Restorative Justice in Business Regulation? The Australian Competition and Consumer Commission’s Use of EnforceableUndertakings

Source: (2002) Paper presented at the Competition and Property Rights Workshop. Centre For Competition and Consumer Policy (RegNet) and the National Institute of Government and Law. Australian National University, Canberra, Australia. 15-16 August. Downloaded 15 October 2003.

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. This paper argues that enforceable undertakings represent a valuable ‘restorative justice’ alternative to traditional regulatory enforcement action because they can facilitate the agreement of all parties involved in wrongdoing to correcting and preventing breaches and their underlying causes. Yet critics have warned that regulators might exert undue pressure in negotiating enforceable undertakings and that the terms agreed might be inappropriately broad and not legally authorised. Using a restorative justice perspective, this paper finds that few formal legal controls are required on the content of enforceable undertakings, provided the process for negotiating them is restorative and subject to strong informal, deliberative controls. ACCC use of enforceable undertakings is critically assessed against this standard. (author’s Abstract).