I said in the Interim Report that almost all of the conduct identified and criticised in that Report contravened existing norms of conduct and that the most serious conduct broke existing laws.[1] Notwithstanding that, the law was too often not enforced at all, or not enforced effectively.[2]

In its response to the Interim Report, the Australian Securities and Investments Commission (ASIC) accepted that its enforcement approach must change.[3] The Australian Prudential Regulation Authority (APRA)’s response to the Interim Report emphasised that its core role is ‘proactive ex ante supervision … rather than ex post enforcement’.[4] It also said that recent developments, including the work of the Royal Commission, had caused it to review its approach to enforcement.[5]

This chapter considers the regulatory model currently in place, the remit given to APRA and ASIC under that model, and the powers currently available to APRA and ASIC. The overarching question is: to what extent, if any, should the model, the remits, or the powers be changed?

Consideration of the question must proceed from an understanding of the current regulatory framework and its history.

[1] FSRC, Interim Report, vol 1, 267.

[2] FSRC, Interim Report, vol 1, 269–70.

[3] ASIC, Interim Report Submission, 5 [24]–[25], 9–10 [43]–[45].

[4] APRA, Interim Report Submission, 8 [44].

[5] APRA, Interim Report Submission, 9 [46]–[48].