Financial Services Royal Commission and use of information disclosed to ASIC

The Financial Services Royal Commissioner has signalled that the first round of public hearings from Tuesday 13 March will not necessarily be a mere recitation of case histories.

In his reasons for a non-publication direction relating to one exhibit to CBA’s statement in the Commission’s examination of CBA’s mis-selling of consumer credit insurance the Commissioner rejected a non-publication direction for other exhibits. The Commissioner stated that “Exceptional circumstances must be demonstrated for the Commission… to direct that information revealing conduct of a kind that the Commission must investigate and report about not be publicly available.”

CBA had sought to keep confidential exhibits containing communications between it and ASIC, internal audit documents and board papers and details of its the design, cost and implementation of its remediation program.

While section 912D of the Corporations Act requires self-reporting by AFS licensees of significant breaches of the Corporations Act and financial services laws, ASIC often relies on co-operation from licensees in answer to its surveys.

It is understood that when a financial services provider responds to an ASIC survey that information is confidential.

However the Royal Commission has extensive powers to summon witnesses and obtain evidence (section 2) with a discretion to allow evidence to be kept private (section 6D).

It has made clear that it will not allow evidence relating to misconduct to be kept private.

It will be interesting to see the effect of the Commission on future voluntary disclosure to ASIC and whether the Commission is able to identify whether past misconduct is attributable to a particular culture or governance.

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