What Is an ASIC Investigation?
What Is an ASIC Investigation?ASIC investigates suspected breaches of the Corporations Act 2001 (Cth) and ASIC Act 2001 (Cth) including:
- insider trading (s 1043A)
- market manipulation
- false or misleading statements
- financial services misconduct
- directors’ duties breaches
- dishonest conduct
- market rigging
- unauthorised disclosure of inside information
ASIC has broad surveillance and data-matching powers and can compel people to answer questions even if the answers may incriminate them (with protections).
How ASIC Investigations Begin
ASIC investigations commonly arise from:
- ASX suspicious trading alerts
- whistleblower reports
- AUSTRAC, AFP or ATO intelligence
- licensee breach reports
- company auditor referrals
- ASIC’s real-time market surveillance
- bank reporting obligations
Many people only become aware of an investigation when they receive a Regulation 4 Form 1 Notice or an ASIC Record of Interview request.
The First Notice You Receive From ASIC
People under investigation usually first receive one of the following:
- Regulation 4 Form 1 – Notice to Attend a s 19 Examination
Legally compels a person to attend ASIC for questioning.
- Notice to Produce Documents (s 30, s 33 or s 912C)
Requires specific documents such as trading records, emails or financial statements.
- Voluntary Interview Invitation
Often used early, but may become compulsory.
ASIC Compulsory Examinations (s 19)
Examinations are held in private. You must:
- attend at the scheduled time
- swear an oath or affirmation
- answer all relevant questions
- comply with directions
ASIC may record and transcribe the examination.
Your Rights During an ASIC Investigation
✔ Right to have a lawyer present (s 23)
✔ Privilege against self-incrimination (s 68)
✔ Legal professional privilege
✔ Right to a transcript (s 24)
Your Obligations Under the ASIC Act
These include:
- attend the examination
- answer questions
- produce required documents
- not destroy or alter documents
- not give false or misleading information
- not obstruct ASIC
Penalties range from civil penalties to 5 years imprisonment.
Common ASIC Investigation Areas
What Happens After the Examination?
ASIC may:
- take no further action
- request further documents
- compel another examination
- interview other witnesses
- refer to the Commonwealth DPP for criminal charges
- commence civil penalty proceedings
- negotiate an enforceable undertaking
- pursue administrative banning orders
FAQs About ASIC Investigations
How serious is an ASIC investigation?
ASIC matters often involve complex financial data. The consequences can be criminal, civil or administrative.
Is a compulsory examination a criminal charge?
No. It is an investigatory tool.
Can ASIC examine me more than once?
Yes, ASIC can conduct multiple examinations.
What triggers ASIC to issue a Notice?
Suspicious trading, complaints, whistleblowers or cross-agency referrals.
Can I speak to colleagues?
Often ASIC directs you not to discuss the examination except with your lawyer.
Do I need a lawyer present?
You have a statutory right to one.
Are you being investigated by ASIC? Read on to:
