The Guidelines explain what enforcement responses are available to the Commission, and what factors are taken into account when deciding which response to use. They form part of the Commission’s commitment to increased transparency.
The Guidelines emphasise that the Commission uses a wide range of tools, including education and advocacy, to achieve good public understanding of the law and compliance by people and businesses.
Where the Commission considers that a person or business may have breached the law, the Commission will take into account the extent of the harm, the seriousness of the conduct and the public interest when determining the most efficient use of taxpayer resources.
If the Commission decides to take enforcement action, it will select a response aimed at stopping the unlawful conduct, deterring future breaches and remedying the harm.
Enforcement options are broadly grouped as low-level and high-level responses. Low-level responses include the issuing of compliance advice letters or warnings to businesses and people to remind them of their obligations. These options may be suitable where the harm is minimal, the conduct is accidental or the result of a limited understanding of the law, there is a willingness to comply, or the public interest does not favour a more severe response.
Higher-level responses include court injunctions to immediately change behaviour, and the commencement of civil or criminal court proceedings. The Guidelines include (as an attachment) the new Criminal Prosecution Guidelines, which provide additional guidance on the circumstances in which the Commission will initiate a criminal prosecution, and the principles and practices applicable to each criminal prosecution.
The Guidelines also emphasise that the Commission is willing in many cases to attempt to resolve disputes through negotiated settlement, and will consider any proposal that is well-developed, principled and realistic. A typical settlement will require the person or business to cease the unlawful conduct, take some action to remedy the breach (in most cases, by compensating parties who have been harmed by the conduct), make some admission of liability, and, where appropriate, pay a penalty set by the court.