The regulation of market manipulation in australia: a historical comparative perspective

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4 Concluding remarks

As highlighted above,179 it is noteworthy that the prohibition of market manipulation was introduced relatively early in both South Africa and Australia. For instance, market manipulation has been discouraged under common law in both South Africa180 and Australia.181 It is also interesting to note that relatively similar enforcement approaches182 are employed to combat market manipulation in both South Africa and Australia.183 Moreover, relatively similar types of market manipulation are statutorily prohibited in both jurisdictions.184 However, notwithstanding these commendable efforts, some flaws are still present in the current South African and Australian market manipulation prohibition. For example, the available criminal penalties for market manipulation are still not sufficient of a deterrent for the purposes of increasing the curbing of market manipulation activities in Australia and South Africa.185 Consequently, it is submitted that the Corporations Act and the Financial Markets Act should be amended in order to enact higher separate and distinct maximum market manipulation criminal penalties for both individuals and juristic persons.186 It is further recommended that the Commonwealth DPP and the DPP should continue to co-operate with the ASIC and the FSB respectively in order to consistently enhance the criminal prosecution of market manipulation cases in Australia and South Africa.187 It is also submitted, notwithstanding the purported paradigm shift from the old civil penalty regime188 to administrative penalties for market abuse in South Africa, that civil, criminal and administrative penalties should be expressly extended to both insider trading and market manipulation under the Financial Markets Act.189

It is also submitted that the Financial Markets Act should be amended in line with the Australian approach190 in order to enact provisions that expressly extend the scope of application of its market manipulation prohibition to other related dishonest conduct such as high frequency trading, front running, short selling and market rigging. In addition, it is hoped that the Financial Markets Act will be amended to provide an adequate statutory definition of the concept of market manipulation involving all the elements of this offence as well as the various types of market manipulation practices, to enhance the combating of such practices in South Africa.191 Lastly, it is recommended that market manipulation should be statutorily treated as an indictable offence for deterrence purposes and to enhance its prosecution in South Africa.

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