An Empirical Analysis of Public Enforcement of Directorss Duties in Australia: Preliminary Findings

Abstract

The preliminary findings presented in this paper indicate that criminal enforcement was more prevalent than civil enforcement and there was a significant emphasis on incapacitative sanctions such as prison sentences and management disqualification orders. Monetary sanctions were less frequently imposed and tended to be of a low magnitude relative to the statutory maximum sanctions. Criminal and civil enforcement had similarly high success rates and the civil enforcement process was only slightly faster than the criminal process, suggesting that criminal enforcement is as effective as civil enforcement from a procedural perspective. In sum, both ASIC and the CDPP play a significant role in enforcement of directors’ duties and there is a strong focus on enforcement via incapacitation.