ASIC immunity policy: Frequently asked questions

These FAQs provide answers to a broad range of questions you may have about the ASIC immunity policy (the policy).

These FAQs do not constitute legal advice. You should seek your own professional advice to find out how the applicable laws and regulatory requirements apply to you.

The FAQs cover:

Applying for immunity

1. How do I apply for immunity?

2. Why is it important to be the first individual to apply for immunity?

3. How will I know if I’m the first individual to apply for immunity?

4. What if a marker is not available?

5. I’m unsure about whether I’ve engaged in misconduct or the exact nature of it. Should I request a marker anyway?

6. I have information about suspected misconduct, but I’m not involved in the misconduct. Can I speak to someone at ASIC to pass on this information?

7. Are joint requests for a marker accepted?

8. How long will a marker be valid?

9. Can a marker be cancelled by ASIC?

10. Can I withdraw my application?

Providing a proffer

11. Can the proffer be provided over the phone?

12. What kind of information should be provided in the proffer?

13. What will happen if the proffer is incomplete?

Privacy and confidentiality

14. Can I tell others about a marker request or subsequent immunity application?

15. Will the information I provide be disclosed to the public?

Conditional immunity

16. When will I be granted conditional immunity?

17. Do I have to admit to engaging in misconduct to be eligible for conditional immunity?

18. I’m concerned that ceasing involvement in the misconduct may signal to the other participants that I’ve approached ASIC. What should I do?

19. When will ASIC consider a party has engaged in coercion?

20. I’ve not yet ceased my involvement in the misconduct. Am I still eligible for immunity?

21. What does ASIC expect from applicants in providing ‘full, frank and truthful disclosure’ and cooperating ‘fully and expeditiously’?

Final immunity

22. When does conditional immunity become final immunity?

Request to expand immunity

23. What happens if ASIC discovers that the misconduct is broader than I first reported?

Use of information provided to ASIC

24. If I’m not granted immunity, how will ASIC use the information I’ve provided?

25. After conditional immunity is granted, how will ASIC use the information I’ve provided?

Revocation of immunity

26. Can conditional immunity be revoked?

Applicants living outside of Australia

27. Am I required to travel to Australia?

Applying for immunity

1. How do I apply for immunity?

You can make an immunity application or request a marker by:

  • Ÿcontacting the ASIC Immunity Hotline on +612 9911 5008 (during business hours)
  • Ÿcompleting ASIC’s online form, or
  • Ÿemailing ASIC at immunity@asic.gov.au.

We will note the time of the phone call or email, or the time that the online form was submitted, and advise you as soon as possible following your request for a marker whether that marker is available.

For more information about applying for immunity, see Section D of the policy.

2. Why is it important to be the first individual to apply for immunity?

We will issue a marker for particular conduct only to the first individual that requests immunity (‘first-in applicant’). This encourages parties to apply for immunity as soon as possible and not wait for other parties to cease their misconduct before reporting misconduct to us.

Second and subsequent applicants will not be eligible for immunity under the policy unless the first-in applicant is not ultimately eligible for immunity and they are next in the immunity queue.

3. How will I know if I’m the first individual to apply for immunity?

We will advise you whether the requested marker is available as soon as possible following your request.

4. What if a marker is not available?

If a marker is not available, we will advise you of this as soon as possible following your request for a marker. We will note the time of the phone call or email, or the time that the online form was submitted, and make a note of your place in the immunity queue.

Second and subsequent applicants in the immunity queue can still seek lenient treatment by cooperating with us (see Information Sheet 172 Cooperating with ASIC (INFO 172)), but they will not be eligible for immunity under the policy unless the first-in applicant is not ultimately eligible for immunity, or if the first-in applicant withdraws their application or their immunity is revoked.

5. I’m unsure about whether I’ve engaged in misconduct or the exact nature of it. Should I request a marker anyway?

Yes. Since only the first applicant is eligible for immunity, we encourage you to come forward and request a marker as soon as you suspect you may be involved in misconduct, even if you are uncertain whether it is actually illegal. If you later determine that you were not involved in misconduct, you can withdraw your marker.

If you are issued a marker and proceed to the proffer stage of the application and we determine that you have not engaged in misconduct (based on the information you provided), we will cancel the marker. Before we cancel the marker, we will notify you of this decision and invite you to make a submission for our consideration explaining how the conduct may constitute misconduct.

