The constitutionality of ASIC's power to issue infringement notices : a critical appraisal

Currently there appears to be a trend to increasingly expand the power of regulators by limiting the availability of independent review of their determinations. Consequently, it is crucial that the powers exercised by administrative bodies, such as the Australian Securities and Investments Commission (ASIC), are closely monitored to guard against an abuse of power and the undermining of the rule of law. Unless the powers of such regulators are carefully scrutinised there is a risk that the separation of powers doctrine will be further blurred, making it increasingly difficult to hold the administrative arm accountable for its decisions. ASIC's power to issue infringement notices under Part 9.4AA of the Corporations Act 2001 (Cth) (the Act) will be analysed within the context of the Commonwealth's doctrine of separation of powers and the constitutional limitations thereby imposed on commonwealth administrative bodies. An argument will be formulated concluding that empowering ASIC to issue infringement notices is an unconstitutional exercise of commonwealth judicial power by an administrative body. In reaching this conclusion, the High Court's definition of the criteria necessary to constitute an exercise of commonwealth judicial power, which is necessarily limited by the constitutional separation of powers, will be applied to infringement notices under Part 9.4AA of the Act. From such analysis it will be concluded that the legislative scheme should either be repealed or at least substantially amended to limit ASIC's powers to an administrative function.