SECURING COMPLIANCE
Bargaining, negotiation and civil penalty sanctions together constitute central techniques used by regulators in securing compliance with the law. This book is a timely exploration of these practices, constructing a principled framework for evaluating their legitimacy and thereby drawing into sharper focus the importance of the constitutional principles in regulatory compliance. Although Australian competition law provides the focal point of the book, its analysis and critique is equally applicable to other competition law regimes and to other areas of business regulation. While there are numerous empirical studies of regulatory enforcement, this book introduces a normative dimension to the debate by seeking to identify whether there are certain principled and ethical limits that inform and circumscribe the limits of legitimate enforcement practice. It is likely to be of interest to scholars in the fields of public law, criminology, economics, and regulation, and may also be of considerable assistance to legal practitioners in providing a principled, legal foundation from which to draw in their dealings with regulators.
Securing Compliance A Principled Approach KAREN YEUNG St Anne’s College, Oxford
OXFORD AND PORTLAND, OREGON 2004
Hart Publishing Oxford and Portland, Oregon Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 5804 NE Hassalo Street Portland, Oregon 97213-3644 USA © Karen Yeung 2004 The author has asserted her right under the Copyright, Designs and Patents Act 1988, to be identified as the author of this work Hart Publishing is a specialist legal publisher based in Oxford, England. To order further copies of this book or to request a list of other publications please write to: Hart Publishing, Salter’s Boatyard, Folly Bridge, Abingdon Road, Oxford OX1 4LB Telephone: +44 (0)1865 245533 or Fax: +44 (0)1865 794882 e-mail:
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Contents Preface Abbreviations and Terminology Table of Cases Table of Legislation
xi xv xvii xxi
Part I 1.
Introduction
3
A. Competition, Competition Regulation and Enforcement B. Regulation and Regulatory Compliance 1. Understanding Regulation (a) What is Regulation? (b) Conceptualising the Regulatory Process: Public a