See questions 24–25 for how we may use information provided to us as part of an immunity application.

6. I have information about suspected misconduct, but I’m not involved in the misconduct. Can I speak to someone at ASIC to pass on this information?

Yes. You can contact our Customer Contact Centre on 1300 300 630 for information on how to make a report of misconduct. Alternatively, you can make a report of misconduct online. You can deal with us on an anonymous basis if you do not feel comfortable providing your details.

7. Are joint requests for a marker accepted?

A request for a marker, and subsequent immunity, may only be made by, or on behalf of, one individual.

We will not accept joint immunity applications by, or on behalf of, more than one individual involved in the misconduct. In circumstances where a corporation, partnership or a sole trader is a party to misconduct, relevant individuals should apply and their application for immunity will be considered.

Where two or more individuals attempt to apply for immunity jointly, we may, in exceptional circumstances, offer immunity to the second and subsequent individual applicants.

8. How long will a marker be valid?

A marker will be valid for a period as advised by us. This will be a reasonable time period, taking into account the nature of the information that you have provided.

We may, at our discretion, extend the time period of the marker for a further specified period(s).

For example, we may extend a marker to enable you to provide additional information to support an application for immunity. It is your responsibility to seek an extension of time for the marker. You can request an extension by calling or emailing us: see contact details at question 1.

Delays at the marker stage may adversely affect our ability to obtain evidence. If we extend the time period for you to gather the information necessary for a valid immunity application, we will need to be satisfied that the delays are justified and not disproportionate to the tasks to be undertaken.

9. Can a marker be cancelled by ASIC?

We will cancel a marker if you do not provide a proffer in the time period given. We will also cancel a marker if you do not, in the time period given, provide sufficient information in your proffer to enable us to determine whether you satisfy the criteria for conditional immunity. However, before we cancel the marker, we will notify you of any gaps in your proffer: see question 13.

Note: See question 8 for more information about the time period for which a marker will be valid.

If, after you have gathered information, you consider that you will be unable to satisfy the criteria for conditional immunity, we expect you to promptly notify us. In this circumstance, we will cancel the marker when you notify us.

We may also cancel a marker if, after consulting with you, we consider that you will be unable to satisfy the requirements of conditional immunity. Before we cancel the marker, we will notify you of our view and invite you to make a submission explaining how you satisfy the conditions of immunity.

If we cancel a marker, you or another individual may apply for immunity or request a marker for the relevant misconduct. If another individual has already requested a marker, we will give the other individual an opportunity to satisfy the criteria for conditional immunity.

In circumstances where a marker is cancelled, information provided by you (including witness evidence) will not be used by ASIC and/or the Commonwealth Director of Public Prosecutions (DPP) directly as evidence against the relevant party in civil penalty and/or criminal proceedings. ASIC may use such information indirectly to further our investigation, including to gather evidence that could be used against you, or any other party, in civil penalty criminal proceedings.

10. Can I withdraw my application?

You can withdraw your application at any time by calling or emailing us: see contact details at question 1.

If you withdraw your application, another individual may apply for immunity or request a marker for the relevant misconduct.

In circumstances where a marker is withdrawn, information provided by you (including witness evidence) will not be used by ASIC and/or the DPP directly as evidence against you or any other party in civil penalty and/or criminal proceedings. ASIC may use such information indirectly to further our investigation, including to gather evidence that could be used against you, or any other party, in civil penalty criminal proceedings.

Providing a proffer

11. Can the proffer be provided over the phone?

No. The proffer can only be made in writing.

12.  What kind of information should be provided in the proffer?

The proffer needs to contain information and evidence regarding the nature and extent of the misconduct.

The proffer does not need to set out the legal basis on which the conduct may contravene the offence provisions in Part 7.10 of the Corporations Act 2001 (Corporations Act). That is a matter on which we will form our own view after taking legal advice and is ultimately for a court to decide.

At the proffer stage, we will not accept a broad outline of the misconduct or speculation about what has happened. We require specific details about your role in the misconduct and the evidence that you can provide. You should report as completely and accurately as possible with truthfulness and in a spirit of cooperation.

For examples of the information that could be requested at the proffer stage, see paragraph 40 of the policy.

