Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Hansard source

I thank the Senate for the opportunity this afternoon to outline the government's position on this matter. Today's order relates to recommendations of the interim report of the Senate Economics References Committee inquiry into ASIC's investigation and enforcement. As the attachments to the committee's interim report make clear, ASIC has made a number of public interest immunity claims over a number of investigation documents sought by that committee. ASIC's letters, included with the Senate Economic References Committee's interim report, outline the basis of ASIC's PII claims. There are several grounds, including the possibility of prejudicing ongoing investigations or enforcement matters, concern over disclosing publicly ASIC's law enforcement methodologies, possible prejudice to third parties' privacy and reputation, and possible disclosure of privileged legal advice. I have been advised that these documents include case files related to a number of ASIC investigations. This constitutes terabytes of data, potentially, including privileged legal advice, affidavits filed by witnesses and, most significantly, section 19 transcripts. Section 19 refers to ASIC's power to require people to answer questions under oath without any right to silence—in many ways a broader power than police forces can exercise. People can be imprisoned for failing to comply with section 19 notices.

To be clear, neither I nor the Treasurer or Assistant Treasurer have seen the relevant documents, and there is good reason for that. As an independent regulator, ASIC only shares confidential investigative information with the government in the very rare event that it is necessary and appropriate to do so. As the Senate would be aware, the government is precluded from giving ASIC directions under section 12 of the ASIC Act about particular cases, so the circumstances in which it will be necessary and appropriate to share documents that relate to particular enforcement matters with the government will be extremely rare.

I understand ASIC has indicated to the committee at the public hearing on 23 June 2023 that it is difficult for ASIC to publicly explain the specific harm that would be caused by publishing a document without revealing exactly the information that creates the harm. I'm advised ASIC has offered the committee an in camera briefing to allow ASIC to discuss their PII claim further and make further submissions using nonconfidential information that help explain the context of the enforcement matters of interest to the committee. I understand the chair, Senator Bragg, has rejected this proposal without explanation. I reiterate: we cannot provide these documents as we do not have them, nor have we seen them. I suggest to Senator Bragg and the Senate that the in camera briefing offered is the most appropriate next step to allow the committee to assess ASIC's concerns. If Senator Bragg continues to insist upon the release of these documents in spite of this offer then that will show that he is only interested in political grandstanding and media headlines.