find the latest legal job
Senior Associate - Litigation & Dispute Resolution
Category: Litigation and Dispute Resolution | Location: Melbourne CBD & Inner Suburbs Melbourne VIC
· Come work for a firm ranked in Lawyers Weekly Top 25 Attraction Firms
View details
Associate - Workplace Relations & Safety
Category: Industrial Relations and Employment Law | Location: Brisbane CBD & Inner Suburbs Brisbane QLD
· Employer of choice · Strong team culture
View details
Freelance Lawyers
Category: Banking and Finance Law | Location: All Perth WA
· Freelance opportunities through Vario from Pinsent Masons
View details
Freelance Lawyers
Category: Other | Location: All Adelaide SA
· • Qualified lawyer with a strong academic background
View details
Freelance Lawyers
Category: Other | Location: All Melbourne VIC
· • Qualified lawyer with a strong academic background
View details
ACLA 2010: Phone tapping to be used sparingly - ASIC

ACLA 2010: Phone tapping to be used sparingly - ASIC

Belinda Gibson, the deputy chairman of ASIC, has told Lawyers Weekly that the regulators will not be "driving around in vans up and down St Georges Terrace or listening in on everything," as…

Belinda Gibson, the deputy chairman of ASIC, has told Lawyers Weekly that the regulators will not be "driving around in vans up and down St Georges Terrace or listening in on everything," as ASIC signalled it will limit its proposed phone tapping powers to serious markets offences.

"I don't envisage that ASIC will be seeking to exercise those powers very much" Gibson said. "In the time I have worked in the supervision of the markets, in the last three years there has only been three or four instances where it might have been helpful.

"It doesn't come up very often, and to get a warrant from the magistrate you need some pretty good evidence."

In May, the Federal Government announced legislation that would allow ASIC to monitor phone calls in a bid to curb insider trading and market manipulation.

Gibson spoke to Lawyers Weekly after giving the keynote presentation yesterday afternoon (11 November) at the ACLA Conference.

Standing in for ASIC chairman Tony D'Aloisio, Gibson made the observation that over the last 20 years, ASIC has grown "from a nascent social network to a professional association of committed commercial lawyers with a clear and important role in our corporate sector and financial markets".

Gibson also acknowledged the skills of corporate lawyers early in her speech.

"The unique attribute of corporate lawyers is that you are generalists, you must know quite a lot about everything, and apply it in a commercial environment, usually in a very tight timeframe.

"This is an attribute a Commissioner at ASIC needs."

In a wide ranging speech that touched on ASIC's responsibilities as a market supervisor and the importance of surveillance, Gibson paid particular attention to the importance of continuous disclosure.

"Before joining ASIC I was an adviser to listed entities", Gibson said, as a nod to 20 years as a partner in the M&A group at Mallesons Stephen Jaques between 1987 and 2007.

"I know the question of when to disclose is very difficult. I know that disclosure can damage the underlying deal. Against this, the reputation for integrity of our market is critical to attracting capital. If investors believe that people 'in the know' can profit ahead of others, or can manipulate trading by parlaying information, the whole market is damaged."

Gibson made it clear that companies are immediately required to disclose sensitive information, unless carve out rules apply. Gibson said that if a deal has been leaked to the media, companies should act quickly to inform the market as "confidentiality is lost and exceptions to disclose do not apply".

She also warned that while the Australian Securities Exchange (ASX) still has the primary responsibility for supervising continuous disclosure, ASIC will also be taking a more active role. Gibson said that it already monitors media coverage and stocks of entities that have anticipated deals, and that it would telephone companies directly if there was evidence of abnormal trading or media coverage of mooted transactions.

Gibson was joined on the podium by Les Taylor, a former chief solicitor and general counsel with the Commonwealth Bank Group and barrister David Bennett, the Australian Solicitor-General from 1998 to 2008.

"I think we have some pretty good people at the top level of our regulators who are applying common sense," Taylor said. "Whilst it will cause a lot of pain and extra costs for you guys and your corporations, hopefully the increased regulation won't be too much, and there will be a lot of common sense involved."

Bennett added that when it comes to influencing the conduct of corporations, in-house counsel are in a position to have more influence than lawyers with law firms. "I have always thought that in many ways, a lawyer employed by a corporation, contrary to popular superstition, has more independence than an outside lawyer," Bennett said. "If you consider the classic situation where, in the course of discovery, you come across the 'smoking gun' document and you have the issue of whether you do the right or wrong thing with it. It is hard to imagine a corporate lawyer being sacked for insisting in disclosing a document. Can you imagine what would come out in the wrongful dismissal case?"

In speaking to Lawyers Weekly after her address, Gibson acknowledged that ASIC looks at the actions of other regulators, such as the Securities and Exchange Commission (SEC) in the USA, in forming its own policies.

"One of the things the SEC has is a Risk Committee, brought in after the financial crisis, and they are doing some really good work," she said. "We can't possibly emulate that [due to resources and expertise], but we can borrow and build from that."

Gibson also said that the ASIC guidelines on mortgage lender exit fees, released earlier this week, are very much aimed at protecting retail investors and sit in the unfair contract space.

>> Click here to read Lawyers Weekly's full coverage of the ACLA National Conference 2010

Read the latest in-house news, views and opinions

on our specialist in-house website

Like this story? Read more:

QLS condemns actions of disgraced lawyer as ‘stain on the profession’

NSW proposes big justice reforms to target risk of reoffending

The legal budget breakdown 2017

ACLA 2010: Phone tapping to be used sparingly - ASIC
lawyersweekly logo
Promoted content
Recommended by Spike Native Network
more from lawyers weekly
Scales of Justice
Oct 19 2017
‘Ego status’ compelled ex-lawyer to defraud $2.97m, court told
Debarred lawyer John Gordon Bradfield told an NSW District Court that he was driven by “ego status...
Australian Lawyers Alliance (ALA), Queensland’s new industrial manslaughter legislation,
Oct 19 2017
ALA welcomes ‘tough’ Qld manslaughter laws
The Australian Lawyers Alliance (ALA) has welcomed Queensland’s new industrial manslaughter legisl...
Legal podcasts, tune in, microphone
Oct 19 2017
Legal podcasts you have to tune in to right now
The rise of the internet has hailed in a new dawn for storytelling. Here’s our top pick of podcast...
Allens managing partner Richard Spurio, image courtesy Allens' website
Jun 21 2017
Promo season at Allens
A group of lawyers at Allens have received promotions across its PNG and Australian offices. ...
May 11 2017
Partner exits for in-house role
A Victorian lawyer has left the partnership of a national firm to start a new gig with state governm...
Esteban Gomez
May 11 2017
National firm recruits ‘major asset’
A national law firm has announced it has appointed a new corporate partner who brings over 15 years'...
Nicole Rich
May 16 2017
Access to justice for young transgender Australians
Reform is looming for the process that young transgender Australians and their families must current...
Geoff Roberson
May 11 2017
The lighter side of the law: when law and comedy collide
On the face of it, there doesn’t seem to be much that is amusing about the law, writes Geoff Rober...
May 10 2017
Advocate’s immunity – without fear or without favour but not both
On 29 March 2017, the High Court handed down its decision in David Kendirjian v Eugene Lepore & ...