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Part I 1. Introduction 3 A. Competition, Competition Regulation and Enforcement 3 B. Regulation and Regulatory Compliance 5 1. Understanding Regulation 5 (a) What is Regulation? 5 (b) Conceptualising the Regulatory Process: Public and Private Interest Theories 6 2. Values and the Regulatory Process 7 3. A Public Law Approach 9 4. What Does it Mean to 'Secure Compliance'? 11 2. Competition Law and Policy 15 A. The Pursuit of Economic Efficiency Through Competitive Markets 15 B. Competition Regulation and Non-economic Goals 17 C. An Overview of Australian Competition Regulation 21 1. Why Australian Competition Law? 21 2. Australian Competition Regulation in Outline 23 D. Enforcement Discretion 26 3. Analysing Regulatory Implementation: A Principled Framework 29 A. Introduction 29 B. A Framework for Analysis: Regulatory Goals and Constitutional Values 29 1. Regulatory goals 30 (a) Efficiency 30 (b) Clarity and Predictability 33 (c) Flexibility, Responsiveness and Timeliness 34 (d) The Relationship Amongst Regulatory Goals 35 2. Constitutional Values 36 (a) Authorised by Law 37 (b) Certainty and Stability 38 (c) Accountability and Transparency 39 (d) Procedural Fairness or Due Process 41 (e) Proportionality, Consistency and Rationality 42 (f) The Relationship Amongst Constitutional Values: Rights in Regulatory Enforcement 43 3. The Relationship Between Regulatory Goals and Constitutional Values 49 C. General Themes 51 Part II 4. Quantifying Competition Law Penalties 59 A. Introduction 59 B. Theories of Penal Severity 61 1. Theories of Criminal Punishment 61 (a) The Deterrence Approach 63 (i) Penalties as Prices for Violations 64 (ii) The Injury to Others model ('Optimal Deterrence') 65 (iii) The Unlawful Gain Model ('Absolute Deterrence') 66 (iv) Enforcement Costs, Detection Rates, Risk Neutrality and Legal Error 66 (v) Some Strengths and Limitations of Deterrence-Based Theories 68 (b) The Desert Approach 72 (i) Desert as a Justification for Punishment 72 (ii) The Proportionality Principle 74 (iii) Strengths and Limitations of Desert-Based Theories 75 2. Regulatory Penalties and Penal Theory 77 (a) Moral Probity and Regulatory Offences 79 (b) Strict Liability and Regulatory Offences 83 (c) Hybrid Models and Regulatory Offences: Suggested Principles 85 C. Competition Law Penalties 90 1. The Australian Regulatory Framework 91 (a) The Deterrence Model 91 (b) The Desert Model 94 2. The Federal Court's Approach 96 D. Conclusion 101 5. Negotiated Penalty Settlements 105 A. Introduction 105 B. Bargaining in the Criminal and Regulatory Enforcement Process 107 1. Plea Bargaining in Criminal Proceedings 108 2. The Benefits of Plea Bargaining and Negotiated Penalty Settlements 109 3. Bargaining in Regulatory Enforcement: To Punish or Persuade? 111 4. Critiques of Plea Bargaining 114 (a) The Procedural Rights of the Accused May be Undermined 114 (b) Improper Pressure 115 (c) Inaccurate or Inappropriate Outcomes 115 (d) Invisibility 116 C. Negotiated Penalty Settlements and Procedural Fairness 117 1. Sanctions and Procedural Fairness 118 (a) Hybrid Sanctions and the Civil/Criminal Divide 119 (i) Why is the Sanctioned Conduct Considered 'Wrongful'? 120 (ii) What is the Social Purpose of the Law in Sanctioning the Proscribed Conduct? 122 (iii) What are the Consequences of the Sanction? 123 (b) Hybrid Sanctions and Procedural Fairness 125 2. Are Negotiated Penalty Settlements Procedurally Fair? 128 3. Negotiated Penalty Settlements: An Assessment 131 D. Safeguarding Settlements 131 1. The Enforcement Process and the Separation of Powers 132 2. Prosecutorial Ethics and Regulatory Enforcement 135 (a) Initiating Proceedings 138 (b) Charge Bargaining 139 (c) 'False' Confessions 140 (d) Penalty Agreements and Recommendations 141 (e) The Sentence Discount and Failed Negotiations 143 3. Judicial Oversight 144 (a) Penalty Agreements 146 (b) Admissions 146 (c) The Giving of Reasons 148 4. An Evaluation 149 E. Conclusion 151 6. Regulatory Bargaining and Administrative Settlements 155 A. Introduction 155 B. Regulatory Enforcement Tools, Techniques and Purposes 157 1. Regulatory Design and Enforcement Tools 158 2. Compliance Tools, Techniques and the Pyramid of Enforcement 160 (a) Regulatory Compliance Tools and Social Purpose 162 (i) Court Imposed Remedies and Social Purpose 163 (ii) Administrative Settlements and Social Purpose 165 (b) The Dynamic Enforcement Pyramid and Constitutional Values 167 3. Administrative Settlements, Responsive Regulation and Collaborative Compliance 170 C. Bargaining, Adjudication and the Rule of Law 174 1. Forms of Social Ordering: Bargaining and Adjudication 175 (a) Adjudica.ion 176 (b) Bargaining and Negotiation 177 2. Bargaining and the Rule of Law 179 3. Regulatory Bargaining Between State and Citizen 182 (a) Coercion and Consent 182 (b) Regulatory Bargaining and Constitutional Values 185 D. Conclusion 187 7. Administrative Undertakings in Australian Competition Law Enforcement 191 A. Introduction 191 B. Enforceable Undertakings and Legal Constraints 195 C. Remedial Undertakings 200 1. Types of Remedial Undertakings 200 2. An Evaluation of Remedial Undertakings 204 (a) Remedial Undertakings as Regulatory Sanctions 204 (b) Remedial Undertakings: Legal Principles and Constitutional Values 206 (i) Proper Purposes 206 (ii) Procedural Fairness and Proportionality 210 D. Merger Undertakings 214 1. The History of Merger Undertakings 215 2. How Have Merger Undertakings Been Used? 216 (a) Informal Clearance 216 (b) The Nature and Content of Merger Undertakings 217 3. The Benefits of Merger Undertakings 218 4. Criticisms of Merger Undertakings 221 (a) Ineffective 221 (b) Unfairness 223 (c) Excessive Discretion 226 5. An Evaluation of Merger Undertakings 231 (a) US Antitrust Law 233Library of Congress Subject Headings for this publication: Antitrust law Australia, Restraint of trade Australia, Competition, Unfair Australia