Criminal Liability in Regulatory Contexts Responses - Law ...

Michelle Welsh, Monash University
1.1307 This recommendation is supported by responsive regulation theory. This theory,
which is represented graphically by the pyramid model, was developed and
expanded by John Braithwaite and Ian Ayres. 36 Responsive regulation theory
relies on the premise that the actions of individuals will be motivated by different
factors and therefore, regulatory agencies dealing with these individuals will need
to have a range of enforcement mechanisms at their disposal. Those
enforcement mechanisms should range in severity from persuasive techniques to
severe punitive sanctions. 37 Ayres and Braithwaite argue that compliance is most
likely to be achieved when a regulatory agency is able to display an explicit
enforcement pyramid that contains a variety of enforcement measures that
escalate in severity and are able to be employed in proportion to the nature of the
contravention that has been committed. 38
1.1308 Regulatory agencies who utilise the range of sanctions available to them in a
manner envisaged by responsive regulation theory will consider whether or not
the less severe enforcement mechanisms at their disposal provide an appropriate
regulatory response prior to moving up the enforcement pyramid and considering
the more severe enforcement options. The number of enforcement activities
undertaken by the agency should decrease in accordance with the severity of the
sanction sought. According to responsive regulation, criminal sanctions will be
positioned above civil penalties in the enforcement pyramid. It follows that, if the
regulator utilises civil penalties and criminal sanctions in a manner envisaged by
responsive regulation, it will consider whether or not a civil penalty application will
provide an appropriate regulatory response prior to commencing a criminal
prosecution in most cases. It also follows that a regulator will issue more civil
penalty applications than criminal prosecutions in relation to the same types of
contraventions. For a discussion of responsive regulation theory in the context of
overlapping civil penalty and criminal enforcement regimes see Michelle Welsh,
‘Civil penalties and strategic regulation theory: the gap between theory and
practice’ (2009) 33(3) Melbourne University Law Review 908.
36 See for example see John Braithwaite, To Punish or Persuade: Enforcement of Coal Mine Safety (1985)
and Ian Ayres and John Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (1992).
37 Ibid, 24.
38 Ibid, 35.
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