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ASIC’s “tough cop” approach may need recalibrating

Dispute Resolution & Litigation, White Collar Crime & Investigation
Susanna Ford action 1
In an opinion article in the Australian Financial Review, Partner Susanna Ford observes that criticism by the Hayne Royal Commission has caused “ASIC’s regulatory pendulum to swing from the green (no action against larger financial institutions) to the red (litigation for all).”

“Panned by the Hayne Royal Commission as a weak watchdog, prey to regulatory capture and too willing to negotiate with the big end of town, ASIC is fighting for its survival,” Susanna writes.

As a result, regulatory practitioners, including litigators, are seeing ASIC changing its overall approach to investigations, including the use of “increasingly strident” rhetoric in the media.

“But stepping back from the bold rhetoric, while ASIC may have an enhanced armoury of draconian powers, increased resources and a new Office of Enforcement, its real test is yet to come.

“Regulatory investigations and enforcement require a high degree of legal sophistication, particularly when ASIC proposes to refer matters to the CDPP.

“The targets of investigations and litigation are quite legitimately scrutinising ASIC's procedural approach. Blunders and inconsistencies will not be overlooked.”

Click here to read the AFR article.

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