Australia: Who let the dogs out?! Regulators baring their teeth and chasing down duty holders


  • Those who work in highly regulated industries, government regulators and executives.


  • Regulation in Australia is changing, as regulators face increasing pressure to prosecute more and avoid the perception of being ‘too close’ to those they regulate.

The context

Australia operates in a highly regulated environment. Our regulators are vast and varied, from the well known (ASIC, ACCC, WHS regulators, the EPA and the FWO) to the less well known (Wine Australia, ‘the wine industry regulator’).  As Australians, when death or injury, environmental damage or financial loss is sustained, we ask ‘who is regulating this?’ and ‘why aren’t they being tougher?’.

Each regulator has its own unique approach to compliance and enforcement guided by legislation and, at times, political drivers.  Cooperative compliance, partnering with duty holders and voluntary reporting have featured in the enforcement regimes of most Australian regulators from time to time.

However, we are now seeing high profile criticism of this ‘soft’ behaviour of regulators (think: the Banking Royal Commission) and a 24-hour news cycle constantly sharing news of poor corporate conduct. Now, more than ever, there is little incentive for a regulator to adopt a cooperative regulatory model. Instead a ‘new norm’ is emerging, where regulators are expected to be the ‘tough cop on the beat’.

Not only are regulators expected to hold corporate duty holders to account, they are also under increased pressure to ‘pierce the corporate veil’ and hold individuals personally responsible for their acts and omissions.

Although the threat of regulatory action has now increased, there are pro-active steps that a duty holder can take to adapt to this ‘new norm’.

Maintain a respectful tension

Regulation can, at times, be adversarial. Litigation is the pinnacle of this – with regulators focussing on a specific breach, and duty holders being frustrated by regulators not understanding the bigger picture.

Maintaining a good working relationship between regulators and duty holders is vital.

Key considerations to facilitate this include:

  • Implementing an Escalation Framework: Interactions with regulators can occur frequently. Regulators and duty holders should have a process that determines when interactions (e.g. the request for and provision of documents) can occur freely and voluntarily and, conversely, in what circumstances both parties should adopt formal processes. Such a model needs to be flexible, and reflect both the nature of potential breaches and the history of the relationship between regulator and duty holder;
  • Keeping it Consistent: Touch points between duty holders and regulators can occur at all levels, from between front line inspectors and operational staff, to direct dealings between a chief executive and the head of a regulatory agency. A consistent message is important. If front line staff are adversarial, and executives are cooperative, the relationship is at risk. Identifying key personnel, such as a specialist regulator relations touch point can facilitate the maintenance of a consistent position; and
  • Maintaining Professionalism: Perceptions about influence and ‘industry capture’ can hurt both sides. Avoiding conflicts, and potential conflicts of interests, is vital. Attending industry workshops will generally be fine but be wary of co‑attendance at social or sporting events.

Following a potential breach, prepare for the worst

A significant incident of any nature (from a workplace death to a serious data breach) can result in intense and ongoing interactions between duty holder and regulator. Within the first hours and days after an incident, vital admissions, concessions and mistakes can occur if you are not prepared.

Knee‑jerk decisions made in the immediate aftermath of an incident can haunt duty holders in court proceedings years later.  While there can be a temptation to voluntarily disclose information during this period, it is important to be prepared for the worst, so that staff are armed with responses that will ultimately protect a duty holder if the unthinkable occurs.  Response protocols should be in place before an incident occurs.

Recognise that political solutions may not exist

The era of backroom deals and ministerial intervention is (almost) over. Anti-corruption watchdogs (woof) continue to stamp out corrupt deals. However, political solutions, even when entirely above board, are declining. Disputes between government entities do occur. Many governments have strict policies to avoid or limit intra-government litigation, however, at the same time regulators are gaining more and more independence and reporting to independent boards. This means that using the back channels to resolve breakdowns in regulatory relations is becoming more difficult, reinforcing the need for a pro‑active regulatory response plan.

Being proactive in planning for regulatory action, including by training staff and through the implementation of procedures and response plans, will be essential to minimising the risk of a bite in Australia’s new regulatory era.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions