BFCSA Blog

ASIC DETERRENCE AND ITS APPROACH TO SECURITIES LITIGATION Justin Brereton, Barrister CONTENTSINTRODUCTION .............................................................................................................. 2 PART 1 – BEFORE THE CASE BEGINS......................................................................... 3 INVESTIGATION PROCESS AND ASIC’S LITIGATION OBJECTIVES ............... 3 Notices to produce books ............................................................................................ 3 Compulsory Examinations .......................................................................................... 9 The types of search warrant available to ASIC ........................................................ 13 COMPETING CONSIDERATIONS WHEN COMMENCING LITIGATION .......... 16 The commencement of proceedings and the use of compulsory powers .................. 17 PART 2 – ONCE THE CASE HAS STARTED .............................................................. 20 ASIC’S APPROACH TO LITIGATION GENERALLY ............................................ 20 The obligation to act as a model litigant ................................................................... 20 CONSIDERATIONS RELEVANT TO SPECIFIC JURISDICTIONS ....................... 22 Civil, criminal and civil penalty proceedings – when jurisdictions collide .............. 23 Civil proceedings ...................................................................................................... 28 Administrative Hearings ........................................................................................... 30 ASIC AS ADVOCATE FOR THE INVESTOR .......................................................... 34 ASIC’S GROWING SPHERE OF INFLUENCE ........................................................ 35       INTRODUCTIONJustin Brereton, Victorian Bar 1. This paper accompanies a presentation given by...

"A Royal Commission into the Australian Banking Sector is our democratic right. To deny us that right is truly unAustralian."   There are many strong arguments in favour of holding a Royal Commission into Banking with wide terms of reference.  One of the side effect of the Royal Commission is its capacity to bring the issues into every Australian home through the main stream media. This in turn will generate far greater awareness of the serious anomalies and inherent risks within the Australian Financial Sector. It may also answer the questions for so many Australians whose lives have been smashed by the deregulated "free market" Australian Financial Sector, directly and indirectly, including the big ones: Why weren't we told? How could this be allowed to happen in Australia? Consumer protection isn't for just for the elderly - it benefits all Australians. We've been badly misled by those entrusted to protect us,...

Conflicts of interest over fees and charges lie at the heart of an ASIC inquiry, writes Ruth Williams. Date May 1, 2012  They are a crucial links in the chain of financial advice by wielding enormous influence over the products that retail investors sink their money into. Now research houses face a huge regulatory shake-up. After a string of collapses of retail investor-targeted companies that were rated highly by research houses - including Timbercorp, Westpoint, Basis Capital and Trio Capital - the Australian Securities and Investments Commission is pushing to make the sector more transparent and accountable.   (Ed:  Really?  Like pushing a pram with a gentle nudge that takes seven years?) It is a move that has been welcomed by most people in the research industry. However, it comes as one player, Standard & Poor's, is preparing to close its funds research operation, and as some of its rivals warn that...