Author: Nyman Gibson Miralis
Subject: ASIC’s Powers to Investigate White Collar Crime
Keywords: ASIC’s investigative powers, white collar crime, transnational assistance
The Australian Security and Investments Commission, commonly known as ASIC, regularly exercises its powers under the ASIC Act in investigating allegations of white collar crime. Whilst primarily responsible for regulating Australia’s corporate, market and financial sectors, the nature of the modern global economy requires ASIC to work transnationally with foreign agencies. This need has further arisen with the increasing use of virtual currency transactions, which may occur in the jurisdiction of foreign regulators. Therefore, ASIC takes an internationalist approach, engaging with international agencies to provide mutual assistance for their investigations.
What are some of ASIC’s investigative powers?
ASIC are empowered with a variety of compulsory information gathering powers to obtain relevant information and admissible evidence, should charges later be laid for suspected misconduct. Whilst limited measures may be exercised for surveillance, the scope of ASIC’s powers are widest within a formal investigation.
ASIC’s compulsory investigative powers mainly regard the gathering of relevant documents and compelling of relevant parties to attend examinations and provide reasonable assistance. If no good reason is provided for non-compliance, the courts may impose a penalty of 100 penalty units or imprisonment for two years or both.
What are ASIC’s powers relating to documents and information?
ASIC has a wide power to compel the production of both physical and electronic documents, should they not be provided voluntarily. A notice in writing will be issued stating the documents sought, time and place for production and basis on which they are required.
ASIC may also choose to inspect documents that must be kept under the Corporations Act. Whilst no written notice is necessary, ASIC is not entitled to possess the documents or make a copy in any way. However, an officer may then issue a notice to produce after inspection.
Finally, ASIC may require a person to disclose relevant information in their preliminary inquiries before a formal investigation is commenced. This is distinct from the power to require the attendance of an examination.
In the exercise of all three powers, information must be provided as requested, regardless of the potential for self-incrimination. However, if a valid claim of legal professional privilege is proved to apply, the notice to produce may be refused.
What are ASIC’s powers relating to examinations and assistance?
ASIC possesses the power to compel the attendance of people with knowledge of relevant information to recorded and sworn examinations. Upon receiving a notice of writing, examinees will be given reasonable time and opportunity to seek legal advice but will not be informed of the nature of questions to be asked. Whilst examinations are private and confidential to all parties, ASIC may disclose information to third parties or in open court if necessary within the investigation.
ASIC may also compel a person to provide reasonable assistance with an investigation, including the provision of passwords and keys to locked safes. This power is often used in conjunction with the ability to apply to courts for search warrants. In formal investigations, warrants may only be sought if approval has been given by a senior ASIC officer and a magistrate following a consideration of the available evidence. This power includes the ability to obtain stored telecommunications data from service providers but does not extend to intercepting telecommunications. ASIC will often work with the Police to execute search warrants and identify appropriate matters for investigation.
Like ASIC’s powers regarding documents, information must be provided, regardless of whether there is potential for self-incrimination. However, a valid claim of legal professional privilege may still be argued.
How does ASIC work with other agencies?
ASIC has continually extended its global reach, working co-operatively with foreign agencies in its investigation of white collar crime. In the past, the ASIC International Cooperation Requests team has made and received international requests not only for investigations but also compliance, surveillance and policy research systems.
Many of these foreign regulators and law enforcement agencies are signatories to international cooperation agreements; most significantly, the IOSCO Multilateral Memorandum of Understanding (MMoU). The MMoU primarily allows for the consultation, co-operation and exchange of information between regulatory enforcement agencies so that international standards are met. Australia’s ratification of the agreement was codified through the Mutual Assistance in Business Regulation Act 1992, allowing ASIC to exercise their powers to obtain documents, information or testimony to assist the investigations of foreign regulators.
ASIC also actively participates in many international key forums to further its international strategy. Australia is a member of the International Forum of Independent Audit Regulators which shares knowledge and strategies of the audit market environment. Furthermore, Australia participates in the Joint Forum as an IOSCO member, collectively dealing with issues within the banking, securities and insurance sectors.
ASIC has a wide range of powers, exercisable within investigations of potential white collar crime. In an increasingly “borderless” international economy, ASIC has worked in a system of mutual assistance with international agencies to achieve their regulatory objectives.
Nyman Gibson Miralis specialise in all aspects of white collar crime and corporate crime law, including laws concerning money laundering, fraud, tax offences and bribery of foreign public officials. If you require assistance, contact one of our expert criminal defence lawyers