ASIC Lawyers
Have you been contacted by ASIC?
The Australian Securities and Investments Commission (ASIC) may have contacted you about their investigation of a suspected breach of financial services laws or of the Corporations Act. Early advice and legal representation for potential fraud or misconduct in relation to the financial markets can affect the outcome of your case.
For expert legal advice, email or text us using the links below, or on (07) 3012 6531.
What is ASIC?
ASIC is an independent government body with the primary responsibility of regulating companies and businesses within Australia. It regulates corporations, markets, financial services, and consumer credit services.
Their role is to:
Maintain, facilitate, and improve the performance of the financial system and entities in it with due diligence
Promote confident and informed participation by investors and consumers in the financial system
Administer the law effectively and with minimal procedural requirements
Quickly and efficiently receive, process, and store information they receive
Make information about companies and other bodies available to the public as soon as practicable
Take action to enforce and give effect to the law
Supply guidance for breach reporting obligations
As a corporate, market, and financial services regulator, the ASIC also has the power to administer criminal and civil penalties for misconduct in the financial sector. Part of their enforcement role gives them power to:
Investigate suspected breaches
Issue infringement notices
Seek civil penalties
Ban individual activity
Prosecute offenders
Areas of ASIC investigations
Reports of misconduct can come to ASIC’s attention in various ways including: reports from the public, through their monitoring and surveillance work, or from information from other agencies.
Depending on the allegations, ASIC will select which of those reports to investigate and, if appropriate, to prosecute.
The enforcement action which ASIC can take includes:
Criminal proceedings
Civil proceedings
Administrative and other enforcement action
Most clients come to us for advice if ASIC is considering criminal charges against them.
ASIC will pursue criminal proceedings for the most serious and harmful wrongdoing, to help deter similar misconduct in the future. The misconduct which is viewed especially seriously usually involves dishonest, intention, or highly reckless acts.
Criminal law outcomes can include a term of imprisonment, a criminal conviction, and even impact someone’s ability to perform corporate duties such as being a company director.
Criminal proceedings require a higher standard of proof than civil proceedings. Criminal proceedings require proof beyond a reasonable doubt. ASIC will consider the evidence they have gathered to determine whether it is sufficient enough to meet the high standard of proof before a criminal court. ASIC may prosecute certain minor regulatory offences and refer more serious criminal law cases to the Commonwealth Director of Public Prosecutions (CDPP).
What if you are involved in an ASIC investigation?
It is important to seek advice from our team of ASIC lawyers as early as possible during an ASIC investigation to ensure that your rights are protected.
ASIC has a range of compulsory information-gathering powers.
ASIC has surveillance powers which can be undertaken on companies, partnerships, licensed or unlicensed entities, and individuals, and also on disclosure documents. The powers can be used to inspect documents, compel the production of documents, or to disclose information. The purpose is to test and ensure compliance with the law.
If ASIC suspects there has been a contravention of the law, they can undertake a formal investigation. ASIC’s compulsory information gathering powers give them the ability to conduct a detailed examination and request reasonable assistance which includes:
Power to require the production of documents
Power to inspect documents
Power to require disclosure of information
Power to require you to attend an examination
Power to compel assistance with an investigation
Power to apply for a search warrant
If you have received a notice from ASIC seeking to exercise any of the above powers against you, you should contact our ASIC lawyers immediately.
Specifically, we have assisted clients when ASIC has issued them a notice requesting that they attend an examination and answer questions on oath or affirmation. The notice will state a time and place for you to attend for the examination but you will have a reasonable amount of time before the examination date to seek legal advice.
ASIC does not need to inform you of the nature of the questions to be asked. Therefore, the notice will be general in nature about the subject matter under investigation. This is why it is crucial to speak to an experienced criminal lawyer who has previously worked on a relevant criminal case so that you understand your rights. We have attended examinations with clients in the past and are experienced in providing personal advice on what to expect at examination.
Failure to comply with Australia’s corporate, market, and finance regulator could result in a criminal offence.
Contact us early to speak to a senior criminal defence lawyer who can provide expert advice on ASIC investigations.
Common Questions
WHAT HAPPENS IF I FAIL TO COMPLY WITH A NOTICE REQUIRING APPEARANCE FOR EXAMINATION FROM ASIC?
If ASIC, on reasonable grounds, suspects or believes that you can give information about an investigation, then they can give you a written notice requiring you to:
Give reasonable assistance to ASIC in the investigation; and
To appear before ASIC to answer questions
The notice will include the general nature of the investigation. It is an offence if you do not comply with the notice. The maximum penalty for not complying with the notice can include imprisonment.
CAN A LAWYER ATTEND THE EXAMINATION WITH ME?
Yes. You are entitled to have a lawyer attend the examination at ASIC with you. As your lawyer, we can speak to the inspector on your behalf and ask you further questions to clarify any answers you may have given ASIC. We will also ensure that the process and questioning is fair and within the scope of ASIC’s powers. The examination is private. It is not open to the public.
DO I HAVE TO ANSWER QUESTIONS AT THE EXAMINATION?
Yes. If ASIC has issued a valid notice to you, then you must attend the examination and answer questions. This includes answering questions which may lead to admitting to an offence.
However, before doing so, you have the right to claim that doing so might incriminate you. If you make this claim, then the answer may not be used as evidence against you in future criminal proceedings or proceedings where you are liable for a penalty.
Before you answer any questions, you should seek legal advice about the validity of the notice. It is important that you are only answering questions within the topic of investigation stated in the notice. ASIC does not have power to ask you any questions. It must be within the scope identified in the notice.
Therefore it is very important to seek legal advice from an ASIC lawyer before answering any questions.
WHAT CAN HAPPEN AFTER THE EXAMINATION WITH ASIC?
If ASIC decides that there may have been an offence committed against the corporation's law and there ought to be a prosecution for the offence, then ASIC may start criminal proceedings. ASIC can also start civil proceedings to recover monies for any fraud or other misconduct relating to their investigation or seek to recover any property from you. You can be issued with notices for proceedings immediately after the examination, or ASIC may take time to further investigate before making a decision. We can remain in contact with ASIC to follow-up the progress of their investigation and the result.
