Responsive to Whom? A Critical Analysis of Risk-Based and Responsive Regulation and its Application to Australian Pharmaceutical Industry

Miss Rhiannon Bandiera1
1Flinders University, Adelaide, Australia

For close to two decades, prescription and non-prescription medicine regulation in Australia has encompassed elements of both risk-based and responsive regulation. These theories have been pivotal to the formation of a regulatory regime, as well as an entire field of academic scholarship, which has emphasised working cooperatively with regulated entities when non-compliance occurs, and using deterrents only as a last resort when cooperation fails. However, data indicates that rates of non-compliance among Australian prescription and non-prescription medicines industry are greatest in those aspects of the regime which are most reliant on persuasive techniques. In the complementary medicines sector, which largely operates under a self-regulatory arrangement, as many as 90% of products have been found to contain quality, safety, and efficacy issues. This finding led the Australian National Audit Office (2011, p. 17) to conclude that regulation in this space ‘has been of limited effectiveness’.

This paper argues that an emphasis on compliance-based regulatory techniques, like risk-based and responsive regulation, has contributed to the formation of a regulatory regime congruent with neoliberal rationalities of government that aim to limit forms of market intervention by non-market forces contrary to the interests of capital. This paper finds that the limited capacity of the regulator to act on non-compliance, and lack of opportunities for meaningful democratic participation within the regulatory regime by other non-market players, is a direct consequence of this hybrid regulatory framework, which not only suffers from issues of incompatibility, but renders non-market forces less able to intervene in the regime.


Biography:

Rhiannon Bandiera is an emerging early career researcher in Criminology at Flinders University, South Australia. Rhiannon’s research concerns the latest emerging issues within the fields of organised and white-collar crime. She is a specialist in legal prescription and non-prescription drug crime, from pharmaceutical diversion and counterfeiting, to manufacturer and consumer fraud. She has authored publications in the Australian and New Zealand Journal of Criminology and Australia’s leading criminology textbook Crime and Justice: A Guide to Criminology. She has First Class Honours, a Chancellor’s Letter of Commendation and three Dean’s Certificates from Flinders University. She was also the runner-up in the 2011 ANZSOC Student Essay Prize.

 

Strict liability for corporations involved in private sector corruption: a tool to reshape a culture of corporate misconduct?

Dr Hannah Harris1
1Centre for Law Markets and Regulation, University Of New South Wales, Sydney, Australia

This paper explores a possible extension of strict liability for corporations in cases of private sector corruption. Such an extension may be one tool to combat the “culture of corruption” being exposed by Australia’s Banking Royal Commission. Australia has taken steps to strengthening foreign bribery laws; there has been less interest in addressing domestic bribery, particularly in the private sector. This paper suggests that the rationale for targeting public sector corruption and foreign bribery can be applied domestically to the private sector; that harsh penalties for corrupt activity are only one aspect of a sound anti-corruption approach; and that extending strict liability to corporations for private sector corruption may help reshape corporate culture. The paper first outlines the approach to criminalisation of private sector bribery in Australia, comparing this approach to criminalisation of public sector corruption and foreign bribery. Australian law is then compared to law in foreign jurisdictions, including the UK, and discussed in the context of international trends. The paper discusses the rationale for strict liability in cases of private sector bribery, addressing the as yet under-explored possibility of applying strict liability to passive bribery in the private sphere. The paper concludes by suggesting that expansion of Australian law to cover strict liability for private sector corruption is timely. The move may incentivise corporations to shift cultural norms and promote stronger ethical standards for corporate conduct. Such an incentive is necessary to protect against the social harms of corruption, and also to safeguard market efficiency and economic stability.


Biography:

Dr Hannah Harris is a Research Fellow at the Centre for Law Markets and Regulation. Her research area is transnational law and financial crime, with a focus on bribery and corruption.

Before joining the Centre for Law Markets and Regulation, Hannah was a Senior Research Analyst with the Capital Markets Cooperative Research Centre.

Hannah’s book: The Global Anti-Corruption Regime – The case of Papua New Guinea (Routledge, In Press) documents the evolution of a global regime to combat corrupt activity, highlighting the challenges faced in implementing and enforcing this regime. The interplay between legal, social, political and economic dynamics is at the heart of Hannah’s approach to legal research.

A key theme in Hannah’s research is the way in which power dynamics and diverse values and interests shape regulatory regimes and impact the effectiveness of these regimes across diverse jurisdictions.

