Expansion of the powers of the Administrative Appeals Tribunal in relation to enforceable undertakings

Enforceable undertaking is one of the sanctions available to the Australian Securities and Investments Commission (ASIC). This penalty is considered as a quasi-administrative penalty by the Australian Law Reform Commission and it permits the corporate regulator to reach desired solutions that cannot be achieved by a court action. ASIC is the only authority that can decide to accept or reject entering into an undertaking and its decisions in that regard are not reviewable. This article looks at two decisions of the Administrative Appeals Tribunal (Donald v ASIC [2001] AATA 622 and Daws v ASIC [2006] AATA 321) forcing ASIC to enter into certain undertakings when the corporate regulator clearly rejected and refused to use this remedy.