Stay up to date...

QUESTION ON NOTICE

Question:

14 November 2022

1. When ASIC decides to commence an official investigation on a corporate entity or individual persons who within ASIC becomes aware of the investigation and the company and/or people who are the target of that investigation? 2. Are ASIC staff outside the Office of Enforcement able to find out who is being officially investigated by ASIC? 3. Does ASIC ever inform the Department of the Treasury about active official investigations and who are the subject of them? 4. Does ASIC ever inform the Treasurer, the Assistant Treasurer, or any other Cabinet Minister about what official investigations are being undertaking by ASIC and who are subject of those investigations? If so, when does ASIC make these disclosures and how does ASIC exercise its discretion? 5. Is the Treasurer or the Assistant Treasurer able to ask ASIC who is under official investigation? If so, what are the procedures of how such requests are made and managed? 6. If ASIC becomes aware that a Federal Parliamentarian has either a public or private relationship with a corporate entity or individuals under official investigation, what does ASIC do in this circumstance? Are there any operational procedures? Does ASIC’s operational procedures in this regard change if the Federal Parliamentarian is a Cabinet Minister? 7. Under section 14 of the ASIC Act, the Treasurer has the legal power to instruct ASIC to commence an investigation. Conversely, does the Treasurer (or other Cabinet Minister such as the Prime Minister) have the power to instruct ASIC to shut down an official investigation? If so, where is this legal power and how would the Treasurer exercise this power? 8. Who within ASIC has the operational power to close an official investigation? Is it: a. The senior investigator? b. The senior manager? c. The executive leaders within the Office of Enforcement? d. ASIC’s Enforcement Committee (which includes ASIC’s Deputy Chair)? e. The ASIC Chairman? 9. Has a Federal Parliament ever been subjected to a section 19 examination by ASIC? On how many occasions has this occurred?

Answer:

Question Number: 68
PDR Number: SBE068
Date Submitted: 14/11/2022
Department or Body: Australian Securities and Investment Commission

1. ASIC staff are generally permitted to access information about ASIC investigations on a ‘need to know’ basis for the proper and efficient performance of their duties unless information about a particular matter has been restricted through system access controls (i.e. the documents are locked down), for example, because it relates to market sensitive information. Staff members are subject to various statutory provisions to properly use confidential information they obtain during their employment including under section 127 of the Australian Securities and Investments Commission Act 2001 (ASIC Act) (“Confidentiality”), section 28 of the Public Governance, Performance and Accountability Act 2013 (“Duty in relation to use of information”), Australian Privacy Principle 6 of the Privacy Act 1988 (“Use or disclosure of personal information”) and Division 122 of the Criminal Code Act 1995 which sets out offences for the unauthorised use or disclosure of information obtained by current and former Commonwealth officers.

2. Please refer to the answer to Question 1. It may be necessary for staff outside of the Office of the Enforcement to be aware of whether a person or entity they are interacting with as part of their regulatory work is under investigation. A failure to share this information could result in the investigation or subsequent enforcement action being prejudiced.

3. ASIC is an independent Commonwealth agency and only shares confidential information with Government or other Government agencies where it is appropriate to do so. ASIC’s ability to share confidential information about an investigation with other persons is governed by various legislation, including section 127 of the ASIC Act and the Legal Services Directions 2017 (which requires ASIC to report ‘significant issues’ to the Attorney-General arising during the conduct of litigation, and to also consult Treasury when seeking certain legal advice). Section 127 of the ASIC Act authorises ASIC to disclose confidential information to the Minister or the Secretary of Treasury (or their authorised officer) for the purposes of advising the Minister. ASIC’s Chair (or his or her delegate) can also authorise the disclosure of confidential information to another agency, government, officer, body or committee in certain circumstances (see for example s127(4) of the ASIC Act). ASIC may also, in certain circumstances be directed to prepare and give a copy of an investigation report to the Minister under sections 16, 17 and 18 of the ASIC Act.

4-6. Please refer to the answer to Question 3.

7. ASIC is not aware of any power for the Minister or other Cabinet Ministers to direct ASIC to not investigate a particular matter. Furthermore, subsection 12(3) of the ASIC Act provides that the Minister must not give a direction about a particular case.

8. Generally, ASIC’s Senior Executives in the Office of Enforcement and the Commission Enforcement Committee make decisions to conclude investigations without ASIC taking further action.

9. Yes, ASIC has previously examined a Federal Parliamentarian pursuant to s19 of the ASIC Act. However, ASIC considers that to ascertain the exact number of instances in which this has occurred would involve a manual search of ASIC’s records and would cause an unreasonable diversion of ASIC’s resources.