The difficulties of applying civil evidence and procedure rules in ASIC's civil penalty proceedings under the Corporations Act
Middleton, Tom (2003) The difficulties of applying civil evidence and procedure rules in ASIC's civil penalty proceedings under the Corporations Act. Company and Securities Law Journal, 21 (8). pp. 507-529.
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The meaning of the words "civil evidence and procedure rules" in s 1317L of the Corporations Act 2001 (Cth) is unclear. There is a wide variety of civil evidence and procedure rules that may apply in civil proceedings under the Corporations Act and ASIC Act 2001 (Cth). This wide variety and consequent lack of clarity encourages procedural challenges. Recent litigation concerning such procedural challenges is discussed in this article. From the perspective of the public interest (in protecting investors, creditors and corporations and promoting the confidence of such persons) which underpins ASIC's enforcement activities, it is undesirable that the meaning or scope of s 1317L be resolved on a case-by-case basis. There would be greater certainty in the law and a reduction in delays and costs for both ASIC and defendants if a uniform civil code was adopted for the purposes of all Corporations Act civil proceedings (including the civil penalty proceedings contemplated by s 1317L ) and ASIC Act civil proceedings.
Some of ASIC's officers and the Australian Law Reform Commission (in the context of customs prosecutions and perhaps in a wider context) have suggested that the practical result of the courts applying a variable standard of proof in the more serious civil penalty proceedings (such as those arising under the Corporations Act ) is that there is little difference between the variable civil standard of proof and the criminal standard of proof. However, there is no clear indication from the recent ASIC cases discussed in this article that the courts have misapplied the variable civil standard of proof or that the courts have adopted the criminal standard of proof in civil penalty proceedings.
In some recent civil penalty proceedings under the Corporations Act the courts have adopted some procedural rules more applicable to criminal proceedings. Such an approach ignores the requirement in s 1317L that the courts apply "civil evidence and procedure rules", involves a blurring of the distinction between civil and criminal proceedings, raises the concern that the courts may not, in practical terms, give ASIC an enforcement option in the more serious civil penalty proceedings that is much different to criminal proceedings and raises the question of whether the courts are giving effect to Parliament's original reasons for introducing the civil penalty regime.
|Item Type:||Article (Refereed Research - C1)|
|Keywords:||company and securities|
|FoR Codes:||18 LAW AND LEGAL STUDIES > 1801 Law > 180103 Administrative Law @ 100%|
|SEO Codes:||97 EXPANDING KNOWLEDGE > 970118 Expanding Knowledge in Law and Legal Studies @ 100%|
|Deposited On:||18 Sep 2009 15:51|
|Last Modified:||06 Jul 2011 21:52|
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