13. What will happen if the proffer is incomplete?

We will notify you of any gaps in your proffer and will give you an opportunity to provide further details so that you can complete the proffer. We consider a proffer to be complete when you have provided sufficient information for us to determine whether you satisfy the criteria for conditional immunity.

Privacy and confidentiality

14. Can I tell others about a marker request or subsequent immunity application?

No. It is a requirement of conditional immunity that you keep immunity applications confidential, unless otherwise required by law or with the written consent of ASIC. Confidentiality helps to ensure that targets of the investigation do not become prematurely aware of our investigation. Therefore confidentiality protects the integrity of our investigation and ensures that evidence is not destroyed.

15. Will the information I provide be disclosed to the public?

We will use our best endeavours to protect any confidential information provided by you, including your identity, from being disclosed to third parties (that is, persons who were not participants in the misconduct) or published more generally, except:

  • Ÿas required by law
  • Ÿas necessary in the conduct of civil or criminal proceedings.

When information provided by you is both confidential and personal, both the ASIC Act 2001 and the Privacy Act 1988 will govern its disclosure. Please refer to the ASIC Privacy Policy for information about how we handle your personal information, including how we disclose it.

We and/or the DPP may be required to discover or disclose information provided to us under the ASIC immunity policy, including your identity, to the respondent(s) or defendant(s) during the course of civil and/or criminal proceedings.

We may be able to claim privilege and/or public interest immunity to protect confidential information from disclosure.

Ordinarily we will give notice to the owner of the confidential information of any court application for disclosure of that information.

Conditional immunity

16. When will I be granted conditional immunity?

After the proffer stage, if we are satisfied that you have met the criteria for conditional immunity, we will grant you conditional immunity in relation to civil proceedings that we might otherwise have brought against you. We will advise you of this fact in writing.

When relevant, the DPP will generally issue a letter of comfort to you for criminal immunity, subject to conditions, at the same time as we grant conditional immunity in relation to civil proceedings.

17. Do I have to admit to engaging in misconduct to be eligible for conditional immunity?

Yes. Although you may not be able to confirm all details of the misconduct when seeking and receiving a marker, to be eligible for conditional immunity, you must admit to engaging in, or having engaged in, misconduct and that the conduct was misconduct of a type contained in or related to Part 7.10 of the Corporations Act. Whether or not this conduct does amount to a contravention of, or an attempt to contravene, offence provisions contained in or related to Part 7.10 (including whether any defences apply) is a matter for the court to decide.

18. I’m concerned that ceasing involvement in the misconduct may signal to the other participants that I’ve approached ASIC. What should I do?

In these circumstances you should immediately notify us of your concerns.

If you advise us of your intention to cease involvement in ongoing misconduct, we will ordinarily direct you to immediately cease all involvement. However, in appropriate circumstances we may request you to act in a manner that does not disclose our awareness of the misconduct. This might allow us an opportunity to obtain important evidence against other participants.

19.  When will ASIC consider a party has engaged in coercion?

To be eligible for immunity, you must not have coerced others to engage, participate or be involved in the misconduct.

We will consider the individual circumstances of each instance of misconduct. We will only consider you ineligible for immunity where there is clear evidence of coercive behaviour.

We will consider the roles played by each participant and their respective positions within the misconduct. However, if there is clear evidence that you coerced other participants and caused them to be involved in the misconduct, you will not be eligible for immunity.

We recognise that it may be difficult to decide whether a party has behaved in a coercive manner based on the amount of information that you provide when you apply for immunity. In some circumstances, we may require you to demonstrate that you have not coerced others into participating in misconduct before conditional immunity is granted.

20. I’ve not yet ceased my involvement in the misconduct. Am I still eligible for immunity?

In order to be eligible for conditional immunity you need to cease your involvement in the misconduct.

21. What does ASIC expect from applicants in providing ‘full, frank and truthful disclosure’ and cooperating ‘fully and expeditiously’?

Immunity is conditional upon full, frank and truthful disclosure and not intentionally withholding any evidence or information in your possession or available to you. For example, you must not understate your role or overstate the role of any other participants in misconduct.

You must cooperate fully and expeditiously at your own expense (unless we agree otherwise in writing), on a continuous and proactive basis throughout our investigation and any following court proceedings.

