Restorative Justice in Business Regulation? The Australian Competition and Consumer Commission's Use of Enforceable Undertakings

Abstract

Enforceable undertakings are now used extensively by both the Australian Competition and Consumer Commission (ACCC) and other Australian regulators to formalise decisions to forego enforcement litigation on the basis that offenders will correct their misconduct and comply in the future. A ‘fairness’ critique warns that regulators might exert undue pressure in negotiating enforceable undertakings and that the terms agreed might be inappropriately broad and not legally authorised. A ‘bias’ critique argues that enforceable undertakings favour business above the public interest in taking tough court action against business offences. The article draws on empirical research into the ACCC's use of enforceable undertakings to show how they are used in practice, and argues that, if appropriately implemented, enforceable undertakings can be a valuable ‘restorative justice’ alternative to traditional regulatory enforcement action, simultaneously addressing both fairness and bias concerns.