An Analysis of Publicity Orders under the Australian Securities and Investments Commission Act 2001

Publicity orders (POs) typically require the public disclosure of information about a person's or company's wrongdoing and about penalties imposed by the court. POs are extensively used by some regulators, including the Australian Competition and Consumer Commission but not, until recently, by the Australian Securities and Investments Commission (ASIC). ASIC's reluctance to use POs changed in 2021, with a series of cases in which courts imposed "non-punitive" POs on defendants under s 12GLB of the Australian Securities and Investments Commission Act 2001 (Cth). "Punitive" POs are also available under s 12GLA. The authors examine the use of POs under the ASIC Act, including the distinction between punitive and non-punitive POs. The authors also consider the types of punishment imposed by punitive POs - financial harm and reputational damage - as well as how the form and content of information required to be disclosed by a PO relates to this punitive purpose.