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Testing the Regulator's Priorities

As Australian corporate conduct came under intense and highly publicised scrutiny during the banking Royal Commission, so too did the conduct of the conduct regulator: the Australian Securities and Investments Commission (‘ASIC’). Following the Royal Commission, the regulator has adopted what it describes as ‘“Why not litigate?” operational discipline’ — a concept elaborated and recommended by Commissioner Hayne which is now the central tenet of ASIC’s updated enforcement model. This article discusses the hierarchy of strategic priorities evident in that enforcement model and asks: should the regulator focus its resources on compensating those harmed by regulatory contraventions rather than sanctioning those who have broken the law?