative Law Developments

3.2.1. As a result of centuries of political and legal battles, administrative law embodies some of the most precious and powerful legal doctrines

3.2.1.1. e.g inherent right to a fair, unbiased hearing by an administrator with strictly defined and confined powers

3.2.2. Over the last 3 decades: seen a rising demand for greater recognition of basic rights against the government, combined with the demand for more ready access, uniformity, flexibility

3.2.3. COMMONWEALTH ADMINISTRATIVE REVIEW COMMITTEE 1968

3.2.3.1. Committee approached its task on the basis of attempting to balance efficient administration with the provision of justice to the individual

3.2.3.2. Committee was tasked with dealing with the major deficiency of the existing system: there was no review of merits of a decision

3.2.4. The New Administrative Law (4 Parts)

3.2.4.1. 1. ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975

3.2.4.1.1. Deals with appeals

3.2.4.1.2. Administrative Review Council 1975 was tasked with this - conducted research and made recommendations

3.2.4.2. 2. OMBUDSMAN ACT 1976

3.2.4.2.1. Creates a role to oversee the executive

3.2.4.3. 3. ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977

3.2.4.3.1. Gives courts the power to review judicial decisions

3.2.4.4. 4. FREEDOM OF INFO ACT 1982

3.2.4.4.1. Allows us to access information which executives may hold.

3.2.5. Drivers/Influences of its development and application

3.2.5.1. Expansion of exec power

3.2.5.1.1. Getting out of control; legislator should be master; executive the child.

3.2.5.2. secrecy

3.2.5.3. Shift in public sector to what is termed managerialism

3.2.5.3.1. Evaluates processes on the basis of output

3.2.5.4. Restrictions of judicial review

3.2.5.5. Dismantling of some rights

3.2.5.6. Government funding cuts

3.2.5.7. Deregulation

3.2.5.8. Widespread privitisation

3.2.5.9. Access to the AAT

3.2.5.10. Introduction of concepts of funding such as legal aid for Ombudsman

3.3. MERIT (NON-JUDICIAL) REVIEW

3.3.1. Structure of the Federal System of Administrative Review

3.3.1.1. Original DMing

3.3.1.2. Internal Review - not an appeal like in the legal sense; reviews decision and the reason/justification for the decision

3.3.1.3. Specialist Tribunals

3.3.1.4. AAT

3.3.1.4.1. Deals with merit of decision

3.3.1.5. Federal Circuit Court & Federal Court

3.3.1.5.1. Limited no. of appeals or scope for appeal that make it into the courts systems

3.3.1.5.2. Deals with interpretation of the law and if it is a legal issue

3.3.1.6. High Court

3.3.2. AAT

3.3.2.1. Created/established under the AAT Act 1975

3.3.2.2. Jurisdiction to hear appeals from the decisions of ministers, officials, and agencies (within the federal executive)

3.3.2.3. Power to review & remake decisions made by administrative bodies

3.3.2.4. Exercises administrative authority, not judicial

3.3.2.4.1. NOT A COURT

3.3.2.5. Forms part of executive

3.3.2.5.1. May exercise all the powers and discretion conferred on the person who made the decision being reviewed

3.3.2.6. Power to substitute its own decision

3.3.2.6.1. "The Right and Preferable Decision"

3.3.2.6.2. This is where a tribunal and a court differ

3.3.2.7. Aim = make fair and informal reviews , taking into consideration facts, policy and law

3.3.2.8. POWERS

3.3.2.8.1. AFFIRM

3.3.2.8.2. SET ASIDE

3.3.2.8.3. VARY

3.3.2.8.4. REMIT

3.3.2.9. Role of AAT is performed in the State sphere by a range of tribunals with similar administrative powers in the states

3.3.2.9.1. States are not limited by rigid separation of powers in their constituencies

3.3.2.10. Cases primarily dealt with by the ACCC

3.3.2.10.1. Immigration cases

3.3.2.10.2. Registration of ABNs & trademarks

3.3.3. Big difference between Federal and State Tribunal

3.3.3.1. State tribunal = no strict separation of powers

3.4. JUDICIAL REVIEW OF ADMINISTRATIVE ACTION

3.4.1. JR is an extremely dense and complex patchwork

3.4.1.1. JR = under which executive and legislative actions are subject to review by the judiciary

3.4.1.2. A court with authority for JR may invalidate laws acts and governmental actions that are incompatible with a higher authority.

