The Taskforce’s terms of reference includes an examination of the adequacy of ASIC’s information gathering powers and whether there is a need to grant the equivalent of Federal Crimes Act search warrant powers under ASIC’s enabling legislation for market misconduct or other serious offences.
The Taskforce’s positions on search warrants are designed to harmonise and strengthen ASIC’s powers by aligning them with those available to other law enforcement agencies and regulators such as the Australian Competition and Consumer Commission; and to make adjustments that ensure the scope of material that may be subject to search and seizure activity is not limited by narrow or outdated terms in legislation.
A full list of the Taskforce’s positions are below:
- ASIC-specific search warrant powers in various Acts should be consolidated into the ASIC Act (to harmonise ASIC’s powers in respect of various regulated industries, and to eliminate impairments such as the need under some Acts for ASIC to effectively ‘forewarn’ entities of its intention to seek evidential materials by first issuing a notice to produce).
- ASIC Act search warrant powers to be made more consistent with those in the Crimes Act and the Competition and Consumer Act, by allowing ASIC to search for and seize ‘evidential material’ (replacing the current narrower provisions in ASIC legislation for search and seizure of ‘particular books’).
- A range of ancillary powers (including provisions relating to the search, seizure and copying of data on electronic equipment), that mirror those in the Crimes Act to be included in ASIC search warrant powers.
- Material seized under ASIC Act search warrants should be available for use in criminal, civil and administrative proceedings (ensuring that ASIC is not unduly constrained from using material seized pursuant to its search warrant powers).
- The threshold for issuing a search warrant be a reasonable suspicion of a contravention of an indictable offence provision (Offences with maximum terms of imprisonment exceeding 12 months).
- Private litigants’ access to material seized under search warrants should be subject to appropriate limits.
The taskforce invites all interested parties to make a submission on the positions outlined in this paper by 26 July 2017.
Address written submissions to:
ASIC Enforcement Review
Financial System Division
PARKES ACT 2600