Frisky Business: ASIC’s broad warrant powers

ASIC has a variety of compulsory information gathering powers that it uses to obtain information relevant to its investigations and prosecutions.  ASIC can require an individual to attend a compulsory examination, produce documents and compel assistance with an investigation. 

 

However, out of all the compulsory information gathering powers ASIC employs, the one most people are surprised to learn about is ASIC’s ability to obtain a warrant to frisk search a person.

In this article we explore ASIC’s the powers in relation to warrants and the use of information seized upon the execution of a warrant.

When can ASIC issue a warrant and what can it seize?

The Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act), Crimes Act 1914 (Cth) (Crimes Act) and Corporations Act 2001 (Cth) are examples of legislation which empower ASIC to apply for and execute warrants to search premises for material.

Under the ASIC Act, ASIC’s warrant powers provide for search and seizure of evidential material.  Such search warrants may be issued only when there is reasonable suspicion of a contravention of an indictable offence. 

This means that when an issuing officer (for example, a magistrate or Justice of the Peace) is considering whether to issue a search warrant under the harmonised ASIC search warrant provisions, they must suspect that material relevant to an indicatable offence is, or will be in the next 72 hours, present on those premises.

The definition of indictable offence applied by reference, is an offence against a law of the Commonwealth punishable by imprisonment for a period exceeding 12 months, unless the contrary intention appears.

How can ASIC apply for a warrant?

To carry out its investigative and enforcement functions, ASIC can apply to an issuing officer for a warrant.

An issuing officer may order that a warrant be issued, or authorise an ordinary search or frisk search, if the magistrate is satisfied by information given on oath or affirmation by an ASIC member, ASIC staff member or other person authorised by ASIC, that it is appropriate to do so.

In some circumstances, ASIC is not required to forewarn a person under investigation that it may apply for a search warrant. This is to prevent the risk of destruction, concealment, and alteration of evidence by such persons, and enhance ASIC’s ability to progress an investigation.

ASIC is not required to specify the exact books or evidential material that can be searched and seized. Instead, the issuing officer, must state the offence to which the warrant relates and the kinds of evidential material that can be searched for under the warrant.

The issuing officer must also state that the warrant authorises the seizure of evidential material about the offence to which the warrant relates or another offence that is an indictable offence.  This gives the Australian Federal Police and/or state police, and ASIC officers, flexibility in executing a search warrant, particularly if evidential material that was previously unknown to ASIC is discovered at the premises. Therefore, ASIC can search and seize a wide range of material relevant to its investigation.

As search warrants are often sought and issued in circumstances where there is a reasonable concern that relevant evidence will be destroyed, tampered with, or not produced under a notice, there may be situations where swift action is required to ensure that the effective execution of the warrant is not frustrated. Given this, to enable an ASIC member to progress application in urgent cases, an ASIC staff member or other person authorised by ASIC to apply for a search warrant can do so by telephone, telex, fax or other electronic means.

Two forms of warrants

There are two forms of warrants.

Firstly, to obtain a warrant to search premises, ASIC must satisfy the issuing officer, that there are reasonable grounds to expect that there are, or there will be in the next 72 hours, relevant evidentiary material at the premises.

Secondly, to obtain a warrant to frisk search a person, ASIC must satisfy the issuing officer that there are reasonable grounds to expect that the person has in their possession or will have within the next 72 hours, any relevant evidentiary material.

What can ASIC do with the seized material?

Any evidentiary material seized under a search warrant may be used for the purpose of the performance of ASIC’s functions or duties or the exercise of its powers, except in relation to summary offences. This is in relation to criminal, civil and administrative proceedings.

Lavan comment 

ASIC has broad search warrant powers when considering when it can request the issue of a warrant, the extent of the information it can seize when executing the warrant and also how it can use the seized information.

That said, ASIC must ensure that:

  • the warrant has been obtained on a valid basis;
  • it complies with the strict terms of the warrant when executing the warrant; and
  • it only uses the seized information in keeping with its statutory obligations.

Where ASIC does not comply with the above obligations, the validity of the warrant and steps taken pursuant to the warrant can be challenged.

Circumstances where ASIC warrants and its related conduct can be challenged include where:

  • the information ASIC relied upon to obtain the warrant is incomplete or inadequate;
  • officers failed to act reasonably in all the circumstances when executing the warrant (for example, where the steps taken by officers to determine whether material fell within the scope of the warrant were inadequate).

If you require advice in relation to an ASIC investigation or prosecution contact Cinzia Donald.