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Legal Issues: The James Hardie Cases

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LEGAL ISSUES
The efficacy of the civil penalties regime has been adversely affected due to the Court’s treatment of civil penalties as quasi-criminal offences by imposing criminal procedural protections. This has resulted in defendants being afforded enhanced procedural protections despite the operation of s 1317L of the Corporations Act which deems the application of civil, not criminal, processes in civil penalty proceedings.

Along with the problem of low penalties, James Hardie illustrates the types of evidential, procedural and enforcement difficulties faced by ASIC in attempting to bring civil penalty proceedings against directors and other officers. The Hardie matter has also reflected the increased ability of defendants to make …show more content…

The James Hardie cases demonstrate that when resolving disputes about procedure in civil penalty proceedings, judges are not always open to ensure that approaches based on older notions of criminal and civil law should be replaced with regulatory innovation. For instance the Court in Morley held that ASIC is required to call all material witnesses to discharge the duty of fairness it owes to defendants in civil penalty proceedings. Although this proposition was overruled by the High Court in ASIC v Hellicar, it showcases the Court’s willingness to raise the bar in resorting to requirements which until then had been the preserve of criminal law. This occurred because the Court in Morley was concerned that a public authority like ASIC responsible for enforcement of the corporations legislation and acting in public interest, had considerable powers unlike an ordinary civil …show more content…

the penalty privilege was available in civil penalty proceedings. Although the penalty privilege for disqualification orders was removed by s 1349 of the Corporations Act, it continues to apply to pecuniary penalties. This proved to be a complication for ASIC in the James Hardie matter as it allowed defendants the right to claim various protections particularly with respect to pre-trial disclosure. It has been emphasised by Austin J in his judgment in ASIC v Rich that ASIC would need to prepare its case to a higher standard of proof as it may be unaware of issues that will be raised in defence as a result of diminished disclosure by

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