It is sometimes in your best interest to disclose inside information to ASIC, the waiver of privileges does not inevitably arise from disclosure to third parties, and the courts continue to recognize that disclosure to a regulatory authority, pursuant to a restricted waiver agreement, does not necessarily result in a more general waiver.5 Nevertheless, disclosure of preferred documents to third parties certainly increases the risk of loss of privileges. As soon as confidentiality is lost, it cannot be recovered and can have significant consequences.6 Section 1: Lawyer privilege and coercion powers Disclosure of privileged documents to a regulator can lead to disclosure to other regulators. As a result, ASIC and APRA have undertaken, following the recommendations of the Royal Commission on Financial Services, to undertake investigations or enforcement actions and, where possible, to exchange appropriate relevant information.7 ASIC has given no indication as to the intention to negotiate the terms of the standard form of the voluntary disclosure agreement. However, if you wish to reach an agreement, you can negotiate additional terms to further protect the confidentiality and privilege of your documents. This article was first published in the Financial Services newsletter, Vol 11 No 9, May 2013 authorities and civil parties (particularly class law firms) will seek access to these documents to build an appropriate case. While the disclosure of privileged documents may have achieved the desired objective of achieving a satisfactory outcome in a regulatory investigation context, these same documents may provide unnecessary ammunition in a civilian judicial environment. While Australian regulators cannot force the production of preferred materials, renouncing privileges – even if they are not mandatory – can be an attractive but risky offer for companies that want to strike the right balance between cooperation and the protection of their legal advice and communication. However, a decision to disclose privileged documents is not without complexity and must always be approached with the whole in mind. If you are a lawyer and are entitled to ASIC as a preferred holder, you must follow the procedure described in Section 3 in order to assert a right.
In these circumstances, ASIC does not accept any attempt on your part to invoke Section 69 of the ASIC Act or Section 296 of the National Credit Act. ASIC will not accept a PPL right if the PPP holder or a joint PPL holder has waived the privilege or if the rights holder or the common rights holder acted in a manner inconsistent with the maintenance of the privilege. Multi-jurisdictional investigations necessarily involve taking into account complex issues arising from different legal systems, different rules of privilege and different expectations of regulators. Thus, many countries do not recognize the concept of privilege, but recognize, in certain circumstances, solicitor-client privilege from one lawyer to another. Given the strengthening of cooperation and the exchange of information between different regulatory authorities, at home and abroad, a company cooperating with one agency should expect to share the same information with investigating authorities in other jurisdictions. If you are the recipient of the notification and claim a lien for a document (LPP document) that has not been accepted or designated in your favour by ASIC, it is important that enforcement or waiver decisions are not taken lightly and without effect. A company could make a strategic decision to waive the right for a number of reasons: Section 5: Voluntary Confidential Disclosure of Information LPP Summary When ASIC asked to enter into a voluntary disclosure agreement, to carefully consider: in the case of an external management of a company in which a liquidator, liquidator or director were appointed simultaneously, this is the position of ASIC , as ASIC , subject to the terms of the deed of appointment of the beneficiary, receipt of