ASIC's enforcement powers and activities
A speech by ASIC Commissioner, Prof Berna Collier, to the Law Institute of Victoria, Annual Commerical Law Conference, 10 October 2003.
A knock on the door in the middle of the night, is it ASIC, ACCC or ATO?
Good morning everyone, and thank you for inviting me to speak here today.
I must admit that the topic of today's session startled me slightly. We tend not to go around 'knocking on doors in the middle of the night'. Such a claim implies sinister covert dealings, horrifying occurrences when the 'victim' is at its most vulnerable, and frankly, that is not the way ASIC operates. It is interesting however that we – and other regulators – are perceived as coming 'knocking on the door'. I saw that expression used only last week in the Sydney Morning Herald ('Heavy load of compliance made lighter' Jan Eakin SMH 29/9/03 page 33). The imagery is obviously appealing.
While we are a law enforcement agency, with the necessity to conduct investigations and undertake litigation (with all necessary confidentiality) as appropriate, we nonetheless endeavour to be transparent in our priorities and policies. And so for the purposes of my presentation today, I thought it would be useful to concentrate on a few issues relevant to our approach to taking enforcement action. To that extent, I am hoping to demystify some of our processes, while giving you a brief indication of the way in which we operate.
I have structured my paper to address the following issues:
- what we do
- a brief look at the civil penalty/criminal proceeding issue, which has attracted some attention of late
- a look at when we might come to you, and a brief review of some of our powers including inspection of books and search warrants
- an example of a current surveillance programme
- and finally - an example of when we won't be coming around.