Pursuant to the ASIC Act, ASIC has the ability to demand the production of documents in the following circumstances:
- in the performance of ASIC’s functions generally;
- to ensure compliance with the Corporations legislation;
- in relation to an alleged or suspected contravention of the law; and
- for the purpose of a formal investigation.
The notice will ordinarily set out a description of the documents sought and provide a time frame for production. The terms of the notice should be complied with strictly.
Failing to comply with a notice is a SERIOUS MATTER. It is a criminal offence under Section 63 of the ASIC Act and penalties range up to 2 years imprisonment.
Legal professional privilege has two components: advice privilege and litigation privilege. Privilege attaches to CONFIDENTIAL communications made between a lawyer and their client when the communication was made for the DOMINANT PURPOSE of giving or obtaining legal advice (advice privilege) and any such communications made for use in EXISTING legal proceedings or CONTEMPLATED litigation.
Examples of privileged documents:
- letters of advice;
- emails containing advice; and
- file notes of telephone conversations detailing advice given by lawyers.
You may be asked by ASIC to justify a claim of privilege in any particular case.
Know Compliance Legal can assist in the process by providing advice in relation to a specific document and may assist by providing detailed reviews of all documents to ensure that no privileged information is handed over.