In this practice area
Advising recipients of ASIC notices to produce books, notices to provide information and informal requests, on scope, privilege, deadlines and how to comply without creating new exposure.
What these notices are
ASIC gathers most of its evidence through written notices. A notice may require a company, an officer, an auditor, a financial services licensee or any other person to produce books or give information. Recipients are often not the subject of the investigation, but banks, advisers, accountants and counterparties can receive them too.
ASIC also sends voluntary requests for information. These do not carry the same compulsion, but the response can still be used and a refusal may prompt a formal notice.
The legal framework
The ASIC Act 2001 (Cth) gives ASIC a set of notice powers. Section 30 allows ASIC to require a body corporate or registered scheme, and certain eligible persons, to produce specified books about its affairs. Section 31 applies to financial services licensees and their representatives. Section 33 allows ASIC to require any person to produce specified books relating to the affairs of a body corporate or registered scheme or to a financial product or service. ASIC can also require information under provisions of the Corporations Act, such as section 912C for licensees.
Failure to comply without reasonable excuse is an offence under section 63 of the ASIC Act. Legal professional privilege is preserved and can be a reasonable excuse for non-production, but it must be properly claimed. Self-incrimination is not an excuse for producing documents, and bodies corporate cannot claim it at all.
How these matters run
A notice specifies what must be produced, where and by when. Deadlines can be short. ASIC officers will often discuss sensible variations, rolling production or extensions, but only if approached before the due date with a clear explanation.
The work involves identifying custodians and systems, collecting data forensically where appropriate, reviewing for relevance and privilege, preparing a privilege schedule, and producing in the format ASIC requires. A covering letter should record exactly what has been produced and on what basis. Errors at this stage can be hard to correct later.
How GopherWood Lawyers acts
We review the notice for validity and scope, identify the likely line of inquiry, and advise on whether the client is a witness or has exposure. We negotiate timing and scope with ASIC, run the privilege review, and manage production.
Where a notice is invalid, oppressive or outside ASIC's power, we raise it with ASIC and, if needed, seek relief in court. Where a notice is an early sign of wider inquiry, we plan for the next steps, including examinations and possible proceedings.