Hannah’s focus on corrupt conduct emphasises its role in facilitating many other forms of transnational crime. Her work explores additional and alternative approaches to targeting corruption and related activities, beyond criminalisation.

 

Understanding and responding to criminal conduct in organisations by senior management

Russell Smith1
1NA, Kyneton, Australia

This paper considers the problem of criminal conduct perpetrated by chief executives and senior managers in public and private sector organisations. Recent reports have seen various types of crime alleged against heads of corporations, senior government officials, professional advisers and managers of non-profit bodies – for personal financial gain, for organisational purposes (such as bolstering failing businesses, concealing internal misconduct, or protecting reputations), or for personal gratification, particularly of a sexual nature. After presenting some illustrative data on the nature of the problem, consideration is given to understanding why otherwise reputable individuals behave criminally, and how they seek to justify their conduct. It is concluded that organisational prevention and response strategies may be better able to achieve general and specific deterrent effects than relying solely on criminal justice responses.


Biography:
Dr Russell G Smith has qualifications in law, psychology and criminology from the University of Melbourne and a PhD from King’s College London. He practised as a lawyer in Melbourne in the 1980s prior to taking up a lectureship in criminology at the University of Melbourne in 1990. He then accepted a research position at the Australian Institute of Criminology where he is now Principal Criminologist. He has published extensively on aspects of fraud and corruption control, cybercrime and professional regulation and is a Fellow and former President of the Australian and New Zealand Society of Criminology.

Encountering corporate harms: doing (criminal) justice?

Liz Campbell1
1Monash Law School, Monash University  , Clayton, Australia

In this paper I examine recent legal mechanisms introduced in an effort to respond more adequately to corporate harms and wrongdoing, and assess the extent to which they can be seen to be just or justice-enhancing in process and outcome.

Drawing on the experience in the UK as well as the Australian federal context, I consider how deferred prosecution agreements in particular and other preventive measures are relied on increasingly, rather than contested criminal trials of corporate actors.

I explore whether and how justice in the context of corporate crime can be achieved through non-criminal law measures – I ask (why) do prosecutions of corporate actors matter, and what does the move away from the orthodox scheme of criminal law mean for the criminal law itself.


Biography:
Liz Campbell joined Monash University in August 2018 as the inaugural McNiff Chair in Criminal Jurisprudence, following time as professor at Durham University.  She is adjunct professor at Queensland University of Technology School of Justice, and a member of the UK Home Office Biometrics and Forensics Ethics Group.

Her research is socio-legal, and focuses on responses to corruption, organised and organisational crime, as well as biometric evidence. Her work has been funded by Research Council UK; Arts and Humanities Research Council; Law Foundation of New Zealand; Fulbright Commission; Modern Law Review; and Carnegie Trust.

Procedural justice and the compliance of betting-motivated corruption policies in two Australian sports

Reynald Lastra1
1Griffith Criminology Institute, Mt Gravatt, Australia

In 2015, Reynald received First Class Honours for his dissertation, examining the “Impact of sports betting on the integrity of Australian sport”. In 2016 he commenced his PhD candidature and continued exploring the prevention and management of betting-motivated corruption in Australian sport.

Increasingly, with the rapid growth of online betting, betting-motivated corruption (i.e. match-fixing and the misuse of inside information) is a key issue for sport governing bodies. Suspected cases of betting-motivated corruption have affected a wide range of sports worldwide, prompting sport governing bodies to take proactive steps towards its prevention. A key policy adopted at both the national and international levels across a range of sports is the requirement to report any suspected breaches of these policies. However, we have a limited understanding of the factors that promote the willingness of athletes and support staff to report suspected breaches. The current study explores the perceptions of procedural justice (PJ) among athletes and support staff. The concept of PJ—widely researched in the policing field—suggests that if people perceive an authority (e.g. police) to demonstrate trust, respect, neutrality and voice, then they are more likely to comply. Using survey data from athletes and support staff in two Australian sports, this study examines whether their perceptions of the PJ of their sport governing body’s actions is related to their reported willingness to comply with betting-motivated corruption policies. The results have implications for sport governing bodies looking to enhance their current prevention strategies. Furthermore, the study provides a different perspective towards achieving compliance of betting-motivated corruption policies, providing a platform for future research to explore procedural justice within the sporting context.


Biography:
Reynald Lastra is a doctoral candidate in the School of Criminology and Criminal Justice at Griffith University and a post-graduate research scholar with the Queensland Academy of Sport’s Sport Performance Innovation and Knowledge Excellence unit.

 

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