3.4.1.2.1. e.g executive decision may be invalidated for being unlawful

3.4.1.2.2. e.g statute may be invalidated for violation of terms of the constitution

3.4.1.3. Checks and balances in S.O.P

3.4.1.3.1. Power of the judiciary to supervise the legislative and executive branches where the latter exceed their authority

3.4.2. Doctrine varies in jurisdictions; scope and procedure differs

3.4.3. Courts have the traditional prerogative and role to oversee the exec

3.4.3.1. Not to challenge the merits of their decision but responsibility to review the actual process

3.4.3.2. To ensure actual decision-making process was in accordance with the law.

3.4.4. Traditional Remedies available

3.4.4.1. Issue a prerogative writ

3.4.4.1.1. whereby the court ordered an administrative officer or tribunal to act or refrain from acting

3.4.5. Need for new rules to compensate for ambiguous prerogative writs

3.4.5.1. ABILITY TO QUASH but not replace/substitute decision

3.4.5.2. EMPOWERED TO ENJOIN ACTION or to quash a decision it finds unlawful

3.4.5.3. DIRECT ACTION to be taken in accordance with the law

3.4.5.4. COMPEL ACTIONS by individual/body who has not acted but ought to have done so

3.4.6. Sources of Judicial Review Applications

3.4.6.1. Constitutional Judicial Review - under s 75 (v) of the Australian Constitution and s 39B under the Judiciary Act

3.4.6.2. Administrative Decisions (JR) Act i.e AD(JR)

3.4.6.2.1. Function of the court to not debate the merits of the decison itself - just to determine the existence of a ground for review when reviewing an administrative decision.

3.4.6.2.2. REVIEWS PROCESS - NOT MERITS.

3.4.7. Grounds for AD(JR) review under s 5(1)

3.4.7.1. A breach of rules of natural justice

3.4.7.1.1. Opp to be heard and appear

3.4.7.1.2. DMer must be unbiased

3.4.7.2. Procedures required by law not observed

3.4.7.3. Person who purported to make the decision did NOT have the jurisdiction

3.4.7.4. Decision not authorised by the enactment

3.4.7.5. Improper exercise of the power conferred by the enactment

3.4.7.6. decision was induced or affected by fraud

3.4.7.7. no evidence present to justify the decision

3.4.8. ACTIONS

3.4.8.1. QUASH

3.4.8.2. ORDER REMAKE

3.4.8.3. MAKE AN ORDER declaring the rights of the parties or ordering them to refrain from doing something, or to perform some act s 16

3.4.8.3.1. Isbester v Knox City Council 2015 HCA

3.4.9. Ombudsman

3.4.9.1. Ensures complaints against officers of government agencies are investigated and remedial action taken where required

3.4.9.1.1. Deals with key issue of governing power of exec

3.4.9.2. Federally, the position is established by the Ombudsman Act 1976

3.4.9.2.1. Role to receive, investigate complaints and make suitable recommendations

3.4.9.3. Relies on the power of the media and publicity to influence execs

3.4.9.3.1. Whilst the ombudsman cannot direct behaviours of the bureaucrats

3.4.9.4. No power to overrule or quash but has the power to expose or draw attention to bureaucratic, heavy-handed decisions

3.4.9.4.1. NO EXECUTIVE BODY WANTS TO APPEAR IN THE OMBUDSMAN REPORT

3.4.9.5. State and Specialist Ombudsman

3.4.9.6. NO DETERMINATIVE POWERS