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Section 39C Australian Securities and Investments Commission Act
ASIC may give information and books in relation to bodies corporate

Part 3, subdivision 3 of the Australian Securities and Investments Commission Act 2001 contains provisions relating to the ASIC’s powers to inspect books, including those relating to financial products and services, as well as seizure powers in respect of those materials, and the Commission’s audit information gathering powers.

Section 63 of the Act makes clear that an intentional or reckless failure to comply with a requirement under section 30, 30A, 30B, 31, 32A, 33 or 34 , 37(9), 38; or 39 – which are all part of the subdivision – amounts to an offence punishable by a maximum penalty of 2 years in prison.

Section 65 prescribes the same maximum penalty for giving false information pursuant to a requirement under the subdivision is an offence, as does section 66 for obstructing or hindering a person who is exercising powers under the subdivision.

Section 39C forms part of the subdivision and is titled AASIC may give information and books in relation to bodies corporate.

The section is extracted below.

For results-focused representation from a law firm that is vastly experienced in assisting clients with ASIC investigations and prosecutions, call Sydney Criminal Lawyers® today on (02) 9261 8881 and let our trusted, multi-award Corporate Crime and Compliance Lawyers help you.

The Legislation

ASIC may give information and books in relation to Chapter 5 bodies corporate

Application of this section

(1) This section applies if ASIC obtains or generates information or books in the exercise of its powers or the performance of its functions in relation to:
(a) a person in that person’s capacity as a registered liquidator; or
(b) the external administration of a company; or
(c) the control of property of a corporation.

ASIC may give administration information to certain persons

(2) ASIC may give the information, all or part of the books or copies of all or part of the books ( administration information ) to one or more of the following:
(a) if the administration information relates to a corporation–the corporation;
(b) if the administration information relates to a company that is or has been under external administration–a person who is or has at any time been:
(i) the external administrator of the company; or
(ii) a related entity of the company; or
(iii) an officer of the company; or
(iv) a creditor of the company; or
(v) a member of a committee of inspection in the external administration of the company;
(c) if the administration information relates to property of a corporation that is or has been under control–a person who is or has at any time been:
(i) the controller of the property; or
(ii) a related entity of the corporation; or
(iii) an officer of the corporation; or
(iv) a creditor of the corporation;
(d) if the administration information relates to a company that is or has been under external administration–a person who is carrying out, or has at any time carried out, a review of the external administration of the company under Subdivision C of Division 90 of Schedule 2 to the Corporations Act.

ASIC may only give administration information in certain circumstances

(3) ASIC must not give administration information to a person under this section unless ASIC is satisfied that:
(a) the administration information is relevant to the person; or
(b) the administration information is relevant to the exercise of a power or performance of a function under the Corporations Act by the person in relation to:
(i) a registered liquidator; or
(ii) the external administration of a company; or
(iii) the control of property of a corporation; or
(c) it is otherwise reasonable to give the administration information to the person.

Process to be observed before administration information given

(4) Before giving administration information to a person under this section, ASIC must give the external administrator of the company or the controller of the property of the corporation (as the case requires) notice in writing:
(a) identifying:
(i) the administration information that ASIC proposes to give; and
(ii) the person to whom ASIC proposes to give the information; and
(b) inviting the external administrator or controller (as the case requires) to make a written submission to ASIC within 10 business days after the notice is given, stating:
(i) whether he or she has any objection to the administration information being given to the person; and
(ii) if he or she has such an objection, the reasons for that objection.

(5) If the external administrator or controller (as the case requires) objects to the administration information being given to a person, ASIC must take into account the reasons for that objection when deciding whether to give the information to the person.

(6) If the external administrator or controller (as the case requires) has made a submission objecting to the administration information being given to a person and ASIC decides to give the information to the person, ASIC must give the external administrator or controller (as the case requires) 5 business days’ notice of its decision before giving the information to the person.

Conditions

(7) ASIC may, by notice in writing to the person to whom ASIC gives the administration information, impose conditions on the use and disclosure of the administration information by the person.

Offence

(8) A person commits an offence if:
(a) ASIC gives administration information to the person subject to a condition in relation to the use or disclosure of that information by the person; and
(b) ASIC has given the person notice of the condition under subsection (7); and
(c) the person does not comply with the condition.

Penalty: 3 months imprisonment.

Notices are not legislative instruments

(9) Notices under subsections (4) and (7) are not legislative instruments.

Definitions

(10) In this section:
“control” of the property of a corporation means:
(a) the receivership of that property; and
(b) the possession, or control, of that property for the purpose of enforcing a security interest;
and includes any functions or powers in connection with managing the corporation that may be performed or exercised by a receiver or other controller of that property.
“external administration” of a company has the same meaning as in Schedule 2 to the Corporations Act.
“external administrator” of a company has the same meaning as in Schedule 2 to the Corporations Act.
“registered liquidator” means a person who is registered as a liquidator under Schedule 2 to the Corporations Act.

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