ASIC may get extra powers to access telecommunications intercepts

The Australian Securities and Investments Commission (ASIC) may get the powers of a recipient agency under the Telecommunications (Interception and Access) Act 1979 (TIA Act). This is a preliminary position stated by the ASIC Enforcement Review Taskforce, a body established by the Australian Government to assess the suitability of the regulatory tools available to ASIC and whether there is a need to strengthen its toolkit. The Taskforce’s Terms of Reference include the following:

‘The adequacy of ASIC’s information gathering powers and whether there is a need to amend legislation to enable ASIC to utilise the fruits of telephone interception warrants … for market misconduct or other serious offences’.

In a consultation paper, published today, the Taskforce says that it considers, on a preliminary basis, that ASIC should be able to receive lawfully intercepted TI material for the purposes of investigating and prosecuting ‘serious offences’, such as insider trading and certain types of financial fraud.

There are a number of ways to enable ASIC to receive and use TI material lawfully obtained by other agencies for the purpose of its own investigations and prosecutions of serious offences. The obvious option would be to make ASIC a recipient agency under section 68 of the TIA Act, the Taskforce says.

The Taskforce now seeks industry and community feedback prior to reaching its final conclusions. The consultation period closes on August 17, 2017.

• The problem

ASIC as an agency with specific expertise and an express and primary statutory mandate to investigate serious Corporations Act offences but it cannot obtain or receive TI material to conduct investigations and prosecutions. Where an interception agency uncovers TI material relating to serious Corporations Act offences, the current telecommunications interception regime prevents that agency from sharing the evidence with ASIC. As a result, ASIC’s ability to conduct cooperative investigations with agencies like the Australian Federal Police is limited.

• The communication change

Recently, ASIC has noticed rapid changes in the methods in which individuals that are the subject of investigations are communicating. Communications which were once conducted through emails, SMS messages and over phone lines are now being conducted over Internet-based messaging and communication platforms such as Snapchat, WeChat and WhatsApp. Such communications are not apparent from telecommunications carrier records. The issues arising from ASIC’s current inability to obtain or access intercepts of voice communications are set to carry through and be compounded as communication through Internet-based messaging and communication platforms becomes common.

• Interception and recipient agencies

The paper recommends that ASIC gets the powers of a recipient agency, that is, it may generally use the TI material for investigations and prosecutions of ‘relevant offences’ within its jurisdiction.

The Taskforce adds that a more expansive option would be to include ASIC within the definition of ‘interception agency’ in the TIA Act so that it can seek a TI warrant from an eligible Judge or AAT Member for the purpose of investigating serious CA offences, and other ‘serious offences’ within its investigative jurisdiction, and then obtain and use TI evidence for the purpose of its own relevant investigations and prosecutions.

However, the Taskforce does not recommend this option. One of the reasons for that is:

“This will likely increase the number of telecommunication interceptions that are obtained and consequently the amount of data that is captured through this invasive power, particularly given the increased reliance on internet based platforms discussed above. This would have a corresponding impact on the privacy of individuals who may not only be suspected of serious crimes, but those with whom suspected individuals communicate, who may not be subject of an investigation.”