Corporate Law Markets and Financial Services

Question: Discuss about the Corporate Law for Markets and Financial Services. Answer: Role of ASIC Highlighting its Investigative Powers Introduction The corporate, markets and financial services regulator of Australia is known as the ASIC (Australian Securities and Investments Commission). The principal role of ASIC is to contribute towards the economic reputation and wellbeing of the financial market of Australia by ensuring fairness and transparency that is supported by informed and confident investors and consumers (Asic.gov.au, 2016). The ASIC was established under the ASIC Act 2001 that has mandated that it should maintain, improve and facilitate the execution of the monetary framework and substances in Australia. There are three principal priorities of ASIC as highlighted below: To advance buyer and investor with trust and certainty; To guarantee reasonable, systematic and straightforward markets; To give proficient and available enlistment. All these are exercised by the ASIC in the implementation of its investigative powers and these shall be analyzed in this research paper. Analysis Advancing Buyer and Investor with Trust and Certainty Since 1991, ASIC has taken several steps for regulation of financial markets, securities and futures of over 1.3 million corporations and also successfully added to superannuation, insurance and deposit and credit ratio in the discharge of their responsibilities. ASIC exercises certain powers in the course of its operations and working. The legislations that ASIC takes care of are the Corporations Act 2001, the ASIC Act 2001, the Insurance Contracts Act 1984, the Superannuation Industry (Supervision) Act 1993 and the Life Insurance Act 1995. ASIC possesses powers to investigate breach of laws and also has the power to initiate a civil or criminal proceeding against a person who is liable under the said laws (Rich v Australian Securities and Investments Commission, [2004]). The investigative powers are derived by the ASIC under Section 13 of the ASIC Act. This empowers the body to take up an independent and formal investigation procedure whenever a breach of law is committed in any corporate entity. As soon as an investigation under Section 13 starts, the ASIC also has the power under Section 19 to ask any person for appearance and also call out for relevant information that is persistent with the investigation in question (Findlaw.com.au, 2016). Under Section 29, a watchdog can get into inspection of the books of the company. As and when it finds necessary, under Section 30, ASIC can issue a notice to demand a company and other people in association with the company to produce the books of accounts of the company (Australian Securities and Investments Commission v Lanepoint Enterprises Pty Ltd (Receivers and Managers Appointed), [2011]). Giving Guarantee Reasonable, Systematic and Straightforward Markets In case the company refrains from opening up its books of accounts even after these, then the ASIC has the authority to issue a court order from a judge or an equity of peace. The watchdog is also empowered with the right to issue a search warrant under his general powers as enshrined in the Crimes Act 1914 (Macleod v Australian Securities and Investments Commission, [2002]). The investigation powers of the ASIC sees its implementation in three distinct phases. Proactive Governance, Risk and Compliance (GRC) practices and rigorous monitoring and supervision of those practices may assist in limiting the scope of regulator investigations or avoid investigations altogether. The corporate entities at this stage need to review their existing GRC advice framework so that gaps in the matter can be identified and effective strategies can be framed by them in such a way that it forms a part of their preparation for surveillance requirements and further investigations that are taken up by ASIC in the course of their working (Belot, 2016). Giving Proficient and Available enlistment Once an enforcement action is taken up by ASIC there are certain concerns that arise in its own domain. These complaints need to be addressed in those instances. The ASIC hence engages in surveillance mechanisms and also takes up referral from other regulator reports under Section 912D of the Act. A basic stride amid this stage might be the willful remediation steps embraced by a licensee and/or misfortune alleviation ventures because of ASIC's worries (to the degree these worries are known). These underlying strides can be basic in future arrangements with ASIC amid an authorization stage (The Conversation, 2016). Understanding the obligations under the policy is extremely important to be noted in these matters. ASIC makes an assurance that the worry warrants a formal examination. Amid this stage, ASIC may likewise assemble for conferences with the licensee, issue sees for data, may look for formal reactions on specific issues raised by ASIC identifying with its worries, may look for reactions as detailed reports and/or may try to hold formal examinations with key people of interest (Findlaw.com.au, 2016). Conclusion As a component of its examinations or prerequisites on licensees to address ASIC's worries, ASIC may ask for the licensee to orchestrate a free audit of its customer records (Australian Securities and Investments Commission v Edensor Nominees Pty Ltd, [2001]). This might be consented to deliberately, through an authoritative plan, or in accordance with an enforceable undertaking. While such an audit would for the most part frame part of the examination or requirement stage, there are some particular matters that should be considered when the ASIC examination includes checking on customer records. It can be stated that the purpose for which ASIC was established has been taken off by the body in totality and the way it has been working proves its efficiency in itself. References Asic.gov.au. (2016).Our role | ASIC - Australian Securities and Investments Commission. [online] Available at: https://asic.gov.au/about-asic/what-we-do/our-role/ [Accessed 29 Sep. 2016]. Australian Securities and Investments Commission v Lanepoint Enterprises Pty Ltd (Receivers and Managers Appointed)[2011]HCA p.8. Australian Securities and Investments Commission v Edensor Nominees Pty Ltd[2001]HCA p.1. Belot, H. (2016).Public service red-tape blamed for ASIC's limited investigative powers. [online] Canberra Times. Available at: https://www.canberratimes.com.au/national/public-service/public-service-redtape-blamed-for-asics-limited-investigative-powers-20160420-gob18b.html [Accessed 29 Sep. 2016]. Findlaw.com.au. (2016).The Corporate Policeman: ASICs powers of investigation and prosecution. [online] Available at: https://www.findlaw.com.au/articles/892/the-corporate-policeman-asic8217s-powers-of-invest.aspx [Accessed 29 Sep. 2016]. Macleod v Australian Securities and Investments Commission[2002]HCA p.37. Rich v Australian Securities and Inverstments Commission[2004]HCA p.42. The Conversation. (2016).FactCheck: does ASIC already have the powers of a royal commission and more?. [online] Available at: https://theconversation.com/factcheck-does-asic-already-have-the-powers-of-a-royal-commission-and-more-57666 [Accessed 29 Sep. 2016].