The Australian Securities and Investments Commission (ASIC) is a regulatory body responsible for the oversight of corporate activity and regulatory compliance in Australia.
ASIC has a wide range of powers at is disposal to gather information and document under compulsion.
When you receive a notice issued by ASIC, it is crucial that you understand what obligations you are under, and the extent of those obligations. Our lawyers have extensive regulatory law experience and routinely act for businesses and individuals the subject of investigations and prosecutions by the Australian Securities and Investment Commission (ASIC), or those to whom ASIC has issued a notice compelling production of certain documents or participation in an examination.
Below, we summarise section 19, section 30 and section 33 Notices which are commonly issued by ASIC.
Section 19 Notices – ASIC’s Power to compel an examination / interview
Do I have to comply?
ASIC can issue a notice under section 19 of the Australian Securities and Investment Commission Act 2001 (ASIC Act) requiring a person to provide it with reasonable assistance in connection with an investigation and require that person to appear at ASIC to answer questions, on oath or affirmation. ASIC can do this if it has reasonable grounds to believe that a person is able to offer information to aid a current ASIC investigation. If you are issued with a section 19 Notice, you must attend the interview and answer the questions asked of you. During section 19 examinations, it is not a reasonable excuse to refuse to answer a question or give information or produce a document on the basis that doing so might tend to incriminate you or expose you to liability for a penalty.
What are my rights?
Can I be represented during the section 19 examination?
What happens after the section 19 examination?
Non-compliance with a section 19 Notice
General Advice
Section 30 and section 33 Notices – ASIC’s power to compel production of books
Two types of notices are generally used by ASIC to compel production of “books”, meaning any record of information (including electronic records). These are section 30 Notices and section 33 Notices and can be issued when ASIC thinks it necessary for the due administration of the corporations legislation, where is has reason to suspect that there may have been:
A contravention of the Corporations Act 2001 or ASIC Act;
A contravention of a law of the Commonwealth, State or Territory that concerns the management or affairs of a body corporate or managed investment scheme, or involves fraud or dishonesty relating to a body corporate or managed investment scheme or financial products.
What is a Section 30 Notice?
A section 30 Notice may be issued to a person, corporation or to an eligible person in relation to a body corporate. An eligible person includes a current or former officer of a corporation or an employee, agent, solicitor, banker or auditor of a body corporate. ASIC can compel the recipient (being you, a company or responsibility entity) to produce specified books relating to the affairs of a body corporate.
What is a section 33 Notice?
Do I have to comply with a section 30 Notice and/or section 33 Notice?
What should you do if you receive a section 30 or section 33 Notice?
Section 30 and section 33 Notices should be considered carefully and treated seriously given it is an offence to intentionally or recklessly fail to comply with a notice.
If you are served with a section 30 or section 33 Notice, we recommend contacting BlackBay Lawyers for advice as soon as possible in order that consideration can be given to whether you are being investigated, the scope and any need to seek clarification or an extension of time and to making any claim for legal professional privilege.
BlackBay Lawyers also defend clients who have been charged by ASIC (and other regulatory authorities) with criminal offenses related to corporate or commercial misconduct, such as fraud or other dishonesty. Our team can help you obtain direct and effective advice if you have any concerns about a potential or actual ASIC investigation or receive any section 19 Notice, section 30 Notice or a section 33 Notice. We can help you navigate the ASIC process and protect your rights.
Contact BlackBay Lawyers on hello@blackbaylawyers.com or call (02) 0889 9100.
