s.91 Australian Securities and Investments Commission

Act & Section

s.91 Australian Securities and Investments Commission

Type

Recovery of expenses of investigation

Process

ASIC Investigation costs

What

ASIC recovery of expenses of investigation

Observations

In general terms ASIC is responsible for the costs of its investigation under Division 1 [Part 3—Investigations and information-gathering Division 1—Investigations]: s. 90.

However, s. 91 provides exceptions that, from time to time, ASIC seek to utilise.

ASIC can seek to recover their costs of investigation in the following circumstances:

(a)   Following conviction of a person for an offence against a aw of the Commonwealth, State or Territory; or

(b)   Where an award or declaration or other order is made against person in a court proceeding; or

(c)    Where a person is convicted of an offence against Division 2 [Unconscionable conduct and consumer protection in relation to financial services] of Part 2 [Australian Securities and Investments Commission and consumer protection in relation to financial services] in a prosecution; or

(d)   Where a judgment is awarded, or a declaration or other order is made, against a person under Division 2 of Part 2 in a proceeding in a court;

where the proceedings began as a result of an investigation under Division 1, ASIC may make one of the following orders:

(e)   The person pay the whole or specified part of ASIC’s expenses of the investigation;

(f)    Reimburse ASIC for specified expenses incurred by ASIC in the investigation;

(g)   Pay the costs of the investigation, reimburse ASIC for costs paid out and reimburse for the cost of remuneration of ASIC staff.

ASIC must make their determination in writing stating how and when the payment or reimbursement is to be paid.

A person who fails to comply with this provision is exposed to a penalty of 120 penalty units.

If the amount is not paid, ASIC may register it as a judgment debt and seek debt recovery processes.