Enforceable undertakings are an Australian invention. They are promises enforceable in court ‘offered’ by an individual or firm who has allegedly breached the law, and accepted by a regulator. The enforceable undertaking serves as a substitute for, or augmentation of, other regulatory enforcement methods such as civil, administrative, or even criminal action. In June 2009 Melbourne Law School and the Socio-Legal Research Centre, Griffith Law School jointly organised a roundtable at the Melbourne Law School for regulators with the power to accept enforceable undertakings to compare experiences. The purpose of this roundtable was to share insights and experience about how best to use the power to accept enforceable undertakings, and what issues need to be addressed in doing so. This working paper is a report of the discussion.Part 2 of the paper outlines the legislative provisions giving regulators the power to accept enforceable undertakings, and provide an overview of the number of undertakings accepted by each regulator. Part 3 introduces four major issues with the way regulators use enforceable undertakings, and how the regulators who participated in the roundtable respond to these issues. The issues are (1) the decision-making process for entering into enforceable undertakings, (2) the proper content of enforceable undertakings, (3) issues of accountability, transparency and inclusion of stakeholders in the negotiation and content of enforceable undertakings, and (4) evaluating the effectiveness of regulators’ use of enforceable undertakings. Part 4 contains a summary transcript of the discussion.
Johnstone, Richard, 2010,_ WP 71 - Enforceable undertakings in action: Report of a roundtable discussion with Australian regulators_, National Research Centre for OHS Regulation, Canberra