Banning, disqualification and licensing powers: ACCC, APRA, ASIC and the ATO – regulatory overlap, penalty privilege and law reform

The overlapping regulatory responsibilities of the Australian Securities and Investments Commission, the Australian Competition and Consumer Commission, the Australian Prudential Regulation Authority and the Australian Taxation Office reinforce the need for the federal government to adopt a "whole of government" approach to regulatory reform to ensure that, where appropriate, the regulatory laws are uniform across the jurisdictions of each regulator so that "like cases are treated alike" and the regulatory outcomes under each of those laws are consistent in cases involving similar contravening conduct. There should be uniform rules concerning the operation of the penalty privilege (and any associated evidential immunity where that privilege is abrogated) in proceedings for banning orders, disqualification orders and licence cancellation or suspension orders. The regulators should have equivalent powers (including proactive powers) to make, or to apply to the court for, directors' disqualification orders particularly where the contraventions indicate that the directors are incompetent or unfit to act as directors. Private litigants should be given the power to apply to the court for a director’s disqualification order. This would promote greater accountability of directors to the victims of their contraventions. The regulators' powers to make banning orders, or to issue, cancel or suspend licences and to register certain individuals, should be governed by uniform criteria. These reforms would provide better protection for investors and creditors and make them more willing to invest in the Australian markets, thereby advancing the growth of the Australian economy as a whole