Dr Christine Parker is an Associate Professor and Reader in the Law Faculty at University of Melbourne. She is currently also an Australian Research Council Australian Research Fellow. She has previously been a Research Fellow at the Regulatory Institutions Network, Australian National University, and Senior Lecturer in the Law Faculty, University of New South Wales. She has researched and taught on regulatory enforcement, business compliance and ethics, and lawyers' ethics and regulation for more than ten years. Dr Parker has conducted extensive empirical research and published widely on internal corporate compliance systems and on law and regulatory policy for encouraging corporate compliance. Her major book on this topic, The Open Corporation: Self-Regulation and Corporate Citizenship, was published by Cambridge University Press in 2002. Her first book evaluated the regulatory and self-regulatory regimes governing the legal profession (Just Lawyers, 1999, OUP), and her latest book on lawyers’ ethics (Inside Lawyers’ Ethics co-authored with Associate Professor Adrian Evans) was published by Cambridge University Press in early 2007. Dr Parker’s consultancies on designing regulatory enforcement strategies to maximise compliance have included providing a major report for the Regulatory Reform Project of the Public Management Service of the OECD on the state of regulatory compliance, and assisting the New South Wales Independent Pricing and Regulatory Tribunal to design a compliance monitoring system for electricity, gas and water retailers with the introduction of full retail competition. She is also researching ‘meta-regulation’, particularly techniques for regulators and businesses to evaluate and audit the quality and effectiveness of corporate compliance programs.
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The Impact of ACCC Enforcement Action: Evaluating the Explanatory and Normative Power of Responsive Regulation and Responsive Law
I am currently working on a major ARC funded project: The Impact of ACCC Enforcement Action: Evaluating the Explanatory and Normative Power of Responsive Regulation and Responsive Law. This project is in two parts:
1. Empirical Explanation of Compliance Behaviour
Empirical testing of major theories of how businesses respond to regulatory enforcement and why they do or do not comply with the law in collaboration with Dr Vibeke Lehmann Nielsen. This part of the project uses data collected in the ACCC Enforcement and Compliance Survey of nearly 1000 larger businesses in Australia, as well as qualitative interviews with ACCC staff, trade practices lawyers and business people. It was originally begun with the support of the Centre for Competition and Consumer Policy, Australian National University, and is now continued with Australian Research Council Funding.
Our findings include more practical policy-oriented conclusions about how businesses have responded to the Australian Competition and Consumer Commission's enforcement of Australia's Trade Practices Act:
- We have examined the extent to which Australian businesses have implemented trade practices compliance systems - and found the results to be patchy and disappointing: Christine Parker & Vibeke Nielsen 'Do Businesses Take Compliance Seriously? An Empirical Study of Implementation of Trade Practices Compliance Systems in Australia' (2006) Melbourne University Law Review, 30: 441-494.
- We have examined businesses' perceptions of the deterrence, strategic sophistication and justice of the ACCC and how this influences their attitudes towards complying with the law: Christine Parker & Vibeke Nielsen, 'What do Australian Businesses Think of the ACCC and Does it Matter?' (2007) Federal Law Review, 35, 187-239.
- We have tested the extent to which businesses fear the deterrence of the penalties available under the Trade Practices Act and ACCC enforcement, and what factors explain their different perceptions of deterrence: Christine Parker & Vibeke Nielsen, 'How Much Does it Hurt? How Australian Businesses Think About the Costs and Gains of Compliance with the Trade Practices Act' (forthcoming) Melbourne University Law Review.
- Michelle Sharpe and Christine Parker also examined the ACCC's history of enforcement of the unconscionable conduct provisions of the Trade Practices Act and made some conclusions about how enforcement in this area might be improved: Our original working paper is here. The results were later published in Michelle Sharpe & Christine Parker, 'A Bang or a Whimper?The Impact of ACCC Unconscionable Conduct Enforcement' (2007) Trade Practices Law Journal 15(3):139-162.
- Christine Parker with Paul Ainsworth and Natalie Stepanenko also used qualitative interviews and case study analysis to examine the reasons for the success of the ACCC in cartel cases and lessons for the future in another report.
We have also done empirical work testing more fundamental theories of why businesses do and do not respond compliantly to the law, and what difference various enforcement strategies and compliance behaviours make on the basis of our qualitative and quantitative data collection including:
- Christine Parker, 'The Compliance Trap: The Moral Message in Responsive Regulatory Enforcement' (2006) Law & Society Review 40(3):591-622.
- Christine Parker & Vibeke Nielsen, 'Corporate Compliance Systems: Could They Make Any Difference?' (forthcoming) Administration & Society.
- Vibeke Nielsen and Christine Parker, 'To What Extent do Third Parties Influence Business Compliance Management Behaviour? (forthcoming) Journal of Law & Society.
2. Theoretical Implications
The second part of the project will examine the implications of what empirical and policy-oriented research on regulatory compliance and regulatory enforcement means for how we should conceptualise law more responsively and pluralistically for an age of regulatory capitalism (see the work of John Braithwaite and David Levi-Faur).
- My first paper on this aspect of the project looks at the competing but complementary roles of Selznick's repsonsive law and Teubner's reflexive law in providing a conceptual basis for the way regulation scholars have recently expanded the concept of regulation to cover informal and non-state based means of regulation: Christine Parker, 'The Pluralization of Regulation' (2008) Theoretical Inquiries in Law 9(2): 348-369.
Ethical Infrastructure in Incorporated and Corporatised Legal Practices
Previous research has demonstrated that the commercialism and culture of many law firms can contribute to ethical breaches and reduce lawyers' capacity even to 'see' ethical issues. Since the organisational (law firm) context of legal practice has an influence on unethical behaviour, some scholars have suggested that law firms should be encouraged or required to implement 'ethical infrastructures' , that is organisational policies, procedures, incentives and cultures that promote ethical discussions and ethical practice (see for example the work of Professors Ted Schneyer and Elizabeth Chambliss).
I and my colleagues - Assoc Prof Adrian Evans, Prof Reid Mortensen, Dr Linda Haller and Ms Suzanne Le Mire are working with the New South Wales, Queensland and Victorian Legal Services Commissioners to prepare a research project to examine and evaluate the implementation of ethical infrastructure in corporate and corporatised law firms in Australia. We will also be comparing our findings with similar research to be done in the US and the UK: Our first paper from this project explores the need and potential for Australian law firms to intentionally seek to design ethical infrastructures counteract pressures for misbehaviour and positively promote ethical behaviour and discussion:
Australia is the first place in the world to allow law firms to incorporate as ordinary companies. The UK will soon be following. Some commentators fear that with the advent of incorporated law firms, and now even listed law firms, profit-orientation and other commercial pressures will have an even greater adverse impact on ethical practice.In Australia incorporated legal practices are specifically required by legislation to have 'appropriate management systems' in place to manage their ethical and professional obligations. This is a form of ethical infrastructure.
As part of our larger project, I have written and presented two papers looking at the ethical pitfalls and potentials of the introduction of incorporated legal practices in Australia. Both papers argue that the regulatory requirement that incorporated legal practices in Australia implement ethical infrastructure in the form of appropriate management systems is a very promising way of improving ethical behaviour in law firms, despite the obvious dangers of increased commercialism among incorporated legal firms:
I am currently working with the New South Wales Office of the Legal Services Commissioner to analyse data looking at the impact of the appropriate management systems requirement for incorporated legal practices on complaints rates. These data indicate that there is a substantial drop in complaints with the implementation of appropriate management systems.
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