ASIC denies undermining and obfuscation

Mike Taylor

Managing Editor and Publisher

24 June 2024

The Australian Securities and Investments Commission (ASIC) has hit back at claims by a key Parliamentary Committee that it has sought to undermine the work of the committee or to obfuscate.

At the same time as the Senate Economics References Committee prepares a final report from its inquiry into ASIC Investigation and Enforcement, the regulator has written to committee members arguing in defence of its approach, particularly the use of public interest immunity.

It said the purpose of its late submission to the committee “is to clearly demonstrate that ASIC has, to the best of its ability, attempted at all times to assist the Inquiry without any intent to obfuscate or undermine the Committee’s work”.

The regulator said the Senate Committee had generally requested the production of material from ASIC from two broad categories – ASIC’s confidential investigation files (including information provided to ASIC by third parties on a confidential basis), and material relating to ASIC’s governance.

It said that, in respect of the first category, ASIC has produced extensive material to the Committee including multiple submissions, responses to over 400 questions on notice, and has offered to appear in-camera to provide the Committee with confidential information about its investigations.

“To date, the Committee has requested ASIC officials to appear for a private briefing on only two occasions. ASIC has made a claim of public interest immunity or otherwise raised objections about providing evidence to the Committee about its confidential investigations because we are concerned about minimising harm to individuals who interact and cooperate with ASIC’s investigations by providing information to us on the expectation that their information is private and confidential,” ASIC said.

“This includes reporters of misconduct and whistle-blowers. We are also concerned that such disclosure may in turn harm and lessen the future effectiveness of ASIC’s investigation and law enforcement processes.”

“This is a common position for law enforcement agencies and consistent with the approach taken by regulators in other oversight Committees. ASIC has not made these claims or raised objections with the intent to obfuscate or undermine the Inquiry. In that regard, this submission also seeks to set out ASIC’s response to issues raised by the Committee in its Interim Report about ASIC’s claims of public interest immunity.”

The ASIC response said that for the avoidance of doubt and prior to the conclusion of the inquiry, the regulator considered it important to put on record its response to a number of issues raised by the Committee in its interim report.

“We acknowledge that the Committee has not accepted many of ASIC’s claims of public interest immunity and other objections raised. We have carefully considered the views of the Committee expressed in the Interim Report. While we are respectful of the Committee’s views, we consider it necessary to clarify matters raised by the Committee in the Interim Report where ASIC believes that determinations made by the Committee to reject claims of public interest immunity are not supported by the evidence,” ASIC said.

“We consider we have provided sufficient particularisation of our claims of public interest immunity. Further, as noted above, we have been open to providing such information in-camera noting that it is difficult to articulate claims of public interest immunity in public without revealing the information over which the immunity is claimed. However, we were not invited to provide further submissions in-camera to articulate our claims prior to the tabling of the Interim Report.”