ASIC should adopt an approach to enforcement that:
- takes, as its starting point, the question of whether a court should determine the consequences of a contravention;
- recognises that infringement notices should principally be used in respect of administrative failings by entities, will rarely be appropriate for provisions that require an evaluative judgment and, beyond purely administrative failings, will rarely be an appropriate enforcement tool where the infringing party is a large corporation;
- recognises the relevance and importance of general and specific deterrence in deciding whether to accept an enforceable undertaking and the utility in obtaining admissions in enforceable undertakings; and
- separates, as much as possible, enforcement staff from non‑enforcement related contact with regulated entities.
The Government supports ASIC acting on this recommendation.
The adoption of the Royal Commission’s recommendation will build on changes already underway within ASIC, both with its recent shift to a ‘why not litigate’ stance, and recommended changes to its policies, processes and procedures put forward by its recent internal review of enforcement.