Jana Stewart (Victoria, Australian Labor Party) Share this | Hansard source

As my colleagues, Minister Gallagher and Senator Walsh, have already noted, this is about recommendations of the interim report of the Senate Economic References Committee's inquiry into ASIC's investigation and enforcement. The attachments to the interim report tell us that ASIC has made several public interest immunity claims over a number of documents sought by the committee. As an independent regulator, ASIC only shares confidential investigative information with the government when it is necessary and appropriate to do so. This happens rarely, and rightly so. The Senate will be aware, under section 12 of the ASIC Act, information from ASIC about particular cases cannot be provided. The information requested are documents which include case files related to a number of ASIC investigations. This constitutes potentially terabytes of data, including privileged legal advice, affidavits filed by witnesses and 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. It is very serious business. The circumstances in which it would be necessary and appropriate to share with the government documents that relate to particular enforcement matters would be incredibly rare.

ASIC has offered the committee an in-camera hearing to allow ASIC to make its case and make further submissions using non-confidential information that helps explain the context of the enforcement matters of interest to the committee. The chair, Senator Bragg, has rejected this proposal out of hand without explanation. I would strongly suggest to the Senate that an in-camera hearing would be the most appropriate next step to allow the committee to assess ASIC's concern that legally privileged material, material obtained under oath and material that could compromise the ability of our regulators to do their jobs effectively should not be made public except for the gravest reasons. Untested allegations and unverified personal information included in affidavits or section 19 transcripts being made public could potentially result in damaging financial, reputational and personal consequences for innocent parties. That is something I hope that nobody in this Senate would want to see happen, and it's something that could potentially happen if this were allowed to go ahead.

As the Minister for Finance has indicated, no minister has seen any of the documents sought by the committee through this order. Nor would it be appropriate for them to seek, receive or assess the documents. This is a matter for the Senate Economics References Committee and ASIC. We suggest to the Senate that the most sensible and appropriate next step would be for these documents, which we understand from ASIC are highly sensitive but which ministers have not seen or been given, to be discussed to the extent possible at an in-camera briefing between ASIC and the committee. This is not a cover-up; it is simply due process out of respect for people who are engaging in the process.