Middleton, Tom (2013) ASIC's regulatory powers: interception and search warrants, credit and financial services licences and banning orders, financial advisers and superannuation: problems and suggested reforms. Company and Securities Law Journal, 31 (4). pp. 208-236.

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Abstract

The Australian Securities and Investments Commission's increased regulatory responsibilities, coupled with growth in the range and complexity of the financial products it has to regulate, pose enormous regulatory challenges for ASIC in the future. It is argued that these challenges are exacerbated by the gaps, inconsistencies, uncertainty and weaknesses in the current regulatory framework. A number of problems are highlighted in this article, including ASIC's inconsistent search warrant powers and its inconsistent regulatory powers relating to superannuation and retirement funds. Regulatory deficiencies or weaknesses are identified in relation to telecommunications interception warrants, ASIC's powers to regulate credit and financial services licences, its powers to make banning orders and the new statutory duties of financial advisers to act in the best interests of their clients. In some cases, the regulatory laws do not ensure the disclosure of material facts or risks to investors nor do they adequately deal with the problem of "shadow banks". Some of the regulatory laws do not ensure that ASIC can detect contraventions in a timely manner. The reforms suggested in this article would promote greater harmonisation of the regulatory laws that govern ASIC's investigative and enforcement powers and reflect "best practice". Best practice promotes more effective regulation and public confidence in the integrity and credibility of the regulatory system and enhances the economic welfare of all Australians.

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