The Australian Securities and Investments Commission (ASIC) is Australia’s corporate, markets and financial services regulator. The Australian Competition and Consumer Commission (ACCC) has the primary responsibility to ensure that individuals and businesses comply with the Commonwealth competition, fair trading and consumer protection laws.
These regulators have substantial legislative powers to investigate alleged breaches of the laws that they oversee. These breaches may give rise to criminal charges and/or applications for civil penalties (essentially fines) to be made.
For example a breach of a director’s duty under the Corporations legislation can give rise to criminal charges or civil penalty proceedings and applications for disqualification. The consequences to an individual , who is often a respected businessperson, can be a criminal record, a large fine, disqualification as a director and of course, associated reputational damage. The powers which these regulators have include the power to summon an individual for a secret examination, where the “right to silence”, which a person charged with a criminal offence in the ordinary course has, is not available.
Over the years Galbally Rolfe has acted for many individuals who have had to deal with these and other regulators. As with Confiscations law, the knowledge required involves both a knowledge of criminal law and a sound understanding of the applicable commercial law, which many criminal law firms, who practice exclusively in criminal law do not have.
Most recently we concluded a criminal case that involved over ten years of defence and litigation. The case of ASIC v Flugge and Geary, wherein we represented Peter Geary, was one of the largest and most complex ASIC prosecutions in Australian legal history. Both Mr Flugge and Mr Geary worked for the Australian Wheat Board during the 1990’s, during the imposition of the Oil for Food programme, implemented by UN during a time of sanctions against the regime. It was alleged that the AWB, with the knowledge of the two accused, made payments to the Iraqi Government contrary to the sanctions in place. The Supreme Court last year found that our client, Mr. Geary, had not breached his duties as a corporate officer and accordingly he was not penalised by the Court. Further an order for costs was made against ASIC for its prosecution of Mr. Geary. ASIC appealed.
the Court of Appeal handed down a judgment which confirmed the Trial Judge’s decision in the first instance and maintaining that Mr. Geary had not breached his duties as a corporate officer, thereby concluding one of the largest, most complex and historically relevant ASIC prosecutions in Australian legal history.
With the commencement of the Royal Commission into the Banking Industry, we expect that there will be an increase in ASIC prosecutions arising from the Commission and its recommendations. The recent concessions by banking executives in evidence have already potentially given rise to complaints to the regulator, as well as potential state dishonesty offences such as obtaining a financial advantage by deception. Our office possesses the experience and competence to represent those who are prosecuted by the regulator, along with access to the best barristers specialising in defending ASIC and ACCC prosecutions.
If you are concerned that you will face an ASIC prosecution, have been summonsed or charged, or wish to discuss your situation in circumstances of complete discretion, please contact our office.