The Australian Securities and Investments Commission (ASIC) investigates allegations of white collar crime, prosecuting some minor criminal matters itself and referring more serious matters to the Commonwealth Director of Public Prosecutions (CDPP).
There are potential benefits of cooperating with ASIC. This article explores the key considerations as outlined by ASIC.
Benefits of cooperating with ASIC
Benefits afforded by ASIC and the CDPP
If you assist in a criminal investigation, ASIC will factor in your cooperation when deciding whether or not to pursue a criminal prosecution or refer the case to the CDPP.
Your cooperation will be taken into account when determining which charges to file and what penalties to request in minor cases. ASIC will also inform the court about the nature, extent, and timing of your cooperation.
In more serious cases, ASIC will work with the CDPP to evaluate your cooperation and decide what information should be presented to the court. The CDPP also considers your cooperation when making prosecution decisions.
Charge negotiations
Cooperation may lead to charge negotiations, which are conducted by the CDPP in consultation with ASIC after charges have been laid. Such negotiations may result in the defendant pleading guilty to fewer than all of the charges they are facing, or to a lesser charge or charges.
Immunity
ASIC can grant immunity from criminal proceedings to an individual who:
- Thinks they may have contravened, with at least one other person, a provision in Part 7.10 of the Corporations Act. Relevant misconduct includes insider trading and market manipulation.
- Wishes to apply for immunity from criminal proceedings.
- Intends to cooperate with ASIC in relation to its investigation and any court proceedings regarding the contravention.
Immunity may only be granted to individuals (not corporations) and does not apply to administrative or compensation proceedings.
Benefits afforded by the Commonwealth
The law acknowledges that individuals who cooperate with law enforcement, including by admitting to criminal offences, are entitled to benefits from such cooperation.
For instance, during the sentencing of a person for a Commonwealth law offence, a court must consider “the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or of other offences” (see section 16A(2)(h) of the Crimes Act 1914).
Additionally, the law regarding sentencing allows for substantial reductions in penalties when an offender pleads guilty early or cooperates with authorities, such as by promising to provide evidence in the trial of other defendants.
How to cooperate with ASIC
You can cooperate with ASIC by:
- Voluntarily self-reporting any misconduct.
- Honestly and completely disclosing all information relevant to the misconduct.
- Providing voluntary assistance during the investigation.
- Providing evidence in a form that can be used in court.
- Pleading guilty to or admitting any misconduct you committed or were involved in committing.
Simply meeting your legal obligations or producing documents after receiving statutory notices from ASIC is not equivalent to cooperation.
Key takeaways
Cooperating with ASIC can lead to a range of benefits including favourable considerations during sentencing, charge negotiations, and immunity. Commonwealth law also acknowledges that individuals who cooperate with law enforcement are entitled to certain benefits. You need to be proactive to be seen as having cooperated with ASIC, such as voluntarily self-reporting misconduct.