Requirements of full, frank and truthful disclosure and full and expeditious cooperation include but are not limited to:

  • Ÿproviding full details of all known facts relating to the misconduct, including when the misconduct occurred, who was involved, who had knowledge of the arrangements, how the arrangements began, and how they were implemented (including details of meetings)
  • Ÿnot disclosing to third parties any dealings with us without our consent, except when required to do so by law. If disclosure is required, you must notify us before you release any information
  • Ÿpreserving and providing to us, promptly and at your own expense, all evidence and information in your possession or available to you, wherever located, regarding the misconduct for the duration of the investigation and any subsequent court proceedings
  • Ÿusing your best endeavours to comply with any time periods set by us for providing information and documents
  • Ÿresponding fully, frankly and truthfully to all inquiries by us
  • Ÿbeing available, on our request and in a timely fashion, to respond to queries and attend interviews.

If we do not consider that you have provided full, frank and truthful disclosure and cooperated fully and expeditiously, your immunity may be revoked.

At the end of the evidence-gathering phase of an ASIC investigation, we will require you to certify in writing (in a form acceptable to us) that you have fully complied with your obligations under the policy, including having conducted all reasonable searches and provided all relevant information and documents to us.

It is a serious criminal offence to knowingly provide information to us or the DPP that is false or misleading. If you do, you may be prosecuted. You will also be in breach of the conditions of immunity and we will have a reason to revoke your immunity.

Final immunity

22. When does conditional immunity become final immunity?

Conditional civil immunity will become final immunity at the conclusion of any proceedings, including any appeal proceedings, provided you do not breach any conditions of immunity and maintain eligibility under the policy.

At the conclusion of any such proceedings, we will notify you by phone that you have final immunity and, if requested, confirm this in writing.

If you are seeking immunity from criminal proceedings, the DPP will determine whether to grant an undertaking under section 9(6D) of the Director of Public Prosecutions Act 1983 before any prosecution against you commences. This undertaking grants criminal immunity subject to the fulfilment of ongoing obligations and conditions.

For more information, see paragraphs 55–57 of the policy.

Request to expand immunity

23. What happens if ASIC discovers that the misconduct is broader than I first reported?

If subsequent investigations determine that the misconduct is broader than first reported and outside the scope of the conditional immunity granted, it may be appropriate for you to:

  • Ÿrequest that conditional immunity be expanded, or
  • Ÿmake an additional application for immunity.

If you have already been granted immunity but discover that the misconduct is broader than the scope of the immunity granted, or you discover additional, separate misconduct, you should immediately notify us and request a marker for the broader or separate misconduct.

Any such request or application will be assessed under the policy.

Use of information provided to ASIC

24. If I’m not granted immunity, how will ASIC use the information I’ve provided?

We will generally use the information you provide in support of an immunity application to determine whether you are eligible for immunity and to take initial steps in our investigation against other participants in the misconduct.

If immunity is not granted or is revoked, we may use the information you provided in litigation against other participants in the misconduct, but we will not use it against you in civil or criminal proceedings.

We or the DPP may be required to disclose this information to the defence in criminal proceedings against other participants in the misconduct.

25. After conditional immunity is granted, how will ASIC use the information I’ve provided?

After conditional immunity is granted, the information you have provided may be used in civil proceedings and/or criminal prosecutions against other persons. The information may also be shared with the DPP.

Subject to the exceptions outlined in the policy, if conditional immunity is granted, the information that you provide is received on the basis that we and/or the DPP will not use the information as evidence in civil proceedings and/or criminal prosecutions against you.

Revocation of immunity

26. Can conditional immunity be revoked?

Yes. In some circumstances we may have reason to believe you have breached the conditions of immunity, including by failing to cooperate. Our concerns may be resolved by discussing them informally with you.

If our concerns cannot be resolved informally, we will notify you in writing of our concerns and ask you to provide a response.

If we are not satisfied with your response, we will then ask you in writing for an explanation as to why we should not revoke conditional immunity.

If we are not satisfied with your explanation, we may then advise you in writing that you are no longer eligible for conditional immunity and that conditional immunity is revoked. We will also make a recommendation to the DPP that the letter of comfort be withdrawn and/or that criminal immunity be revoked, subject to conditions.

Applicants living outside of Australia

27. Am I required to travel to Australia?

Yes. If we need to interview you or if you are required to give evidence, you must travel to Australia, unless special circumstances justify an alternative arrangement to which ASIC must agree.

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Last updated: 30/03/2021 09:22