Consultation on Exposure Drafts – ASIC Legislation

Tuesday, 08 October 2019

On 9 October the AICD made a submission to Treasury on exposure drafts of legislation proposing to increase the powers of ASIC. Treasury were seeking feedback on five pieces of legislation, the AICD restricted its submissions to two, relating to banning orders and new penalties.

The AICD opposed the inclusion of a new power for ASIC to ban an officer (which includes a director) who is not adequately trained from performing their function in a financial services entity as too vague and subjective. No training regime for directors exists and it is unclear how this could be assessed. Secondly, the AICD submitted that the current test, where a person will not commit an offence if they take “reasonable steps” to ensure that a document filed with ASIC is not false or misleading, be retained. The proposal in the legislation is that a person must take “all reasonable steps”. Finally, the AICD suggests that safe harbour defences that a person may rely on in order to demonstrate that they have taken reasonable steps to ensure that a document was not false or misleading should be retained.

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