Restorative Justice in Business Regulation? The Australian Competition and Consumer Commission's Use of Enforceable Undertakings


  • Christine Parker

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    • *This research was funded by the Centre for Competition and Consumer Policy, Regulatory Institutions Network, Australian National University and is part of a wider research project on the compliance impact of Australian Competition and Consumer Commission (ACCC) enforcement activity. The work of the centre is partially funded by the ACCC. The author would like to thank the ACCC and anonymous interviewees for cooperating with this research. Thanks are also due to Maurice Bailey and especially Natalie Stepanenko for invaluable research assistance, and to Robert Antich, John Braithwaite, Imelda Maher, Karen Yeung for many helpful comments on earlier versions of this paper.


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. A ‘fairness’ critique warns that regulators might exert undue pressure in negotiating enforceable undertakings and that the terms agreed might be inappropriately broad and not legally authorised. A ‘bias’ critique argues that enforceable undertakings favour business above the public interest in taking tough court action against business offences. The article draws on empirical research into the ACCC's use of enforceable undertakings to show how they are used in practice, and argues that, if appropriately implemented, enforceable undertakings can be a valuable ‘restorative justice’ alternative to traditional regulatory enforcement action, simultaneously addressing both fairness and bias concerns.